Speaking of "Tort reform"....

In my last post, I mentioned the amazing ability of defense lawyers to run up astronomical bills for things that really shouldn't take all that much work. I'm sure I've also mentioned that "tort reform" often drives up litigation costs. Baylor v. Biggs is a great example.

Several years ago, in an actual incident that inspired an episode of Scrubs, doctors transplanted rabid organs into unsuspecting patients, who subsequently died. The survivors of a kidney recipient sued, claiming that if the hospital had told them that the organs came from an IV drug abuse with other risk factors, their dead loved one would likely have waited for a more suitable donor. The hospital no one tests for rabies, so they didn't do anything wrong.

But before this suit was filed, the Texas legislature had passed a "tort reform" bill that required plaintiffs filing medical malpractice cases to serve the defendant with an expert report stating how the defendant breached the standard of care and how that breach caused the injury. The report has to be served before the defendant is required to respond to discovery or do pretty much anything else in the case, and if the plaintiff fails to file an adequate report, the defendant gets his attorneys fees (which shouldn't amount to much, because all this happens before the defendant's lawyers have to do much of anything).

In Baylor v. Biggs, the plaintiff filed her expert report, and the trial court found the report adequate. The defendants appealed, and the Dallas Court of Appeals ruled that the reports were deficient and sent the case back to the trial court so the trial judge could determine whether the plaintiff should get a chance to cure the deficiency. If they're right and the plaintiff doesn't have a claim, they'd have nothing to fear from giving the plaintiff a chance to cure the deficiency. Because if they're right, it would have been incurable, and the case would have been over years ago.

But the defendants were not satisfied with this victory, and filed a petition for review in the Supreme Court of Texas, claiming that the plaintiff should not be allowed the opportunity to cure the deficiency and demonstrate that she had a colorable claim. The law that the legislature passed said that the court could give the plaintiff one chance to cure a deficient report, but the defendants argued that shouldn't apply when the court of appeals rather than the trial court is the one that rules the report is deficient. This was too much even for the notoriously pro-defendant, pro-doctor Supreme Court of Texas, which ultimately denied review (after deciding the issue in the plaintiff's favor another case).

So the case went back to the trial court which, for no apparent reason, decided not to give the plaintiff an opportunity to correct the deficiency, and awarded the defendants almost a quarter of a million dollars in attorneys fees. And this for a procedure that was supposed to cut down on litigation costs and cut off the litigation before the defendant incurs any significant legal fees.

The plaintiff appealed this time, and the Dallas Court of Appeals reversed again, saying that, while the trial curt had discretion not to grant the opportunity to cure, it at least had to have a reason. And now it seems the defendants have taken it to the Supreme Court again. Who knows how much more they'll be claiming for this.

As an appellate lawyer, I know for a fact that the defendants could have made their challenge to the plaintiffs expert report and taken it up on appeal for a tenth of what the district court awarded in attorneys fees. I could have. Easily.

In my experience, the remainder could only be attributable to exorbitant billing rates, padding the file with unnecessary work, and the completely unnecessary trip to the Supreme Court, the only purpose of which was to try to deny the plaintiff an opportunity to demonstrate that she had a valid claim and win on a technicality. And that's what "tort reform" is really about.

Tall Tales About "Loser Pays"

Rick Perry and his corporatist buddies have been pushing hard for their so-called "loser pays" bill. In one ad sponsored by the facetiously-named "Americans for Job Security," an astroturf group fronting for big business and insurance interest, we are told:

ANNOUNCER: A man sued a beer company because beautiful women didn't appear when he drank lots of their beer.

A woman sued an amusement park because the haunted house was too scary.

Lawsuits like these happen all the time. Why? Because the people who file them have nothing to lose.

Frivolous lawsuits are tying up our legal system, hurting our economy and costing Texas jobs.

But that can change thanks to HB 274 the Creighton-Huffman Jobs and Small Business Magnet Plan.

The Texas Legislature can put a stop to frivolous lawsuits, help small business and attract and create new jobs.

It's time to stand up to the trial lawyers and serial litigants who are hurting our economy. It's time to put an end to their free ride.

The Texas legislature needs to pass HB 274 -- support small businesses and help attract and create new jobs in Texas.

To join the fight or to learn more visit www.SaveJobs.Org.

Paid for by Americans for Job Security.

