Join 3,425 readers in helping fund MetaFilter (Hide)


It seems likely
November 7, 2002 12:54 PM   Subscribe

It seems likely that we'll be hearing a lot more about tort reform, especially medical malpractice tort reform, over the next couple years. Sadly, many don't even know exactly what a tort is, let alone how the tort system works, although most have heard about individual lawsuits through the media. Conservatives tend to focus on capping damages, reigning in juries, and allowing businesses to contract out of tort liability. Liberals generally oppose these proposals, and some have a few ideas about reform as well. Of course, we could always follow the example of New Zealand and scrap the tort system altogether. Maybe the Supreme Court will give the GOP some suggestions about reform in their latest tort case.
posted by boltman (32 comments total)

 
All I know about torts is that it tends to involve either a railroad companies or a tugboat operator...
posted by gyc at 1:06 PM on November 7, 2002


My total inability to grasp the subtleties of what a "tort" is lead to a longstanding "in joke" with a close friend in law school.

When something becomes confusing, I'll punch him in the arm and yell "Tort!"

I also use "tort" to mean almost anything I dislike.

Law school friend (steve) also got a piece published in his law review... a review of a lawsuit against a fertility clinic. The title: "Congratulations... It's a Tort!". I'll never grow tired of talking/joking about torts... even if I never fully understand them.
posted by cadastral at 1:13 PM on November 7, 2002


hmmm... my cousins in NZ have told me that folks are finding ways to sue (sneaking around the no-fault policy) lately, inspired by mega-torts in the US that make the international news. wish i had an example...

oh yeah - and just to toss this in... my feisty NZ grandmother spent the last 10 years of her life fighting for funds for home healthcare, due to a badly broken leg. she tripped over a very unsafe and poorly designed boat display (of all things) that was in the auckland airport. this left her pretty immobile, even after the leg healed. the airport gave her about 600 dollars (NZ dollars, equal to about 300 USD at the time) as compensation and apology. one benefit of torts and personal injury lawsuits in the US is that people running things in public places have to think quite a bit about preventing nasty/silly/needless accidents.
(yikes - first post and now i'm getting all worked up...)
posted by chr1sb0y at 1:19 PM on November 7, 2002


Boltman, we in NZ haven't scrapped the tort system altogether. We've scrapped the ability to sue in negligence for personal injury or medical misadventure. Other torts, such as nuisance, are alive and kicking.

Instead we have what amounts to a state-run compulsory insurance scheme, funded by levies on employers and employees - see here. There is a long-running debate here about the efficiency and fairness of the accident compensation scheme. Most people, I think, like the theory, but find the practise wanting.

You can still be awarded extraordinary damages in NZ for personal injury, but courts set an extremely high bar before they do this.

(For those of you who didn't do Tort 101, there are 3 kinds of damages - compensatory, punitive, and extraordinary. Compensatory is what you think it is, punitive is to punish the defendant, and extaordinary damages are awarded when the defendant has done something so outrageous that the court feels they must be made an example of to deter others.)

And chr1sb0y - yeah, operators of public facilities in NZ don't have to be so paranoid, but they can still be punished through industrial safety legislation. And we don't have the proliferation of warning signs for idiots that you seem to have in the US. Even when we did allow suits for personal injury, the standard for behaviour was "reasonable person", not "brainless fucktard".
posted by i_am_joe's_spleen at 1:33 PM on November 7, 2002


Right. So.... we can't get a decent Patient's Bill Of Rights or universal health care, but it's vitally important that we make it impossible for corporate-controlled hospitals to be held accountable for gross neglegence. Ironically, I feel sick. (Excuse me while I figure out which term to use to throw up.)
posted by XQUZYPHYR at 1:50 PM on November 7, 2002


OK, someone explain something to me. When the plaintiff wins a lawsuit, the jury (or judge, in a non-jury suit) can award two different types of damages: compensatory, the purpose of which is actually compensating the plaintiff for his injuries; and punitive, the purpose of which is to punish the defendant and/or serve as a deterrent to those who would do such things in the future.

