My last post was unnecessarily cryptic. From Buckley, where the respondent was exposed to–and literally covered with, on a day to day basis–asbestos while working as a pipefitter for the railroad:
In fact, the Supreme Court’s ruling notwithstanding, there’s a decent argument to allow recovery for medical monitoring costs in cases where someone hasn’t yet had physical injury (at any but the subcellular level) but is at increased risk of developing an injury in the future. But we really haven’t figured out how to adequately deal with issues of enhanced risk in torts, and it’s a tough question.
Bottom line, though: I need a cite that someone, post-Buckley, has collected on an asbestos claim without physical injury (or at least emotional injury in light of a physical impact, per Gottshall). Thanks.
As set forth by others above, the drive for tort reform is headed by insurance companies and in my book insurance companies don’t play fair. Speaking from personal experience, if the insurance companies would do what they’re supposed to do and pay the fair value of an injured party’s claim in the first place then claimants wouldn’t be forced to hire lawyers (of which I am one). Let me cite my own case as an example.
Last year another car ran a stop sign and hit me and my car. Thankfully, I wasn’t hurt and neither was the other driver. My car was a junker, an old Ford Tempo with 160,000 miles on it but it was paid off, in good repair and it got me where I was going. (I subscribe to the NPR Car Talk guys’ theory that it’s more economical to drive an older car and drive it into the ground, so that you have more money to spend on more fun things, such as frequent vacations at our nation’s baseball parks.) After the accident my car was perfectly driveable but had damage to the front quarter panel that the appraiser said would cost $1,900 to repair. The other guys’ insurance company said that they would only pay the blue book value of the car of $700 and that they’d declared my car as “totalled” and that I’d have to sign over my car’s title slip to them. They said I had no claim for medical damages since I wasn’t hurt (which was true), and that I had no claim for lost wages or any other damages because I’m self-employed and I was driving to my girlfriend’s house at the time of the accident. The insurance company’s authority for this was Ohio Revised Code Section 4505.11, which had been drafted by the insurance companies and enacted by the Ohio legislature, (and which IMO is a wholly owned subsidiary of the insurance companies.) The insurance company said that to pay me the $1,900 cost to repair would’ve been an unfair windfall to me. Now think about this: I was the innocent party, minding my own business driving on a public road until their insured party had plowed into me. Just before the accident, I had a paid off car that I was happy with and that got me where I wanted to go. My car was nearing the end of its life, but it had at least 4 months of life left in it. (I know that for a fact because after the accident I spent 4 months arguing with the insurance company, during which time I continued to drive my “totalled” car, even with its smashed in front quarter panel). If I’d accepted their “fair” statutorily mandated settlement, I’d have $700 in my pocket but no car and I’d be forced into a position to buy a replacement car in a hurry without being able to shop around. Heck, I wouldn’t even have readily available transportation to the nearest used car lot. On the other hand, if they’d just paid me the $1,900 for repairs I’d have been perfectly happy. I could drive my junker around and shop for a good replacement car at my leisure with a nice $1,900 down payment, or I could’ve at my choice had repaired my car and continue to drive it. What was “fair” to the insurance company, and what they’d managed to force through the legislature, wasn’t at all really fair to me, the injured party.
As a result I was forced to draft a lawsuit threatening to have the statute declared unconstitutional which I sent to the insurance company’s lawyers, at which point they said “let’s give this crackpot $1,700 and let him keep his car” so that’s what we settled for. The point of all this is that if the insurance companies had just been fair to begin with, rather than try to use an unfair statute to chisel me, I wouldn’t have had to threaten a lawsuit to get what I was entitled to as the injured party. In my informed opinion, Tort reform is just another method by which insurance companies try to wheedle out of doing what they are supposed to do, which is to justly compensate injured parties.
The insurance company’s position was eminently reasonable, PatrickM. It is economically wasteful to spend more repairing property than the property would be worth if it were repaired. The insurance company should have told you to shove off when you threatened to sue.
Gadarene, my information on handling of asbestos claims comes from a talk by a lawyer at a symposium I attended around 25 years ago. Perhaps the situation is changed due to the decision you cite. OTOH the fact that a court won’t award benefits to a non-symptomatic plaintiff doesn’t preclude a settlement between that plaintiff and the insurance company.
Anyhow, the speaker explained that it was common for an asbestos lawyer to represent a group of people (generally employees) who had been exposed to asbestos. The lawyer would negotiate a lump-sum settlement on behalf of the entire group. He would take his fee off the top, and divide the remainder among the group.
The insurance company would settle, because if each case were litigated, they faced the risk that one or a few of these workers might win large jury awards.
