The Tortellini

Here's real legalized extortion..

So the nation's third-largest natural gas company defrauds more than 8,000 West Virginia landowners, including a 90-year-old retired school teacher, out of more than $100 million in royalty payments on gas extracted from the land it leases from them. The landowners sue the company, and in January, win a $134 million verdict. The outraged jury, which learned that the company used Enron-like shell corporations to hide the deception and spent the money on huge golden parachute payments to top executives, then tacks on another $271 million in punitive damages (a completely defensible and constitutional 1:2 ratio of punitive to actual damages, I might add).

So what does the company do? Threaten to leave the state, or at least not to finish building its half-constructed new West Virgina headquarters until the verdict is either overturned, or the governor and the legislature pass new laws immunizing gas companies from lawsuits that occur when they rip off landowners. Naturally, the governor and many state legislators think this is a good idea and are on the case already...

Why "experts" aren't enough

If you listen to tort reform debates long enough, you'll hear a common refrain about the tort system's "unpredictability" and "irrational jurors" who can't be trusted to put a dollar figure on corporate or medical wrongdoing. Sober legal minds like the University of Chicago's Cass Sunstein and patrician Common Good founder Philip Howard argue that decisions about the size of punitive or noneconomic damages ought to be made by experts, not average Americans on juries, maybe even using some sort of fixed schedule, to bring more order and predictability to the system.

This all sounds so reasonable and rational, until you read stories like those published in the Charleston Gazette last month about coal mine safety. Veteran coal industry reporter Ken Ward Jr. is, like me, the recipient of an Alicia Patterson fellowship, and I heard him speak about his 6-month investigation  into mine safety Monday at the foundation's annual luncheon in D.C.

After sharing the gruesome details of the deaths of hundreds of coal miners in his state, Ken dropped this staggering statistic: Over the past few years, the experts in the Mine Safety and Health Administration, in their rational and predictable way, fined coal companies a whopping $250 for every miner they killed by ignoring safety regulations already on the books.

Given the scandalously low number, a shocked member of the Patterson audience wanted to know if the miners' families had sued over these preventable accidents. Ken wisely noted (with a generous plug for my book!) that in West Virginia, the workers comp system makes wrongful death lawsuits extremely difficult to win and that the coal companies basically get away with murder. But hey, the system is rational and predictable! God forbid an overly emotional jury should get a shot at say, the Sago mine operators. They might think that those 12 miners' lives were worth a little more than a high three figures.

Frivolous is in the eye of the filer

"All lawsuits are frivolous except for the ones filed by me."  Whenever possible in this blog, I will try to illustrate this old adage by highlighting the stories of tort reformers-turned-plaintiffs and the trial lawyers they come to love. (Tips are welcome!)

Today's feature is Stephen Roberts, the president of the West Virginia Chamber of Commerce. According to the Charleston Gazette, in August, Roberts hired trial lawyer Michael Glasser to sue his neighbors, whose son shot had Roberts' 13-year-old daughter in the eye with a paintball gun (typical West Virginia kind of lawsuit...). The injury left the girl with significant loss of vision. Roberts sued after his neighbors' insurance company refused to pay up.

Roberts was clearly delusional when he said legal changes advocated by the chamber wouldn't impact suits like his. The chamber (not to mention many of its funders) has tried to eliminate the collateral source rule and bad faith insurance statutes as well as limit pain and suffering awards, all of which could be issues in his case...