Tort reform: Do we need it? What type of reform is needed? Will we get it?

And where on earth did I say that? What I said was that the high cost of medical malpractice insurance has more to do with the refusal of the medical profession to police its self and with losses insurance companies have taken in the stock market than with unreasonable verdicts against doctors and hospitals. That has little to do with different prices charged for malpractice coverage for different specialties.

To draw an analogy—I carry workers compensation for my secretary. That coverage is much less expensive than the premium for workers comp. insurance for a truck driver, or a packing house worker or a hard rock coal miner. This is because the risks of work related to secretaries, truck drivers, packing house workers and hard rock miners are different and the premium correlates to the level of risk of injury.

By the same token, a middle aged man driving a three year old Buick to and from work poses a much smaller statically risk for an auto liability insurer than does an unemployed 19 year old male driving a brand new muscle car. The 19 year old is more likely to both have an accident and for it to be a serious accident than is the middle age guy. Since insurance companies distinguish between risks and charge accordingly the 19 year old’s auto liability premium is going to be higher that the middle age guy’s premium for the same coverage.

A neurosurgeon presents a greater risk to a professional liability insurer than does a dermatologist, for example, not because there is a greater chance that the neurosurgeon will make a mistake than the dermatologist but because the neurosurgeon’s mistake is likely to be much more expensive. This is true even though there may be no more chance that the neurosurgeon will make a mistake than will the dermatologist.

With lawyers, who also carry professional liability insurance, the premiums differ. The guy who does a lot of civil jury work or who does retirement plans will pay a higher premium than the general practioner because the risks assumed by the insurer are different.

There are two factors. One factor is the likelihood of injury and the other factor is extent of injury. Both affect the cost of insurance coverage.

Here are two ideas that I believe would increase justice and help end the crisis.

Allow enforceable contracts relinquishing the right to sue

If a doctor refused to treat a patient unless that patient agreed in advance not to sue her for malpractice, the courts would not uphold the contract. The courts see it as not allowing us to give up our rights. I see it as the court taking away our right to decide whether to relinquish our right to sue.

Anyhow, this change would lead to many businesses and services demanding such contracts of their customers. Or, they could offer two price scales – i.e., a discount for giving up the right to sue. I think this reform would dramatically reduce liability suits.

Replace juries with special panels in arcane areas

Juries can’t be expected to have the expertise to make fair judgments in highly technical areas. E.g., medical practice and standards of care; the chemistry and biology of of environmental allegations; the economics of anti-trust. Furthermore, highly capable people tend to have demanding careers, so they try to avoid long trials. As a result, the juries cannot reasonably evaluate technical witnesses. They have few sensible bases to decide which expert to believe. We have seen some quite wrongly decided suits, such as the one about the morning sickness rememdy, Bendectin. One jury found this drug responsible for birth defects, going against the entire body of serious scientific belief. (Daubert v. Merrill-Dow)

One reform would be to restrict the ability of a lawyer to exclude people from a jury. A more complete reform would be to replace or supplant the jury with a panel of experts. This is actually done in some states for medical malpractice. A case first goes the panel for adjudication. Afterwards, either party can still go to court. However, the panel’s decision would be available to the jurors, so they are unlikely to change it, unless it’s radically incorrect.

Who agrees with these reform ideas?

december, when did Daubert go in front of a jury?
In the widely reported Daubert v. Merrell Dow, the District Court granted summary judgment in favor of Merrell Dow, then the Court of Appeal upheld summary judgment. The Supreme Court remanded it for analysis using the Federal Rules of Evidence rather than the test from Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923). I don’t know what happened to it after the Supremes issued their opinion, but I’d appreciate a cite that lets me know it worked its way back to the District Court for trial.

(1) No.
(2) Yes–in the form of an “expert panel” whose results and deliberations are available to the jury.

Now. Would you care to post those supporting arguments of Proffesor Brickman’s? Or shall we just assume that he has non and you are posting unsupported diatribes in the hope that it will somehow bolster your position.

I made an assumption that this case had originally gone before a jury, because the issue was a judge’s discretion to allow or disallow expert scientific testimony to a jury. I do not know the answer to your question.

Spiritus Mundi and Gadarene, Prof. Brickman’s article did not include the details you requested. He appears to be a respected expert. Looking through google, he has many publications, has testified before Congress, etc. Obviously, he has a strong POV, but he doesn’t have a pecuniary interest in tort reform AFAIK. Why should we doubt his sincerity and integrity?

