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Mmm, Fresh Baked Tort

Across the country cities are going bankrupt. And while court costs and paying out settlements might not be at the top of the list of reasons why, paying out $40,000,000 to a family who lost someone due to swine flu can’t possibly help the situation.

This may sound brutish and uncaring, but I’m a realist and the fact of the matter is that people get sick and die all the time. Life isn’t as neat, orderly, and plastic as we like to believe it is, despite trying to cover up its harsh realities with HDTV’s, McDonalds, and botox.

As swine flu was spreading around the country the news was filled with constant updates and warnings. Everyone knew what was going on. And yet Mr. Wiener’s family sees fit to sue the city of New York because it “was negligent in failing to quickly report the outbreak and failed to warn Weiner that he'd been exposed to the virus. [They] also claim the city didn't do its best to control the outbreak.”

This is akin to suing the state of Kansas every time a tornado touches down and tears apart people’s homes and sends family pets careening through the air. I’m sorry for this family’s loss, but you can’t just expect compensation every time something bad happens to you. The city of New York couldn’t have handled the outbreak any differently. Was it supposed to shut down all the schools indefinitely? Should they have shut down the subways too? What about closing the bridges and tunnels and placing the entire island of Manhattan under quarantine? For that matter, why didn’t the federal government quarantine the school Mr. Wiener worked in? Should the family be able to sue President Obama because he let this tragedy unfold?

At some point people need to realize there isn’t always another party to blame every time someone dies. Even when death isn’t the case, people feel the need to sue for all sorts of absurd things. A family in Staten Island sued their little league, and son’s coaches because their son slid into a base and tore up his knee. How is that anyone's fault? It’s unfortunate, I know, but sometimes you have to just suck it up and move on. I was sued once, by someone who had no driver’s license, no birth certificate, and no proof of citizenship because he made a driving error that lead to me rear-ending him. Nobody was hurt, but years later, as the statue of limitations was approaching, I got served. My insurance company ended up paying the man in the neighborhood of $40,000. How is that even realistic?

How much money has been paid out to people by cities, states, or the federal government simply because they thought they were entitled to it? Opponents of the proposed health care reform are terrified that a price will be put on everyone’s life, but isn’t that already the case? Someone scrapes a knee and they think they’re entitled to a huge cash settlement. People sue when spilling hot coffee on their laps. People sue when they slip on ice. People sue when they choke on a particularly hard corn flake. People sue when their loved one dies of natural causes. People sue for things that happen all over the world every day and people who haven’t been raised to think they’re entitled to monetary compensation deal with it like people have been doing for thousands of years, accept it and move on.

This isn’t a matter of compassion as so many green-eyed lawyers would have us believe. When we allow people to profit from unfortunate events in their lives when no wrongdoing has taken place we put a price on life. We come to expect that a knee is worth $40,000, an arm $100,000, and a life $40,000,000. If compassion is the issue then what if this family is awarded all that money? Wouldn’t that money have been better suited to welfare programs, health care benefits, fixing roads, public schools, paying police and firefighters? What does it say about the mindset of this country when a family is willing to take $40,000,000 of public money that could be better used to benefit an entire city because they think they’re entitled to compensation from nature’s merciless whim?

Posted by Michael Falino at August 16, 2009 11:36 AM
Comment #286372

Yes, yes, yes. There is not always some deep pocketed person to blame. Sh*t happens.

Posted by: Christine at August 16, 2009 2:19 PM
Comment #286373

Michael - I agree with the point that we are an over-litigious society. There are a lot of people out there just living for the opportunity to sue someone for some nonsense or another. However, I don’t think that tort reform is necessarily the answer. There are too many reasons for me why not. Like, if a father of 5 dies due to the incompetence of an employer whose wife is a stay at home mom. How do you tell this person “sorry that the breadwinner of your family died because of his employers negligence, here’s a $50,000 check.” Or what price tag do you put on a woman whose doctor removed the wrong breast? or an arm, or a leg? I think it should be judges that step up to the plate and toss out frivolous cases not limits on rewards. Most of those insane rewards are from cases that shouldn’t have been heard in the first place.

We have a serious lack of ethics in our legal system that needs to be addressed. It is only about winning not about justice, not about fairness on all sides. Ambulance chasers sue for stubbed toes, and prosecutors convict innocent people just because they know they can win. That I see as a worse problem than reward amounts.

