Your Law Suit is Junk, Mine Seeks Justice
As I have previously mentioned, Deb and I are planning to move this summer. I foresee some difficulties. Two decades in Atlanta have resulted in our acquisition and retention of a whole lot of junk. We do not want to move all that useless clutter so we have agreed to throw out the junk and move only the important stuff. The problem is that we can not seem to agree on what is junk and what is important stuff.
I stand accused of considering my stuff to be important and her stuff to be junk. I was preparing to defend myself from that charge when she hit me with the big guns. She argued that my position was like that of many Republicans with regard to tort reform. Deb says that I want the “throw out the useless junk” rule to apply to her but not to me. Republicans want to limit the right of others to recover for torts but are quick to sue when they, or members of their family, have been harmed.
Tort reformers have a long litany of alleged abuses of the civil justice system. One item on that list is their contention that plaintiff’s lawyers file suit against deep pocket defendants who have only a tangential relationship to the harm. As the National Association of Mutual Insurance Companies puts it:
The theory of Joint and Several Liability allows that each defendant in a legal action is responsible for the entire amount of damages that a plaintiff is seeking, regardless of their relative degree of responsibility for the damages involved. This has come to be known as the “deep pocket” rule because it has had the effect of turning lawsuits into all out searches to find the most financially lucrative defendants. The search for deep pocket defendants has created a “lottery” atmosphere within the legal system in this country.
Republicans think that the joint and several liability rule should be reformed. At least one politician did not think that a search for a deep pocket was all that bad, at least not when he was doing the searching.
When one of his twin daughters was involved in a fender bender (in which no one was hurt), then Governor Bush filed a lawsuit to recover property damage to the car. I do not know which driver was at fault, but I found it interesting that Bush sued Enterprise Rental-A-Car.
His theory was that the other driver did not have a valid driver’s license and, therefore, that Enterprise should not have rented him a car. I leave it to you to decide if that is an example of looking for a deep pocket with only a tangential relationship to the damage. Bush collected a $2,500 settlement from Enterprise.
Another pet peeve of the tort reformers is forum shopping. Forum shopping is seeking out a favorable jurisdiction to file suit even if that jurisdiction has little or no relationship to the tort. The GOP astroturf organization, Progress For America calls forum shopping the search for the “magical jurisdiction” and terms such efforts a “significant abuse” of the legal system.
Not all Republican politicians, however, think that forum shopping is such a bad idea, at least not for them.
Before he became Governor of California, Arnold Schwarzenegger was perhaps best known for his roles in the Terminator movies. He was very aggressive about preventing his image as the Terminator to be used by others for commercial purposes.
A local Ohio car dealership used a tiny thumbnail photograph of Schwarzenegger in a full page advertisement in a local Ohio newspaper. Arnold sued the dealership and its ad agency claiming that used his photograph without his consent. He sought more than $37 million in damages.
Schwarzenegger filed the suit in California despite the fact that the ad ran only in Ohio and the car dealership had no connection to California. See, Republican politicians do not think that forum shopping (to say nothing of of outrageous damage claims) is always bad, at least not when they are the shoppers.
Another pet peeve of the pro-tort reform Republicans is plaintiffs who sue medical professionals in the hope of winning the "litigation lottery." Republican Senator Rick Santorum once noted:
We have a much too costly legal system. It is one that makes us uncompetitive and inefficient, and one that is not fair to society as a whole. While we may have people, individuals, who hit the jackpot and win the lottery in some cases, that is not exactly what our legal system should be designed to do.
How, then, does Santorum explain why his wife sued a chiropractor for half a million dollars alleging back injuries from a badly done spinal manipulation? He says it is a private matter. Of course, Santorum believes that everyone else's cliam for compensation is a public matter. Santorum does not think that "jackpot justice" is so bad when his wife is the winner.
Tom DeLay is a leading tort reformer. He has described his tort reform efforts as “10 years of tireless work on multiple fronts…”
DeLay seems particularly concerned with the effect of law suits on businesses. According to the L.A. Times, DeLay wants to:
rein in trial lawyers to protect American businesses from what he calls “frivolous, parasitic lawsuits” that raise insurance premiums and “kill jobs."…Last September, he expressed less than warm sentiment for attorneys when he took the floor of the House to condemn trial lawyers who, he said, "get fat off the pain" of plaintiffs and off "the hard work" of defendants.