BTW, Spiritus Mundi, you reponsded negatively to tort reform suggestion #1: Allow enforceable contracts relinquishing the right to sue. Would you care to explain why?

The issue was “the proper standard for the admission of expert testimony,” the old Frye test or the Federal Rules of Evidence. Not the judge’s discretion, but what standard should a judge apply in exercising that discretion.

december, you cited and mischaracterized the case to support your view that juries can’t handle complex issues. How could you have used Daubert without bothering to find out whether a jury was even involved?

Contracts relinquishing the right to sue for malpractice? I bet patients will be lining up around the block to sign one of those!

Seriously, would you buy a chainsaw if you had to sign a contract at the register, specifically giving up your right to sue in the (allegedly) unlikely event that the gas tank leaked and gave you horrible burns? I’d assume that being asked to sign the contract meant they expected something to go wrong.

Because his statements are contrary to my understanding of the law. It may well be that my understanding is faulty. However, an unsupported op ed piece in the ever-balanced Wall Street Journal is not sufficient to make me change my mind.

Plus, we really need to wean you off of your belief that those unsupported op ed pieces are sterling, cite-wise.

Interesting, because one so often here’s plaintiff’s attorneys mouthing off about how it’s not about the money, it’s about the principle, and that the claim for punitive damages (which cynics might regard as a grab for maximum cash) is actually an idealistic move designed to protect the community.

But you’re saying that if there was no money motive, no one would bother to claim punitive damages…

“Of course”. Except that poor people sue corporations in my jurisdiction, which is loser pays, all the time.

To say that this is “simply” a way to protect rich people is exceedingly simplistic. How about the fact that in the US a rich person can sue a poor person on very thin grounds, knowing that even if the suit fails, the poor person will get none of their legal expenses paid?

I’m not saying that the issue is cut and dried, but your glib dismissal of the issue is the only simple (and I mean that term in the perjurative sense) aspect of the matter.

I

But if you were completely broke and uninsured, and urgently needed medical care, you might think differently about it…I think any system that provides for differential payment schedules for those who give up their rights to sue is likely to affect low-income people in a disproportionately large and negative way.

Plus, can’t you then picture insurance companies considering the lower level of payment to be the only “reasonable and customary” charges they would cover? What would be their incentive to pay higher charges? What would they get out of protecting their patients’ rights?

I am not on the board of any corporation or insurer, but I would be right behind the resolution, because I pay insurance premiums, and I pay the increased costs of goods of, and suffer the restrictions on freedom inherent in, an overly litigious society.

The rest of your post is a straw man. I am not aware of any serious proposal for tort reform that involves cutting off obviously deserved benefits.

Usually, the reform proposals I have seen involve restrictions only upon the more dubious outer limits of tort law.

You say the McDonalds case has been seriously debunked. Yes and no. It was not quite as outrageous as it first seemed, but nonetheless its defenders tend to rely upon various assumptions about personal responsibility that do not sit easily with me or many others I have discussed it with.

This is a hair-splitting quibble. Your description is more precise than mine, but I wasn’t incorrect in saying that the decision was about the judge’s discretion regarding what technical testimony should be allowed to go to the jury.

:confused: Of course, the jury is involved in the Daubert decision. It’s about what testimony a jury should hear. My uncertainty pertains to whether this particular case first went to the jury and then was appealed, or whether it was appealed before going to the jury. But, what difference does it make? Either way, the import of the decision was the same.

Gadarene, you say Prof. Brickman’s column was contrary to your understanding of the law. Can you expand on that? He made a number of points:[ol][li]Asbestos lawsuits are expected to cost the U.S. economy more than $200 billion []These lawsuits are a great swindle[]Ninety thousand new asbestos claims were filed last year – triple the number filed two years ago[]Courts developed a “special asbestos law” – allowing seriously injured plaintiffs to prevail, without having to prove causation under standard tort-law principles.[]Asbesos law is now not only applied to cases of dubious injury, but to cases with no injury.[]Tens of thousands of claimants who were neither sick nor impaired but who won the asbestos lottery when mass x-ray screenings showed collagen deposits – benign lung abnormalities related to many environmental causes[]The claimants were then given scripts with blatant falsehoods to memorize and repeat in sworn testimony[]Asbestos litigation today has come to consist, mainly, of unimpaired people reaping compensation…[]… on the basis of prepared scripts with perjurious contents, backed by bogus medical evidence.[]Most asbestos cases today are risk free, especially when settled in huge batches.[]Lawyers’ effective rates run from $5,000 to $25,000 an hour[/ol]Most of these points are not strictly about the law, but rather about overall claims process as practiced in the real world. [/li]
Which of these points is different from your understanding? I would guess it’s #5. This point seems to depend on the collagen deposit standard. Brickman calls them “benign,” apparently meaning they are cases with no injury.