My question: why does the plaintiff get the punitive damages? What rationale could possibly lead to that result? It seems to me that, while the plaintiff should certainly receive the compensatory damages, punitive damages should be paid to the government (if you want to get specific, it can be to whatever jurisdiction the suit is filed in).

Seems to me this would solve a lot of the problems: it would remove a lot of the incentive for frivolous lawsuits, but not lead corps to engage in the cold-hearted calculation that capping damages would.
posted by DevilsAdvocate at 2:03 PM on November 7, 2002


...operators of public facilities in NZ don't have to be so paranoid, but they can still be punished through industrial safety legislation.

Yeah -- if someone injures themselves at a workplace, and the Court finds that the injury occured because of a breach of Occupational Safety and Health legislation, a company can be fined, and half the sum awarded to the victim. It amounts to a kind of de facto personal injury settlement. Or at least it did in 1996, when I did Torts. I don't know if things have changed now that lump sum compensation is back under the new ACC Act.
posted by Sonny Jim at 2:04 PM on November 7, 2002


Useful to note that the GOP dislikes the tort game because it makes money for lawyers who tend to be big supporters of GOP and the Dems like lawyers (and not doctors) because they are big supporters of their party-or what is now left of it. If a cap is placed and is insuffiently high enough, a company may merely say the hell with and continue to do something outrageous. It is worth while for tobbacco companies to sell cancer products despite fines levied against them.
posted by Postroad at 2:14 PM on November 7, 2002


To address one part of the post, with any luck at all, the Supreme Court will do something with the abomination that is mass-tort asbestos litigation. Asbestos cases -- brought by thousands of employees on the premise that they have an "increased risk" of getting cancer -- have already sent 16 asbestos manufacturers (or their successors) into bankruptcy, resulting in thousands of lost jobs and millions of dollars in lost stock value. Things are so bad that lawyers for clients who actually have cancer are aligning with the defendants to push for reform -- worried that soon there won't be any collectible entities left for those who are truly sick.

[/rant, but you can read more at this old thread]
posted by pardonyou? at 2:17 PM on November 7, 2002


XQUZYPHYR, maybe you should hurl torts! I just did.
posted by LouReedsSon at 2:26 PM on November 7, 2002


Many states, including some of the more "liberal" states like California and New York, have highly reasonable and workable limitations on medical torts, usually through a combination of court decisions and state statutes.

The states that DON'T have these limitations have health care systems which are in crisis, because medical malpractice insurance rates are simply impossible to manage in the face of tight-fisted HMO compensation.

Responsible plaintiff's lawyers understand that systems which take the "lottery" element out of negligent injuries truly benefit everyone. After all, if doctors start saying, "screw it, I won't get coverage," who is going to pay the damages?
posted by MattD at 3:14 PM on November 7, 2002


Let me start by noting that I am a trial lawyer in practice with one of the largest plaintiffs personal injury law firms in the Midwest. That being said, it should also be noted that I spent the first ten years of my career defending large corporations and insurance companies from the same types of claims that I now bring on behalf of my clients.

The strength of the current jury system is that the jury's verdict in any given case tends to reflect the prevalent community values regarding compensation for those injured through the fault of others. At the present time, jury verdicts are clearly being influenced by the negative publicity surrounding lawsuits and tort claims in general.

Over the past few years, those of us who work in the field have seen a signifigant reduction in the success rate of cases tried to jury as well as a substantial reduction in the amount of compensation given to plaintiffs in cases where the plaintiff is the prevailing party. More than one trial Judge has commented to me that deserving plaintiffs were being under-compensated by juries on a regular basis.

Of the personal injury cases tried in Hennepin County, Minnesota (Minneapolis) over the past two years, right around 60% resulted in a defense verdict with no money being paid to the plaintiff. Of the cases resulting in a verdict for the plaintiff, about half awarded less than $10,000. The remaining cases, about 20% of the total, resulted in verdicts for more than $10,000, but the distribution of those verdicts was skewed toward the lower end of the range.

As in any sample, there were some substantial verdicts, including an award of around $4,000,000 to a 5 year old girl who suffered, among other serrious injuries, a traumatic amputation of her right arm.

