Tort Reform “Policy”: Injury Plaintiffs Should Always Lose
Over on Twitter, where all the major debates of our time are reduced to the length of text messages, I got into a discussion with Ted Frank. For those of you who don’t know Ted Frank, he’s a prominent “tort reform” advocate. Ted and Walter Olson are among the only “tort reform” advocates who offer substantive commentary and aren’t just whining hypocrites, which is why you’ll see them (as Point of Law and Overlawyered) in my blogroll over to the right.
One thing led to another — like text messages among adolescents, Twitter discussions rapidly devolve either into mutual admiration or mutual destruction — and I criticized him for always advocating “substantive policy” that was usually little more than an excuse to deny injured persons compensation. In response, he challenged me to name “a non-substantive policy [he has] propounded,” to which I responded that his “injury plaintiffs should always lose” arguments were an example. I read his blog; whatever the issue is, he’s always against injured people and in favor of negligent corporations. I then challenged him in return to give five examples of jury verdicts over $1 million (or appellate court decisions) in favor of injured plaintiffs, with which he agreed.
I don’t think I’m being hypocritical on this point; I’ve been more than willing on my blog to discuss where I thought a plaintiff’s case was rightly dismissed (see #2 and #8 on this list of drug companies’ favorite court decisions of 2011, see this post concluding that Arthur Alan Wolk’s case against Walter Olson was rightly dismissed, and see my recommendation that it be made harder to file patent infringement lawsuits). I didn’t consider this a particularly difficult challenge: you don’t have to look far to find a company recklessly destroying people’s lives in the name of greed.
For example, just last week a brain injured woman in California won a $20 million jury verdict against commercial trucking company J.B. Hunt. In the case, the big rig truck driver ran through a red light, broadsided her at 35 to 40 miles per hour, then cowardly fled the scene, leaving her for dead. Did I mention that the driver had been fired twice before by J.B. Hunt, including for running over a fire hydrant and flooding an intersection, and that he had been fired from multiple trucking jobs over the past decade for safety violations, violent behavior, and attempting to cover up accidents? Scrooge trucking company offered only $2,000,000, far less than the woman’s future medical expenses, to settle the case.
Frankly, I don’t think it takes much to admit that J.B. Hunt deserved to get walloped in that case, both vicariously and directly, or to find similar cases where, gosh darnit, the plaintiff was right to bring a lawsuit and deserved more than a million dollars.
Ted Frank responded to my challenge with a list:
1. Dewey v. Volkswagen AG (3d Cir. 2012).
3. Gutierrez v. Girardi, 194 Cal.App.4th 925 (2011).
4. Burrow v. Arce, 997 SW 2d 229 (Tex. 1999).
5. Rufo v. Simpson, 103 Cal.Rptr.2d 492 (2001)
And I sighed.
#1, Dewey v. Volkswagen AG (3d Cir. 2012), doesn’t involve any personal injury claims. Dewey is a class action against Volkswagon alleging that “several models of Volkswagen and Audi automobiles had defectively designed sunroofs that, when clogged by plant debris and pollen, allowed water to leak into the vehicle.” Ted Frank, via his Center for Class Action, lodged an objection, claiming that some owners were not adequately represented in the class. The Third Circuit agreed and remanded. Putting aside the no-injury and not-really-a-win problems, here’s my question: so does Ted support the whole class action, or just his own objection? [Update, December 2012: more on this case in the comments over here, where Ted claims, without explanation, that I've misrepresented the case. In the four months since this post was written, it seems that a different settlement was indeed achieved on remand, in that more owners can seek compensation from the same fund. Congratulations are in order, I suppose, but that misses the point: the point is that he and his organization never argue in favor of the merits of class actions or plaintiffs, and Ted slyly avoids answering in those comments if he thinks class actions should be abolished. He does say he makes no arguments for "expanding" class actions and that he believes there's a substantial volume of "meritless" class action work out there, thus implying that he thinks class actions should indeed be sharply restricted or abolished. So much for being a consumer advocate.]
#2 is a jury verdict against a DUI driver who caused a crash that seriously injured a woman and killed their friend. No mention is made of any sort of dram shop claim against a bar or restaurant that served the driver, so, in the end, the verdict is mostly uncollectible, another huge judgment against someone behind bars with minimal assets. Is the principle here that personal injury lawsuits are okay when they arise from criminal conduct and provide inadequate compensation for the plaintiff? We’ll see the answer in a minute.
#3, Gutierrez v. Girardi, 194 Cal.App.4th 925 (2011), also does not involve personal injury claims, it’s a class action against a law firm for allegedly misappropriating settlement funds by charging improper costs on the case. The court’s opinion is more than a little strange — e.g., the court admits “the allegations regarding [the law firm’s] breach are somewhat vague,” before concluding the firm’s motion for summary judgment should be denied because it failed to disprove a negative(!), i.e. “G&K did not produce any evidence indicating it did not misappropriate settlement funds as Gutierrez alleges” — but, in the end, if the law firm really was charging improper costs on the case, then indeed that is a misappropriation and breach of fiduciary duty and should be held liable.
