The tort "reformers" won't be happy with this; yet more evidence that medical malpractice lawsuits are not the problem with healthcare costs.

OK, here you go, short and sweet, the lede:

Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

Also part of the article, malpractice payments on behalf of doctors equals just 0.14 of 1% of overall US healthcare spending.

And for that, there are people who want to close the courthouse doors.

You can read the rest here: Analysis: Medical malpractice payments continue to fall.
--------------------
And prior commentary from me here:

• The False Premises of Medical Malpractice "Reform" (Response to Richard Epstein in WSJ) (6/30/09)

  There's an old saying, "garbage in, garbage out." If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL)...

  
  
• Do Texas Med-Mal Damage Caps Work? (What Do You Mean By "Work?") (4/14/09)

  But what, exactly does it mean for a statute to "work" when it reduces the ability of the most badly injured individuals to recover for their loss?
  
  Does offering government protectionism for tortfeasors mean it works?
  
  Does stopping those who've been victimized from recovering from their loss mean it works?
  
  Does destroying the concept of personal responsibility for one's actions mean it works?

• My Tort "Reform" Op-Ed in Today's Journal News (7/29/08)

  Re "Tort reform needed in New York state," a July 23 letter by Cortes E. DeRussy of Bronxville that blamed the "trial-bar friendly state Legislature" for refusing to enact malpractice reforms needed to keep doctors from fleeing the state:
  
  The DeRussy letter repeated a common myth in an argument for tort "reform," claiming that one of the primary reasons for increased medical malpractice insurance was "unusually high judgments." DeRussy couldn't be more wrong...

  
  
• The Medical Malpractice "Crisis" Hoax -- From Public Citizen (1/24/07)

  Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice "crisis" I wasn't going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:
  
  "And to protect good doctors from junk lawsuits, by passing medical liability reform."
  
  Good doctors, however, don't seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

  
  
• Debunking Yet Another Tort "Reform" Column, This Time in Forbes (7/15/09)

  I feel like a broken record sometimes, rebutting the same disingenuous tort "reform" nonsense over and over. The latest comes from Forbes (via PofL), in a piece written by Manhattan Institute fellow John Avlon, regarding the amount that New York City pays out in settlements and verdicts....

• Why New York Medical Malpractice Insurance Jumped 14% (7/31/07)

  You may have seen the screaming New York headlines: Doctors hit with 14% increase in medical malpractice rates! Doctors in high risk specialties paying 6-figure insurance premiums! Insurance reserves so low carriers may become insolvent! Blame the lawyers! came the cry from the doctor's, for surely it must be due to medical malpractice cases. A little protectionism called tort "reform" would go a long way to curing the problem. Right?
  
  Ahh, but truth is another matter...

hat tip: JusticeDotOrg

Labels: tort reform

Now I know what you're thinking with this headline: "John Stossel? You love the guy? He is always whining about trial lawyers, how can you love him?"

No, really, I do. Because for a writer, hypocrites like Stossel are like manna from heaven. This story is inspired by a little fluff interview with New York Magazine earlier today where this question and answer appeared:

Who is your mortal enemy?
Smug, ignorant, and arrogant Upper West Side Lefties and personal-injury lawyers

Awww, isn't that cute. Johnny-boy wants to kill me and all the other personal injury attorneys in the country. We're his "mortal enemy."

The guy must have been sued big time and got clobbered to have that type of hissy fit. Oh wait. It was the other way around.

That's why Stossel is so much fun to write about. You see, he was the plaintiff in a lawsuit after professional wrestler Dave Schultz slapped him twice. But he didn't just sue the wrestler that smacked him down, but the World Wrestling Federation as well. The case reportedly settled for $400,000. Here is the video of the two slaps (with an out take above): 


So what happened to change his mind? Usually, I refer to tort "reformers" as people who have never been seriously injured by the negligence of another. The hypocrites suddenly see the light when they become injured.

So here's my list of theories on why Stossel flipped backward after being compensated for his injury:

1. He wasn't seriously injured, but claimed that he was, and therefore assumes others that make claims are just like him;

2. He hated his own attorney, and therefore assumes others are just like him or her;

3. He realized that beating up on lawyers is super easy to do because when we defend ourselves we sound like, well, lawyers;

4. If you shill for big business, you get lots of speaking fees for conventions.

5. Since the time of that incident, he's been sued or threatened with suit a number of times and isn't too keen on being on the other side. From a profile on Stossel comes these revealing incidents that tend to support the "I hate being on the other side" theory:

Accuracy isn't one of Stossel's strong suits. He's admitted to making a number of serious mistakes in the past, he's been sued in connection with his reporting, and the "research" he's used to prop up his arguments has been routinely debunked by leading academics. In 2000, for example, Stossel declared that organic produce was worse for you than conventional fruits and vegetables; it turned out his report had been based on faulty research and he was forced to issue a public apology. When he argued that global warming was a myth, no less than 104 Nobel Prize winners took him to task. (For his part, Stossel said he was relying on another group of "unnamed" scientists.) More recently, he had to issue a correction and an apology to the evangelical pastor of an African-American church after he distorted his words.

Stossel is -- and this is fun to add -- not just a hypocrite on tort "reform" but on his avowed libertarian philosophy. He has stated that "Free markets, not coercive governments, are the consumer's best friend. The people who are really ripping us off are the lawyers, the politicians, and the regulators." Yet, when it comes to litigation, he wants Big Government to come riding to the rescue to protect him.

From a 2004 Washington Monthly story by Stephanie Mencimer comes this:

In April 2002, Stossel hosted a fundraiser in south Texas for Citizens Against Lawsuit Abuse, a corporate front group that was helping doctors seeking caps on malpractice lawsuit damages.

Ahh yes, Big Government coming in to protect negligent doctors. That is just what anti-government libertarianism is all about. Way to go Johnny-boy.

And now, after digging around a bit, I come to The Admission as to why he actually flipped. From the same Washington Monthly piece comes this whopper:

While he doesn't include it in the book, Stossel did once offer the real explanation. In what was perhaps a moment of candor back in 1996, when he was giving a speech to the conservative legal group, the Federalist Society, someone asked Stossel why he had abandoned consumer reporting to bash government and trial lawyers. According to the Corporate Crime Reporter, Stossel replied, "I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas."