I'm certainly not seeing any evidence of runaway jury verdicts here in the Midwest.

The jury system is working. In a sense, it is a self-correcting process, driven by community values and always subject to judicial oversight. To place artificial caps on jury awards only serves to limit the recovery of the most severely injured individuals and reduce the incentives for defendants to safely design products and conduct their affairs in a reasonable and prudent manner.

Much is made of the problems surrounding the issue of punitive damages. I can state that out of the thousands of cases my firm has handled in the last 25 years not one case involved an award of punitive damages. In the entire state of Minnesota over the last year, I am unaware of any punitive damages awarded in a personal injury case.

With respect to punitive damage awards generally, the standard of conduct enabling an award of punitive damages is generally along the lines of willful or malicious conduct evidencing deliberate disregard for the safety or property of others. The purpose of pumitive damages is to deter a defendant from engaging in that type of willful or deliberate conduct that gave rise to the claim of the plaintiff. The various state legislatures have the ability to regulate, reduce or eliminate punitive damages and traditionally have exercised this authority in a fashion that is accountable to the people who elect them. There is no need to entertain or contemplate federal legislation in this area.

Finally, I don't do a lot of medical malpractice work, although I have both defended doctors accused of malpractice in the past as well as brought claims against them.

There are substantial legal hurdles that must be overcome before one even gets to present the case to the jury and even when one gets to verdict, substantially less that half of the cases result in an award for the plaintiff. Doctors and hospitals, for the most part, do a wondrerful service for the community. However, there are some doctors who just shouldn't be practicing. These few bad doctors make mistakes that give rise to the bulk of the claims.

From my position in the trenches, the system is working. For the most part, the bad cases result in a verdict for the defendant, the good cases result in fair compensation for the injured plaintiff.

Any effort to alter the balance will result in deserving individuals going uncompensated for their losses.
posted by mygoditsbob at 3:22 PM on November 7, 2002


joe's spleen: thanks for the clarification on the New Zealand system. I think its a pretty interesting way to deal with the negligence issue in a more rational way. A state-run system can look at the costs and the benefits of the challenged activity and make a rational decision about whether it is socially useful enough to allow. Decisions are based (theoretically) in the public interest. Private lawsuits don't tend to invite this kind of wider analysis, especially since (in this country anyway) they are decided by juries. Sympathy for or dislike of the plaintiff and the defendent and the depth of the defendent's insurance company's pockets are what generally drive jury decisions rather than concerns about cost and benefits for society as a whole. As I mentioned in the Constitutional convention thread a few days ago, I'd think pretty seriously about getting rid of the 7th amendment if it were up to me.

pardonyou: I could be wrong, but don't think that the Supreme Court case will have much legal effect on the aesbestos cases since I assume most of them are brought under state tort laws rather than FELA. However, that's not to say that it won't have some persuasive influence on state courts.
posted by boltman at 3:24 PM on November 7, 2002


mygoditsbob: I didn't see your comment before I posted, but I found them quite interesting. I definitely agree that arbitrarily capping damages is a lousy way to go about it. But I'm curious how often you see damage awards reduced or overturned on appeal? I have heard that it happens quite frequently but I have seen no empirical evidence to back it up.

You comments about juries reflecting community values also reminded me of another issue that I have wondered about in the tort reform debate. Wouldn't it be a rather egrigious intrusion by Congress into an area of policy traditionally left to the individual states? I'm not aware of any other federal laws that attempt to "reform" state common law. I suppose it could be legally justified under the Commerce Clause, but it still seems pretty offensive from a federalism perspective. Any thoughts?
posted by boltman at 3:40 PM on November 7, 2002


I just read the linked article by David Bernstein on capping damages again and noted the he suggests having judges rather that juries make the determination of damages.

I'd do this in a minute on every case I have open. The problem is that the defendants and the insurers backing them prefer a jury determination of damages in the current anti-tort climate.

Given what juries are actually doing on a day to day basis, I can't understand the hue and cry for tort reform.
posted by mygoditsbob at 3:54 PM on November 7, 2002


boltman: I've not seen a lot of verdicts reduced by judges in my practice. It may be that verdicts here are not so shocking to the conscience so as to mandate judicial interference.