When a member of his own family suffered a tragedy, DeLay was quick to have his own family “get fat… off the hard work of defendants.”
The L.A. Times reports on a tragic accident that killed Delay’s father:
It was a pleasant late afternoon in the Hill Country of Texas on Nov. 17, 1988.At Charles and Maxine DeLay's home, set on a limestone bluff of cedars and live oaks, it also was a moment of triumph. Charles and his brother, Jerry DeLay, two avid tinkerers, had just finished work on a new backyard tram — an elevator-like device that would carry family and friends down a 200-foot slope to the blue-green waters of Canyon Lake.
The two men called for their wives to hop aboard. Charles pushed the button and the maiden run began. Within seconds, a horrific screeching noise echoed across the still lake — "a sickening sound," said a neighbor. The tram was in trouble.
Maxine, seated up front in the four-passenger trolley, said her husband repeatedly tried to engage the emergency brake, but the rail car kept picking up speed. Halfway down the bank, it was free-wheeling, according to accident investigators.
Moments later, it jumped the track and slammed into a tree, scattering passengers and debris in all directions.
Congressman DeLay’s father died from the injuries he suffered in that accident.
How did DeLay react to the accident that killed his father?
The family then turned to lawyers.In 1990, the DeLays filed suit against Midcap Bearing Corp. of San Antonio and Lovejoy Inc. of Illinois, the distributor and maker of a coupling that the family said had failed and caused the tram to hurtle out of control.
The family's wrongful death lawsuit accused the companies of negligence and sought actual and punitive damages.
Tom DeLay was a named plaintiff in that suit. The case settled for something in the neighborhood of a quarter of a million dollars. Three years after his mother received the settlement:
DeLay cosponsored a bill specifically designed to override state laws on product liability such as the one cited in his family's lawsuit. The legislation provided sweeping exemptions for product sellers.
Denny Hastert, the Republican Speaker of the House, has said:
I'm pleased to join my colleagues here today who support taking a historic first step towards breaking one of the main shackles holding back our economy and America's work force "lawsuit abuse."
Perhaps lawsuit abuse would not be holding back our economy and costing us so many jobs if Republican politicians did not file so many of those suits they deplore.
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Comments
Yes but ... who's winning? You or Deb?
Posted by: Eric | March 27, 2005 08:17 PM
I never win those battles, Eric. I gave up long ago.
Posted by: dwight Meredith | March 27, 2005 08:21 PM
Dwight, Dwight, Dwight.
Thanks for the posting. It really lays it out.
I really don't like that bugman. I can't wait til his tram comes off the tracks.
Hide some stuff you want to keep in her boxes. She'll never know!
Posted by: Duckman GR | March 28, 2005 01:52 AM
Eric asked my question.
And like Duckman, you have my thanks, as always, for laying out this argument, as you have previously, with such clarity. I hadn't heard that Santorum had ever engaged in an unreformed tort lawsuit; is it common knowledge and I missed it?
It's lovely to know that you and your wife live out your moral/legal principles, Dwight.
Posted by: Leah A | March 28, 2005 03:08 PM
Great post about duplicity by Republicans on tort reform. But I have to admit your statement that "I stand accused of considering my stuff to be important and her stuff to be junk" hit me close to home.
Which reminds me of a great Loudon Wainwright song called "Cardboard Boxes." The whole song is very evocative, but this verse is the most apropos here:
====
Give it to the Salvation Army or the Goodwill,
We've got so much junk its a joke.
Wrap a knick-knack in some old newspaper,
I know it was a present but the damn thing broke.
Your old shoes and my old t-shirts,
My strong buddies crave ice cold beer.
Don't throw that away, its a family heirloom,
I've had that ashtray for fifteen years.
====
What a plaintive line that last one is.
Lyrics here:
I now return you to IOKIYAR on tort reform.
riffle
Posted by: riffle | March 28, 2005 07:06 PM
Dwight,
I've raised potential issues with a couple of the points in your post here and here, if you'd like to address them. Thanks.