Posted by: tcsned at August 16, 2009 2:46 PM
Comment #286379

tcsned, I totally agree. It’s not about the amount as much as about what we are allowed to sue for, and what judges will allow to progress through litigation. You can’t just sue because you got a raw deal in life.

Posted by: Mike Falino at August 16, 2009 4:12 PM
Comment #286389

A probability of willfull intent or willful negligence in bringing about harm, SHOULD be the standard to be met before suit should be allowed to progress to a judgment on that willfullness by a jury or judge.

It is a standard that is met in a majority of law suits which do progress to full court litigation. But there are enough cases that pass through that don’t meet this standard, as to promote the case for more stringent application of the standard.

That is unlikely to occur however, due to the politicization of our judicial system. Conservatives want immunity for business in large part, and Liberals want to protect the individual from the excesses of more powerful organizations. This is a classic case where justice SHOULD be blind to the politics, but, isn’t. Lady Justice all too often has her eyes wide open where these politics enter the fray.

Posted by: David R. Remer at August 16, 2009 10:29 PM
Comment #286401

Certainly there are far too many abuses in our tort system but lets be careful not to throw the baby out with the bath water. Our tort system also has a very powerful role in bringing about a measure of justice. It also has a postive effect on the safety and well being of people in the US. I currently live overseas in the Philippines. The RP has a very weak tort system that mostly serves as a collection agency. Holes in sidewalks don’t get repaired. Building codes are routinely ignored. There are some very good doctors but there are also very poor ones,little more than quacks. If a power pole falls down it may take weeks for a repair crew to show up to what in the US would be an emergency. Dangerious road construction may be marked with rocks or tree branches across the road to warn drivers. The list goes on. Nobody is liable. Great care should be taken before any tort reform in the US be attempted that we do not destroy a valueble institution.

Posted by: bills at August 17, 2009 7:26 AM
Comment #286402

I think we also have to be careful as we are in this health care debate that tort reform becomes a part of it. While malpractice insurance is a problem thinking that limiting the amount of an award is going to do anything to drive insurance costs down is a pipe dream. Insurance companies are doing the same thing to doctors and they are to patients - squeezing every last penny they can from them because their options are limited.

Posted by: tcsned at August 17, 2009 8:11 AM
Comment #286404

Until they find a way for the deceased to enjoy the big payouts, they should be limited - or taxed like crazy. Too many grieving relatives are winning the lottery. Guess how much payout you get for losing someone to cancer?

Posted by: Schwamp at August 17, 2009 8:25 AM
Comment #286405

bills, I agree wholeheartedly, that the tort system should not eliminated. I see no threat of that happening. It does however, need to reformed to eliminate the inordinate and wasteful expenses of excesses in the system.

I agree too, caps on awards is a very bad idea. What’s a cap of 1 million dollars to a corporation like Ford Motor Co, that decides it is cheaper to pay cap, than recall their Pinto which was burning the occupants alive when rear ended? The awards have to be sufficient to force a corporation to desist from its profitable but negligent behavior when it harms its customers, employees, or public at large.

On the other hand, we need tighter standards for screening out law suits which do not meet the probability standard for willful intent to harm. Example, a new drug on the market which has passed all the tests, and such tests met industry, regulatory, and ethical standards. A law suit based on one individual having been harmed by the drug’s use, where the vast majority of consumers have not, should be denied, with the proviso, that the FDA monitor incidents for that drug in the future, to determine if the incidence rate for harmful consequences is rising.

This kind of oversight is what is currently not stringent or comprehensive enough, (Bush slashed the budget for such monitoring staff) resulting in large numbered class action law suits after a substantial number of customers have been harmed.

Posted by: David R. Remer at August 17, 2009 8:35 AM
Comment #286407

Great points David. I think caps are a bad idea and that the problem is that too many frivolous cases are being allowed in front of a jury that shouldn’t be. Those pushing for tort reform are the ones who would unleash something harmful to the public so they can get rich. Capping their culpability only makes it easier and more profitable to do harm.

Though I would caution using a drug company and the FDA as an example since a drug company can run 50 clinical tests that come out bad and one that comes out how they want then they submit that to the FDA (who knows this happens) and lets a drug onto the market that can potentially kill someone. Then they pay off doctors to prescribe it to patients. Does Vioxx ring a bell?

