The Tortellini

The Downside of Compensation without Litigation

Over the years, tort reformers have regularly suggested that the country would be better off replacing lawsuits over medical malpractice or asbestos poisoning or other mass tragedies with administrative compensation funds a la workers comp or the 9/11 fund. But the latest controversy over a fund for the families of the victims of the Virginia Tech shooting, I think, illustrates one huge problem with that approach: It makes victims look greedy.

Again, I'm late with this, but I was struck by the story in the Washington Post last week about some of the VA Tech families griping that they weren't getting enough money from a university gift fund set up after the shootings. (The fund isn't a substitute for litigation, but may be a model for one that is.) Americans tend to get pretty queasy at the spectacle of people profiting from personal tragedy (which is one reason they are skeptical jurors). Compensation funds may be cheaper and more efficient than litigation, but they seem to be especially well designed to generate ugly squabbling among the beneficiaries over who deserves the biggest piece of the pie.

Greed obviously plays a role in some litigation, but I do believe that a desire for justice and information also genuinely motivates people to sue when they've been wronged. Public fact-finding and scrutiny of responsible parties through litigation can also help heal some wounds and mitigate the distasteful process of trying to affix a dollar figure to a life. And unlike fund claimants, lawsuit plaintiffs can legitimately claim a moral high ground--that they are seeking justice, not just money.

Claim-filing may satisfy a victim's real need for money (and a potential defendant's desire to stay out of court), but it certainly doesn't lead to the sorts of public disclosures, remedies or even exonerations that can be achieved through a lawsuit. Because the money doled out on a schedule has no relationship to a wrongdoer's conduct, the payments also look a lot more like windfalls than jury verdicts do. As Virginia considers its options in the coming months, I think it might do the VA Tech families a big favor if they just let them sue...

Milberg Weiss going down in flames?

Looks like David Bershad, the longtime name partner at Milberg Weiss just pleaded guilty to conspiracy to obstruct justice in the ongoing criminal prosecution of the legendary securities firm, charges his lawyer called "utterly baseless" this time last year...No word yet if he's agreed to testify against his former partners..

BP's Browne Over and Out

Allowing your company to blow up 15 workers apparently won't get you fired; having sex with a man from an escort service, though, and off with your head...

Suffer the Little Children

Speaking of Mississippi...On Sunday the New York Times ran a story about the state's big jump in infant mortality rates, the first after years of progress. The story directly implicates Gov. Haley Barbour, who campaigned on a pledge to cut Medicaid. Once elected, he did exactly that, dropping 54,000 people off the rolls. Not surprisingly, a good number of those people were pregnant women who now aren't getting prenatal care, and their babies are dying at a frightening rate.

The story didn't mention that Barbour had also campaigned on a major tort reform platform and that he signed a bill in 2004 capping noneconomic damage awards in medical malpractice lawsuits. Doctors and Republicans had lobbied for the bill with the dubious claim that it would expand access to health care across the state and notably, would keep ob/gyns delivering babies in underserved areas. The Times story is yet more evidence that the tort system has scant little to do with pregnant women's ability to see a doctor. Of course, Gov. Barbour probably knew that....

Passing the Bible but not the Bar...

Great observations from Kevin Drum at the Washington Monthly on a little-noted angle of the U.S. attorney scandals, better known as "Purgegate." Who knew that the Bush administration was larding up the civil rights department at Justice with inexperienced graduates of Pat Robertson's Regent University? The Boston Globe article Drum links to notes that in 1999, the year former Justice official Monica Gooding graduated, 60 percent of the graduating class failed the bar on the first try...

More on the poisoned-pet litigation

I have to amend my comments from last week about the pending pet food poisoning litigation. If the pet food is tainted with an exotic rat poison not used in the U.S., causation in the ensuing lawsuits ought to be pretty clear cut. So I'll stick to my first reaction to the lawsuits, which is that the discovery ought to be really, really interesting.

Meanwhile, lots of bloggers have pointed out that grieving pet owners can only sue Menu Foods for the cost of their pets, and not, in most states, for any emotional suffering or loss of companionship, making the company's legal liability rather limited. But presumably pet owners can also recoup the money they paid out for vet bills. As a result, Menu Foods might have some reason to worry, particularly if the death toll in affluent metropolitan areas continues to climb. In this era of gold-plated veterinary care, those bills can be substantial. The Washington Post reported Saturday on a 22-year-old woman who spent $8,000 trying to save her poisoned dog at clinic where the intensive care unit runs $6,000 a week...

Whither the pet plaintiff

Thanks to Bill Childs for alerting me to the latest in pet-related litigation and the proposed class action over Menu Foods' pet food recall. The company's products have been linked to kidney failure deaths in cats and dogs. I look forward to any discovery that might result from it. The inner workings of the pet-food industry have always intrigued me.  Will we get to find out what really goes into a can of "cuts and gravy"?

On the other hand, much as I feel for the pet owners, I have to confess secretly hoping that this line of litigation doesn't go anywhere. The civil justice system has enough fodder for "reformers" to ridicule as it is. Can you imagine these cases going to court? The causation arguments alone will be enough to keep late night talk shows in fits for months.

