Published By: Maxwell S. Kennerly, Esquire

Tort Reform

Subscribe to Tort Reform via RSS

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).

2. http://blog.chron.com/newswatch/2012/06/jury-awards-2-2-million-verdict-against-drunk-driver/

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. 
Continue Reading Tort Reform “Policy”: Injury Plaintiffs Should Always Lose

In contrast to the demanding world of blogging, where every typo results in an avalanche of criticism, the beauty of speaking on network television in quaint soundbites and writing 750 word op-ed columns in national newspapers is that you rarely have to explain yourself. You will rarely, if ever, be put in the position where you are expected to fully explain your argument, and, hiding behind the presumed credibility of established newspapers and networks, it isn’t likely that you’ll face a thoughtful critique of your argument. Just say something and, ipse dixit, it’s true. (There are, of course, rare exceptions, like when you make up Bob Dylan quotes, forgetting the legions of obsessed Dylanites out there.)

What else explains how Sanjay Gupta of CNN fame thought he could stick this whopper into his New York Times op-ed piece:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24 percent of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.

Herein lies a stunning irony. Defensive medicine is rooted in the goal of avoiding mistakes. But each additional procedure or test, no matter how cautiously performed, injects a fresh possibility of error. CT and M.R.I. scans can lead to false positives and unnecessary operations, which carry the risk of complications like infections and bleeding. The more medications patients are prescribed, the more likely they are to accidentally overdose or suffer an allergic reaction. Even routine operations like gallbladder removals require anesthesia, which can increase the risk of heart attack and stroke.

Isn’t it amazing how Dr. Gupta just knows that every last medically unnecessary treatment is a “form of defensive medicine?” There’s a word for Dr. Gupta’s argument. To find that word, let me quote Dr. Atul Gawande in The New Yorker three years ago, himself quoting a discussion among surgeons about defensive medicine: 
Continue Reading Atul Gawande Versus Sanjay Gupta On Defensive Medicine

Do you think it’s fair to ask riding lawnmower manufacturers to pay for the medical care of children injured in riding lawnmower accidents? How about asking meat blender suppliers to compensate people injured by commercial blenders? Neither of these events happen all that often, and the cost would be passed on to consumers, making the question: would you mind paying a little bit more for your lawnmower to set up a fund for children who lost part of their leg, sometimes much more, after being run over by riding lawnmower? How about a little bit more for your hamburger in case the person blending the meat loses their hand when the blades unexpectedly keep spinning?

Sometimes, a court just plain gets it right, and Justice Nix of the Pennsylvania Supreme Court got it right 34 years ago in adopting strict liability in the Commonwealth of Pennsylvania:

The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. In an era of giant corporate structures, utilizing the national media to sell their wares, the original concern for an emerging manufacturing industry has given way to the view that it is now the consumer who must be protected.

Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978). That’s the argument eminent torts professor William Prosser had been making for “strict liability” for decades. See, e.g. Prosser’s Strict Liability to the Consumer, 18 Hastings L.J. 9 (1966). The concept of strict liability was quite simple: whereas an injured person could always sue a manufacturer for negligence and then prevail by proving the manufacturer acted unreasonably by failing to guard against foreseeable harms, strict liability eschewed any question of the manufacturer’s conduct and instead focused on the product itself, making manufacturers liable for injuries caused by products that were so unsafe as to be “defective.”

The whole point of strict liability was, as explained by Azzarello, to make suppliers of surprisingly unsafe goods (i.e., goods that turned out to be more dangerous than consumers expected they would be) the insurer for accidents caused by the product. It’s a recognition that, in this day and age, consumer goods can contain a variety of risks that are more easily borne by the manufacturer, which made the decision to market the product, has better access to insurance, and can distribute the costs of these unexpected injuries on other consumers. In practice, strict liability is usually only successful where the product totally failed, resulting in catastrophic injuries. Consider some of the early strict liability cases, the ones characterized more as warranty cases than as the tort of strict liability:Continue Reading The Purpose of Strict Liability In Pennsylvania

Few insults draw the ire of personal injury lawyers like “ambulance chaser.” Unlike “trial lawyer,” which business interests have been trying to turn into a slur for years — despite the fact that the term means little to non-lawyers and, among lawyers, can be a compliment for both plaintiff’s and defendant’s counsel — “ambulance chaser” is unambiguously derogatory, implying a mixture of greed, desperation, and exploitation.

The term is doubly insulting because it strikes at the part of our work that is the most emotionally challenging and is the source of our greatest pride: the fact that we are trying to help injured people. In the last week I spoke with a woman who cannot work or even stand anymore because of the pain from titanium clips left inside her by an incompetent physician, and I prepared discovery in a case so tragic that, in every conversation — whether with a doctor, an expert, or even the defense lawyers — there will be a moment of stunned silence in which empathy instinctively forces us to consider that, every day, we do the same thing that family did, and that we have been spared their fate by sheer luck. Mention the word “ambulance,” and I will think of how, inside many ambulances, there is a very hurt person with a sad story that could or should have been prevented, a person that may end up in my office and on my mind every day for years to come. Like it’s my fault that Ethicon makes defective hernia mesh and Bayer’s Essure is a disaster?