Let's assume, for the moment, that the actual lawsuits are just as described, and obviously frivolous. Under current law, they could be quickly disposed of with a motion for summary judgment. Even the greediest of trial lawyers (in fact, especially the greediest of trial lawyers) wouldn't touch such a case because trial lawyers front the litigation expenses work on contingent fee basis, so they'd be investing their time and money in a case that they know they have no chance of winning, and that any competent defense lawyer would be able to get quickly dismissed.

So what is this "loser pays" that Rick and Pals want to throw into the mix? Under current law in Texas, the defendant can make an offer of judgment, and if that offer is at least 80% of what the jury awards, the the award is reduced by the amount of the the defendant's legal fees incurred after the offer was rejected. The proposed legislation is in flux and may be different now, but what they were originally going for was an elimination of the floor. Under the current law, a winning plaintiff who doesn't beat the offer by enough can only lose what the defendant would otherwise have to pay. Under Perry and Pals dream legislation, a plaintiff who doesn't win by enough could lose the entire award, plus have to come up with additional money out of his own pocket to pay the defendant's legal fees.

And if there's one thing defense lawyers are really, really good at, it's running up really outrageous legal bills. (This is what I'm talkin' about.) As with hospital bills that are knocked down to a third of he amount billed when they're submitted to the insurance company, they might not really expect their clients to pay the full amount, but you can be damned sure they won't be including any such reductions when they submit the billing records to the court.

But I digress.

Getting back to the point, the only way the "loser pays" provision kicks in is if the defendant offers some money to make the case go away. So someone who files a truly frivolous lawsuit is assured that he'll be offered something for his trouble, while a person with a valid claim will have to think long and hard about rejecting a low-ball offer, because he risks getting bankrupted if he doesn't beat the offer by enough. Regular people with families to take care of just can't afford to take that sort of risk.

So it's really not about "frivolous lawsuits" at all; it's all about giving insurance companies additional leverage to make injured people with valid claims accept considerably less than those claims are worth. Perry and Pals want to make litigation less expensive for corporate and insurance interests by making people with legitimate claims settle early on for significantly less than their claims are worth. And that's all it's about.

* * *

But what about the "frivolous lawsuits" that the ad tells us happen "all the time"? At first I thought of the Stella Awards, wherein "tort reform" advocated used a bunch of made up lawsuits to illustrate the need for "tort reform." Were these too made up lawsuits, I wondered? After a bit of Googling, I think not. One of them appears to be a 1998 lawsuit from Florida, and the other a 1991 case from Michigan. One might think that if "frivolous lawsuits" were really such a big problem in Texas,and they happen "all the time" and there are so many of them that they're "tying up our legal system," they could at least find a few from Texas and maybe within the past year or so, or at least last decade. Especially if this is, as Rick Perry tells us, an "emergency" that demands the legislature's immediate attention. But that, it seems, is too much to ask.

* * *

And what about the the descriptions of the lawsuits? Are they accurate? Did a man really sue a beer company because beautiful women didn't appear when he drank lots of their beer?

Not exactly.

This appears to be a reference to a false advertising lawsuit filed by Richard Overton pro se (i.e., without the assistance of a Greedy Trial Lawyer) in Michigan in 1991. Mr. Overton's basic complaint was that Anheuser-Busch's ads misrepresented the benefits of consuming its products while failing to mention the downside. Mr. Overton's explanation for the suit is reported on the Personal Injury Lawyer Directory. According to Mr. Overton, the suit was filed over "an alleged violation of the advertising Act," and “No where [sic] can you find that I am suing A-B for failure to deliver on implied [sic] promises from their commercials!” It seems that Mr. Overton's claims were not quite as advertised. Again, for the full context of this lawsuit, please read the complaint. Not a case I would have taken on a contingent fee, but also not quite the case that Perry and Pals would have you believe.

And what about the woman sued an amusement park because the haunted house was too scary?

Really?

Not even close.

Here's the story, as reported in the Orlando Sentinel on January 5, 2000:

Universal Fall Leads To Lawsuit

A Woman Says She Suffered ``emotional Distress And Mental Anguish'' At The Theme Park's Halloween Horror Nights

January 05, 2000|By Tim Barker of The Sentinel Staff

For nearly a decade, people have flocked by the thousands to pay for a healthy dose of fear and anguish at Universal Studios Florida's annual Halloween Horror Nights.

