A Revealing Comment on Tort Reform

Steven Dutch, Natural and Applied Sciences, University of Wisconsin - Green Bay
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Sometimes people's best efforts to support their cause go a long way toward supporting the opposition instead. Consider, for example, an op-ed piece by Robert S. Kahn in the Los Angeles Times, reprinted in my local paper of February 2, 2005. He asserts:

I probably read more lawsuits than anyone else in the country - more than 1000 a day. As news editor for Courthouse News Service, I read daily summaries of every new lawsuit filed in more than 100 state and federal courts in 48 states, plus appeals courts decisions from all the federal circuits...

Run the Numbers

Let's do the math here. If he does nothing else in an eight hour day but read lawsuits, that's 28.8 seconds per case, hardly enough to understand the issues. But of course he doesn't spend all his time reading; as editor, he has to supervise staff, review copy, deal with business matters, and so on. So if he devotes a reasonable amount of time to reading and understanding each case, he might possibly do 50 a day. But 1000? No way. He may scan the list and focus on significant cases, but at best he can really consider 5 per cent or so of the cases that come by each day. What about the other 95%? We can assume a lot of them are legitimate but repetitious cases, but I'd also be willing to bet that he never bothers to read most of the frivolous cases.

Under the Radar

1000 cases a day sounds like a lot, but it works out to 20 lawsuits a day per state. Does anyone believe an average state sees only 20 lawsuits a day? Those 100 courts are the ones with the highest profiles, and the appeals reflect only those cases that made it through a court and then had enough substance to make it into an appeals court. So by definition, Kahn sees only the most meritorious cases.

I doubt if he'd ever see the woman who was slightly injured in a lab accident, then sued a colleague of mine. When she lost the case, she filed lawsuit after lawsuit, each battier than the last. At one point the plaintiff submitted John F. Kennedy's Profiles in Courage into evidence. My friend was represented by university counsel, so all he had to deal with was several years of stress, but meanwhile money was wasted on dealing with this nut case, money that could not be used to hire faculty, buy supplies or provide student aid.

Nor would he see the cases where people are coerced by the threat of legal action. He wouldn't see the Florida planetarium that was threatened with a lawsuit by a "star-naming" company unless the planetarium stopped telling audiences that purchased star names had no official astronomical standing. He also wouldn't see the guy with a 25-year hole in his resume who applied to my institution at least twice, then filed a complaint about age discrimination (I was on one of the search committees when his file came through). I suspect this character picked up enough small out of court settlements to make it worth his time, but Wisconsin got tough; they told him they'd file charges if he made another bogus claim. But that's a rare case, and by filing a civil-rights claim to a government agency, he became liable for filing a false complaint. If he'd simply filed civil suits, no matter how nutty, he'd have been untouchable.

Two Wrongs Make a Right?

Speaking of why asbestos claims are filed so often in the Midwest, Kahn states:

It's because those regions are full of old industrial buildings, built when people remembered the Great Chicago Fire and the Great Peshtigo Fire. So for decades, buildings were filled with asbestos.

In other words, if you install a life-saving measure in a good faith effort to protect workers, you can be sued for it later. This violates so many fundamental principles of justice it's hard to know even where to begin. Certainly companies that knew about a hazard and took no action because they thought they could stonewall should be held liable. But what about other cases? Well, a basic principle is the people that benefit from an injurious action should pay for it. And who besides the companies benefited? Well, how about the employees who didn't die in fires? And the families that didn't lose loved ones and economic support? And the cities that didn't have to put out major blazes? And the governments that taxed the businesses and got continuing revenue because the plant didn't burn down, and who may have mandated asbestos in the first place? And the citizens who benefited from the taxes through schools, streets, police protection, and so on? In other words, asbestos as a safety measure conferred a broad public benefit; this is a classic example of a case where society at large benefited and society at large should cover much of the cost.