Posted by: Hubris | March 28, 2005 08:13 PM
Not only to Republicans love to forum shop for civil cases, they love to do it for criminal cases. When John Ashcroft decided to ramp up his anti-pornography prosecutions, he filed the complaint against extreme porn producer Rob Zicari in the least tolerant forum he could find, Pittsburgh--in spite of the fact that Zicari's business operates in California.
All of this just goes to show that Republicans have no consistent principles.
Posted by: Snit | March 28, 2005 08:45 PM
And let's not forget Anarchy, State, and Rent Control starring Robert Nozick, the "intellectual hero of libertarians".
Posted by: Anna | March 28, 2005 09:00 PM
Isn't there a Godwin's law on comparisons to George Bush Tom DeLay? I suggest that you hit your wife with it and ask for triple damages and pain and suffering too.
Posted by: John Emerson | March 28, 2005 10:35 PM
That's a great post, Dwight. Thanks for doing the research, putting it all together and writing it so eloquently.
Posted by: Roger Karraker | March 29, 2005 01:56 AM
Your post makes me wonder one more time why the media doesn't call all these politicians on their hypocrisy. It looks like as long as the media prefers to focus on celebrity and entertainment news (Michael Jackson, etc), there is no chance for a serious debate about the republican agenda regarding lawsuit "reform".
Posted by: Gonzalo Montoya | March 29, 2005 08:56 AM
I am a (hopefully) temporarily unemployed systems analyst who intended to use her unemployed time to determine what was junk in her house and to have the needed fights with her hubby about disposal.
Fortunately there are lovely things like your post to distract me from these tedious exercises.
I do not see that any of the actions of the loathsome group are any more hypocritical than my claiming the mortgage deduction on my taxes even though I am against the mortgage deduction.
The fact that they do not proudly state that they came to their opposition of junk torts from personal experience in winning them suggests that they might not see it the same as I do.
Posted by: Andrea Knutson | March 29, 2005 09:38 AM
Geez, I think I agree with George Bush's theory (ack-ptooie!!!! dang you Dwight for doing that to me!!!).
Enterprise had more than a tangential relationship since (and maybe its different in other jurisdictions) the rental company isn't allowed to rent vehicles to anyone without a valid drivers license (and can even deny rental to someone with a valid license if they don't guarantee there won't be other drivers who haven't given their driver's license information to the rental agency).
But I think that makes your point stronger, since this example shows that one person's tangent is another's direct relationship, it really should be at the judge's discretion (given the known facts) to decide what is tangential, not have it prejudged by a bit of legislation bought by the highest bidder.
Posted by: Patrick Taylor | March 29, 2005 11:22 AM
Here were the issues I posted at Drum's site (slightly edited):
------
I never saw this before, but it appears to be misleading. The article lists Bush's suit within the following joint and several liability context:
The theory of Joint and Several Liability allows that each defendant in a legal action is responsible for the entire amount of damages that a plaintiff is seeking, regardless of their relative degree of responsibility for the damages involved.
However, it appears that Texas law at the time of this accident did not allow for pure joint/several (rather, it allowed for joint/several application only for parties more than 50% at fault):
http://www.namic.org/reports/tortReform/JointAndSeveralLiability.asp
http://www.texaspatientsafetyfoundation.org/texas_statutes.html
Therefore, Texas law did not allow for "looking for a deep pocket with only a tangential relationship to the damage" as outlined in the article. [As Patrick just pointed out, Enterprise's relationship was more than tangential, and I would add that a vehicle owner is strictly liable as a matter of law, regardless of any negligence on their part, in some jurisdictions such as Florida].
Furthermore, the article linked within the article said:
Lawyers familiar with Texas insurance law told the paper the type of lawsuit Bush filed probably was unnecessary because his insurance policy would have handled the costs.
I'm not an expert on Texas insurance law, but most everywhere I know of there is a collision deductible when you utilize your own policy to pay for your own vehicle damage.
I don't know of any tort reform proposals that address no-fault extending to always applying your own policy to your own vehicle damages. Since it's a fixed amount of property damage, it doesn't really have anything to do with theoretically unlimited general compensatory damages such as pain/suffering, or punitive damages.
I'm not arguing for tort reform, I just don't think the facts in that part of the article are on point to show some kind of hypocrisy.