Do you know if he’s right about how asbestos law treats collagen deposits? Do you know if he’s right that one may have collegen deposits on the lung without having any degree of injury?

Princhester, Other than auto liability insurance, and that in a limited amount, no one compels you to carry liability insurance. Your decision to buy insurance is your decision based, presumably, on simple prudence. You wish to insulate your stuff from the consequences of your own misconduct. If indeed we are wallowing in an excess of litigation there will come a time that it no longer makes economic sense to keep up liability insurance. I know of one physician who has made that decision. Of course I would not submit myself to his treatment under any circumstances but he does not advertise that he has no insurance and that he has rendered himself judgement proof by making sure that every thing he owns is in either his wife’s name or his children’s names. He has decided not to be financially responsible for his own behavior. You and I are going to end up paying for his mistakes because his victim-patients are going to become public wards.

In terms of actual schemes to “reform” the civil tort rules about all I have seen is proposals to restrict the recovery of damages. Some proposals call for limiting the recovery for non-economic personal injury, meaning damages for screwing up the plaintiff’s life as opposed to injury that can be listed on a ledger sheet like loss of income and expenses incurred. The typical proposal is to bar non-economic damages of more than $250,000. Regrettably there are cases in which that sort of limitation is unjust, as in the case of a child rendered a parapaligic with a normal life expectancy.

There has been some talk about eliminating punitive or exemplary damages all together. This doesn’t seem practical because the award of punitive damages is rare, and rarer still when appealed. In my particular jurisdiction the award of punitive damages is not to the litigant but to the state government, which reduces the motive to seek them at all. I know of no liability policy that provides coverage for punitive damages although I suppose such a policy can be purchased somewhere. I would expect that the cost of punitive damage insurance would be pretty high. Punitive damages do catch the attention in the rare case in which a jury is sufficiently aggravated to award them, but other than the tabloid TV effect punitives seem to me to be a non-issue.

The other scheme that has been hawked is the so-called English system of requiring the losing party to pick up the winning party’s litigation expense and, hand in hand with that, to eliminate contingent fees. Both these ideas are contrary to the long established tradition in this country and, as has been pointed out by others, is not consistent with this country’s tradition of encouraging the resolution of disputes in the courts and promoting access to the courts by everybody with a dispute. Perhaps things would be different if there were an elaborate semi-administrative compensation system on the order of workers’ compensation to deal with ordinary personal injury. We have not taken that step.

December, if you really want to debate the asbestos cases you would be well advised to start a new thread. The asbestos cases present a big area of discussion that involves no small amount of politics and general double dealing on the part of the industry. This thread is not the place to get into it.

#5, and, having worked in the business a bit and seen what goes on, I’m definitely gonna need a solid cite for #s 6, 7, 8, 9, and 10. And 11, actually. Is that the lawyer’s effective rate, or the firm’s effective rate? Is that before or after expenses? Is that taking into account the cases that the firm tried and lost, leaving them out a bunch of money?

But this needs to be addressed first:

Well…yeah. Because the problems inherent in mass torts make standard tort law principles almost completely inapplicable. No offense intended, but by citing the statement above as a reason for tort reform very much shows your incomplete understanding of the law.

Luckily, I’m here to help. :slight_smile: I just started a class on Mass Torts taught by Ken Feinberg, whose name you may recognize, as he was appointed special master of the 911 Fund by the Bush Administration–he’s the one in charge of figuring out all the victims’ compensation questions. Tough job.

Anyway, in our first lecture he demonstrated to us why mass torts as a field is amply deserving of its own class; why, that is, it isn’t–and can’t possibly be–simply a subset of torts law.

He gave two examples. The first is a traditional tort scenario. The second is a mass tort scenario. (I’m working from my class notes here, so this isn’t gonna be nearly as complete as it should be (and it’s necessarily simplified a little), but I think it’ll be sufficiently illustrative.)

Traditional Tort

14-year-old Johnny, who lives in Virginia, is mowing his lawn with a Toro lawn mower. The mower hits a rock. Apparently due to a problem with the blade guard, the rock shoots up and hits Johnny in the eye. Johnny’s eye gets seriously hurt.

Okay? This is Torts I. Simple, simple, simple.