If he ever decides to give up his career as a pseudo-journalist, he would make a perfect spokesman for the US Chamber of Commerce, which has, ahem, started its own frivolous lawsuit.

As a famous reporter has been heard to say, Hey, give me a break.

Labels: tort reform

Over at Point of Law, Carter Wood points out that the American Association of Justice spent 1.33M in the 3rd quarter for congressional lobbying, much some of it on the health care bill. In his commentary, Wood says:

The filing provides more evidence that the trial lawyers helped craft language establishing state demonstration projects, preventing serious reform.

Now this is what the health care insurance industry spent: $38 million in 2009. (via WSJ Health Blog). [Update: This is limited to the health insurers, and does not, for instance, include drug makers. Also, note that the lobbying by the attorneys' group includes a wide array of consumer issues.]

One of the constants of the tort "reform" lobby is pointing out what consumer groups spend to preserve rights, and ignoring the vast sums that come out of the Fortune 500 to lobby for various corporate immunities.

Labels: tort reform

A hearty congratulations to the U.S. Chamber of Commerce on this New Year's Day. They won my prestigious Golden Turkey Award for the most ridiculous and hypocritical lawsuit of the year, after many hours of super-secret deliberations. The vote was unanimous, after I cast the sole vote just moments ago.

The competition was stiff, with the Chamber railing against everyone else bringing lawsuits but forgetting that they brought one of their own.

While I mentioned it's suit in my Halloween-themed Blawg Review, the suit really does deserve to shine separately.

In October a group called the The Yes Men staged a fake news conference to pretend they were the Chamber and they had seen the light (angels and hosannas flow through background), and that they were reversing course on their opposition to climate legislation.

Not happy about being parodied, mocked and ridiculed, they sued the The Yes Men in a suit that is no doubt destined for the trash heap of hypocrisy, apparently forgetting about that First Amendment thingie.

Some posts on the subject here:

• Chamber Sues the Yes Men (Mother Jones)

• Chamber Suing Yes Men For "Commercial Identity Theft" (TPM-Muckraker)

• EFF to represent Yes Men in Chamber of Commerce lawsuit (Boing Boing)

Congrats to the Chamber on their fine work, and welcome to the growing stable of tort "reform" hypocrites. We can always count on them to shoot themselves in the foot with over-the-top conduct.

My Golden Turkey, of course, is not to be confused with the book by that name about the worst movies in Hollywood, or any other Golden Turkey awards, of which I imagine a few others might exist. With a last name like mine, I claim squatters rights. Or something like that.

Labels: Chamber of Commerce, First Amendment, tort reform

Over at the PopTort comes this humdinger of a letter they sent to the American Tort Reform Association, of which I give you but a snippet:

Labels: tort reform

Last year I wrote about Rita Cantrell, who was falsely accused by Target of using a counterfeit $100 bill. The bill was authentic, but lacking some of the modern anti-counterfeiting devices simply because it was an older series.

The resulting suit led to a $100,00 compensatory damage verdict with $3,000,000 in punitive damages for the defamation. Some tort "reformers" smelled an opportunity and a small kerfuffle was set off in the legal blogosphere (see: Target Hit for $3M in Defamation Punitives (And Tort "Reformer" Sees Opportunity).

The suit, Cantrell v. Target, has now settled. While this is good for the parties involved, it's not so good for the opinionators who were wondering what the Court of Appeals would do with the verdict and the 1:30 compensatory:punitive damage ratio. A Magistrate Judge had previously refused to toss out or modify the damage award, leading to the appeal. (And the Supreme Court had let stand a 1:100 ratio earlier this year.)

According to this paper, the 4th U.S. Circuit Court of Appeals dismissed the appeal "upon such terms as have been agreed to by the parties." The parties didn't disclose the terms.

(h/t Stegmaier)

The case was discussed previously here:

• $3 Million to the Target of Target (Scott Greenfield @ Simple Justice);

• Federal Jury Awards $3 Million to Woman Wrongly Identified as Shoplifter and CounterfeiterJonathan Turley);

• (Cantrell v. Target: $200 medical bill = $3.1 million verdict (Ted Frank @ Overlawyered)

• "Cantrell v. Target" - Sorry, Overlawyered, as former loss-prevention officer, I find for plaintiff (Law and More)

Labels: Punitive Damages, tort reform

One of my brothers is a doctor. Internist. Geriatrician. You may not have expected that given the many decades both my father and I spent prosecuting medical malpractice claims, but thems the facts.

Today he guest blogs in my humble little corner of cyberspace. He wrote this letter in response to an NPR broadcast on defensive medicine. They didn't air his views, but I will. (My prior comments on Defensive Medicine v. Medical Greed are here, so that, if you choose, you can compare some of the intra-family views on the subject.)
----------------------------------------------------------------------
By Stuart Turkewitz, M.D.

I listened with interest to your NPR interview regarding the estimated portion of health care costs attributable to malpractice expenses, and especially to the practice of defensive medicine. Both you and the host, Robert Segal, made repeated reference to unnecessary "tests and prescriptions" before arriving at a conclusion that a “very small portion” of the total health care bill results from practicing defensively.

Unfortunately, your reference to "tests and prescriptions" omits a major component of unnecessary health care expenditures: hospital admissions of older adults, and particularly adults with chronic medical problems.

I am an internist and geriatrician, and my patients occasionally go to or are sent to the emergency room, usually because a test is needed to urgently rule out a condition: a CT scan to rule out subdural hematoma, a lower extremity Doppler to rule out deep venous thrombosis, cardiac enzymes and EKG to rule out a heart attack.

Once a dangerous condition is ruled out, there is every reason not to admit an older patient to the hospital: people do best in familiar surroundings with familiar caregivers and food. The hospital subjects them to multiple new faces, irregular sleep cycles and sleep deprivation, risk of infection, and relative immobility, often precipitating a substantial decline in function.

