• The trouble with “tort reform” Thursday, March 1, 2012

    By Scott H.Z. Sumner

    Scott H.Z. Sumner, Esq. is a principal in the Northern California operations of Khorrami Law Firm. He is a member of Consumer Attorneys of California (CAOC); members of CAOC are on the board of the Civil Justice Research & Education Project, which oversees and funds ProtectConsumerJustice.org.

    We tend to think of public figures who advocate for what they like to call “tort reform” as being conservative. We shouldn’t.

    Why? Because the “reforms” for which they advocate fly in the face of core principles held by conservatives and others, namely personal accountability, reducing government spending, empowering individuals and strengthening family values.

    Personal accountability: By making it difficult or, in some cases, impossible for consumers who have been harmed to take corporations or other wrong-doers to court, or by limiting the amount of compensation harmed consumers can receive if they do go to court, “tort reform” measures strip accountability from the equation.

    That lack of accountability limits the deterrence of further wrongdoing. “Tort reform” supporters who would blanch at being considered “soft on crime” regarding criminal matters wind up winking at wrongdoing in civil matters.

    Reduced government spending: “Tort reform” that leads to consumers not being able to win just compensation for their harm from the parties that caused the harm means those consumers are forced to rely on government-funded health and disability programs to get by. Medicare and Medi-Cal (as well as private health plans) end up footing the bill for medical care instead of the person or company that caused the injury.

    Empowering individuals: Tort “reforms” that keep disputes out of the civil justice system take power out of the hands of citizen juries, the purest form of democracy there is. Caps on compensation for damages put decision-making in the hands of legislators instead of jurors.

    “Family values”: Tort “reforms” take a disproportionate toll on children, stay-at-home parents and the elderly. For instance, California’s MICRA law relating to medical negligence cases caps compensation for non-economic damages but not for lost past and future wages, meaning a high wage earner will receive greater compensation for the exact same injuries than someone who is not in the workforce.

    So “conservative” is not an apt label for advocates of “tort reform.” “Elitist” and “Anti-Democratic” are a better fit, because our civil justice system – with its foundation of citizen juries – is democracy at its most pure and direct. It is also the best defense of safety and liberty against the role of money and special interests in government. Our civil justice system works just fine when we trust our citizens more than special-interest-funded legislators and overpaid media personalities, and allow jurors to do their job.

    Calls for “tort reform” usually come with alarms about a “litigation explosion.” What goes unsaid is that any “explosion” is the result of suits that aren’t being filed by consumers: business torts, intellectual property disputes and breach of contract cases, including debt collections and mortgage foreclosures.

    By contrast, in California, from fiscal year 2002-03 through 2009-10 (the most recent data available), the number of personal injury, property damage and wrongful death suits seeking more than $25,000 related to motor vehicle accidents went down by more than a third. The number of such suits not related to vehicular accidents went down by almost as much.

    Claims of an abundance of “frivolous” lawsuits and “runaway” juries insult our justice system by saying that judges and juries can’t be trusted. Again, much goes unsaid. In some cases, lawsuits are made to look foolish by distorting the underlying facts. In some cases, the suits cited as “frivolous” have been made up. Many of the suits paraded as “frivolous” were quickly dismissed and never came near a verdict or settlement. Tort “reformers” would have you make a decision on the merit of a case based on their few seconds characterizing a case, rather than the hours and days of testimony and evidence a jury heard before reaching a verdict.

    One of those supposedly “frivolous” lawsuits is a case that was so badly and loudly distorted by tort “reformers” that it remains a topic of discussion today, some two decades after it was filed. That is the case involving an elderly woman who was badly burned when she spilled coffee she purchased at a McDonald’s drive-thru. In an attempt to correct the many misperceptions that have been created by tort “reformers,” an HBO documentary, “Hot Coffee,” exposed not only the falsehoods that surround this case but other attacks on the civil justice system by the corporate lobby.

    Much of what most Americans think they know about the McDonald’s case is wrong. For instance, the woman who was injured, Stella Liebeck, was not driving a car when her coffee spilled; she was the passenger in a car that was stopped in a parking lot. The coffee was not just “hot” but dangerous; McDonald’s corporate policy was to serve it at a temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from frivolous; she required skin grafts on her inner thighs and elsewhere. Her injuries were far from isolated; McDonald’s had received more than 700 previous reports of injury from its coffee.

    And the jury’s punitive damage award that made headlines was reduced by more than 80% because of legislation requiring that reduction – even though the Republican-appointed judge who also heard the evidence did not believe the jury’s award should have been reduced.

    Examples of “frivolous” cases are often fabricated from whole cloth and spread as examples of a civil justice system supposedly turned upside-down. You’ve probably had some of these forwarded to you in an e-mail. Just because you read it in an e-mail doesn’t make it true, but that hasn’t stopped many people from believing it anyway.

    For instance, the woman who tried to sneak into a nightclub to avoid the cover charge by crawling into a bathroom window, only to fall and break two front teeth – and won an award for $12,000 and medical expenses.

    Or the woman who won $780,000 from a department store where she broke an ankle after tripping – over her own toddler.

    Or the man who, while driving his new Winnebago, set the cruise control and went into the back to make coffee, only to be badly injured when the driverless vehicle left the freeway and overturned – and won a verdict of nearly $2 million.

    All of these cases were made up. And yet there’s a good chance you know someone who “knows” each of these cases is true – and is a shining example of why we need “tort reform.”

    The case for “tort reform” is a case for limiting corporate liability and accountability, by stepping outside the framework of our democracy. These tort myths have been developed to hide that fact.

    It’s high time for thoughtful conservatives to reexamine what undergirds the rhetoric of corporate-sponsored politicians and media pundits when it comes to our civil courts.

    This article originally appeared in Contra Costa Lawyer magazine and is electronically reprinted here with the editor’s permission.

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