As you may know the notorious "spilled coffee" verdict against MacDonalds in New Mexico was reduced by the New Mexico Supreme Court from $2,000,000 to something around $220,000.

Most any substantial verdict is subject to reduction on appeal and that has the effect of causing a lot of these cases to settle after verdict during the appeal process.

Most of the cry for federal intervention is rationalized under the Commerce Clause. I think that the current Supreme Court would support any effort to "federalize" medical malpractice and products liability law on that basis. It would represent a departure from past practice on the part of Congress to leave common law torts to the states. I think it would be a bad idea.

There is some precedent. The railroads are subject to FELA and shipping companies that ply the waterways are subject to the Jones Act but these relate to claims of employees against their employers. Nothing else comes close to what is being proposed regarding medical malpractice and products liability.

Several years ago, a bill was floated around the U.S. Senate for a nationalized no-fault auto insurance system. Both the trial lawyers and the insurance industry thought it was so ill-conceived that we united in opposing it. It was dropped. Not becuase of the trial lawyer opposition but because State Farm leaned on the Senate sponsers.
posted by mygoditsbob at 4:13 PM on November 7, 2002


Actually boltman, the biggest win from our system is that it provides a solution where there is no clear party at fault, or where the party at fault simply can't afford to pay.

In the tort world, the injured party either goes after the entity with the deepest pockets or is shit out of luck.

In our system, the injured party is always compensated - in theory, at least. In practise, there can be protracted disputes with the Accident Compensation Corporation about the extent of harm suffered, or whether the injury was truly accidental or the result of medical misadventure.

However, I understand your tort reform movement doesn't really look at providing such a "socialist" remedy to injury compensation, and is more about limiting corporate liability, so I'm not sure how relevant we really are to you.
posted by i_am_joe's_spleen at 4:31 PM on November 7, 2002


I like Devil's Advocate's point about imposing exemplary damages as a fine rather than a reward to the victim, but I'd go a bit further. See, the principle on which torts are based is returning the victim to the state in which they would be were it not for the tort (as much as money can). Seems to me a better bar to set would be to return the victim to a state not below a reasonable standard of living. That is, if the tort renders you permanently unable to work, you get enough money to pay for your food, rent, and the reasonable living expenses of a comfortable life, and cover your medical needs.

Further, I suggest getting rid of the once-and-for-all (or lump sum) rule, and allowing the court to award pensions and medical coverage instead. This actually works out cheaper for the defendant, particularly insurers, as they don't have to come up with a huge amout of money all at once. It also prevents the plaintiff blowing the lot (which an amazing number of plaintiffs do), and provides for them if they end up needing more money, due to complications etc. On the other hand if the plaintiff dies earlier than expected, the defendant no longer has to pay. So everybody wins.

Another fundamental problem with the torts system is it tries to do three things: (1) compensate victims; (2) punish wrongdoers; (3) serve to deter potential wrongdoers. These functions could be broken up into: (1) a universal insurance scheme ala New Zealand's; (2) fines and jail time; (3) health and safety inspections. I think what's wrong with NZ's system is the lack of fines and jail time. These are vital to maintaining the system; if there's a Santa Claus insurer to pick up the cost of any injury a person suffers, there needs to also be an agency charged with reducing the incidence of injuries. Keeping them down to the level of unforeseeable accidents, below negligence.

That's yet another problem with torts: it doesn't, as is, compensate the victims of unforseeable accidents. Whether you fall down the stairs of your own accord or I push you, whether you run your car into a pole or I run my car into yours, you will suffer equally. But only in the case of 'fault' is there compensation.
posted by aeschenkarnos at 5:14 PM on November 7, 2002


aeschenkarnos: I don't think that we should be looking to make it cheaper for insurers if that has the effect of depriving an injured party of just compensation.