Once in the emergency room, however, patients are confronted with physicians and other staff with every incentive to admit the patient, and little incentive to send him or her home. The infection, confusion, and insomnia that often accompany admission are at least a day or two in the future , and are not a consideration of the ER physician. On the other hand, the ER physician feels that he or she will be held to account for any misfortune that befalls the patient sent home from the ER. In addition, chronic medical problems can often look acute to physicians and staff unfamiliar with a particular patient's "baseline." The urge to recommend admission is overwhelming. The attending physician (that would be me), often at the other end of the phone, however skeptical of a true change in condition, is ill-prepared to argue against the physician who actually saw the patient moments earlier.

There is no question that the fear of malpractice suits influences physicians, particularly ER physicians, to admit patients unnecessarily, and I believe that the magnitude of this dwarfs the "tests and prescriptions" that you mention. This not only drives up the national health care bill enormously, but is detrimental to the health of most patients.

I believe that if the true "costs" of a hospital admission, including temporary and permanent decline in function, were truly and fairly accounted for, then it would be more evident how much the fear of lawsuits was truly costing us all.

Labels: Guest Blog, Medical Malpractice, tort reform

I feel like a broken record sometimes, rebutting the same disingenuous tort "reform" nonsense over and over. The latest comes from Forbes (via PofL), in a piece written by Manhattan Institute fellow John Avlon, regarding the amount that New York City pays out in settlements and verdicts.

His comments in italics with my responses:

The city's $568 million outlay in fiscal year 2008 was more than double what it spent 15 years ago.

Only double? So then, when you account for inflation, there really hasn't been much change at all?

Sidewalk "slip-and-falls" cost taxpayers $54 million...

Sidewalk cases against the city have mostly evaporated as a result of a change in the law six years ago. In 7-210 of the Administrative Code of the City of N.Y the city shifted liability for the miserable state of our sidewalks to most of the abutting landowners.

Suing the city is big business. Ninety percent of the city's claims costs come from personal-injury lawsuits; of these, medical-malpractice suits are by far the priciest, draining $145.3 million from city coffers in fiscal year 2008--a particular vulnerability for a self-insured city with 11 public hospitals.

Has it occurred to you that the city's hospitals get sued often because most of them suck? If you think the city is vulnerable, what about the folks that are forced to use those hospitals? Here's a suggestion on how to reduce city malpractice claims: Improve the hospitals. I know, it's a crazy notion.

Nearly 90 cases against the city were settled for amounts over $1 million, and the average settlement was nearly $75,000--up from $14,396 in 1984. (The city settles most suits to reduce the costs of going to trial.)

The city settles cases when the facts warrant it. They take verdicts when the facts warrant it. The idea that the city settles a million dollar case simply to avoid the cost of trying it is empty political rhetoric that is wholly unsupported by analysis. It's gibberish, and every medical malpractice attorney in this town knows it, defense included.

Why is Gotham such a litigation target? Blame New York State's laws, which have made the city a gold mine for personal-injury lawyers.

Having already admitted that medical malpractice cases are the biggest problem, don't you think you should point out that New York has some of the lowest legal fees in the nation for medical malpractice cases? Some gold mine. And perhaps one day you should look at the actual economics of taking a malpractice case in New York.

...the cozy relationship of New York trial-law firms and state lawmakers, who have received $2 million in donations over the last five years from the New York State Trial Lawyers Association.

So how much have Fortune 500 companies made in donations? Seems to me that if you want to do a comparison of donations then you need to actually have something to compare it to.

Under current law, lawyers' fees in medical-malpractice cases are capped at 10% for all awards exceeding $1.25 million. In recent budget negotiations, Silver reportedly pushed for increasing that cap to 33%--a massive new incentive for lawsuit abuse in the Empire State

Currently, due to the low legal fees, most acts of malpractice are never put into suit. The medical community has de facto immunity from negligence in most cases. Once upon a time conservatives actually believed in personal responsibility for the conduct of people. That seems to have disappeared when it comes to protecting big business with various tort "reform" measures.

A good start would be to place caps on noneconomic damages, such as pain and suffering, as two-thirds of states have done.

Well, that would effectively make victims bear the brunt of the negligence of others. And you think that is good policy? Let the victims get poorer and the tortfeasors walk away?

In Texas, for instance, lawmakers recently imposed a $250,000 cap on noneconomic damages, which not only resulted in dramatically reduced malpractice-insurance premiums for doctors, but also cut the number of all tort lawsuits in half and doubled the number of doctors applying to practice medicine there.

To the determent of the victims. I think we can agree that when you slam the courthouse door shut in someone's face then the wrongdoers will benefit and the victims will lose. See: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By "Work?")

But perhaps the single most effective action would be to establish a court of claims for municipal cases to restrain outsize judgments.

Interesting assumption. Some counties have become so notoriously conservative that plaintiffs no longer ask for jury trials. It's the defendants that are making the requests. Of course, if the city attorneys appear only in front of city judges they will be able to form a more comfortable relationship with each other. Perhaps that is what you had in mind?

One last thought, if you want to "control" lawsuits; why not just abolish them and tell the victims to just piss off? Because we both know that this will be fair, make sidewalks, hospitals and cars safer, and lead to greater accountability by those that currently act negligently. Right?

Related: The False Premises of Medical Malpractice "Reform" (Response to Richard Epstein in WSJ) 6/30/09
----------------------------
Elsewhere:

• Ron Miller @ Maryland Injury Lawyer Blog writes on the Forbes article on Lawsuits in New York:

Reasonable people smarter than I am support the idea of reforming the tort system and limiting the rights of victims. But you have to at least pretend to write a balanced article if your are trying to convince the undecided. Otherwise, you are just preaching to the choir. [more]

• Andrew Oh-Willeke @ Wash Park Prophet responds with Tort Suits Not What's Wrong With NYC:

  Rather than securing and paying for medical malpractice insurance, the city's hospital system "self-insures." Thus, while medical malpractice insurance premiums don't show up on the books in other jurisdictions at "lawsuit" related costs, they do in New York City...
  
  John P. Avlon's ... rant against New York City litigation is either fatally incompetent or dishonest. [much more here]

Labels: tort reform

There's an old saying, "garbage in, garbage out." If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL).

His column How Other Countries Judge Malpractice pretends to support the "reform" of problems in the medical malpractice system. But he supports his arguments with some whoppers and fallacious arguments that don't hold water.

Whopper #1, Epstein writes:

"American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury."

