Friday, June 08, 2007

It's All Fun and Games Until Someone Gets Hurt

In his lengthy legislative career, Trent Lott has been an infamous crusader against lawsuits filed on behalf of aggrieved citizens for wrongs committed by large corporations and other commercial entities. Statements of conviction like these from Lott have not been uncommon:
"The Democrats seem to think that the answer is a lawsuit. Sue everybody." July 20, 2001

"I'm among many Mississippi citizens who believe tort reform is needed." May 8, 2002

"If their answer to everything is more lawsuits, then yes, that's a problem, because I certainly don't support that." August 2, 2002

"It's sue, sue, sue...That's not the answer." August 4, 2001
Yet, oddly enough, Senator Lott's view of the plaintiff's bar, and lawsuits in general, underwent a radical transformation after his insurance company denied him relief for certain claims made for Katrina-related damage to his home. Once he found himself in a position of powerlessness and frustration familiar to far too many Americans with considerably less clout than a US Senator, he availed himself of the only recourse available: he filed a lawsuit alleging breach of contract, as well as a dreaded....tort!

As stark as Lott's hypocrisy is, there is an even more egregious case recently making headlines. This time, former Supreme Court nominee and Yale University Professor Robert Bork (an ardent supporter of eliminating and reducing lawsuit damages across the board) filed a $1 million lawsuit against the Yale Club because he....slipped and fell. The man fell down and wants the Yale Club to pay him $1 million for his troubles. Yet, somehow, this wouldn't be included on the list of "frivolous lawsuits" so bemoaned by conservative pundits like Bork and Lott. Because it's different when it happens to you. Some details:
The 80-year-old legal scholar is suing the Yale Club after he fell off a raised platform as he prepared to deliver a speech on June 6, 2006, hitting his head and suffering injuries to his leg that required surgery.

"Because of the unreasonable height of the dais, without stairs or a handrail, Mr. Bork fell backwards . . . striking his left leg on the side of the dais and striking his head on a heat register," states the lawsuit, filed yesterday in Manhattan federal court. [...]

According to the lawsuit, the Yale Club usually has stairs and railings on its speaking platforms, but failed to provide them at the New Criterion event.
Oh, well then, the lawsuit and damages sought are totally justifiable. If it were medical malpractice or something meaningless like that, we shouldn't let the greedy injured patients and lawyers shake down a hospital. But failure to provide stairs on a dais? An unthinkable injustice that can barely be remedied by a cool million.

These episodes in hypocrisy reveal more than the individual failings of a few movement conservatives. Rather, they are indicative of the disingenuous, and unjust, motives behind the effort to close courts to lawsuits by citizens that have otherwise been left with no avenue to repair the damage suffered. This is the way I described the dynamic in a previous post [with some slight edits]:

[George] Lakoff discusses some of the rationale behind the facade of tort reform:
Tort Reform is an example of an indirect, misleading type of Multiple Issue Strategic Initiative - indirect because the stated reason for the initiative is not the only goal, or even the most important one. For instance, supporters say they want "tort reform" to cap awards to prevent "frivolous lawsuits", but what they really care most about is other effects that follow from this: to allow corporations to weaken public protection laws which guard the public's health and safety, to weaken environmental regulations that restrict their business operations, and to eliminate an important fund-raising base for Democratic candidates by limiting the income of public protection attorneys who overwhelmingly donate to Democratic candidates. Although "frivolous lawsuits" is the catchphrase, it's about many other goals that go unstated in the public debate.
Lakoff is right to note how the "frivolous lawsuits" have been highlighted and used to create the impression that the entire legal system has run amok. The truth is that some such ridiculous cases exist. There are some well known examples of exorbinant payouts for slight wrongs, like the suit against McDonalds for the coffee that was too hot, and the suit against the car manufacturer for not disclosing an extra paint job to smooth over wear and tear on a supposedly new car. But what system does not produce such spectacular wrongs on the margins? Certainly corporate America has been behind some of the most grievous injuries suffered by masses of ordinary Americans, yet we should not propose to regulate business in too extreme a manner so as to stifle the economy. Over-reacting to a problem is not an acceptable solution.

While these examples are real, and should be addressed, that is not what the Right-wing wants to accomplish with the dubiously titled "tort reform." Instead, they are using these most extreme examples to garner support for an overly broad legislative regime that would, in effect, release corporations from responsibility for the safety of their products, and the impact their businesses have on the health and environment of ordinary Americans.

The [nefarious power] behind the "frivolous lawsuits," according to this meme, is the dreaded "trial lawyers." This unscrupulous pack are labeled as ambulance chasers, legal extortionists and slick performers who unfairly assault business owners regularly. But such characterization is mostly undeserved. In truth, the plaintiff's bar is composed of very hard working, dedicated, professionals who take on big monied interests in defense of ordinary people who have been harmed by businesses that often deem the cost of injuries as acceptable if they fit within the budget.

That is the point behind so many of the biggest payouts. The reason the awards get so large is because they contain punitive damage awards - which is a large amount added to the actual financial damages suffered by the victim. This large punitive damages sum is meant to increase the financial incentive of big corporations to cease conducting business in a way that threatens public safety - especially when they had knowledge of the risks they were exposing the public to beforehand. What happens, in the absence of punitive damages, is that when a corporation produces a flawed product, or pollutes the environment, the costs associated with litigating these claims gets calculated into the cost of doing business. A certain amount of death and injury is, thus, an acceptable cost if that dollar amount is lower than the cost of conducting business in a way that would eliminate, or substantially curtail, such harms.

Punitive damages are a means to make the corporations pay so much in litigation costs, that the cost benefit analysis tilts in favor of public interest: safe, healthy products, safe workplace conditions, less pollution, equal employment, non-discrimination, and better business practices all around.

Yet it is punitive damages that the conservatives have targeted - although many have recommended far more radical changes such as non-punitive damage caps, exclusion of entire classes of lawsuits and other restrictions that make bringing suits more difficult and prohibitively costly.

It is better to leave courts open and to let courts serve their valuable role in this society, though. In an age where governmental regulation and oversight of industry is being coopted by the very industries themselves, the courts are the last refuge for ordinary, hard working Americans. I hope that none of you will ever need one, but if you are so unfortunate as to suffer a grievous injury that could have been prevented, you will fully understand how worthy public protection lawyers really are.

Just ask Trent Lott and Robert Bork.

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