Tort Reform - taking your rights away

As a trial lawyer,  I am often asked about "frivolous" lawsuits. Lawsuits that have no basis in fact and are brought out of a desire to harass or try to get a settlement. In my experience, these types of suits are few and far between. Moreover, TN, like every State and the Federal Courts, have mutilple rules in place to limit such lawsuits. Defendants can often win attorney's fees, as well.

Frivolous lawsuits are part of the language of tort reform because everyone knows about one or two "horror" stories. But, most people don't know the facts behind the stories. For example, the Pinto case where Ford chose not to recall and repair the cars because it was cheaper to settle or defend the lawsuits. Or, the McDonalds case, where a jury awarded a significant settlement to someone who burned themselves with hot coffee.

In the first case, I don't think anyone agrees that Ford was wrong. We are on the side of the jury that awarded a huge settlement to the injured people. Who wants to get burned up in a car, especially when the manufacturer could have fixed the problem with a relatively cheap part. The second case is more troubling because there are many unknown facts. Much has come out on both sides. But, the bottom line is, a jury of twelve heard all the facts and decided the manager of the McDonalds was wrong. We need to have faith in the system. Faith to believe that when they saw the second and third degree burns, and the permanent scars, they understood her damages.

When they found out that this particular McDonalds had been cited numerous times for reheating the previous night's coffee to scalding temperatures to save money and reuse it - for profit - the manager knew the problem and did it on purpose, they understood the cause and why there was a need to punish the bad actors. How do you punish a multi-billion dollar corporation? You have to make the punishment sizable enough for them to take notice. Otherwise, they will keep doing the wrong thing and pay off the occasional court battle.

Tort reforms originate from these moments when business finds itself at the losing end because they did something that caused a harm. The history of labor reform is littered with these types of cases. In the end, it is necessary because businesses will not put safety first unless someone makes them. Profits are always the driving force. There is nothing wrong with making a profit - but it should not e at the expense of someone else or deprive someone else of their ability to live a safe and happy life.

Yet, in the end, big business and big medicine send their money out into the pockets of the lobbyists and the politicians to get them to limit your ability to get into court and to be compensated. Tort reform, pure and simply takes away your rights and gives them to big business and big medicine.

 

Fast Facts About Litigation

Proponents of so-called "tort reform" claim that litigation and the fear of litigation hinders job growth and stifles economic development. "Frivolous lawsuits are on the rise," businesses tell Congress, making it hard to compete and difficult to succeed. But studies by the federal government and neutral academic experts prove there is no statistical basis for these claims.

Federal Litigation is Decreasing

• A 2005 report issued by the U.S. Department of Justice's Bureau of Justice Statistics shows that the number of tort cases resolved in U.S. district courts fell 79 percent between 1985 and 2003.¹
• According to the Administrative Office of the U.S. Courts, tort actions in the U.S. District Courts dropped by 28% from 2002 to 2003.²
• In addition, over the last five years federal civil filings have not only decreased 8%, but the percentage of civil filings that are personal injury cases has also declined to a mere 18.2%3

State Litigation is Decreasing

• The Bureau of Justice Statistics (BJS), a division of the Department of Justice, performed a study of civil trials in state courts and found that the number of civil trials dropped by 47% between 1992 and 2001.4
• The number of tort cases decreased 31.8% during the same period.5
• The trend in award size was also down. The median inflation-adjusted award in all tort cases dropped 56.3% between 1992 and 2001 to $28,000.6

Lawsuit Filings are Decreasing

• Tort filings have declined 5% since 1993.7
• Contract filings, which are more likely to involve businesses than tort cases, rose by 21% over the same period.8
• Automobile tort filings, which make up the majority of all tort claims, have fallen by 5% since 1993 and by 14% since their high in 1996.9
• Medical malpractice filings per 100,000 population have fallen by 1% since 1998.10

Damage Awards are Down

• Median payout for all tort cases dropped 56 percent between 1992 and 2001. According to the U.S. Department of Justice, the trend in damage size for tort cases is down. The median inflation-adjusted payout in all tort (personal injury) cases dropped 56.3% between 1992 and 2001 to $28,000.11

Asbestos Case Filings are Decreasing

• Civil filings in the U.S. District Courts decreased 3 percent in 2003 to 256,858. This overall decline in filings resulted from an 83 percent reduction in asbestos cases filed.12

Class Action Cases are Rare

• In its study of civil litigation in state courts, the BJS found only one case out of 11,908 cases that could truly be classified as a class action. That case, Bell v. Farmers Insurance Exchange, involved an insurance company’s attempt to classify claims’ representatives as administrative personnel in order to avoid paying them overtime wages.

Medical Malpractice Filings are Decreasing While Numbers of Doctors are Increasing

• The number of physicians in the United States has steadily increased from 268 per 100,000 population in 1996 to 285 per 100,000 population in 2002.13
• From 2000 through 2002, the three most recent years of data available, the rate of physicians has risen in every single state.14
• Medical malpractice filings per 100,000 population have fallen by 1% since 1998.15

Endnotes

1. Federal Tort Trials and Verdicts, 2002-03, Cohen, Thomas H., Bureau of Justice Statistics, August 17, 2005.
2. Judicial Facts and Figures, Table 2.2, Administrative Office of the U.S. Courts
3. Federal Judicial Caseload Statistics, Judicial Caseload Indicators, 2002 & 2003, Administrative Office of the U.S. Courts
4. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004
5. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004 (Study examined state courts in the 75 largest counties in the country)
6. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004
7. Examining the Work of State Courts, 2003, at 23, National Center for State Courts, 2004.
8. Id. At 23.
9. Id. At 27.
10. Medical Malpractice Filings per 100,000 Population in 11 and 17 States, 1993-2002, National Center for State Courts, 2004 (unpublished, on file with author).
11. Civil Trial Cases and Verdicts in Large Counties, 2001, Bureau of Justice Statistics, U.S. Dept. of Justice, 2004]
12. Judicial Business, at 14, Administrative Office of the U.S. Courts. (In which the United States was not a party)
13. Health Care State Rankings, 1998 through 2004, "Rate of nonfederal physicians," Morgan Quinto.
14. Health Care State Rankings, 2000 through 2002, "Rate of nonfederal physicians," Morgan Quinto.
15. Medical Malpractice Filings per 100,000 Population in 11 and 17 States, 1993-2002, National Center for State Courts, 2004 (unpublished, on file with author).

Updated September 2005