This is just flat out false, and every competent lawyer that tries malpractice cases for either the plaintiff or the defendant knows it. Litigants must show -- at least in NY, where I practice, and where Epstein is now a visiting professor at NYU -- specific deviations from care. The jury gets a special verdict to decide if the exact deviation from practice occurred. Epstein does not identify even a single jurisdiction that allows a court to commonly infer negligence from a bad outcome. Not even one.

Whopper #2, Epstein writes:

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.

Once again, Epstein misses the mark, at least in New York. For a jury must not only return a verdict regarding a specific act of negligence, but they must also find that that specific departure was a substantial cause of injury. If Epstein knows of jurisdictions that allow verdicts without showing a casual connection he should mention them. He does not.

Epstein has an impressive resume. He teaches. He writes. But nowhere in that lengthy summary of ivory tower achievements does he discuss how many juries he has picked or how many times he's tried to convince a jury to bring back a verdict based on the silliness he propounds.

Epstein also identifies four "procedural features that drive up malpractice costs." They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This "procedural feature" is called a constitutional right. The Seventh Amendment's right to jury trials in civil actions is what Epstein is actually complaining about. I reprint it here so that he doesn't have to look far for it:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Epstein's real problem isn't with some procedural feature, it's with the Bill of Rights and our nation's founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.

The second "procedural feature" is the:

"contingency-fee system, which allows well-heeled lawyers to self-finance litigation."

Of course, if the lawyers didn't fund the litigation, no one except the rich could bring a suit. Allowing others to fund the litigation when they see a cause worth fighting -- and risking their own money for -- is what keeps the courthouse doors open. Does he want to force those that have already been victimized by malpractice to fund the lawsuit as they also wrestle with paying the mortgage while incapacitated? That's a great way to give immunity to those that were negligent.

The third "procedural feature:"

"...is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner."

We return again to the concept of keeping the courthouse door open. If you want to strip away the rights of the citizenry, this is the way to go. Those of modest means simply won't be able to bring suit. (And it also may end out rewarding those that are less than honest on the witness stand, causing the injured party to be victimized yet again.)

Epstein trumpets the fact that in other countries there are fewer lawsuits as a result of "loser-pays." But that just means that victims can't afford to bring the suits and they are forced to bear the costs and burdens of the negligence of others.

The fourth is:

"...extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere."

I've never heard of discovery that didn't have judicial oversight in the event of abuses. Epstein doesn't provide a single reference to any jurisdiction where this allegedly occurs.

Epstein also complains about the cost of litigation. Here is one way to put the brakes on it in New York: Let interest on the judgment run from the date of the malpractice. As it stands now, interest only runs from judgment, which is usually years later. Defendants, their lawyers and the insurance companies profit by dragging the lawsuit out and running the meter. (See: No, your medical malpractice case will NOT settle fast) If they knew they would have to pay interest from the time of the malpractice, they would likely take a different view of things.

In sum, Epstein fills his opinion piece with a call for "reform" that is based on little more than unsubstantiated cliches. I expect better from someone that calls himself a law professor.

Remember what the definition of tort "reformer" actually is: Someone that has never been seriously injured by the negligence of another. You can see some profiles of tort reform hypocrites at this link: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By "Work?")
----------------------
More from John Stossel at ABC, who supports "reform," even though he had no hesitancy himself in suing another for injuring him. Some "reformers" are cured when they see the consequences of their actions, but others, like Stossel, seem to stick with "tort reform for thee, but not for me."

Labels: tort reform

In a headline at Point of Law, the Manhattan Institute blog dedicated to tort "reform," comes this: Texas Med-Mal Damage Caps Worked.

And in support of that headline, Andrew Grossman recaps this article with data about the reduction of payouts for pain and suffering ("non-economic" loss) since Texas slashed the ability of injured people to hold the wrongdoers accountable for their conduct:

The Texas cap reduced allowed non-economic damages in tried cases by an estimated 73 percent, allowed verdicts by 38 percent, and payouts by 27 percent. As expected, settlement payouts declined, by 18 percent.

But what, exactly does it mean for a statute to "work" when it reduces the ability of the most badly injured individuals to recover for their loss?

• Does offering government protectionism for tortfeasors mean it works?

• Does stopping those who've been victimized from recovering from their loss mean it works?

• Does destroying the concept of personal responsibility for one's actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn't makes it good public policy.

I've always found it odd that the tort "reform" movement is lead by those whose political philosophy is to have less government intervention and more personal responsibility. Because tort "reform" is just the opposite.

But some have seen the light. Below is a list of a few "reformers" that have been covered in this blog that no longer believe that insurance company profits are more important than making the victims whole again. I've excerpted it from The Bubbe Maisse Report (aka "Judicial Hellholes"):

Another Tort "Reformer" Sees The Light:

Dr. Dave Stewart is a California anesthesiologist. He supported tort "reform." Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys.

Tort "Reform", Trent Lott, and Changing Fortunes: Aside from Trent Lott, it deals with Frank Cornelius --

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana -- the same sort of arguments that not underpin the medical industry's call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

Tort "Reform" Gone Bad. And the Personal Injury Round-Up: With this story from a "reformer" and medical oncologist:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.
...
As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages... The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state's tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

Tort "Reformer" Michael Savage Brings Lawsuit:

Right wing radio talk-show host and tort "reformer" Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a "book of hate" and said Muslims "need deportation."

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees --

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount "in excess of $1,000,000," plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

Remember: Tort "reform" is an idea promulgated by people who've never been badly injured by the negligence of others.
-------------------------------------------
See also:

• Study Finds Texas Medical Malpractice Reforms Are Discriminatory (Perlmutter & Schuelke)

• Hypocrites of Tort Reform (Center for Justice & Democracy, 12/00) featuring, among others:
  

1. George W. Bush
2. ABC News Correspondent John Stossel
3. Sen Rick Santorum
4. "Lawsuit Abuse" Group Founder and Trustee, Sterling Cornelius
5. Texans for Lawsuit Reform Board Members
   

Labels: tort reform

The Chamber of Commerce has blown its own propaganda campaign regarding frivolous lawsuits. At this website designed to spread the myth of the frivolous lawsuit as a bona fide problem, they mistakingly included a pro-consumer eight-minute video called Mr. Fancy Pants. If you hold your cursor over the pictures after the video runs, you will see which one it is.