Yet, as an amateur etymologist, the term bothers me for another reason: there’s no clear definition. Ask Wikipedia, and it equates “ambulance chasing” with barratry (“barratry can refer to a lawyer seeking clients at a disaster site, which is also known as ambulance chasing”), but there are two problems with that. First, barratry is a notoriously difficult term to define — just ask the Supreme Court, which has been trying for nearly two centuries to define it in the maritime context, see Patapsco Ins. Co. v. Coulter, 28 U.S. 222 (1830)(“It cannot be denied, that what with adjudged cases and elementary opinions, this doctrine has got into a great deal of confusion.”) — and, second, the legal usage of “barratry” usually refers to stirring up groundless litigation.

It certainly would be wrong for a lawyer to chase an ambulance, peddle their services, and then convince the injured person to file a baseless suit, but is that really what is meant by the term “ambulance chaser?” Or does it also refer to lawyers who improperly solicit clients with meritorious cases? 
Continue Reading The Lawyer As Ambulance Chaser

Over the Governor’s veto, the New Hampshire legislature passed an “early offers” law for medical malpractice claims. Tort reformer Walter Olson rounds up some commentary, most notably Torts Professor Christopher J. Robinette’s support, but intentionally excluding (dismissing it as “error-filled screed in a Litigation Lobby outlet”) The Pop Tort’s critical piece. In short, the new law sets up a process under which patients can request an “early offer” of a settlement prior to full-blown litigation that is supposed to cover their “economic loss” and then provide a modest sum for pain and suffering.

That sounds like a reasonable idea in theory, but, if the patient turns down the “early offer,” the plaintiff faces a number of penalties, including the requirement that, if they don’t obtain a verdict for 125% or more of the early offer, then they pay the doctor’s or hospital’s full defense costs. Indeed, the patient has to post a bond for the potential value of those defense costs before filing the case. In essence, if a plaintiff asks for the “early offer” but doesn’t accept it, they are then precluded from filing suit, because a lawsuit would simply be too expensive and too risky.

Here’s the critical information you need to know: Olson, Robinette, and other supporters like Dr. Kevin Pho have misunderstood the bill. Here is how they each describe it:

  • Olson: “The law establishes incentives for defendants to make offers early in the litigation process that cover plaintiff’s economic losses such as medical bills and lost wages.”
  • Robinette: “If extended, the offer must cover all economic loss—medical bills and lost wages. … [F]or the most severely injured patients, the recovery of full economic loss, which is mandatory under early offers, would be an improvement.”
  • Pho: “Medical costs and lost wages would be covered.”

These interpretations are all wrong. An “early offer” under the bill would not cover “plaintiff’s economic losses,” it would only cover a small portion of them. It certainly does not cover the patient’s “full economic loss,” it covers a tiny fraction of it.  It does cover “lost wages,” but not as any rational person would understand them — it only covers lost wages in the past, and not lost wages going forward due to the patient’s inability to work. 
Continue Reading New Hampshire’s Insidious Early Offer Medical Malpractice Law

It’s no secret that patients and their lawyers have a lot of difficulty finding physicians to serve as expert witnesses in medical malpractice cases. A large fraction of doctors refuse to ever testify in a patient’s favor, regardless of how negligent, reckless, or reprehensible the care provided by the defendant-doctor was. Among the doctors who do testify on behalf of patients, most will only testify against doctors in other jurisdictions, adding difficulties in communication and scheduling as well as travel costs. It also makes it harder for plaintiff’s lawyers to find qualified, credible experts, because we don’t know them by reputation the same way we know local doctors. Just this week MedScape had a column bragging about how “tort reform” expert witness laws make malpractice cases harder and more expensive, and thus thwart many patients with valid claims from even having their day in court, much less recovering compensation.

For defense lawyers, the process of finding an expert is quite easy: they call up their insurer or their local hospital and are immediately provided with a willing local expert. The code of silence around the medical profession is alive and well.

There are, however, some notable — and laudable — exceptions, and in Philadelphia one of those exceptions was on the receiving end of some particularly appalling conduct by a defense lawyer for doing nothing more than preparing to tell the truth in a courtroom: 
Continue Reading Defense Lawyer Sanctioned For Expert Witness Intimidation In Medical Malpractice Case

I haven’t written much about medical malpractice lately because, apart from a couple unique cases, it doesn’t feel like there is anything new to say. Medical malpractice is still responsible for less than one-half of 1% of all United States healthcare costs, and it is still the case that even “hellhole” jurisdictions like Philadelphia are nonetheless still so hostile to patients’ lawsuits that three-quarters of injured patients walk away empty-handed from jury trials. (I would be remiss not to mention this recent study further discrediting the “hellhole” data about Philadelphia’s courts.)