Posted by: tcsned at August 17, 2009 8:50 AM
Comment #286408

Schwamp, your comment doesn’t even begin to address the real issue at hand. There is no such thing as a perfect system that will prevent BOTH profiteers from harming their customers, and customers from taking advantage of losses as consumers, in the legal arena. The objective is to minimize harm from consumer products and provide safe harbor for new products appropriately tested, even if that product is subsequently found to have adverse consequences when released to the general population.

Sampling tests will never accurately on a case by case basis, predict population wide incidence of harm. It is a probability and statistics model of testing, and innovators need litigation safe harbor to innovate, provided their testing meets proscribed industry and regulatory standards.

On the other hand, such innovators must also be held accountable for full public disclosure of subsequent data after public release of the product, which points to the product having unanticipated negative consequences, and for taking the appropriate public safety measures, regardless of the impact upon their profitability on that product. Failure to do so, should leave them vulnerable to no cap litigation as a means of forcing them to remedy the product or cease and desist from selling it. (I again offer the Ford Pinto as a classic example.)

To keep such a system efficient, however, government oversight of consumer safety standards is fundamental and essential. Self-regulatory measures fail, and sometimes colossally, as in the case of the mortgage and banking industries in 2007 and years preceding, leading to the fall of our economy into a debilitating recession.

Posted by: David R. Remer at August 17, 2009 8:50 AM
Comment #286409

tcsned, quite right. Capping awards opens the door for corporations to continue harming the public as the lesser cost path, as opposed to more expensive recalls and redesign, or ceasing production of that product altogether. Profiting from harming others should never be a standard to which the public should subscribe. Yet, that is precisely what the GOP and many Libertarians stand for, in calling for caps, or an end to negligence law suits, altogether.

Caveat Emptor was a valid concept in the 18th and 19th centuries when most of what one consumed one bought from producers in their local community, permitting the buyer to know their seller and their local reputation. With the advent of the industrial and technological age where we, as consumers, have virtually no knowledge of who the producers are or their reputations, caveat emptor has to be replaced with government oversight and regulation centered on consumer and public safety. This offends those on the Right who want to turn history back 200 years, which is just about as fruity a concept as mind travel to distant solar systems for mining operations.

Posted by: David R. Remer at August 17, 2009 8:55 AM
Comment #286415

A major stumbling block these days is the inherent lazy attitude of most Americans today. People weren’t looking for handouts when Pearl Harbor was attacked. If you were rear-ended in a car accident and recieved lasting injuries it was merely something you gripped about later in life. Suddenly though, every family member of a deceased 9/11 victim gets a $4,000,000 check, a man(who had many pre-existing conditions including the use of a respirator) dies of the swine flu and his family sue for $40,000,000.
Sometime soon we are all going to have to realize that free handouts are killing us.

Posted by: Edward at August 17, 2009 11:45 AM
Comment #286416

The problem with not capping verus capping is that corporations can pretty much pay any price and it doesn’t effect them in any way. Unless a plaintiff is awarded $2.5b for a faulty piece of hardwar in some consumer product, the corporations can just laugh off 10, 20, or even 40 million in damages. I agree though, that limits don’t get at the root of the problem. Like I, and others here have said, it’s about which cases go to that point of payout in the first place. A company making a product that kills people is one thing, but suing a city because your husband got the flu and died is quite another….

Posted by: Mike Falino at August 17, 2009 12:14 PM
Comment #286417

Vioxx, actually is an effective drug. In some people it is dangerous.

This is a problem with most drugs. They are effective, but carry risk with them. It is a problem at times figuring out which people are adversley affected. That is cold comfort to someone who dies.

To me the problem has become we have replaced medical treatment with pill pushers. The last two doctors I’ve had may recognize me in a crowd, but they can’t recall my medical history. I’ve had to repeat my conditions every visit. They simply prescribe a pill and hope for the best, given there are no obvious contraindications.

I was prescribed a blood pressure medication. When I got home, I researched it and noticed it had a tendency to induce diabetes and England no longer prescribes it as a primary drug. My father developed diabetes after being on blood pressure meds for a time. I stopped taking it immediately and made another appointment. My blood pressure was fine on my next visit, and my doctor told me well, don’t take it, and further explained my blood pressure issue may simply be something transient, and taking the medication for a day or two may resolve the problem. Of course, if I hadn’t done the research, I’d never have known this.