  1. There’s one plaintiff. Johnny.
  2. There’s one defendant. Toro Lawnmowers, inc.
  3. There’s one injury. The eye.
  4. Causation isn’t a big issue. The mower hit the rock, the rock hit the eye.
  5. There’s no latency problem. The injury manifests itself immediately.
  6. Damages are readily identifiable. Insurance companies know what an eye injury to a 14-year-old is worth. They pull out their actuarial tables–right up your alley, december–and bing-bang-boom, they know how much it’s gonna cost when it’s all said and done.
  7. There are no ethics problems. Each party hires their own lawyer, and there’s no conflict of interest.
  8. There are no jurisdiction problems. Everything happened in Virginia.
  9. Choice of law is easy. If Johnny sues in a state court, it’s Virginia negligence law. If he sues in federal court under diversity jurisdiction–let’s say Toro’s based in Montana–the court uses Virginia law, following Erie Railway Co. v. Tompkins.
  10. The government has nothing to do with the case; it merely provides a forum.
  11. Settlement presents no problem. If the parties want to settle, it’s easy for them to do so.
  12. There’s no insurance problem. This kind of thing is exactly the reason Toro bought the insurance in the first place.

All cool? Johnny v. Lawnmower Co. Piece o’ cake under traditional tort law principles. Now:

Mass Tort

There’s not one Johnny. There’s hundreds of thousands, in every state in the union, wanting to take their cases before every court in the US. Let’s say they inhaled asbestos–some of them fifty years ago, some of them five years ago. (Johnny’s not fourteen in this example). With asbestos, there’s not one defendant. There might be hundreds. Mass torts involves, for (among others) efficiency purposes, the aggregation of all of these claims. A quote from Feinberg here: “This volume inundates our legal system–the ‘mass’ in mass torts creates substantial problems in every area that is easy to resolve in Johnny v. Lawnmower Co.”

  1. Multiple plaintiffs and 2) multiple defendants. Already there are procedural problems, not least because of the duplication of paperwork required (since all the cases use exactly the same facts up to a point).
  2. Multiple injuries. One plaintiff has had asbestosis and mesothelioma for the past six years. Another just got lung cancer a year ago. A third just now started coughing up blood. A fourth worked up until recently in a job where he was literally covered with asbestos dust every day–remember that Buckley case?–but no symptoms have yet manifested themselves.
  3. Causation. This is the big one. If the injury is not trauma-related (i.e. immediate) but rather involves illness, there are tremendous causation problems. How can you prove your lung cancer was caused by that asbestos you inhaled twenty years ago and not to the cigarettes you’ve smoked, or some nasty stuff in the air, or something else altogether? How much exposure to a toxic substance is needed before it becomes likely enough that it caused–or at least contributed to–your injury? Quoting Feinberg again: “With toxic torts, major issues of causation abound.”
  4. Latency. Goes along with causation, but raises issues of its own. Years and years could pass between exposure to a toxic substance and physical manifestation of injury. It raises recovery problems, for one: what if the company that negligently injured you twenty years ago is out of business today?
  5. Damages. Again, part of causation. If you’ve got a chronic hacking cough because of asbestos inhalation, and you can scientifically show that the cough has a fifty percent chance of turning into mesothelioma over the next ten years, what sort of damages do you get? If you wait until you get mesothelioma, you have to live with the cough and run the risk of never getting recompensed for anything. If you initiate a claim now, under traditional tort law you foreclose your ability to relitigate on the chance that you contract a more serious injury in the future. Can you recover for the increased risk of future cancer? Can you recover for diminished life expectancy? The stress and fear brought about by living with the probability of one day getting cancer? The medical monitoring costs needed to catch the cancer early and nip it in the bud?
  6. Ethics. One plaintiffs’ lawyer potentially representing thousands of clients. One defense lawyer potentially representing multiple defendants. How can you remain loyal to and advance the interests of each and every one, as you’re bound to do? And let’s say you’re a plaintiffs’ lawyer and the company offers you a huge lump sum settlement for all your injured clients. How do you parcel it out? How do you decide, in effect, complex causation and latency issues (as in, who’s hurt worse, and who deserves the money more) without the benefit of an actual trial?
  7. Jurisdiction and 9) choice of law. Where can you bring the suit? Where do you bring the suit? And when the suit is brought, what law applies? Let’s say you were exposed to asbestos seven years ago when living in Idaho, and your injury manifests itself now while you’re living in Virginia. What happens?
  8. The government. The US Navy ordered asbestos companies to spray ships with asbestos in WWII. The Navy itself has sovereign immunity from claims under the Federal Tort Claims Act. The companies themselves have the government contractor defense that relieves them of liability–all they were doing is following orders. Do you have any recourse for recovery?
  9. Settlement. By now, the problems with settlement–in terms of the transaction costs inherent in organizing thousands of parties, and in terms of figuring out damages–should be pretty easy to see.
  10. Insurance. They’ve been litigating for a year over whether, for the purposes of the insurance policies, the planes hitting the World Trade Center constituted one event or two. According to Feinberg, they’ve been litigating for seven years over the cleanup costs associated with mercury leaks from gas meters in the Midwest; the question is whether each cleanup counts individually–in which case they all fall under the insurance policy deductible, and the utility company has to pay–or whether they’re aggregate–in which case the insurers are on the hook for hundreds of millions of dollars. And insurance causes problems another way, too–let’s say I inhaled asbestos in 1980 and manifested it today. And let’s say I can prove that X asbestos manufacturer caused my illness. In 1980, X was with Aetna. In 1987–around the time that my illness was taking hold internally–they switched to CNA. And then in 1995, they switched to Liberty Mutual, who is currently insuring them. Which insurance company is responsible for paying?

