Corporate America has campaigned for more than 30 years to turn the thinking of average citizens against the civil justice system. Sadly, the campaign has worked, fostering views that are contrary to one of the fundamental principles on which America was founded, namely, that the individual should be able to seek redress from the powerful on equal footing. Reference: We the People.
With the hope of encouraging people to resist Corporate America’s dangerous propaganda, this blog gives a primer on the basic issues centering around the Tort Reform debate, or, as I refer to it, Tort Deform.
What is the civil justice system? It is the system individuals and corporations use for suing in civil court to seek compensation for alleged harm caused by other individuals and corporations. The fundamental components of the system are judges, juries, and lawyers for both sides.
What is a “tort”? A tort is harm that a company or a person causes another person either on purpose or because they are negligent. The best known torts involve personal injuries, but can include other types of actions. The Plaintiff is the party who brings the action and is usually seeking monetary compensation.
Aren’t these personal injury or “tort” lawsuits flooding the courts? No. Tort cases make up only 6 percent of the entire civil court caseload and they are decreasing. The National Center for State Courts shows a 21 percent decline in tort filings from 1996 to 2005. Richard LaFountain et al., Examining the Work of State Courts: A National Perspective from the Court Statistics Project (National Center for State Courts 2009) at 1, 2. (The Court Statistics Project is a joint project of the Conference of State Court Administrators, the U.S. Department of Justice’s Bureau of Justice Statistics and the National Center for State Courts.)
- Only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid,”59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).
- Academics generally concede there is no evidence that “frivolous” lawsuits are a problem.
- In 1999, the Institute of Medicine (IOM) concluded that between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to avoidable medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. The Harvard School of Public Health closely examined 1,452 closed claims and concluded that “[p]ortraits of a malpractice system that is stricken with frivolous litigation are overblown.” David M. Studdert et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” New England Journal of Medicine, May 11, 2006. The study found that most injuries resulting in claims were caused by medical error, and that those that weren’t were, nevertheless, not “frivolous” claims.
- In 2005, tort jury and bench trials together constituted 1.3 percent of all general civil dispositions in 79 jurisdictions reporting and 3.5 percent of all tort dispositions in 104 jurisdictions reporting.
What is “tort reform”? This term refers to laws that benefit the corporate sector. These laws make it more difficult for injured people to sue in civil court, or limit the power of judges and juries to make decisions in tort cases. (See these examples: 2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims; Vehicle Owners – Other Than Rental Agencies – Vicariously Liable Under Florida Law.)
Won’t “tort reform” stop “frivolous lawsuits”? For starters, the notion that “frivolous lawsuits” are profitable and thus a common practice for lawyers flies in the face of reason. (See these blogs: Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #1; Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #2.) Tort reform laws have nothing to do with frivolous lawsuits. Tort reform laws (such as limits on compensation, or “caps”) apply across the board to all cases, not just ones deemed “frivolous.” They apply no matter how much merit a case has, the extent of the misconduct or severity of an injury. Those most hurt by “tort reform” tend to be the most catastrophically injured.
But isn’t it easy to “win” money in a lawsuit by forcing the other side (usually an insurance company) to settle? No. Insurance companies do not settle frivolous cases. For example, Duke University Law Professor Neil Vidmar found in his research: “In interviews with liability insurers that I undertook in North Carolina and other states, the most consistent theme from them was: ‘We do not settle frivolous cases!’ The insurers indicated that there are minor exceptions, but their policy on frivolous cases was based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation.”
But what about the McDonald’s coffee case? Wasn’t that frivolous and didn’t that woman get millions of dollar for spilling hot coffee on herself? No. The facts of that case are: Stella Liebeck, 79-years-old, was trying to remove the lid on her coffee when it tipped over, pouring scalding hot coffee onto her. McDonald’s sold its coffee at 180 to 190 degrees even though the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees. When Ms. Liebeck was burned by the coffee, McDonald’s coffee had already burned more than 700 people, including infants. Liebeck received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Despite these extensive injuries, she offered to settle with McDonald’s for $20,000. McDonald’s refused to settle. The jury awarded $2.7 million in punitive damages for McDonald’s callous and willful conduct. The trial judge reduced the punitive damages to $480,000. Subsequently, the parties settled confidentially for less. (See these blogs: “Hot Coffee” – HBO to Air Documentary Exposing the McDonald’s Coffee Case Lies; The Truth About the McDonalds Coffee Spill Case – Fallacy Debunked.)
Corporate America fears the power of the civil justice system. To keep it in check as a way of demanding accountability, Corporate America has undertaken a major campaign to shape the thinking of the American public. The truth is of little regard in this campaign. What matters is that minds are shaped to believe that a good and valuable thing, a pillar of American society, really, is a bad thing. Corporate America has succeeded in its campaign, yet refuses to let up as it moves in for the kill. If We the People are not careful, We the People will find ourselves effectively barred from America’s courthouses, unable to seek redress against insurance companies, pharmaceutical companies, and manufacturers.
If you think Corporate America treats the public with impunity now, when We the People still have some tools at our disposal, imagine a world in which Corporate America is untouchable.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
Contact us toll free at 866-785-GALE or by email to learn your rights.