Like obesity in Vioxx plaintiffs, kidney failure is pretty much epidemic in old cats, of which this country has many (so many, in fact, that the University of Pennsylvania vet school has a thriving feline kidney transplant program). But also, if you figure that defense lawyers will try to show that something other than the pet food caused the kidney failure, then you're really headed into Comedy Central territory.

Consider my late, beloved beagle, Wilson.

He ate Eukanuba dog food, one of the brands in the recall. He also ate, in no particular order: aluminum foil, muffin cups, corn cobs, chicken bones, meatball subs, dead rats, dog poop (his own and others), plus countless other indigestible products we only learned about after he barfed them back up. I suspect Wilson was not alone in this regard. If he had died of kidney failure, there's no way on earth anyone would ever have been able to prove definitively that it was the dog food that killed him. Unfortunately, given the quirkiness of some segments of the pet-owning world, I have no doubt that out there, somewhere, are people who would try.

(Photo of the late Wilson, courtesy of Clark Wemple, now 10.)

Delaware's Potty Liability Bill

More evidence that tort reform is an issue created by lobbyists, from the state of Delaware: Legislators in "the First State" have introduced a bill requiring stores to let people with an "eligible medical condition" (i.e., "I need to whiz!") use a private or employee bathroom if the store doesn't have one open to the public. Seems like a reasonable proposal, and one any pregnant woman will appreciate. Of course, the retailers won't agree to it unless they are protected from any lawsuits that might result should a customer accidentally get killed or injured while doing their business in the private loo. So the bill immunizes them from any potty-related injury lawsuits.

I'd love to know how much the local retailers paid their lobbyist to get this provision inserted in the bill. I mean, really, how often are people killed or injured in the private bathrooms of their local supermarket? I'm sure the lobbyists must have had at least one horror story to convince them that the mere threat of just one such potentially ruinous lawsuit was worth his many thousands of dollars in fees..

The coming litigation explosion?

Watching the stock market bounce around lately has made me wonder about the country's over-reliance on speculative real estate loans. The subprime lending industry has been rotten to the core for a long time, preying on the elderly and minorities with abusive and usurious loans that often resulted in poor people losing their homes and ending up in pretty dire financial straits. But in the 1990s, there were lots of lawsuits that helped bring many of the abuses to light, particularly those against the Associates and then-Citimortgage, and there were a few reforms.

Unfortunately, I suspect that one of the "reforms" was for mortgage companies to simply put more mandatory arbitration clauses in their contracts so that aggrieved customers wouldn't be able to get a court hearing if they decided to sue. I wouldn't be surprised if those measures have prevented lawsuits from raising a red flag on the problems in the lending industry a little earlier, before they could drive an enormous hole in the economy, as I think they probably are going to do now. All these bad loans are going to result in massive numbers of home foreclosures (Texas is already seeing it), and eventually big stock market plunges, since the loans have been sold on Wall Street.

In the aftermath, I have a feeling that we're about to see a rash of lawsuits against the banks and mortgage companies that have been making all these no-money-down, interest-only, adjustable-rate loans to people who can't afford them, or who were using them to try to "flip" real estate, only to get caught as the property values stopped appreciating.

The Washington Post ran this story a few weeks ago about a class action against Chevy Chase Bank along these lines. I suspect that it's only a harbinger of things to come. The difference between the current situation and that in the 1990s, when subprime lending abuses started to multiply, is that most of the victims of this latest trend are not going to be poor Mississippi residents, but folks like those in the Post story--middle and upper class Americans. I think they are going to be in for a bit of a surprise when they learn how limited their legal options will be after a decade of tort reform to actually remedy their situations..

What are the hazards of the modern workplace?

I was reading Paul Brodeur's famous book on asbestos this week and it reminded me that I've been meaning to write an article about what workplace injuries can tell us about the changing nature of the economy and work itself.  A hundred years ago, workers died from all sorts of horrible things, including silicosis and black lung sorts of diseases. You don't see that much of this anymore, but I suspect that even in the service economy, the are some dangerous professions. One that comes to mind: Starbucks barristas. OK, it's clearly not the same as coal mining, but I wonder: do those folks suffer from bad burns occasionally from the coffee? I saw a near miss the other day..Anyway, this could just be a stupid inquiry, but if there are any workers comp lawyers out there or others who see the casualties of the modern workplace, I'd be interested in hearing from you about your observations....

Tort law is making me paranoid

I remember reading once about a funny psychological phenomenon among medical students, who often start to suffer from many of the symptoms of the diseases they study. I wonder if something similar happens to trial lawyers. After spending the past two years doing nothing but read about various lawsuits that stem from the wreckage of accidents and malpractice, I've often wondered how some lawyers ever manage to get out of bed in the morning, for a number of reasons.