What I sense you're really getting at is the whole idea of defining fair compensation. If you talk to the person that suffered the loss, I think you'd find that their idea of fair compensation comes closer to what the current system is attempting to provide. An injured, unemployable person with an earning history of $45,000 per year is not going to feel that justice has been served when General Motors Corporation is only required to pay their medical expenses plus the average salary of $35,000 per year. Generally speaking, damages in tort cases are designed to make a person whole as far as possible after a loss.

There are circumstances where damages are paid on an annuity basis eliminating the tenancy for the injured person to dissipate the recovery shortly after the end of the litigation. I's my sense that defendants prefer the "one time payment" method of compensation if only because it allows them to close the books on a claim after the payment is made. Plaintiffs prefer because it gives them control of their destiny, an important consideration given the tendency of large companies here to go belly up from time to time.

I don't see the U.S. ever going to some type of governmentally administered program. There's just not that much faith in the ability of the government to efficiently administer such a program over time. They're talking now about privatizing the Social Security system. I can see the creation of a new government agency to run this type of program.

Lest I be seen as an obstructionist, unwilling to challenge the status quo, it should be remembered that this current tort system has evolved over hundreds of years. What we have now is the result of many false starts and wrong turns as well as a good deal of sound planning and solid thinking. Change, if it comes should be slow and deliberate with a look to the past as well as an eye to the future.
posted by mygoditsbob at 5:42 PM on November 7, 2002


Pardonyou? - Interesting thread - thanks for the link.

A few months ago, my dad was diagnosed with mesothelioma; cancer caused by asbestos exposure. He never worked with the stuff, we can't source it to save our lives - and the thing is, meso is 100% fatal.

One bad part of this (aside from me being 100% guaranteed of watching my dad die a long and painful death, eventually suffocating on his own lungs), is that it's not even his fault. And I don't mean that to sound mean, cruel, or crass - the thing is - he didn't smoke; he didn't do anything to cause the cancer - but someone else DID - or is at least partially at fault. Johns Mansville/Owens/GP, etc. - many knew that asbestos caused cancer and respitory problems, but they installed it/sold it/manufactured it anyways.

My point: They knew it was wrong (just like the tobacco folks) - but they did it anyways. They need to know that what they did was wrong - and the best way to show them that is to hit 'em in the pocketbook. Now, why shouldn't they have to pay for my dad's medical bills? His chemo treatments - once weekly - are costing $23,000 EACH WEEK. Luckily, he has insurance to cover it - but the thing is, a point will come when it doesn't. So, compensatory damages serve their purpose - granted, if my father receives a judgment or a settlement, most will go to the insurance companies, and rightfully so.

So, if Johns Mansville (or whomever) knew were screwing the consumer, why should they get off easy and not have to pay punitive damages? I think there's absolutely no problem in giving punitive damages to the plaintiff. Granted, I'm rather connected to this issue, but still - my dad (and the vast majority of plaintiffs) go through hell - a hell that they wouldn't have to go through if it weren't for the defendant (duh, that's why they're suing). Why shouldn't he have some extra money (through punitive damages) to make his last few days/months/years with his family good ones?

I'm really not coming off well here, but this is definitely a flash-point for me. We're battling to find defendants for our suit - there really aren't that many around who have enough money left to make a suit worth it. I'm a law student, and I'm learning a lot from school, and from my dad's legal experiences; however, I still couldn't be a toxic tort plaintiffs' attorney - there's just such a chance that your client will be disappointed...or, in situation like my dad's, that your client won't even live to see his own trial. I just couldn't do it...so I admire those attorneys who do fight for the injured.

This is not to be taken as a "why me" or "poor me" post. In voicing my experiences, I'm just trying to give a different standpoint to this discussion. Then again, maybe it doesn't add anything.
posted by MeetMegan at 6:55 PM on November 7, 2002


MeetMegan, I'm sorry about your dad's situation. But take a closer look at my post. I don't quarrel with the notion that people who truly suffer injuries should be compensated. My main point of contention with the current asbestos litigation structure is that it permits claims of individuals with asbestosis -- a condition that most often is not fatal, but sometimes leads to cancer -- and compensates them as if they will have cancer. So you have all of these "theoretical" claims sucking the life out of prior asbestos manufacturers. Eventually -- and it's already happened 16 times and will happen again -- the claims send the companies into bankruptcy. When the company goes into bankruptcy, one of two things happens: either it goes under, or it reorganizes. In either case, its prior debts (including legal claims) are wiped clean. So who loses? The people who subsequently come down with real injuries -- people like your father. That's why there are plaintiff's attorneys who are arguing for reform to protect those who actually get sick.