This is one liberal who is open to the idea of some sensible reforms. But, I’ll propose another reason why we won’t get it: While you may claim, with a certain degree of truth, that the Dems are pimping for the trial lawyers, the Republicans are largely pimping for the big companies and insurance companies who want to escape culpability for their actions.
I’m all in favor of personal responsibility. But, such responsibility is a two-way street. I happen to believe that big wealthy CEOs and shareholders of companies who manufacture unsafe products (or the like) also should bear personal responsibility.
And, in fact, if the responsibility that they have to bear is less than the profit that can be made by selling said product, then we are in for a bad time.
One might add that this is a piece that appears on the American Enterprise Institute website. That doesn’t make it wrong (and, in fact, this presentation looks more balanced than most things on their site) but it does give you an idea of whose point of view is being expressed here.
december, that cite says nothing about the respective merits of each plaintiffs’ claim. Having worked at a plaintiffs’ mass torts (similar but not identical to class action) firm the past two summers, I can tell you that the firm cares very much whether a particular plaintiff has a colorable claim or not; if they’re not injured, we don’t spend money pursuing their case. Why would it be otherwise, when plaintiffs’ firms fees (in almost all cases, as far as I’m aware) come from resultant damages?
I’ll take your word for it, Gadarene. However, I can’t resist answering your rhetorical question.
If the law firm has negotiated a settlement for a group of claims at $X per exposed plaintiff, it would seem to be in the firm’s interest to include as many exposed plaintiffs as possible.
Well, it may be different for class actions–do you have a cite regarding the proportion of asbestos suits brought under class action rather than mass torts? That economics paper, as far as I can tell, only talks about mass tort proceedings (under which I thought that almost all asbestos cases were brought). This makes a huge difference, because with mass torts each case is litigated (or settled) on its own merits. That previous cases have been settled in a certain way will definitely affect the settlement result of a given case, but there’s no “settlement for a group of claims at $X per exposed plaintiff” in mass torts. Doesn’t happen. Therefore, the firm has no interest in including in its plaintiff pool someone with no injury.
(By the way, to the extent that proposed tort reforms will discourage settlement negotiations, that’s a strong point against them. The law has always been geared to facilitate settlements to as great a degree as possible.)
I should note, per that economics paper, that even in cases of consolidation each claim is litigated on its merits. That is, the claims of two plaintiffs may be tried at once (because the facts of the asbestos itself are common in both cases, and it saves time and resources), but the injuries of each plaintiff will very definitely determine how much they get. So if the cases of A and B are consolidated, and A has advanced mesothelioma and B has a little bit of a wheeze, B will get much less money than A (and probably won’t get anything at all) even if the jury determines that the company who made the asbestos is liable.
It sure does. Why would the company–deep-pocketed, remember (more so than the plaintiffs’ firm)–settle with someone who has no chance of winning in court. If anything, the Buckley decision means that plaintiffs’ lawyers will be more careful in the cases they take, knowing there’s less chance of a settlement the fewer symptoms that have manifested at the time.
What you propose, December, is that as between passing the cost of compensation of negligent injury on to consumers and just restricting the injured person’s ability to receive compensation, it is the injured person who should take the hit. To use the Wyerhauser Lumber truck example, passing the expense on involves jacking the wholesale price of a stack of plywood up by a few cents or reducing Wyerhauser’s quarterly dividend by a few cents per share. How is that a worse choice than restricting the injured person’s non-economic recovery for what may well be a life time of pain and disability?
There has been some talk By [Billy Rubin** to the effect that there ought to be more emphasis on personal responsibility and less on litigation. The problem with this, as has been noted by David Simmons, is that litigation doesn’t kick in until there has been a denial of personal responsibility. Shall we run this on the honor system? I hurt you. I say it isn’t my fault. Is that the end of it or should you have the ability to take me to court?
Originally posted by Hickory 6
Sure they are. Nobody’s suggesting we limit compensatory damages. The cost of care for a handicapped child can be reasonably quantified–it will probably take an endowment of a couple of million in this case–depending on the medical expenses involved. Throw in a few hundred grand for ‘pain and suffering.’
Don’t you see that a fair number of the items of damage I listed in the hypothetical situation, the worry and heartbreak, are "pain and suffering"type non-economic damage? This is just the sort of recovery which all the tort reform schemes I have seen propose to limit.
Because symptoms, or alleged symptoms, could develop later, even decades later. It’s worth something for the insurance company to get a final settlement from any plaintiff who was ever exposed to asbestos.
BTW I don’t know that any of these asbestos cases are class action suits. They hardly could qualify, since the harm to each individual is different. However, that doesn’t prevent the negotiated settlements from being done on a sort-of class basis. This is one reason that asbestos suits don’t score too highly on the justice scale.
Yes, I would agree.