But now I have some good news to report: it seems that many of the major medical societies are moving away from blaming lawyers and lawsuits for every problem under the sun, and are starting to take matters into their own hands to reduce the overall cost of healthcare while still protecting patient safety. The new campaign, “Choosing Wisely,” unveiled this week, was organized by the ABIM Foundation, part of the American Board of Internal Medicine (which has its headquarters only a couple blocks from my office). The ABIM Foundation brought together a number of the major physician specialty societies to come up with lists of five things — typically diagnostic tests — that doctors in each specialty shouldn’t do because they are wasteful and unnecessary.

The part that pleasantly surprises me is how the medical societies have all resisted the urge to trot out the “defensive medicine” line, the claim that doctors wouldn’t do any of these tests if it weren’t for the potential for medical malpractice liability.  See, for example, this NPR story and this JAMA article, neither of which quotes a doctor blaming lawyers for every wasteful practice in medicine.

As I have argued many times before on this blog, I think “defensive medicine” is mostly a bunch of hooey.  Contrary to what you hear from some insurance companies and tort reform organizations, medical malpractice lawsuits don’t impact access to care, and don’t cause doctors to order unnecessary tests. To see why lawsuits don’t result in “defensive medicine” requires a bit more understanding about how malpractice lawsuits work: 
Continue Reading Choosing Wisely: Healthcare Costs Debate Moves Beyond Defensive Medicine

Just when I was going to write a substantive post about a recent New Jersey Supreme Court opinion, the leading propagandist for the Fortune 500, the U.S. Chamber of Commerce, came in and released a new report about online advertising by trial lawyers. Tort reform and lawyer marketing in one article? I can’t miss that. (An aside: don’t kid yourself that the U.S. Chamber of Commerce cares the slightest bit about small business. The Chamber is the most anti-free-market lobbying group in the country, an organization dedicated to ensuring the biggest corporations in the country stay that way, squashing small businesses and regular people alike.)

The “study,” technically done by the “Institute for Legal Reform,” is called The Plaintiffs’ Bar Goes Digital. I’m still unclear what the point of the research was, so I’ll just quote their press release:

The plaintiffs’ bar contributes to the commercialization of the legal profession by using a sophisticated and complex combination of paid search advertising and high organic search optimization of websites to generate site traffic – all with the goal of collecting the personal contact information of potential plaintiffs.

Plaintiffs’ firms are devoting millions of dollars to the creation and maintenance of websites, Facebook pages, Twitter handles, blogs and YouTube channels. By measuring Google advertising spends on 125 keywords during a 45-day period and then extrapolating to a 12-month period, we estimate firms will spend more than $50 million on Google keyword advertising alone. To put that in perspective, the Obama for America campaign – often held up as a pioneer in digital advertising – spent $16 million total in online advertising in 2008.

Initially, those numbers are due primarily to three outliers. The report says that Danziger & De Llano, The Lanier Law Firm, and Sokolove Law account for half of that $50 million. No surprise to see Sokolove there; he’s one of the pioneers of attorney advertising.

Let’s put those numbers into some real perspective. Last year the U.S. Chamber of Commence spent over $66 million lobbying representatives. In 2010, it was $132 million. In 2009, $144 million. Since 2006, they’ve spent far more money lobbying than any two other lobbying companies combined. Of course, a quick peek at those top 20 lobbying companies of the past decade shows many asbestos defendants, like General Electric or Northrop Grumman, also paying millions to lobbyists, too.

More perspective? Online healthcare and pharmaceutical marketing is over $1 billion a year. In the wake of the Deepwater Horizon oil spill, BP was buying $3.59 million in AdWords related to the spill every month. Standard search engine marketing tools show that companies like Expedia and Amazon each spend $7-8 million annually on AdWords.

If the point of the study was to portray the plaintiffs’ bar as an unstoppable juggernaut beating up on poor little billion-dollar industries, I’m afraid they’ll need to go back to the drawing board. 
Continue Reading Chamber of Commerce Swings And Misses At Plaintiffs’ Lawyer Advertising

Today the Supreme Court will hear oral arguments in two cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority, that raise a simple question: whether the Alien Tort Statute applies to corporations.

The Constitution granted Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” Article 1, Section 8, Clause 10, and Congress responded in the Judiciary Act of 1789 by passing the Alien Tort Statute (ATS), which ensured “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS is, literally, one of the first laws ever passed in the United States. It was obviously intentionally broad: an alien may bring a tort suit for any “violation of the law of nations or a treaty of the United States.“

SCOTUSBlog has an extensive preview of the argument that details, inter alia, the rise of ATS litigation following the Second Circuit’s 1980 opinion in Filártiga v. Peña-Irala, and the Supreme Court’s 2004 opinion in Sosa v. Alvarez-Machain.