Just from my own work, I now have heart palpitations every time I have to get into say, a Dodge Caravan, as I did last week for a drive to New York, or a Ford Explorer. I've seen too many lawsuits that revealed how poorly those cars fared in accidents. I hated to drive before, but now, after watching accident recreations of tractor trailers crushing passenger cars, I really don't enjoy getting on the highway. There's nothing like seeing trial exhibits of a doctor breaking his patient's neck while inserting a breathing tube to keep you away from "elective" surgery. That tummy tuck is DEFINITELY out.

Bill Childs over at Torts Prof Blog has enlightened me about the dangers of amusement parks (as if I didn't already suspect that those places were sort of a problem!). Visiting friends in the Virginia countryside last year, I watched in horror as they sent their 8-year-old daughter off to ride on a pink, kiddie ATV that screamed: lawsuit in abeyance. The death and destruction that's at the heart of tort law has definitely given me a different, if possibly distorted, view of the world. Heart palpitations notwithstanding, it has its upside: I saw many compelling reasons to applaud my husband for going out to shovel the sidewalk late last night in our  first snowstorm of the year...

On Hot Dogs and Republicans...

Ted Frank, among others, has also taken issue with my post yesterday in which I observed that many of the leading lights of the tort reform movement appeared to me to be "overprivileged white guys." I didn't suggest that all of them are overprivileged (thought almost all of them do seem to be white and male!). I apologize to all the former burger-flippers and grocery store clerks who took this personally. 

I also apologize for inadvertently characterizing myself as a peon. I am certainly not underprivileged, as Ted points out. For what it's worth, however, I did spend a fair amount of my youth and early adulthood in grueling, minimum-wage jobs. The most memorable was a long stretch cooking corn dogs at the now-defunct Ogden City Mall and the L.A. County Fair, wearing red polyester hot pants, clown-striped tank-tops and matching cone hat. (I still have the hot oil burn scars and varicose veins to show for it). The chain motto was "Fast, Fresh and Friendly." (You can't make up stuff like this!)

The founder of Hot Dog on a Stick was a cretin who only hired women (most of them teenagers), and decorated the hot dog stands with mirrors strategically positioned to show off the hot-pants and the inevitable jiggling that ensued while we pounded the pulp out of lemons in 10-gallon lemonade drums. To say that we hot dog girls endured a fair amount of humiliation in exchange for earning the California, as opposed to the Utah, minimum wage that we got working for this company would be an understatement.

But I digress. ..I did have one other response to Ted's post today. Just for the record, and contrary to what the subhed of my book may also suggest, I don't "dislike Republicans." My father used to be one, until the party started spending too much time worrying about what people did in their bedrooms and not enough about the budget and other things that matter. My late father-in-law was a longtime Republican member of the New York state assembly, and many of my extended family members are stalwart GOPers whom I love dearly. I may disagree with many of the GOPs major platform items, including much of its tort reform agenda and most especially, the gay-bashing parts, but I try not to write people off because of their political beliefs. Besides, there are plenty of democrats who have supported tort reform in recent years. The GOP hardly has a monopoly on this issue.

I do find, though, that there is a mean streak in conservative, GOP politics today that is prominently displayed in debates over tort reform. When I wrote yesterday about the background of some of the biggest tort reform advocates, I was also thinking that the dearth of empathy among tort reformers for the people who become plaintiffs in personal injury suits might stem from the buffers of privilege. I forgot, though, about the Clarence Thomas School--the kind of thinking that comes from raising yourself up by the bootstraps, and then having nothing but disdain for all the other poor schmucks who can't seem to do the same. Clearly, you don't have to be overprivileged to be mean...

Affluence and accidents

One reason that I find many of the major tort reform advocates and their attendant "intellectuals" a little bit arrogant is that they seem to think that they are immune from the random misfortune that leads to personal injury lawsuits. Not that trial lawyers can't be a little full of themselves, but for a long time, I thought the leading lights of tort reform were just in denial about their potential need for the legal system, and that accidents were just that: random, and not dictated by class or privilege. But then I saw a story in the Washington Post recently that changed my mind.

A new study found a direct correlation between childhood IQ and rates of hospitalization for accidental injuries. The smarter the kids, the less likely they were to have serious accidents, a trend that continued through adulthood. Researchers offered several explanations, including that kids with lower IQs were more likely to drop out of school and end up in more dangerous and poorly paying jobs. Head injuries as a child also led to more accidents as an adult. Education mitigated the effects, so even dumb kids who got a decent education (our current president, perhaps?) were less likely to be injured.

The study made me think that maybe the tort reformers are right. They--and the billionaire CEOs they represent--don't really need tort law. Most of them are overprivileged white guys who, I suspect, have never flipped a burger except maybe on their outdoor Viking kitchens. Their private schooling and Ivy League bona fides mean they don't have to work in coal mines or put themselves in harm's way as cops or soldiers. Affluence means they don't have to drive crappy American cars that are deadly in accidents or rely on bad doctors and risk malpractice--all the things that land people in court. The odds are consistently in their favor. Tort law, then, is for the rest of us peons, just the folks that the "reform" movement wants to shut out of the justice system...