Weyerhauser will either pass the cost on to their customers, or they will discontinue that business segment. They will not continue to operate without adequate profit. So, the ultimate cost will be borne in part by poor people, who will be forced to live in sub-standard housing or who may even become homeless.
You and I both know that possible recoveries for “pain and suffering” and other non-economic damage in this hypothetical is does not amount to a pimple on Wyerhauser’s butt. Raising the specter of hoards of poor folk an the streets is simply disingenuous.
I grant you that liability costs are not likely to be a huge percentage of profit margin or of expenses, in the case of Weyerhauser. However, the cost of housing includes the cost of liability suits on many suppliers and contractors, not just the provider of plywood. Overall, the cost of insurance may be a significant portion of housing costs.
However, there are other more urgent ssectors, where tort liability costs have more clearly had a major deleterious effect, such as obstetrics and city government.
Nope. In mass torts, this doesn’t happen. No matter what some guy might’ve told you a quarter-century ago.
Me:
december:
By the time a plaintiff is a plaintiff, they can no longer bring future claims regarding the same transaction or occurrence against the same party. Therefore, the only way your scenario could happen is if the company seeks out someone who’s a) asymptomatic and b) not at the litigation stage and settles with them. This is silly and irrational behavior by the insurance company, and you’ll have to demonstrate that it’s happened. Ever.
Regarding your mass torts “sort-of class basis,” let me amend my statement: the only way this could happen is, in effect, by settlement consolidation: you take people with similar injuries, group them together, and give them similar amounts of money. But this method, as is clear, doesn’t allow plaintiffs who are not injured to collect large (or any) settlements. It only groups together–on a “sort-of class basis”–injured people.
So it doesn’t happen the way you claim it does, and your persistence on the issue of asymptomatic plaintiffs settling for money should probably be foregone.
Ummmm, cite? Can you explain to me why you think Illinois is one of the worst? Heck, can you provide details of a single case where a WC plaintiff in Illinois got a significant punitive damages award in a WC case that his/her injuries did not merit?
I’m still in contact with the WC firm folks, more than 15 years after I worked there. I’d be happy to call them up and provide some feedback on anything you can dig up.
(FYI, the basic structure of the IL system is that an injured worker gets temporary disability payments after 3 days of work missed due to the injury; the payments are 2/3 of salary. Permanent disability payments get messier, but are generally based on lost wages and percentage of permanent disability, as evaluated by one or more medical professionals.)
I’ve seen employer insurance companies pull all sorts of crap to try to avoid paying TTD. One employer said they weren’t going to pay TTD after a worker lost a hand, because he’d come to work drunk. Not only was there no proof that he’d consumed any alcohol at all, but why would you knowingly let a drunk guy operate a band saw?
The company doesn’t seek out the plaintiff. The lawyer seeks out a group of plaintiffs with similar exposure and then approaches the tortfeasor or its insurance company on behalf of the group.
Note point #4. Note also #6 and #7. Although asbestos has been driven from the market, these suits are increasing.
Note that these bankrupted companies benefited the public. Some were WWII ship builders, who helped defeat the Nazis. Some of these companies were not morally at fault, because the hazards of asbestos were unknown at the time. Even those who were at fault may not deserve to be put out of business. Note that putting them out of business may harm the public.
The trouble with asbestos tort law is that there’s no balance against the good an organization has done and could continue doing. Also, there’s no balance against what they can afford. Punishing negligent behavior proper, but should the punishmet be the death penalty?
The late Roger J. Traynor, former California Chief Justice, espoused using tort liability to spread costs among deep pockets, even though they might have only a portion of the fault. He, like Spavined Gelding, reasoned that they could afford the claims, and this would be a useful social mechanism for spreading costs of misfortune.
However, the asbestos situation shows that Traynor’s principle no longer applies. These asbestos companies could not afford the claims. Their deep pockets weren’t deep enough. That ought to suggest a whole re-thinking of liability rules. Trouble is, there’s now a large group of lawyers whose careers depend on maintaining current rules. They will naturally do what they can to avoid tort reform, which might put out of business.
A great book on this subject is Liability: The Legal Revolution and Its Consequences, by Peter Huber.
And it is my assertion that the high cost of medical and municipal liability insurance has more to do with, first, the medical profession’s reluctance to police its self and the tendency of municipalities to try to do things on the cheap and, second, with the losses suffered by insurers in the stock market that with any flood of unjustified damage awards. Remember the New Yorker cartoon referred to in my first contribution to this thread? Remember the doctor defended by my friend in a dozen separate lawsuits referenced in a later post?
You are going to have to show me something more than you have to persuade me that there are intolerable economic consequences associated with running a system that gives an equitable recovery for non-economic damages than you have so far. You are going to have to show me a reformed system that does not simply announce that one-size-almost-fits-all and that $250,000 for non-economic injury is more than enough for anyone.