Is "tort reform" really needed?

Perceived abuses of civil lawsuits in the United States seem to be a hot issue at both the national level (today, 10/22/03, the “Class Action Fairness Act” is up for vote in the senate) and the state level (Texas recently passed a ballot measure limiting non-economic damages to $750k in malpractice suits).

Are reforms truly needed? The “common wisdom” seems to be a resounding “yes,” usually punctuated with outrage over the infamous McDonald’s coffee case, or a story about someone getting injured on private property and suing the owner. This opinion even seems to be relatively bipartisan–the right sees tort reform as pro-business and even the NY Times editorial board seems to acknowledge problems with the system. But I have a hard time swallowing any kind of limits on damages: I think big corporations need big damage awards to get their attention, and I think a lot of the armchair lawyers judging these cases (perhaps myself included) don’t know enough about the facts of the case (or the law) to hold a valid opinion.

So, to all the people out there more knowledgable about the US legal system then I: What, if anything, is wrong with civil lawsuits in the US?

I’d say that the best tort reform is to make punitive damages a matter of percentage of wealth. Instead of a “one billion dollar award”, it would then be a mere “one percent of assets” reward. That would be very fair, I’d say.

What if a company’s conduct was so reprehensible that it deserves to go out of business? What about companies that provide services (e.g., medical clinics, professional practices, etc.) and have few liquidatable assets? How would you quantify the assets of companies that deal primarily in intellectual property (e.g., a record label)? What about future earnings? If a kid fresh out of med school, in debt up to his ears with no real assets to speak of (but plenty of future earnings potential!) is found liable for something, would he get off for free?

Or pay (all/some of) punitive damages to the state not the injured party to decrease the incentive to sue unless you mean it…

I don’t know. Just thought I’d mention it.

The only fault I can think of is that it’s not necessarily bad for money to be the primary incentive for the plaintiff’s lawyers–you’d ultimately have to have someone (or a legislative body) determine how much lawyers should be allowed to make. And I have a sneaking suspicion that any such decision would be fought in the courts for a long, long time… :slight_smile:

Actually, this is how punitive damages used to be paid, if my understanding of old Germanic law is correct. Compensation went to the injured party and fines went to the king, both assessed simultaneously. The division between “civil” and “criminal” was less hard-and-fast, too.

Tort reform may bring the McDonalds lawsuit to mind, Metacom, but that is only because the actual facts of the case are not widley known. I have no opinion on whether or not tort reform is necessary, but the McDonalds coffee case is a poor example.

Hope that isn’t too much of a hijack.

If anything, I think the McDonald’s case is an example of when a corporation should be spanked with punitive damages hard enough to make a big dent in its bottom line.

This is one of the things that makes the whole tort reform issue so interesting. The media harps on cases like this, and often stirs a great deal of public outrage that’s based on a 30-second soundbite summary of a complex case. Public opinion and the media seem to think tort reform is an absolute necessity, but I rarely hear opinions on it from people I’d consider qualified to hold them. From my uneducated perspective, it appears that the public is clamoring to sign away their rights, and it makes no sense to me…

That’s actually how it (allegedly) works. Punitive damages awards are supposed to relate to the net worth of the defendant, the profit the defendant derived from the improper conduct, etc. The original award in the McDonald’s case (which I am not going to discuss again here - we’ve beaten that puppy to death) was connected (in some way that I cannot remember right now) to the amount of McDonald’s coffee sales.

As for the larger issue of whether tort reform is needed, I recently read that tort awards last year equalled 2% of the US’s GDP (read it in the print world - I’ll try to track down a cite). A system under which 1 out of every fifty dollars ends up being exchanged through litigation is, IMO, a system that needs reform.

And my personal favorite reform is not a limitation or elimination of punitives. They form an important function. Instead, I am in favor of the elimination of non-economic damages, i.e. pain and suffering.

The traditional point of civil litigation is to make the injured party whole - to place them in the economic position they would have been had they never been harmed. By definition, non-economic damages don’t fit into this system. Any award of non-economic damages will always be both too high and too low. Too high, because the party didn’t actually suffer any loss for which they can be compensated. Too low, because no amount of money can eliminate your pain and suffering.

If it is proper to award a party more than they actually lost, the proper way to do that is by awarding punitive damages. Punitives are limited to situations of egregious conduct, and require higher proofs of evidence. Pain and suffering awards, whatever the purported rationale, simply serve as a means to make an end run around these higher standards. That shouldn’t be permitted.


As long as we are talking about the McDonald’s case, it should also be noted that while the jury awarded a few million dollars in damages, the judge in the case actually reduced the award to a few hundred thousand dollars. The media, again, failed to give the whole story in this instance.

One should also remember that the media is controlled by big corporations. Those same corporations have a vested interest in seeing their potential lawsuit liability reduced.

People also watch the doctors protest for tort reform, but I have a few questions for those who advocate reform in this area: Does the AMA do enough to remove consistently negligent doctors? Are the insurance companies being fair or are they taking advantage to line their pockets? If a negligent doctor accidentally kiled your loved one through negligence would you be satisfied with a severely limited award? What if you went in for minor surgery and ended up with a deformity because of the surgeons negligence?

These are things people should think about before they rush in to limit their ability to recover for harm but for the negligence caused by another.