I don't think the Schwarzenegger part makes sense either. In the post:
Forum shopping is seeking out a favorable jurisdiction to file suit even if that jurisdiction has little or no relationship to the tort.
They also link to a tort reform site that says:
"forum shopping" for that "magical jurisdiction" by high-dollar plaintiffs' attorneys. That is, searching out a crossroads county-seat courthouse where local judges and juries were prone to hand out whopping-great awards.
Schwarzenegger filed in Los Angeles Superior Court. The ad agency co-defendant, Zimmerman & Partners Advertising, does business in Los Angeles County. So Schwarzenegger filed where he lived and the major defendant (the ad agency) had a contact. That sounds like convenience and common sense, not "searching out a crossroads county-seat courthouse where local judges and juries were prone to hand out whopping-great awards."
By the by, the car dealership was properly dismissed because the LA court didn't have jurisdiction over them. Schwarzenegger settled with them out of court and gave the money to charity.
This is supposed to be an example of forum-shopping hypocrisy for a high verdict?
Posted by: Hubris | March 29, 2005 11:49 AM
Let's go ahead and convict them of hypocrisy even though the case is weak in spots. But there's still a lot of junk in the basement and just because each of you believe your junk to be exempt, it's all got to go.
Pointing out the hypocrisy of others is fun, especially for adolescents, but it doesn't really address the issue.
Posted by: spongeworthy | March 29, 2005 03:16 PM
That same LA Times article on Tom Delay led by saying that Tom Delay signed off on pulling the plug on his father. This from the a------ who exploited Schiavi for obvious political purposes.
Posted by: Paul | March 29, 2005 03:48 PM
OK, I suppose the day Republicans introduce a bill that would forbid gerrymandering, you would point out victoriously that some of those very same Republicans used to indulge in the practice themselves.
What kind of an argument is that?
If someone who wants to reform a bad system had something to do with how bad the system is, we should applaud them. Or, if you think the system is great the way it is, you can argue that. But pointing out that some Republicans who support tort reform abused our legal system is pretty much meaningless.
A family member of mine used to receive welfare while living in a huge house, with lots of money in the bank. Does that make me a hypocrite if I want to change the system?
Posted by: Joe | March 29, 2005 07:25 PM
Hypocrisy is not the only explanation. Many of my clients sincerely believe that every Tom Dick and Harry down the street are lying frauds who didn't deserve what they got, and thank goodness we have tort reform to put a stop to that, but me, I'm for real, and I'll just tell my story to the judge, and the judge will say none of those tort reform limitations will apply to me. One client once turned around and looked at my open file cabinets and said I realize all those other people you represent are frauds, but my story is real. I think my next-door neighbor thinks I practice insurance fraud (a felony) on a regular basis, just because I represent injured people. A testament to the power of propaganda.
Posted by: Amelia | March 30, 2005 12:43 AM
I don't see the intelligence in pointing out what you consider abuse as a reason to not reform a system. Am I missing something? This is akin to the idea that since the U.S. propped up Sadam in the past, we had no right to end his regime. It doesn't matter who did the wrong thing (except for personal responsibility...a separate issue I would think), as long as it gets fixed. If you think these people screwed up, call them on it (as you have done) but give them credit for then trying to fix what they helped break.
Posted by: brainy435 | March 31, 2005 10:47 AM
Dwight:
Thanks for the post. It is refreshing to see someone willing to look beyond the facade of "tort reform" to see what the proponents are doing when they are injured.
I have written on the subject on my blog (http://leesrambling.blogspot.com/) and linked to some materials which show the real parties in interest who are pushing "tort reform" down our throats. Give it a read.
Thanks,
Lee
Posted by: Lee Keller King | March 31, 2005 03:05 PM
The tu quoque fallacy is alive and well. This was a nice example. The fallacy is like the 3-time convicted murderer who says that murder should be against the law. Therefore, because of his obvious hypocrisy we reject his argument. Maybe changing litigation laws is a good thing, maybe it isn't but nothing would be accomplished by reading this "argument".
Posted by: John Sharpe | April 3, 2005 01:58 PM
John Sharpe:
You are of course correct that this post has nothing to do with whether or not "tort reform" is a good idea. Must all of my posts be about that? It is not as if I have not written extensively on that subject.
Posted by: dwight Meredith | April 3, 2005 02:35 PM