The fright festival has it all: blood-curdling screams, slimy goo and fiendish creatures jumping out of the shadows.

It's scary stuff - too scary, according to a local woman who is suing Universal, saying she was ``assaulted'' by one of the company's chainsaw-wielding maniacs.

Cleanthi Peters, 57, wants Universal to pay for emotional and physical damage that she claims she suffered in 1998 during a horrific journey through one of the park's several haunted houses. Peters was with her 10-year-old granddaughter.

It was near the end of one of the haunted houses - Hell's High - that the evening took an ugly turn, according to the lawsuit. Just as the exit came into view, Peters and her granddaughter were set upon by a man waving a loud chainsaw, minus the chain.

With the maniac - referred to in the suit as John Doe - in hot pursuit, the frightened duo fled toward the exit door and the safety that surely lay beyond.

What they didn't know - and couldn't know, according to the lawsuit - was that the floor near the door was wet from the mist that Universal was using to cool off customers leaving the den of evil.

The two hit the wet patch and crashed to the floor, according to the lawsuit, filed recently in state Circuit Court in Orlando.

To make matters worse, the unsympathetic chainsaw-toting fiend continued his assault - crouching over them and thrusting his weapon, according to the suit.

The ordeal left Peters, who lives in Seminole County, with unspecified physical injuries and inflicted ``extreme fear, emotional distress and mental anguish,'' the suit says.

For that - which her lawsuit says was the result of negligence - she wants to be paid more than $15,000.

Peters' attorney and Universal officials would not comment. The company has not yet filed a response to the lawsuit.

I have not been able to find the actual complaint online for this one, but it looks like what we have here is a slip-and-fall case with some questionable behavior on the part of the premises owner's employees after the fall. But I guess the fact that they had a slipping hazard in the form of a puddle on the floor in a place where it was dark and their customers were likely to be distracted doesn't sound as good as "woman sued an amusement park because the haunted house was too scary."

Gotta love that redistricting.

It's about time for my semi-occasional post, and this one is a tribute to the Beaumont Court of Appeals, "tort reform," and Republicans everywhere.

The case is Mobil v. Bailey, and it's an asbestos case.

Mr. Bailey worked at a lot of different places and was exposed to asbestos at a lot of different places over a long period of time. And part of that asbestos exposure came while working for a contractor at Mobil. He also smoked for a long time. He died of lung cancer. (Since Mr. Bailey is no longer alive, he's obviously not a party to the case, but that's how I'll refer to the plaintiffs.)

It's pretty well accepted within the scientific community that smoking causes lung cancer. It's also pretty well accepted that asbestos causes lung cancer. It's also pretty well accepted that heavy smoking, in conjunction with long term asbestos exposure, has a synergistic effect and multiplies the risk many times over. And by "pretty well accepted," I mean generally regarded as established beyond a reasonable doubt.

So, for instance (and I'm just making these figures up for illustrative purposes), suppose someone has a smoking history that would give him five times the risk of getting lung cancer of a similar nonsmoker, and asbestos exposure that would give him three times the lung cancer risk of someone without any significant asbestos exposure. You might think he'd have eight times the lung cancer risk of a similar person who had no significant history of smoking or asbestos exposure. But you'd be wrong. He'd have fifty times the lung cancer risk. (Again, the specific figures are made up for illustrative purposes. There is disagreement within the scientific community about the extent of the synergistic effect. Figures as high as 92 times the risk find some support in the literature.)

That's significant in a toxic tort case because you have to be able to prove that the toxic substance in question was more likely than not a cause of the injury. If smoking quintupled the risk and asbestos exposure tripled it, and they operated independently of each other, then there'd only be a 37.5% chance that asbestos caused the cancer, and that's short of "more likely than not." But if, as described above, it's five times the risk for smoking alone, three times the risk for asbestos alone, and fifty times the risk when you've got both, the numbers suggest that there was a 10% chance that the cancer was caused by smoking alone, a 6% chance that it was caused by asbestos alone, and an 84% chance that it was a combination of the two. And that, of course, means that there's a 90% chance that asbestos was a contributing cause, and that's enough to get you to a jury.

At trial, Bailey's medical and epidemiological experts testified that this synergistic effect exists. They cited such things as the Surgeon General's report, multiple published, peer-reviewed epidemiological studies, and tons of other stuff from the relevant scientific literature. Mobil's experts said it existed too (although they claimed that it doesn't exist unless you also have asbestosis or asbestos exposure sufficient to cause asbestosis, which they said Mr. Bailey didn't have.)