Explain this conclusory statement. What interest, for example, does the Washington Post Company have in limiting awards in abestos litigation?

No. Explain the connection to tort reform.

They are certainly trying to make a profit. Otherwise, I’m not sure I understand your question.

What does my “satisfaction” have to do with anything? Shouldn’t the criterion be a fair and proper award, rather than that which “satisfies” me? The civil justice system is in place to arrive at proper results in disputes, not satisfy the victim of a dispute.
The fact of the matter is that, if a negligent doctor accidently killed my loved one, no amount would satisfy me. With that out of the way, how about we figure out, as a society, what is the proper result?

Again, I wouldn’t be satisfied with any amount. And, again, the proper question is what is the fair and proper result.

I don’t think you understand the current proposals for reform. No one is advocating any limitations whatsoever on economic damages. If you can no longer work due to the negligence of a doctor, under the reform proposals you still would get every penny of your lost income. If you need ongoing medical care, under the reform proposals you still would have every penny paid for. If you need specialized equipment, you would still get it paid for.

What the reform proposals seek are caps on non-economic damages - your “pain and suffering” awards. And since pain and suffering has no discernable value, a cap is proper (better yet, elimination of those awards).


Obviously, not every single media company has an interest in every area of tort reform. So its quite easy for you to take one company and ask how it relates to one area of the law. And while that is an interesting debating technique, I have no desire to engage in such extraneous discussions. If you want to argue that giant corporations have no interest in tort reform, I’ll be more than happy to read your argument.

If the AMA is not removing doctors with histories of negligent practices, does this not raise the insurance rates for all doctors?

I’m asking that we should consider investigating whether the insurance companies are unfairly raising premiums in an effort to milk doctors for more money. Do you not believe this to be a fair inquiry?

How does a cap equal a fair and just award? Shouldn’t a fair and proper award be dependent upon the circumstances of each case and not some arbitrary amount determined by a lobbyist?

Of course a monetary reward will not replace a loved one, but does an arbitrary cap figure out what the proper result may be? Isn’t that what juries are for?

Since pain has no discernible value, how can you determine what that cap should be?

The fact that there is a monetary value of pain and suffering, whatever it may be for a particular case, is a well-established principle of American jurisprudence. The value of that p&s is the determination of the jury. Taking it out of the juries hands deprives the victim of a remedy that otherwise the jury feels is proper.

And, we couldn’t possibly imagine, say, GE (the owner of NBC…or at least they were a few years ago; are they still?) having an interest in tort reform!?! :rolleyes:

The problem that I have with tort reform is that it is one of those ideas which certainly has some grain of truth in it … clearly some litigation has gotten out of hand … but the cause has clearly been hijacked by the radical big-business Wall Street Journal editorial page types who have an agenda that has nothing at all to do with making the system fairer.

If we get reforms, we need them to be written by people who also understand the necessity of litigation to keep companies honest, not a bunch of synchophants to big business. [By the way, Sua, I am not lumping you into this category and much of what you said in your first post sounded reasonable to me.]

Also, as the McDonald’s example above showed, many of the supposed examples of horrible awards are either half-truths or complete fabrications. As another example, FAIR (the liberal media watchdog group) noted that in a June 16 editorial this year, U.S. News and World Report corporate chair and editor-in-chief Mort Zuckerman gave two examples of “absurb jury awards” that apparently have no basis in reality (e.g., according to Not only that, but U.S. News and World Report refused to issue a retraction or correction. Instead, they published a letter-to-the-editor from president of the Association of Trial Lawyers of America calling the anecdotes “urban myths.” Thus, readers were left to decide whether to believe the editor of the magazine or the head of the trial lawyers lobbying group, even though there is absolutely zero evidence that the editor is correct!!! That’s journalistic ethics for you.

By the way, my account from FAIR of the above story is not available on the web, but here is the Washington Post’s account.

I’m confused: Aren’t punitive damages considered a non-economic reward (which you earlier said served an important function)?

Also, you’ve said that medical malpractice cases should only cover medical expenses and that ideally pain and suffering awards should be limited. Do you think this would be wise without drastically increasing oversight of certain industries? It seems as if civil lawsuits has become a de facto law enforcement system for some white-collar crimes…

The whole system of awarding “punitive damages” is bizarre and illogical. Take that McDonalds coffee incident-there is NO WAY that McDonalds should have to pay a penny for this foolish woman’s actions. What excessive tort awards do: they increase the cost of doing business…we all pay in the end. THat is why people buy insurance…it is a cheaper, fairer way of compensation (of injured parties), and one that avoids the problem of having 12 morons (a jury) decide whose side had the better morality play.
Of course, as we near the one-million mark (for the US lawyer population), we need jobs for all those legal eagles…so maybe we better keep the courtroom doors open!

It’s all a partisan political ploy in any event – a swipe at trial lawyers, who are major Democratic contributors, by the Repubs, who resent not having their money.

Ranting aside: out of curiosity, does anyone have any reliable statistics on how many lawyers there are and what they do? I’ve always thought that trial lawyers were a minority of practicing attorneys, civil trial lawyers even more so.

I rarely agree with Bush on anything but Texas has long had an international reputation as a plaintif’s state. What isn’t clear to me is that the actual reforms have been directed at those issues which had left the state with such a poor reputation.