Posted by: gergle at August 17, 2009 12:20 PM
Comment #286423

Vioxx is a dangerous drug that Merck knew was dangerous and let out on the market anyway. I have a friend who has a PhD in biochemistry and works for Merck - he knew that there was a problem with that whole class of drugs not just Vioxx but they put it out there anyway and people died. If it is dangerous in some people Merck had the obligation to say so and not advertise it on TV as they did as a wonderdrug. Not to mention that the efficacy studies were fabricated by a paid scientist. Merck made a couple of billion dollars on Vioxx in the time it was on the market. Capping settlements will only encourage more of this type of behavior.

Posted by: tcsned at August 17, 2009 2:02 PM
Comment #286434

Mike Falino said: “A company making a product that kills people is one thing, but suing a city because your husband got the flu and died is quite another….”

True enough. UNLESS the City was willfully negligent in some manner which contributed to the man’s death, which does not sound like it was the case. And even then, the award should be aimed at the negligent parties, not the public at large, in cases of negligence by government officials. I.E. Brownie should be personally liable for the FEMA disaster during and after Katrina, as should those charged with oversight of his duties. But, to hold the public at large liable, is an enormous mistake, IMO.

Posted by: David R. Remer at August 17, 2009 5:13 PM
Comment #286450

You’re correct David, but I think you know what I meant! You’re example about Katrina is astute because it applies after the fact. There could even be legitimate gripes with the government if they knew the levees were on the verge of collapse and did nothing to prevent it, say, due to cost. But as in the case I provided, this is obviously a frivolous lawsuit.

Posted by: Mike Falino at August 17, 2009 6:36 PM
Comment #286451

Mike, no, it applied DURING and PRIOR to the Katrina disaster, as in failed preparations for disaster, and failures to respond in a timely fashion to real human tragedy.

But, yes, I knew what you meant, as when I opened my reply to you with: “True enough”.

Posted by: David R. Remer at August 17, 2009 6:56 PM
Comment #286452

Lawyers make laws and you end up with John Edwards.

For bargain hunters, Tony Rezko has defaulted on his 6 million dollar loan for his 8000 sq ft Wilmette home, and it’s available for only 4 million.

gergle, less salt if your bp is too high, more if too low, an 81 mg coated aspirin every day, plenty of fluids, and fewer carbs.

Posted by: ohrealy at August 17, 2009 7:13 PM
Comment #286468

I think tort reform is important, and that torts should be expanded to include a waste of my time. I could sue Sprint for all those messages that you’re forced to wait through before leaving a voicemail; I could sue Comcast for even putting Fox News on the TV; I could sue the state of Colorado for not building a more direct route between me and the place I want to get to; and I could sue myself for writing fatuous comments on Watchblog ;)

Posted by: Jon Rice at August 18, 2009 12:55 AM
Comment #286469

Jon Rice, such subtle thinking and irony will surely be lost on those in most need of its appreciation. Too often the case.

Posted by: David R. Remer at August 18, 2009 5:07 AM
Comment #286479

They sit at the bench in front of the court. They are called “Judges”. Their job is to JUDGE, but apparently they aren’t doing a very good job. The thousands upon thousands of frivolous lawsuits filed in US Courts because somebody slipped on the ice or spilled coffee in her lap or purposely took the safety guards off their machine and then got hurt should be THROWN OUT OF COURT! If the judges had the simple guts to say “No, this lawsuit is frivolous nonsense. Welcome to the real world. Case dismissed. Get out of here!” we wouldn’t have this problem.

Posted by: capnmike at August 18, 2009 10:21 AM
Comment #286480


And even then, the award should be aimed at the negligent parties, not the public at large, in cases of negligence by government officials. I.E. Brownie should be personally liable for the FEMA disaster during and after Katrina, as should those charged with oversight of his duties. But, to hold the public at large liable, is an enormous mistake, IMO.

This seems to ignore the fact that the person in question was acting as an agent of the government, and thereby an agent of the people, when his negligence occurred. It also ignores the fact that he cannot practically be held liable to the degree that the government itself can. What is his personal net worth? Is it even close to being able to cover damages for all of the people that could sue in this situation? Think about if this was a case in the private sector: would you want to limit lawsuits to purely personal liability for the agents of a company who engage in harmful or negligent practices, or would you hold the company itself liable since they were acting as its agents at the time and the company is generally more capable of actually paying significant damages than private citizens are?

Posted by: Jarandhel at August 18, 2009 10:23 AM
Comment #287266

Oh my goodness! The Constitutional right to petition the government for redress of grievances? How awful!

Posted by: Stephen Hines at September 1, 2009 5:13 PM
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