Anyway, Mobil lost at trial and appealed to the Beaumont Court of Appeals. In it's appellate brief, Mobil said "the scientific community has recognized the concept of synergy in the asbestos concept" (and then went on to claim that the synergy exists only in patients who have asbestosis).

Bailey's brief stated: "It is also an undisputed fact in this case that smoking and asbestos exposure interact synergistically to create a lung cancer risk many times what either of them would pose individually. And it is an undisputed fact that James Bailey died of lung cancer. The only issue with respect to causation involves a theory posited by Mobil that asbestos cannot cause lung cancer in the absence of asbestosis, and that theory is that it is wrong."

And here's what the majority opinion of the Beaumont Court of Appeals had to say about it: "neither of plaintiffs' two causation experts made a sufficient showing that the relevant scientific community had generally accepted the concept of 'synergism.'" Seriously. Even though the evidence at trial showed that pretty much everyone in the scientific community from the Surgeon General on down, including Mobil's expert witnesses, regards the synergism as an established scientific fact, even though the point was undisputed at trial and uncontested on appeal, the court still said there was insufficient evidence. "No evidence," actually, since that's the legal standard of review they were applying.

The rest of the opinion isn't quite that bad, but it's close. The dissent does a pretty good job of telling them how they got it wrong, but apparently they weren't in the mood to listen. The dissenting opinion was written by a justice who used to represent asbestos defendants, by the way. I don't get the impression from the majority opinion that either of the justices involved had any experience with asbestos litigation or toxic torts before joining the court. They seem to lack even a basic grasp of how the law is supposed to deal with scientific evidence.

And just as an aside (not really an aside, more an illustration, but it was a genuine aside before I added the previous paragraph), the Supreme Court of the United States did away with the "general acceptance" test for the admissibility of scientific evidence in Daubert, and the Supreme Court of Texas followed suit in 1995 in E.I DuPont v. Robinson. Whether "the relevant scientific community had generally accepted the concept of 'synergism'" isn't even the right question.

And as a further aside, in case you were wondering, there is plenty of stuff from the relevant scientific literature that was presented at trial indicating that it's the asbestos exposure, not the absence or presence of asbestosis, that counts. Stuff like standard medical texts, what appears to be the only epidemiological study that was specifically designed to look for an answer to that particular question, and lots of stuff in the medical literature about the disease processes that indicates that the two diseases develop independently.

But all asides aside, I mentioned "redistricting" in the title, so I guess it's time to get to the real subject of this post. In a state where you have to have an (R) after your name to get elected to any statewide office, the Supreme Court rules against the tort plaintiffs at least 80% of the time, and "tort reform" tops the legislative agenda whenever the conspiracy's in session; the Beaumont Court of Appeals had been a where a plaintiff who convinced a jury of the rightness of his cause could go without having to worry about the court bending over backwards to try to find an excuse take away the verdict.

No more. The court got redistricted, adding a bunch of people from Houston suburbs and effectively making it impossible for anyone without the (R) to get elected. Even though the (R)s are the only party with which I've ever had any affiliation (including serving as a precinct chairman, election judge, and delegate to the state convention), I must admit that I'm less than pleased with the results. They make a great minority party; keeping the bad guys from getting too far out of line. I'm not too crazy about what they do when they get power themselves.

The American Tort Reform Association perennially picks Jefferson County, Texas, for its "Judicial Hellhole" honors. In its "Judicial Hellholes 2005" report, ATRA tells us: "Appellate courts continue to site [sic] abuse of judicial discretion in Jefferson (named the fifth worst Judicial Hellhole in 2004), Nueces, Hidalgo and Cameron Counties." If this case is any indication, you might not want to take those appellate courts at their word, guys. And by the way, guys, the word is "cite," like in "citation." Unless you mean that's where they're placing their abuse of judicial discretion. Idiots.

And now, back to the asides (although, I guess I already got back to the asides with the aside to the guys at ATRA, and the rest of these "asides" are really more digressions, except for this, which is more a parenthetical).