The video was produced by Injury Board, a collection of plaintiffs attorneys, and discussed last year at TortDeform.

Whoever put the Chamber site together apparently didn't listen past the opening minute or so, which gives the propaganda angle. The rest of the video goes on to explain how the Chamber puts together their lobbying efforts and that judges already have the power to sanction litigants over frivolous cases.

I expect the Chamber to pull down the video after I post this, and perhaps slap someone upside the head for not bothering to actually watch the stuff they put up on their own site. I'm sure their corporate contributors will be delighted. Since it will likely disappear from their site, I'm putting the video here since it is also on available via YouTube. Enjoy the video...now being actively promoted by the U.S. Chamber of Commerce:


P.S.: These additional videos linked at the end of a clip are likely embedded by YouTube. If you look at the bottom of the video that I posted, for example, you will see unrelated "pants" videos. Which means that corporations that want to use this stuff need to re-code the YouTube videos to exclude those frames and links.

Labels: Frivolous Claims, tort reform

A bubbe maisse is a Yiddish expression for a grandmother's tale. In the electronic era we call them urban legends. And the American Tort "Reform" Association, a business group dedicated to making sure consumers can't seek fair damages for harm that was caused to them, has issued its annual "Judicial Hellholes" report to help create some more such legends.

The report claims to identify the "worst" jurisdictions for lawsuits, which is to say, the worst for them and not for the consumer. In actuality, it is a small catalogue of rants, quotes and stories, many of which they put out each year in order to garner attention for their cause.

But this is the important part: There is nothing in the "report" that approaches empircal evidence. They simply canvass big business for the places they would least likely to get sued, or cherry-pick some decisions that they don't like.

There is some whining about "trial lawyer money" influencing judges, but no indication as to how much money was spent by the Fortune 500.

I briefly noted last year's report, quoting the Center for Justice and Democracy when they called the report "dishonest." Adam Liptak, writing about it last year in the New York Times (The Worst Courts for Businesses? It's a Matter of Opinion), noted that:

It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology. There is no way to tell why South Florida is the top hellhole while West Virginia is hellhole No. 4.

So I went breezing past the anecdotes in this year's report to see if they responded to the criticism that it was completely subjective. Try as I might, I could not find any discussion of methodology. I know, you're not surprised.

Also missing from the reports, since they like anecdotes so much, are the stories of tort "reformers" who found found themselves screwed or humiliated by their own prior advocacy, when they were injured.

And so, without further ado, since ATRA loves anecdotes so much, I'll share a few of my own:

Another Tort "Reformer" Sees The Light:

Dr. Dave Stewart is a California anesthesiologist. He supported tort "reform." Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys.

Tort "Reform", Trent Lott, and Changing Fortunes: Aside from Trent Lott, it deals with Frank Cornelius --

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana -- the same sort of arguments that now underpin the medical industry's call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

Tort "Reform" Gone Bad. And the Personal Injury Round-Up: With this story from a "reformer" and medical oncologist:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.
...
As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages... The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state's tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

Tort "Reformer" Michael Savage Brings Lawsuit:

Right wing radio talk-show host and tort "reformer" Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a "book of hate" and said Muslims "need deportation."

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees --

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount "in excess of $1,000,000," plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

Aren't anecdotes fun? You can use them to "prove" anything. And with these anecdotes, I "prove" that a tort "reformer" is just someone that was never injured by the negligence of another.

See also:

• Hellholes Update: AAJ Responds (Ambrogi @ Legal Blog Watch)

• ATRA's Judicial Hellholes 2008 (Olson @ Overlawyered, with links to others)

• Drug Lawsuits Keep Atlantic City A Judicial Hellhole (Silverman @ Pharmalot)

Labels: tort reform

This is two stories in one. First, a Target store down in South Carolina falsely accused a woman of using a counterfeit $100 bill. She sued Target and won $100K in compensatory damages and Target was hit by the jury with $3M in punitive damages. Then Ted Frank at Overlawyered decided this would be a good fit for that site, but the facts he used didn't seem to fit the story. If you want to see how some lawsuits get turned into urban legends, this might be a good example to follow.

First the suit, which comes via Turley, citing a local news story:

Rita Cantrell of Greer went to two Target stores in the Greenville area in Feb. 2006, and both times employees accused her of using a counterfeit bill. Cantrell tried to buy items at the store and pay with an older series $100 bill.

[A Target] store employee sent out an e-mail to dozens of other retailers and law enforcement agencies warning them that Cantrell was a shoplifter who tried to spend bogus cash. The e-mail also included Cantrell's picture.

According to Target's own brief in their failed motion for summary judgment, Ms. Cantrell visited a Target store (just one store, not two as in the news story above) where a counterfeit was suspected. They declined to take the money when offered and asked her if she had another form of payment. She shook her head no, took the goods out of her basket, and walked out of the store. Then came the accusatory email.

The problems were that the bill was legit, and the email also went to her place of employment. And Target didn't identify the money as a "possible" counterfeit. No sirree. The email said "The lady pictured attempted to use a counterfeit 100 dollar bill today." So the accusation was unambiguous. (See Order denying judgment.)

The Secret Service was called in, verified the money as real, and Target was sued for the embarrassment and humiliation that Ms. Cantrell suffered, with the jury ordering 100K in compensatory damages and $3M in punitives.

From the original article came this response: Target spokeswoman Bethany Zucco said Friday the company will challenge the ruling.

"We are extremely disappointed by the magnitude of the compensatory and punitive damages awarded by the jury in this case," Zucco said in a statement. "We sincerely regret any inconvenience incurred by the plaintiff.

Scott Greenfield wrote about this case the other day ($3M to the Target of Target) and remarked about this pathetic response:

Any inconvenience? You sent out a mass email, with her picture, telling the world that she's a thief and forger, and you're sorry for the inconvenience? There's an "apology" that demands some serious puni's alone.

And now comes the urban legend part. Ted Frank, a well known tort "reformer" at Overlawyered jumps into the action (Cantrell v. Target: $200 medical bill = $3.1M verdict). Except some of the facts in his post look a little different from the Target brief and the judge's opinion.