Even if you do believe that asbestos manufacturers should be hit "in their pocketbooks," remember that they don't grow money on trees. For many companies asbestos claims have already toppled them -- including companies like Federal Mogul, which has asbestos liability only because in 1998 it purchased another company that at one time had made asbestos. (As an aside -- how many $28 billion damage awards do you think Philip Morris can absorb before it, too, goes under (PM is estimated to have a net worth of about 28 billion)? How about the rest of the tobacco industry? You might say, "well that would be a good thing." But that would lead to a situation in which an extremely small number of plaintiffs (10? 20?) reap amazing awards, and all the other millions who didn't race to the courthouse get nothing. That's not good policy).

And I'm sure I'm going to hear from mygoditsbob, but I don't think most plaintiffs lawyers are worthy of your admiration for "fighting for the injured." I've practiced opposite hundreds, and can tell you that for the majority their motivation is to line their own pocketbooks -- they'll sell their client's claim short if it means quick, easy money for them. Obviously there are some whose intentions remain pure (and mygoditsbob, I'm sure you're one of them). And here's another little-known secret: personal injury lawyers stand to make significantly more money than the fancy law firm/corporate lawyers that are so universally despised.

Anyway, I'm very sympathetic to your position, and I don't disagree that your dad is probably the model case for recovering damages. But I would urge you to think deeply about the situation as it exists now -- it's more grey than it is black and white.
posted by pardonyou? at 7:31 PM on November 7, 2002


aeschenkarnos, offenders can get fines and jail time here. But the legal framework for that is decoupled from accident compensation legislation. The deterrent is there though - breaching occupational safety and health (OSH) rules can result in large fines, your workers can refuse to work for you, etc. Organisations I've worked in have been pretty paranoid about OSH rules generally.
posted by i_am_joe's_spleen at 8:10 PM on November 7, 2002


Mygoditsbob: The point of making it cheaper for insurers isn't really to help them, but rather to help the people the insurers have to end up paying. Say an insurer has to pay $10M/year: it seems better that it pays 1000 people an average $10K rather than 100 people an average $100K. 900 more people get some compensation.

Secondly, with all due respect, it shouldn't be about the plaintiff's injured feelings and what the plaintiff thinks is just, it should be about what the court, as the judicial arm of society, considers just. Perhaps I have an overly cynical view of humanity, but it seems to me that if you ask most plaintiffs "what do you deserve?" the answer will be "as much as I can possibly get", and most defendants "what should you pay?" the answer will be "as little as I can possibly get away with". Self interest is the bitter enemy of justice. The best thing about the adversarial system is the way it tries to turn self-interest into the servant of justice, but it doesn't really work very well.

(And lastly, tradition is vastly overrated. Trial by ordeal and trial by combat used to be seen as the result of sound planning and solid thinking too. I daresay the distinguishing factor of sound planning and solid thinking is the willingness to consider change.)

MeetMegan: you mention a desperate search for defendants ... and that is above all what is wrong with the torts system. It shouldn't matter to his treatment if your father caught asbestosis through employment or bowel cancer from sheer bad luck, he should be able to be treated either way. If his former employers knowingly caused him to contract asbestosis, they should be punished, just as if they knowingly tried to kill or maim him in some more prosaic way. But then we start to shade into criminal law, and there is a good reason why criminal trials are "{The State} v Fred Nerk" rather than "{Fred's Victim} v Fred Nerk". The private right to redress criminal wrongdoing is very limited, and in my opinion the more limited the better, not least because criminals' capacity to repay compensation is usually lacking. The whole search for a defendant business, the deeper pocketed the better, is fundamentally wrong, because it divorces responsibility from fault and it links compensation with the defendant's status of wealth. I am very interested in your opinion on this issue, Mygoditsbob.
posted by aeschenkarnos at 8:11 PM on November 7, 2002