Anyway as one final aside, ATRA's motto is "Bringing Greater Fairness, Predictability, and Efficiency to the Civil Justice System." And they're working towards a system where the rule is that the plaintiff loses every time, no matter what the facts. Hell, it's predictable and efficient, so what if it comes up a bit short in the fairness department? Two out of three ain't bad.

"Sexual orgies eliminate tension and ought to be encouraged."

"Sexual orgies eliminate tension and ought to be encouraged."

So said Antonin Scalia, Associate Justice of Supreme Court of the United States, at a speech at the New England School of Law's Law Day Banquet on March 15, 2006.

I just don't get it. Why do liberals hate this guy so much?

Those Darned Supremes.

Back when I was working as a law clerk for a federal judge, part of my job was to open court with the words "Hear ye! Hear ye! Hear ye! The United States District Court for the Eastern District of Texas, holding a regular session in Beaumont Texas, is now open according to law. God save this court and these United States."

Tradition requires that one bow one's head while saying that last line. Because it's a prayer. The Supreme Court of the United States opened court this morning with a similar prayer, and then held (in a split decision) that the Constitution prohibits the display of the Ten Commandments in the courtroom. Something about an impermissible endorsement of religion or something.

Yet another reason to avoid Galveston.

As if crummy beaches and murky water weren't enough, the Galveston cops have adopted a "zero intelligence" policy when it comes to the most insignificant of traffic violations. For instance, hauling people off to jail for things as trivial as an expired registration or inspection sticker. Seriously.

A few years back, the Supreme Court of the United States held in Atwater v. City of Lago Vista that it was just fine to haul folks off to jail for seat belt violation, even though the maximum penalty if actually convicted of the offense was only a fine. As a matter of Constitutional Law, they may have been right. As a matter of common sense, it's ridiculous.

Instead of giving us another round of "tort reform," I wish that next time around the Texas legislature would write a law that says the cops can't take you to jail for offenses that don't include jail time as one of the allowed penalties. You'd think that the cops (and those who give them their marching orders) would have enough sense that such a law wouldn't be required. But it seems that they're intent on behaving like pea-brained jack-booted thugs. Too bad they can't be trusted even to write minor traffic tickets without legislative oversight.

I knew that couldn't be right.

After frittering away a considerable chunk of the taxpayer's change on its successful attempt to whittle the Big Five accounting firms down to four, the "Justice" Department today saw its obstruction of justice conviction against Arthur Andersen unanimously overturned by the Supreme Court. You can read Chief Justice Rehnquist's opinion here.

It appears that it's not enough to do something that the government doesn't like for an obstruction of justice conviction; you actually have to do something that's illegal. This fine legal distinction seems to have been lost on the prosecution, the trial judge, and the Fifth Circuit. For some reason, this case had to go all the way to the Supreme Court before the Government could bring itself to accept that you can't prove that someone "knowingly... corruptly persuaded" someone to do something without showing that he knew that the something he was persuading that someone to do was in some way corrupt.

No word yet on what the Government will be doing to make it up to the 28,000 people they put out of work with their unfounded prosecution. And remember, folks, this is the same administration that rants endlessly about plaintiffs' lawyers filing "frivolous" lawsuits.

That darned legislature....

To amend the Texas Constitution, a proposed amendment has to be approved by two-thirds of each house of the legislature and then submitted to the voters for approval. House Joint Resolution 6 has now been approved by both houses. It'll be on the ballot November 8, 2005. Here's what it says (in the relevant part):

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Yup. You read it right. The plain language of the HJR6 would prohibit the state from attaching any legal significance to the institution of marriage. Not just gay marriage, but any legal status "identical or similar to marriage."

Do they know what the word "identical" means?

One of the primary rules of construction is that if the plain language is unambiguous, you don't look at legislative intent. Which means, in a case like this, that you look only at what they actually said, not what they meant to say. And in this case, the plain language of the amendment defines marriage and then prohibits the state from affording marriage (or anything resembling marriage) any legal status.

Idiots???

I wonder.

(My first thought about this was that it's an amusing example of legislative ineptitude, but wouldn't really change anything because marriage is a fundamental right protected by the United States Constitution. On further reflection, I'm not so sure. The Supreme Court of the United States held in Loving v. Virginia (and other cases) that the right to marry, at least as it has traditionally been understood, is a fundamental right protected by the Fourteenth Amendment. But the plain language of HJR6 wouldn't interfere with people's right to marry; it would only prohibit the state from affording marriage any legal significance.)