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Are Tort Reformers Just Hard Hearted?


The short answer is no, most are not hard hearted people. Most are, however, people who have not had significant tragedy enter their life and have lived a reasonably content life. By significant tragedy I am not talking about Aunt Jane passing away from old age or even the loss of someone’s parents. When I use the term tragedy in this context, I mean a significant, life altering, misfortune has happened to them that is typically not experienced by most people.

I have been in the insurance industry, worked for defense lawyers and worked for plaintiff attorneys. I was a Republican before the party deformed itself and I even campaigned for Richard Nixon (OK, I am sorry). My opinions and feelings about tort reform measures have never wavered; I can not spend enough energy opposing any action that hinders the justice system. Yeah, that’s right, I said it, the justice system; a term that is anathema to some. Tort reformers claim that the court system does not mete out justice. The framers never promised that the court system would render justice and anyone who believes otherwise is simply living in Disneyland. What our court system does promise is a “chance”, an “opportunity” to pursue justice. From my experience, most of the time, the system delivers justice; sometimes for all the wrong reasons, but it still delivers justice more often than not.

Tort reformers, in support of why the system is “broken” or it does not work, are fond of railing about the OJ Simpson debacle (probably ill prepared prosecutors), the McDonald’s coffee case and other examples they like to give; of “justice gone bad”,. Typically these examples are raised by people who are ignorant of the real issues in these cases or are people intentionally trying to deceive. The McDonald’s coffee case involved a corporation that produced hot coffee that it knew would cause serious personal injuries if it contacted with human skin. They chose not to make the coffee cooler, because they made millions (perspective check: $1.3 million per day) more by selling it that hot; according to reports it had sponsored. They indicated they had no intention of doing anything different, even though they conceded to receiving several hundred reports of scalding hot coffee. The plaintiff was a 79 year old woman who purchased a 49 cent cup of coffee. The car she was riding in was stopped and in trying to get the lid off the coffee spilled in her lap. She suffered third degree burns to a substantial portion of her body and incurred over $11,000 in medical bills, as a result of a five day stay in the hospital. She offered repeatedly to settle for $20,000 and McDonald’s offered $800. This case is simply another example of displaying “corporate arrogance”; a willingness to trade profits over safety. Should they be punished for corporate arrogance that leads to serious injuries to an unsuspecting public? Of course they should be. Further, as a post script, the system did, in fact, work. The appellate court subsequently reduced the verdict in the case to a total of just over $600,000 for both compensatory and punitive damages.

So, who is using up judicial resources? Is it frivolous lawsuits filed by injured victims; the supposed frivolous lawsuit contingent? Absolutely not. In fact, personal injury lawsuits comprise a small percentage of the total court resources. Actually, divorce and corporate litigation comprise the largest percentage of filed cases. No one suggests that we should prohibit divorce; at least not for the sake of judicial reform. Certainly, corporate executives would shrink from the suggestion that they be prohibited from suing each other.

But, some of the public and the majority of corporate America will gladly restrict the rights of injured victims to access the courts and be fully compensated for their injuries. Tort reformers are giddy to get legislation passed limiting the compensation of victims injured by defective products, medical negligence, and corporate fraud.

Perhaps we should never forget that when product manufacturers “crunch the numbers” and conclude that the cost of defending lawsuits is insignificant in contrast to warning the public about defects. When the costs of human lives and injuries to victims are out weighed by the cost to “re-tool the line”; when health care providers go without insurance; when they have no accountability; when their level of care is no longer governed by penalties. When injured victims can no longer be compensated through access to the courts; who pays the price? We pay the price; each and every citizen pays the price through increased social care programs, increased health insurance rates and increased taxes. So, when tort reformers tell you that lawsuits cost too much; what they mean is they cost corporate America too much; they cost insurance companies too much. You see, tort reform is simply another way of taking away more constitutional rights from individuals and maximizing corporate profitability.

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