A very similar reasoning applies to PCB's, chemicals now known to be toxic. They were used in two major applications: electrical insulation and carbonless paper. Their electrical use stemmed from their being virtually indestructible, so in the event of overheating they didn't burn or melt easily. PCB contamination from electrical industries is a direct result of providing a broad social benefit for which society as a whole is liable. Carbonless paper is a matter of convenience: the chemicals provided a nice stable encapsulation medium for the ink. But I'm having a hard time coming up with an application for carbonless paper that doesn't involve government, either directly (legal forms) or indirectly (mandated record keeping). So here's a case where the primary beneficiary is government, and government should cover the cost. Not society, government. The agencies that mandated the forms and record keeping should pay for the cleanup out of their existing budgets without cutting services or getting additional funding. (Suggestion: senior agency officials, called out of retirement if need be, spend their weekends at the cleanup sites until the cleanup is done?)

Objection: Irrelevant

Kahn also says:

What I've discovered is a realm of real problems and real people. ... If only one-tenth of the allegations are true in the lawsuits I'm reading, it would be shocking.

This is perfectly true. It's also perfectly irrelevant. It's not the legitimate cases Kahn sees that are the problem, it's the frivolous ones he ignores or never sees. It's like saying "If only one-tenth of the allegations are true in the criminal indictments I'm reading, it would be shocking," then using the fact that most criminal complaints are valid to deny the reality of wrongful convictions.

Frivolous and malicious lawsuits are the exact counterpart in civil law to wrongful convictions in criminal law. Actually, they're not; a criminal defendant is innocent until proven guilty. A civil defendant isn't. If the state loses its case, a criminal defendant walks. If a civil plaintiff loses, he can appeal. There is no protection against double jeopardy in civil cases. You have a guarantee against self-incrimination in criminal cases. In civil cases, you often must keep records to prove your innocence, and you can be forced to produce evidence that proves your guilt. (It's called "control of the facts" and I know all about why it's the law. It's still unjust.) If you are in compliance with the law and can prove it, by definition you cannot be convicted justly of a crime. You can be held liable in civil cases even if you are in good faith compliance with the law. The Supreme Court routinely throws out criminal laws if it feels they are too broad or vague, but opponents of tort reform have successfully opposed attempts to create rigorous definitions of vague concepts like "malpractice." Finally, what weird reading of the Fourteenth Amendment can justify the tort system as providing "equal protection" under the law?

Another Revealing Comment

Bernard Sussman wrote Malpractice Suits Keep My Profession Honest for the Washington Post on 27 April 2005. Sussmann is professor emeritus at the Howard University College of Medicine. In the process of defending medical malpractice suits, he wrote:

In cases that do get to court, medical experts who testify for plaintiffs have sometimes been countersued by defendant doctors claiming defamation of character. There have even been cases where the defendant doctor has countersued the patient to force a withdrawal of the complaint.

I could hardly come up with a stronger defense of tort reform if I tried. The use of lawsuits to harass and intimidate is one of the chief reasons for supporting tort reform.

Accompanying the editorial was one of the most intelligent comments on tort reform I've ever seen: a Jeff Parker cartoon comparing Insurance Companies, Doctors and Lawsuits to the game Rock-Paper-Scissors. There is no single party that is right or wrong all the time. Insurance companies do get fraudulent claims. Doctors do get frivolous lawsuits, Lawyers do represent patients who have suffered real harm. So opponents of tort reform are legitimately concerned about tipping the balance too far in the favor of defendants. But the solution is to create adequate deterrents to frivolous and harassing lawsuits, not stonewall the problem entirely.

An Interesting Pattern

Is it just me, or does it seem a lot of the people who attack tort reform have made sure to guarantee their own immunity? Newspapers can't be sued for damages unless they are openly libelous. Judges can't be sued for their actions on the bench, activists can't be sued for the effects of changes they endorse, lawyers can't be sued for taking a frivolous case. (The exceptions are so rare and the conditions so stringent they are all but nonexistent.) I can't think of any reason for granting a judge, a lawyer, or a reporter immunity that doesn't apply with equal force to a teacher, a plumber, or a truck driver. If you're inclined to say that judges, reporters and attorneys would be extremely vulnerable by virtue of what they do, my response is nobody was ever forced to be a judge, reporter, or attorney. Show me the family member or pet who is being held hostage to force those people to enter those professions. There are lots of exciting openings in the fast food industry for people who don't want to face responsibility.


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Created 1 May, 2002, Last Update 02 June, 2010

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