Not to change the subject (I'm greatly enjoying the conversation so far), but what did people think about the Cato article about allowing companies to contract out of tort liability (e.g. by signing the sales agreement for your new Camery, you agree not to sue Toyota if the gas tank explodes)? Not to put to fine a point on it, but this seemed totally insane to me. In theory, they would let you pay a higher price for the car to retain your tort rights, but given the unpredictibility of the tort system, what sane company would offer such an option? Wouldn't product liability suits dissappear completely? Does anyone think this would be a good thing?
posted by boltman at 10:57 PM on November 7, 2002


Leaving aside the practicalities of second hand vehicles, dealers' liability, etc, it seems to me that manufacturers are in a vastly better position to assess risk than the consumer. Free markets's fairness and efficiency depend on all players having access to the same information, which is manifestly not the case in typical consumer-manufacturer relationships. Also, I would foresee collusion between manufacturers to ensure that only contracts that waived tort liability were offered. Bad, bad idea - for most of us, anyway.
posted by i_am_joe's_spleen at 11:10 PM on November 7, 2002


One thing that complicates the US (and Australia)'s wishes to change the tort system to bring sanity back to the legal system is that, unlike New Zealand, they have to deal with multiple overlapping jurisdictions (state/federal) and the very touchy issue of the federal government taking power from the states that the constitution gave them.

A lot of people are not aware of the staggering increases in the cost of liability insurance over the past year or so, but I have personally seen increases of around 200% in one year - if you can convince a company to provide this type of cover. Since 9/11, risk assessment has become a whole new ball game and events that were considered impossible are now seen as likely. At least by bringing in some system of restrictions, fair compensation can be provided where it is due, instead of making it cheaper for companies to collapse and then re-form without any liability. When this happens, who will pay victims? Who will cover claims for people who were insured by HIH?

Guess who ends up paying for these increased costs? Guess who ends up being the only ones getting any benefit from the whole crazy system that we see in operation in the US and that is increasingly becoming the norm here in Australia? Solicitors. Guess who pays? We do (we being Joe and Jane Average).

The concept of being able to contract out of liability could have valid applications in areas such as high risk sports, where participants should be prepared to accept the possible outcome of risking their own lives for kicks, but I cannot see it being introduced as a general thing.

Mygoditsbob, I tip my hat to you, as you must be one of the tiny minority of Solicitors/Lawyers I have ever heard of who are not out to rip off everyone they can to line their own pockets.
posted by dg at 5:52 AM on November 8, 2002


pardonyou?, yes, I agree with you - treating pre-asbestosis patients to huge amounts of money *is* something that's wrong. I do believe there has been at least some reform in that aspect, though. From what attorneys have told me, there's a "waiting list" for asbestos litigation, at least in federal court. An employee who wishes to claim for exposure to asbestos is placed on that list until he/she is actually diagnosed with meso. Then, their claim is pushed through. Like I said, that's my understanding - I really could be mistaken, and I hope you'll correct me if I am.

I am aware that money doesn't grow on trees. Acutely aware, actually, as (ironically) I work for the law firm that handles Owens Illinois and Georgia Pacific's asbestos defense - we have an entire asbestos litigation group at our firm. I do see your point, however, in saying that it's not fair that a few people are overcompensated for their injuries, leaving others to flail around in the dust. I like the idea of the trust that your posted article discussed - the Johns Mansville trust...that pays out upon diagnosis. I think that's a fair, and just way to handle those types of "evil corporation" torts. They're still paying, but they're doing it as wisely as they can. I guess.

aeschenkarnos, clarification - my dad does not have asbestosis, he has mesothelioma. One is guaranteed fatal, one is not. Aside from that, yes, I agree that the "desperate search" I mentioned *is* what's wrong with our tort system. I'm not saying that what my family is doing is right, or moral, or whatever. But we're working within the system as it is. I'm not going to play holier-than-thou and give up on recovery of compensatory and punative damages just because I don't want to be what's wrong with our torts system.
posted by MeetMegan at 8:03 AM on November 8, 2002