Anyway, it’s late. I hope I’ve articulated several of the reasons that mass torts are, by necessity, fundamentally different than traditional torts. #4 of your list may be true, but if anything, it’s a point against the sort of tort reform you’re proposing, not in favor of it.

Whether I have to buy insurance or not is not the issue. Whether you are talking payment of actual premiums as a measure of liability risk, or of the theoretical liability risk itself (whether insured or not) is irrelevant. That risk is too high, due to the gulf that has grown up between community concepts of actual blameworthiness and negligence (outside the world of tort), as opposed to the (IMHO) bizarre expanded definition of negligence that applies when a person is hurt and a defendant with deep pockets was somehow involved.

In my jurisdiction we have what you would call the English system. Contingent fees are allowed. There is a thriving practice in personal injury litigation. There are plenty of lawyers and financiers prepared to fund litigation on behalf of poor people if they have a decent case. The suggestion that the awarding of legal costs against plaintiffs who lose would prevent access to the courts is just plain not borne out by reality.

I agree that perhaps the current system is inevitable absent some form of semi-administrative system as you mention. What gets on my nerves is the intellectually dishonest pretence that the system is based around notions of fault. In my experience, that is just a bullshit cover for what is really a defacto system of compo in which injured people get money from the richest or best insured entity standing in the vicinity of the accident.

Wow! Thanks for the examples. If you have the time, please contribute whatever else you can from your mass torts class. This is fascinating stuff.

Yes, one can certainly make the case that mass tort procedures have helped society. They allowed the legal system to function without being overwhelmed. However I want to make two counter points:

1. Mass tort procedures have sometimes ridden roughshod over the Constitution and the law.

Here are some examples:[list=a][li]Judge-made asbestos law has trumped legislative workers compensation law. Under existing WC laws, employees cannot sue their employer. Judges simply ignored these laws.[]The super fund law imposed costs on busineses whose practices had obeyed all laws and regulations at the time. This likely violates the ‘takings’ clause of the Constution. There’s a fundamental double talk in this law. On the one hand, it treats the evil polluters harshly. OTOH those who share liability may not have polluted at all or may have disposed of wastes legally and properly.[]The smoking suits violated defendants rights in a host of ways.[/list] **2. The underlying principle of mass torts is not justice; it’s merely that everyone in a certain class be able to get some amount of money. **[/li]
The special mass tort procedures make sense, given that principle. They are a way to dispose of a lot of cases, but so what? Why is it in the public interest to get an unjust result? And, if we’re going to ignore individual justice, it would be cheaper and more convenient for the government to give a formula amount to every person who ever worked in an asbestos-exposed workplace, as your Prof Feinberg is doing for 9/11 victims.

(a) Employees can, under certain circumstances, sue their employers outside the worker’s comp system. As I recall, the primary exception to WC is when the employer acted intentionally, which, given that employers often happily continued to use asbestos for decades after they knew it was dangerous, is at least a possibility here.

(b) Asbestos suits typically do not involve employees suing their employers. Nearly all–and in fact, maybe “all” period, I haven’t done any studies–such suits are againt the manufacturers and distributors of asbestos and asbestos products. Worker’s comp has NEVER shielded a third party defendant from suit by an injured worker. If you are a truck driver and your gas tank explodes because it was defectively manufactured, you can sue the manufacturer (and your employer will even get its WC payments back from any recovery you get against the manufacturer).

So many misunderstandings, so little time.