1. As noted above, Target clearly identified the money as counterfeit, writing in the email, "The lady pictured attempted to use a counterfeit 100 dollar bill today." But not according to Frank. In his version of the story, the central accusation is watered down to this:

Target employees were foolish in being unable to recognize the old currency, and mistakenly identified it as a possible counterfeit.

Now that, my friends, is just flat out wrong. They did not use any qualifying language about this being a "possible" counterfeit. That's why there was a lawsuit and a jury verdict. Because the language was not qualified the way Frank wrote it. Hopefully Frank will fix this before his new version of the story becomes an urban legend.

2. Next up: When the incident happened, Ms. Cantrell "shook her head no and walked out of the store" in response to Target's query of whether or not she had any other way to pay for the merchandise -- as described in Target's own brief to the court. But Frank says she "fled." That's right. Instead of an angry or anguished person simply walking away without the goods they came for after indicating they had no other funds to pay with, he claims she "fled" the scene. Now that's just wrong (defamatory?).

Hopefully Frank will fix this too before his new version of the story becomes an urban legend. (I'm not being snarky, by the way. We all make errors and he has fixed his in the past.)

3. Next up, the Frank headline refers to a $200 bill and says that is no reason for a big award. Apparently, mental anguish and humiliation are not compensable under Frank's view. We know this because he calls her experience merely an "inconvenience'" though there is no evidence in Frank's piece to suggest he actually heard any of the testimony of what she went through. And when I challenged him in the comments to his post, he responded by writing that "the plaintiff suffered no actual injury." Obviously the people who actually heard the evidence feel otherwise. When people who haven't heard the evidence make such comments about those who have, it would be appropriate to immediately question the objectivity of that critic and question how their political leanings have affected their view of the facts.

If is fine, of course, for Frank to have a strong opinion and political leanings and write about them -- only a fool would question his rights to criticize -- but that should not lead to changing the facts of a case.

Frank brings up medical costs and their relationship to injuries in order to minimize Ms. Cantrell's experience, and it is true that sometimes medical costs have a relationship to the seriousness of an injury. But not always. While a high bill usually means a pretty serious injury, a low bill does not necessarily mean a small injury. Psychological injuries are a perfect example of something that can torment an individual but have very low (or non-existent) medical bills. Another example is ongoing back pain that may be almost crippling to an individual but have no viable medical treatment. Looking at medical bills in a defamation action, and pretending it will have some bearing on the injury, is almost bizarre.

There are plenty of frivolous claims around to keep law bloggers busy if they want to write about them. With a nation of 300 million people this will happen. I write about them from time to time, as do others, because there are lessons to be learned in doing so. But there is no evidence this suit falls into that category. So long as one sticks to the actual facts.

Last note: Will the damage awards be sustained on appeal? That's hard to say, since I didn't hear the testimony nor have I seen a full record of the trial. But the 30-1 ratio may well be sustainable in general for a personal injury case. My analysis on why this is so is based on decisions and argument from the US Supreme Court here: Philip Morris Punitive Damages Decision -- Why It Was Good For Plaintiffs

Labels: Personal Injury, Punitive Damages, tort reform

With oral argument scheduled for Monday in Wyeth v. Levine, three separate stories leaped off the screen at me. This included a devastating report of FDA officials being deeply opposed to Bush Administration policies regarding the issue of federal preemption of state law suits over drug cases, calling justification for new regulations "false and misleading."

So here are the three stories in a nutshell: One from the standpoint of defendants, one from plaintiffs, and one from the government. (That's plaintiff/musician Diane Levine at right. Her below the elbow amputation came from a drug injected in an improper manner that caused gangrene. The suit alleged, and the jury agreed, that the drug labels should have specifically warned that that type of injection should not be used.)

But before hitting those three posts, here is a quickie primer to get you up to speed in case you are late to the discussion, which I summarized a week ago (Preemption Gone Wild (How Bush Pushed Immunity for Big Business)). With preemption, a federal law that grants immunity will supersede a state law that allows lawsuits. But since President Bush couldn't get Congress to agree to anti-consumer laws that grant immunity to corporations, drug companies try to argue that such preemption is implied by virtue of a conflict. Since there happens to be a presumption against preemption, that creates a problem for those corporations. They try to solve that problem with helpful politicians doing by executive fiat at an agency what they could not do in Congress; for example, by placing a corporate immunity clause in the preamble of an FDA rule that says if a drug is FDA approved, you can't sue. Thus, drug companies ask the courts to imply that preemption exists even though it was not expressly legislated.

Now on to the three blogs:

First in the dock is the Drug and Device Blog -- whose authors defend pharmaceutical companies from drug lawsuits -- with Everything You Need To Know About Wyeth v. Levine, From A Defense Perspective. This lengthy piece summarizes all of their points about preemption and why drug companies deserve immunity if the FDA approves a drug, which is the number one thrust of this blog. The argument essentially ignores defects and under-funding in the drug-approval process.

Next up is from the Center for Justice and Democracy, a consumer rights group dedicated to preserving the civil justice system. They issued a report today: THE BITTEREST PILL -- How Drug Companies Fail To Protect Women and How Lawsuits Save Their Lives. The report, according to the authors, "tells the story of the hyped marketing to women of a disproportionate number of unsafe drugs and devices resulting in countless deaths and injuries." As you may guess, they aren't too keen on immunity being granted to a company that was negligent, and whose negligence injured people. It's part of that whole personal responsibility thing that conservatives usually talk about, except when it comes to big business.

And last up comes from Pharmalot, with this -- Report: FDA Staff Objected To Preemption Policy. Here is the devastating lede:

Key FDA career officials strongly objected to Bush Administration drug labeling regulations that would preempt state liability lawsuits, according to a report just released by the Committee on Oversight and Government Reform. The staffers viewed the justifications for the regs were "false and misleading" and warned the changes would deprive consumers of timely info about drug safety, the report concludes.

This report is like sticking a dagger into the heart of the drug companies that argue for preemption because a drug is FDA-approved. For if the approval process is tainted, then we have the age-old problem of garbage-in-garbage-out.

I've filed this under tort "reform" because that is what it is. Except is a way of closing the courthouse door by a quiet administrative rule rather than a policy fight in a legislative body.