There’s plenty of commentary at SCOTUSBlog about the issues at hand and the various arguments. For recent developments in the courts, Professor Alberto Bernabe has been following ATS litigation for some time. I don’t want to recount the details of the ATS, but rather want to focus on a very particular issue: the analytical sleight-of-hand that Justices Scalia and Thomas, and presumably Justices Roberts, Alito, and Kennedy, will likely use to deny victims of human rights abuse a right to civil redress granted to them at the very beginning of our nation.

I’m certainly not the first to point out the dishonesty of Justice Scalia’s “originalism” — which vanishes the moment it conflicts with his preferred political outcome — and other conservative judicial activism. (It’s a bit dense, but I still like David Zlotnick’s Justice Scalia & His Critics: An Exploration of Justice Scalia’s Fidelity to His Constitutional Methodology, 48 Emory Law Journal 101 (1999)).

But the ATS presents a special case to bring to light the deceptive way in which “originalists” expand or contract the concept of “original meaning” to fit their purposes. Consider Justice Scalia’s argument in his concurrence (joined by Justice Thomas) to Sosa v. Alvarez-Machain that the ATS cannot be used to enforce any norms of international law not in place as of the Judiciary Act of 1789:

Despite the avulsive change of Erie, the Framers who included reference to “the Law of Nations” in Article I, § 8, cl. 10, of the Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the “discretion” endorsed by the Court. That portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates). Those accepted practices have for the most part, if not in their entirety, been enacted into United States statutory law, so that insofar as they are concerned the demise of the general common law is inconsequential. The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates.

As Justice Scalia continues, “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty … could be judicially nullified because of the disapproving views of foreigners.”

Recall the actual language at issue in the ATS. As Scalia argues, even though the Framers gave Congress the power in the Constitution “To define and punish … Offences against the Law of Nations,” and Congress responded with the ATS ensuring “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations …,” Congress hadn’t a clue that “law of nations” could be an expansive, shifting concept, and what they really meant to do was to freeze the meaning of that Constitutional provision and the Judiciary Act in 1789.

If you know anything about the Supreme Court, you know where this is going: Heller and Citizens United.
Continue Reading Originalism and Corporate Personhood Meet The Alien Tort Statute

The Republican Party controls both the Governorship and the General Assembly in Harrisburg, and they have made it one of their top priorities to prevent injured workers, consumers, and patients from receiving fair compensation for their preventable injuries.  Back in September, I wrote about this attack on Pennsylvanians’ rights, discussing a legislative alert put out by the Pennsylvania Association for Justice which described some of the bills that Republican legislators had proposed as a means of further eroding Pennsylvania’s civil justice system.

Those bills included, for example, HB 304, which would impose a 15 year statute of repose in all product liability cases, which would mean that manufacturers of all types of products would be completely immune from any liability for products made before 1998.  If you were driving down the road and a 1997 Ford suddenly caught fire and crashed into you, you would have no recourse against Ford.

Then there’s HB 808, which would force injured workers to continue treating with employer-designated healthcare providers for 180 days, instead of the current 90 days.  The point of that law is to allow employers to send seriously injured workers to doctors the employers know will discount their complaints and dismiss their injuries, thereby making the worker and their lawyer more likely to settle their workers compensation claim. Even if the worker doesn’t settle, the employer-designed physicians can create an unfavorable, inaccurate medical record about the most important time in the care, the first six months after the accident, just in case the plaintiff decides to seek more compensation.

There’s also HB 1552, which would sharply limit where personal injury lawsuits could be filed (it would no longer matter where the defendant committed the negligence, where the defendant did business, or where the defendant kept their offices), part of an effort to pull personal injury lawsuits away from the fast-moving urban courts in Philadelphia and Pittsburgh and put them instead in the underfunded rural courts. Rural courts don’t have the same resources, so cases take longer to complete, thereby making it more likely the plaintiff — who, being injured, may have lost their ability to work and has incurred significant expenses relating to the injuries — will compromise the value of their case, all while allowing insurance company to make more money investing the insurance proceeds.

So imagine my surprise when I saw many of these same representatives who fight so hard to limit Pennsylvanians’ access to civil justice suddenly developing a passion for a certain type of civil lawsuit.  Was their sudden display of sympathy for children brain damaged by malpractice in delivery?  Workers paralyzed by employers who violated safety laws and regulations?  Consumers who were injured or died as a result of taking dangerous prescription medicines?  Victims of sexual abuse precluded from justice by the statute of limitations?  
Continue Reading PA Legislators Finally Develop Sympathy… For Illegal Gun Sales