MeetMegan, thanks for your post. I appreciate your honesty, and I can't say that I'd feel differently if I was in your shoes. And I truly feel that the tort system was designed to help people like your father. I wish him and you all the best.
posted by pardonyou? at 8:17 AM on November 8, 2002


For those who are interested, here is an interesting discussion about the asbestos issue, including links to several recent articles discussing the problem.
posted by pardonyou? at 8:20 AM on November 8, 2002


aeschenkarnos: The conduct that gives rise to civil liability is of a different nature than the conduct that gives rise to criminal culpability. I'm pretty sure that we don't want to jail individuals who neglect to stop for a stop sign even if the effect of their negligence is to cause death or serious injury. In the same light, the distribution of products that contain asbestos, now banned throughout the world, never rose to the level of intentional conduct giving rise to criminal culpability. I think it's safe to say that the asbestos manufacturers did not intend to cause injury through the injection of asbestos into the marketplace. However, they did profit from the sale of a product that caused harm and as a consequence, should be required to compensate those who were injured. The criminal justice system is just not an efficient tool in the vast majority of tort cases.

boltman: The article from the Cato Institute regarding contractual solutions to liability is rehashing issues that were the basis for the denial of claims 50 years ago. Before the case cited in the article, there was no ability on the part of an injured consumer bring a claim for injuries. Courts looked to contract law and determined that there was no privity of contract between the manufacturer and the consumer and denied all remedies to the consumer. Privity simply meant that there was no direct contract between the consumer and the manufacturer. Back then and still today, most products are marketed through a dealer or retailer. In the case of a defective product, if the dealer wasn't at fault for creating the defect, and there was no direct contractual relationship between the end consumer and the manufacturer that created the defect, there was no basis for a claim. This insulation from liability was deemed to create a great injustice and was eliminated in the late 1950's to allow a direct claim against a manufacturer. Shortly thereafter, the California Supreme Court outlined the concept of strict products liability which allowed a claim to be made absent a showing of actual negligence in the case where a dangerously defective product was introduced into the stream of commerce and caused injury. The court reasoned that a product manufacturer was in the best position to spread the cost of compensation over the entire market as opposed to forcing the injured consumer to bear the entire loss.

I'm afraid that allowing manufacturers to contract away liability would return us to the day when truly deserving plaintiffs would suffer great loss without recourse to the culpable party.

One might argue that the free market would create a situation where some manufacturers would offer a range of options regarding this waiver of liability. I don't think that would happen. Look, for example, at the new car warranties that are available from manufacturers. Although each seems different, in reality, they are basically the same. Four years, 50,000 miles, whatever comes first. No real negotiating on the warranty. I can't imagine a situation where a manufacturer would fail to contract away all liability for personal if given the option.

There was some mention of trial by ordeal and various other arcane methods of dispute resolution. As I noted, the civil justice system has evolved over hundreds of years. It, like all human institutions, is imperfect. Gradual evolution not revolution is the preferred method for evoking change. Most of the solutions proposed by the monied interests represent revolution that will leave injured individuals with little or no recourse for their injuries.
posted by mygoditsbob at 8:48 AM on November 8, 2002


Thanks for another great link, pardonyou?
posted by MeetMegan at 10:52 AM on November 8, 2002


Thanks for your input mygoditsbob and others.
Great thread on an important issue.
As for tort reform, after reading all this I'm convinced it isn't needed and could be counterproductive.
I am convinced that the specter of "those damned trial lawyers" often painted as greedy ambulance chasers looking for profits due to other's misfortunes is grossly inaccurate and a tool for political advantage. I can hear Bob NoFacts saying it in my head now. (Ahhh!!! Get out of my head Bob!)
All I would ask in reform of the system is we wait until we have a less corporate friendly government in place before attempting it. After all, Cheney's Halliburton is one of those companies that will have to pony up on asbestos litigation.
posted by nofundy at 1:10 PM on November 8, 2002


« Older Canadian novelist Yann Martel, whose novel, Life o...  |  The Patriot Act. Ashcrft's TIP... Newer »


This thread has been archived and is closed to new comments