See also:

• Drug Label, Maimed Patient and Crucial Test for Justices (NYT, September 18, 2008)
• FDA Official: Preemption Argument 'Based On a False Assumption' (WSJ Health Blog)
• Committee's Preemption Report Details Internal Challenges to Anti-Consumer Agenda (Justice Watch)
  

Labels: tort reform

If you thought a lame duck presidency couldn't do too much damage to the civil justice system you would be wrong.

The American Association for Justice today released a report showing a coordinated effort by the Bush administration to make corporations immune from lawsuits through the concept of preemption. With preemption, a federal law that grants immunity will supercede a state law that allows lawsuits. But since President Bush couldn't get Congress to agree to anti-consumer laws that grant immunity to corporations, the report demonstrates a pattern of obtaining that immunity by executive fiat. This was done by placing the corporate immunity clauses in the preambles of agency rules. The Supreme Court wil shortly hear these arguments in the context of a drug case and FDA preamble that attempts to grant immunity, when Wyeth v. Levine is argued.

The AAJ found that, since 2005, seven federal agencies have issued over 60 proposed or final rules with preemption language in the preamble. Preemption is essentially a covert form of tort "reform" that is unseen by the vast majority of the public.

While I don't generally publish press releases, as I don't want to be seen as anyone's mouthpiece, a report detailing a pattern of corporate immunity and protection grants, even when those companies might be clearly negligent, is important enough to make publication in full. (Full disclosure, I am a longtime member of AAJ.)

In reading the release and report, bear in mind that the Bush administration, and conservatives in general, like to talk about keeping government small and keeping power at the state level. This end-around of Congress by using agencies to pass regulations that our legislators refuse to endorse, by contrast, is a naked power grab by the President, demonstrating a stark departure from conservative philosophy.

Note also the issue of personal responsibility. It's part of that whole take-care-of yourself and pull-yourself-up-by-your bootstraps theme that conservatives like to speak about.

Except when it comes to big business. When they do something wrong, the Bush administration screams that they should be immune. Let the victims be victimized twice is the general idea, so long as corporate profits aren't hurt. The hypocrisy is once again self-evident.

The report is generated from documents obtained under the Freedom of Information Act. You may note that government officials first denied the documents even existed.
=====================================


Federal Agencies Changed Rules to Usurp States' Rights, Help Corporations Escape Accountability for Dangerous Products

Washington -- In a stealth effort coordinated at the highest levels of the Bush administration, multiple federal agencies were repeatedly ordered to usurp state law and undermine consumer protections, according to documents obtained through repeated FOIA requests by the American Association for Justice (AAJ). The documents released today detail how helping corporations escape accountability for dangerous products has been the administration's top priority.

"This is the real Bush legacy," said AAJ President Les Weisbrod. "In effect the Bush administration made the safety of Americans secondary to corporate profits."

The FOIA documents detail a Bush regulatory strategy called preemption. In short, the Bush administration has decided that federal rules should usurp -- or preempt -- the rights of states to protect their citizens with stricter safety standards. In turn, consumers can no longer use the state protections when harmed by negligence or misconduct, giving total immunity to corporations instead.

AAJ has tracked how the administration's first attempts to preempt states rights utilized friend-of-the-court briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting instead regulatory agencies in charge of product safety oversight. Beginning in 2005, carbon copy statements claiming that federal agency rules preempt state law began surfacing in the "preambles" of regulation issued by the federal government, and in some cases in the body of the final rules themselves. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations have a new legal theory on which they can argue in product liability cases.

"Unelected federal regulators are now claiming that states can't protect their own citizens with stronger consumer protections," Weisbrod added. In an upcoming Supreme Court case, 47 state attorneys general filed a brief arguing the FDA is breaking with historical precedent. In fact, in their brief they urge the U.S. Supreme Court to uphold a Vermont Supreme Court ruling that state law forces a drug manufacturer to pay $6.8 million to a Diana Levine, whose arm had to be amputated after she was injected with an improperly-labeled Wyeth drug.

Since 2005, seven federal agencies have issued over 60 proposed or final rules with preemption language in the preamble. During the past year, AAJ submitted numerous FOIA requests that prove the Office of Management and Budget (OMB) had direct involvement in the placement of the "complete immunity" preemption language. In an earlier request, OMB responded that there were no documents. However, emails recently obtained from the individual agencies prove that OMB did indeed discuss preemption with agencies, and in some instances OMB officials wrote the language.

Given this discrepancy, AAJ submitted an expanded request for OMB documents. On September 26, 2008, OMB responded it had identified 146 documents, but refused to release any of them, saying that “the disclosure of these documents would not be in the public interest."

In piecing together the emails from the FOIAs, AAJ uncovered the cozy relationship between federal officials and the industries they regulate. For example, the pharmaceutical industry intensified its efforts to influence the FDA in the months leading up to the physician labeling rule's release on January 24, 2006. Much of the lobbying efforts were aimed at Sheldon Bradshaw, who had succeeded Daniel Troy as FDA chief counsel in April 2005.

AAJ obtained emails that list attendees of a meeting between Bradshaw and the Pharmaceutical Research and Manufacturers of America (PhRMA) revealing the FDA chief counsel met with legal representatives from Pfizer, Wyeth, Eli Lilly, Berlex, Organon, Abbott Laboratories, Takeda, Sanofi-Aventis, Serono, AstraZeneca, Cephalon, Millenium, Eisai, Amgen, Astellas, GlaxoSmithKline, Bristol Myers Squibb, Johnson & Johnson, Novartis, Merck, and 3M.

Less than six months after this meeting, the agency would release its final physician labeling rule with complete immunity preemption language in the preamble, a complete about-face from the language in the proposed rule that specifically said the agency did not intend to preempt state law with the rule.

"Big business lobbyists have been on a crusade to destroy state consumer protection laws, and further stack the deck against American consumers," said Weisbrod.