In addition to this not being an injury case, the plaintiff didn’t win here, the court was simply reversing summary judgment on behalf of the defendant. So what’s the principle here: that vague allegations in support of a class action are okay — that’s certainly at odds with his strong support for Twombly, Iqbal, Wal-Mart v. Dukes, and tighter class action requirements — or that they’re okay only when trial lawyers are being sued?
#4, Burrow v. Arce, 997 SW 2d 229 (Tex. 1999), discusses “whether an attorney who breaches his fiduciary duty to his client may be required to forfeit all or part of his fee, irrespective of whether the breach caused the client actual damages,” concluding “that the amount of the fee to be forfeited is a question for the court, not a jury.” I agree with this case, and I’ve cited it in support of a case in which I represented a client against a law firm. But it also is not an injury case, and in the end the court didn’t rule in favor of the plaintiff, they merely let them bring their case in front of the jury.
#5 Rufo v. Simpson, 103 Cal.Rptr.2d 492 (2001), is Ron Goldman’s parents’ wrongful death claim against OJ Simpson. So that’s our confirmation: Ted believes that the only meritorious injury claims are those involving criminal conduct and which are unlikely to result in collection of anywhere near the full verdict.
Later in the day, Frank gave two examples of medical malpractice suits he thought were meritorious: “Desert Shadow Endoscopy was a meritorious malpractice case. So was Levine v. Wyeth.” Here’s how his blog described each of those: Desert Shadow Endoscopy involved “[a]bandoning basic medical practices such as sterilization and not reusing needles was part of the Center’s business model, which borders on, and perhaps was, criminal behavior,” while Levine v. Wyeth, a failure-to-warn prescription drug case, was actually an example of gross malpractice because “The physician’s assistant who injected the case used a disfavored … method of injecting the drug[,] [t]wice the maximum labeled dose was injected [and] [t]he physician’s assistant continued to inject the drug despite Levine’s complaints of pain,” all in opposition to the written label on the drug. Those aren’t just professional negligence, they’re recklessness at a minimum, and, tellingly, Ted only knows of those cases because they ended up implicating large pharmaceutical and medical device companies — which Ted of course thinks shouldn’t be liable at all for what happened.
So there you have it, a pre-eminent tort reformer’s five examples of jury verdicts over $1 million, or appellate court decisions, for injury plaintiffs with which he agreed — three of them aren’t even injury claims (two of which are fraud claims against trial lawyers), and the other two of which involve uncollectable judgments against criminals. The two late additions are malpractice cases involve indisputable recklessness.
In other words, Ted Frank’s “substantive policy” is just what I said: he thinks injury plaintiffs in negligence, malpractice, and product liability should always lose.
UPDATE: Ted Frank replied, demanding an apology, claiming he’s standing up for the little guy — e.g., accusing trial lawyers of putting “profits over people” — and yet he still can’t give a single example of a negligence case where he thought the plaintiff should have won, except to say that his friend hit by a car as a pedestrian (another recklessness scenario?) should win damages. As I wrote there:
It’s one thing to argue that personal injury lawsuits should be banned except where criminal or reckless conduct is involved. It’s another thing to argue that same point day in and day out while claiming that you’re really just standing up for the little guy, and having the nerve to use language like ‘profits over people’ to insult trial lawyers.
Trial lawyers stand up for injured people against insurance companies and the wealthiest corporations in the world; you’re in there, too, but you’re on the other side, standing up for corporate profit.
A tort reformer who thinks corporations should be legally immune for negligence decrying injured people’s lawyers for putting “profits over people.” Talk about chutzpah. In reply to my comment, he again claimed the mantle of consumer rights, and said he “support[s] the right of legitimately injured plaintiffs to sue for reasonable damages against culpable defendants.”
The problem is that he doesn’t. Just take a look at this interview he gave to Abnormal Use last year, in which he claimed that “the erosion of the preemption doctrine is of some concern,” that “the design decisions of engineers or the judgment calls of physicians” should not be open to “second guessing” by courts, and that juries noneconomic and punitive damages verdicts are the result of “complete randomness.”
What is the “substantive policy” advocated there? Exactly what I said about him on Twitter: he believes that drug, medical device, and car manufacturers should all be immune from lawsuits (that’s the effect of preemption), that engineers and physicians should not be liable for negligence (because it would be second-guessing), that juries should be precluded from awarding more than nominal pain and suffering damages (because they’re random), and that punitive damages should be abolished (also because they’re random).
How are consumers helped by any of those “policies”? It’s just keeping money away from victims and in the pockets of negligent corporations. But that’s the whole point of tort reform: making the victims of corporate greed and irresponsibility eat the losses themselves. The disturbing part is that any of the tort reform supporters deny it.