The full report (which I have not yet had time to read) is here (pdf):
"Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability".
==========================================
See also:

• Bush Rule Changes Could Block Product-Safety Suits (WSJ)
• The Bush Strategy For Pushing Preemption (Pharmalot)
• More on Bush's Preemption Legacy (TortDeform)
• The Bush Administration's campaign to pre-empt consumer rights (Citizen Vox, by Public Citizen)
  

Labels: tort reform

Yeah, you read that subject heading correctly. And no, I didn't make this story up. It comes from my correspondent in Argentina who came across this nugget in a local paper about plastic surgery implants as door prizes:

Three provincial governments are cracking down on local discoteques for giving out plastic surgeries -- more specifically "implantes de siliconas" -- as door prizes to teenagers who frequent their establishments. (Original source, in Spanish, La Razon)

(There is also more from my correspondent, aka my niece Julie, about health care plans giving one free plastic surgery per year.)

Think that can happen in the United States? Me neither. And why? Well, a multitude of reasons, including the potential liability aspects. And so, to my tort "reform" readers, let me say that fear of being sued is often a good thing. Because being held accountable tends to wake up the senses.

Labels: Odds and Ends, tort reform

Hypocrisy again. Addressing the nation just a few minutes ago, George Bush claimed this as a long held belief:

I believe that companies that make bad decisions should be allowed to go out of business.

He made this claim as part of an argument to modify his position on allowing failure, because some financial institutions are basically too big to go under. But contrary to his argument, this wasn't a change at all. In fact, asserting it was a change seems more like a flat out falsehood.

You see, each time his administration stepped forward for tort "reform" over the years, it was to do exactly the opposite: To protect companies from their negligence or bad decisions. Artificial one-size-fits-all caps on damages, for example. Administrative agencies trying to preempt state tort law, as another example. Trying to curtail punitive damages for the worst of the worst, as a third.

Tonight's speech, of course, will be analyzed by others regarding the financial crisis we are in, the amounts that should be allocated to rescue giant financial institutions, the powers that should be granted, etc. I doubt that few will dwell on this one sentence that jumped out at me while he spoke.

But Bush's claim that he believes companies that make mistakes should be allowed to fail is just not true. He has protected them in the past. Today's bail out proposal may be a deviation from his alleged political philosophy, but it doesn't deviate from his past conduct. And at least one person noticed.

Labels: tort reform

A small kerfuffle occurred over at the Volokh Conspiracy when contributor Paul Cassell fell for a hoax he was emailed about the "Stella Awards." It was previously debunked nonsense dealing with fictional lawsuits and trying to use these phony anecdotes to argue for tort "reform."

While the error was quickly corrected, it also raises a different point: If folks at the Volokh Conspiracy are concerned about tort "reform," why don't they cover it? This would be perfect material, because the libertarian-conservative minded writers most likely, if they thought about the issue, would disagree with the entire concept of government protectionism for groups of people that are negligent. Yet the ideas for this protectionism always seem to come from the political right.

This fundamental hypocrisy -- conservatives that harp on ways to protect wrongdoers from their own misconduct -- is something I have written on before. Any true conservative, I think, would be appalled at government efforts to grant arbitrary caps and protections to those that negligently cause injury. The theory conflicts not only with the issue of additional government intervention, but with the concept of personal responsibility for one's conduct.

Previously at my site:

• Modern Day Tort "Reform" (4/16/08)
• How New York Caps Personal Injury Damages (1/23/07)

And at Overlawyered: Winnebago/Stella Award myths, pt. 4 (with yet more links)

Labels: tort reform

I read the article in today's New York Times, front page of Metro above the fold, about New York State Assembly Leader Sheldon Silver and his loans to a company that finances personal injury attorneys. I kept looking for the meat -- that part where an impropriety occurs -- but found nothing out of the ordinary. It appeared to be muckraking without the muck.

The article discusses his $50,000 in loans to Counsel Financial, one of several companies that make high risk, high interest loans to lawyers so that folks like me can fund our cases (Full disclosure: I've never used one of those companies). This is, after all, a business with a particularly brutal business model: The attorney funds cases for years on a contingency, any one of which can run to tens of thousands of dollars, with the prospect of getting paid back when the case concludes. If it is successful. Cash flow is a huge problem from the business perspective. Getting started in a personal injury practice is particularly difficult for a lawyer without means. A certain ruthlessness is needed for case selection, to make sure you don't get stuck with bad cases. I've discussed this concept before: See, Medical Malpractice Economics.

The gist of the article is that Silver is not just the Assembly Speaker, but of counsel to Weitz & Luxenberg, a prominent New York firm whose principles are actively involved with Counsel Financial. But why would his investment in a firm that makes high risk loans be any more of a conflict of interest than his activities with the law firm itself?

Tort "reformers" such as Jim Copland at the Manhattan Institute (quoted in the article, commentary on it by Walter Olson at Point of Law), argue that his investment in the company encourages him to put the brakes on protectionist "reform" like damage caps on pain and suffering. After all, the bigger the business for the funding company, the more likely he is to have a profitable investment instead of a loss.

But that conflict already exists with his activities as a personal injury lawyer. In fact, that conflict exists with every single legislator regardless of whether they are lawyers or have businesses, whether they have interests are in Apple, GE, or some private concern. Our legislators are part-time, and are permitted to have other jobs. So conflicts are bound to exist, but since the one the Times highlights is no different than any other I find it odd to see it highlighted in such a fashion.

Now I am sensitive to conflicts of interest. In fact, conflicts were the source of my April Fool's Day hoax on whether Supreme Court justices should recuse themselves from a fantasy baseball case due to their involvement in a fantasy league. There clearly must be rules to deal with conflicts in legislatures. But in this case, we seem to be missing some actual muck that is needed to give a story such prominent placement.

A final note. The article first identifies Silver, at the outset of the article, as a trial lawyer:

Since early last year, Mr. Silver, himself a trial lawyer, made two separate loans to the company, Counsel Financial.

But then later on, the author concedes that he really doesn't know what the heck Silver does:

And it is not known what he actually does at Weitz & Luxenberg.

"The speaker voluntarily limits his legal work to serve only individuals and personal injury cases and does not represent lobbyists or clients who have business before the state," said his spokesman, Mr. Weiller.

He would not say whether the speaker ever appears in court to represent clients or describe his legal work in more detail.

That's just shoddy reporting.

More:

• Legal finance firms mentioned in NY Times today (Legal Broadcasting Network)
• Is Public Service a Part-Time Job? (Gotham Gazette - The Wonkster)
  

Labels: tort reform