CULTIVATING LIBERALISM
FOR ALL CLIMATES
SINCE 1759
 
Google
 

Free alert to Candide's Notebooks
Your email:

JOIN ME AT MY BULLSHIT SITES

Tort Deforms
John Edwards’ Trials

Detoxing torts

I

Ohio is one of those states which has enacted so-called “tort reform,” the lawsuit protections which cap monetary awards that plaintiffs can obtain through litigation. Let’s call it tort “deform”, since the purpose is not to fix anything, but rather to break it, to take away consumers’ rights and limit their ability to seek redress through the courts. With years of Republican rule, a weak, lap dog governor, and industry-friendly conservative justices on the Supreme Court, Ohio’s tort laws have been rewritten at the pleasure of the insurance industry, and sold to voters as a way of keeping doctors in business. Ken Blackwell in his recent (and fortunately failed) gubernatorial bid famously, and falsely, claimed that patients equidistant between Dayton and Richmond, which would be in the area of my former home town ( Greenville) went to Indiana for births because there were only two Ob-Gyn’s in Dayton. Not true, by any stretch, as I know at least two who delivered my own children at Miami Valley, and several others in their practice. And there’s more than one practice operating at the Valley. And there’s more than one hospital in Dayton, not to mention Wayne Hospital in Greenville, which offers maternity services, and where many Darke County babies are born. (Sorry, the Townhall link to the Blackwell story isn’t working.) Nonetheless, these kinds of scare tactics are used to convince voters that tort reform is necessary to maintain the level of medical services they are used to.

Some evidence suggests that insurance premiums are leveling off as a result of normal insurance cycles, and not as the result of “reforms” like Ohio’s, as the insurance industry would have you believe. In fact, rates continued to rise after Taft signed tort reform, and insurers insisted it was because they also needed a lock-step Ohio Supreme Court to uphold the law, in contrast to what more consumer-oriented courts in previous decades had done to previous “reforms”—they were overturned twice previously.

The provisions of Ohio’s law range from insidious to ridiculous. One provision would protect employers from injury to employees on the job unless the employer specifically intended to hurt the employee... which if I’m not mistaken (of course I’m not a prosecutor) would be...assault? Another provision protects restaurateurs from obesity related lawsuits.

The public disdain for lawsuits is further fed by caricatures like the McDonald’s coffee lawsuit. To the average uninformed voter, the story is that a woman got $6 million for spilling her McDonald’s coffee. These kinds of stories, passed around without a full accounting, tend to drive public opinion in support of lawsuit reform, when in fact the case was more serious than the myth would suggest:

79 year old Stella Liebeck suffered third degree burns on her groin and inner thighs while trying to add sugar to her coffee at a McDonalds drive through. Third degree burns are the most serious kind of burn. McDonalds knew it had a problem. There were at least 700 previous cases of scalding coffee incidents at McDonalds before Liebeck’s case. McDonalds had settled many claim before but refused Liebeck’s request for $20,000 compensation, forcing the case into court. Lawyers found that McDonalds makes its coffee 30-50 degrees hotter than other restaurants, about 190 degrees. Doctors testified that it only takes 2-7 seconds to cause a third degree burn at 190 degrees. McDonalds knew its coffee was exceptionally hot but testified that they had never consulted with burn specialist. The Shriner Burn Institute had previously warned McDonalds not to serve coffee above 130 degrees. And so the jury came back with a decision- $160,000 for compensatory damages. But because McDonalds was guilty of “willful, reckless, malicious or wanton conduct” punitive damages were also applied. The jury set the award at $2.7 million. The judge then reduced the fine to less than half a million. Ms. Liebeck then settled with McDonalds for a sum reported to be much less than a half million dollars. McDonald’s coffee is now sold at the same temperature as most other restaurants.

The call for lawsuit reform reverberated on the right, and continues, in spite of the fact that lawsuits actually have been going down. According to Jon Greenbaum, the number of lawsuits has decreased since 1975 along with the average award to plaintiffs. The Ohio lawyer and blogger Russ Bensing provided some rather startling statistics on his excellent legal blog, The Briefcase, supporting this same conclusion. In describing reports by the Ohio Supreme Court on court filings statewide, he found:

One of the reports included in the summary is a tabulation of case filings, by type — professional tort, product liability, and so forth. Out of curiosity, I compared the new case filings in various categories in the 2006 summary with the same info in the 1999 summary, the oldest one available on the court’s site. That comparison doesn’t give a whole lot of support to the idea that Ohio is suffering from a litigation explosion, at least insofar as torts go. New filings in professional torts are down 44% from 1999; product liability filings have decreased by 37%, and “other torts” have declined by 18%. By comparison, new criminal cases, as you might expect, are a growth stock, climbing by 38% in the past seven years.

II

The antidote to these repeated calls for “reform” has to be specific stories about lawsuits in which innocent people, through no fault of their own, became victims of the negligence or greed of profit making enterprises. It was into this environment of attacks on the very notion of seeking redress in the court of law that John Edwards came forward with his Four Trials, an account of his life and four of the heartbreaking lawsuits that helped define his career as a trial lawyer in North Carolina.

Each of the four stories Edwards tells serves as an affirmation of the need for unfettered access to the courts, and shows the foolishness of limiting “non-economic” damages, as Ohio has done. The first case, one of Edwards’ first, was tried on behalf of an alcoholic who sought damages after being prescribed triple the recommended dosage of Antabuse by his doctor. The dosage put the patient into a coma and caused permanent brain damage. Another case involved a breech baby delivered vaginally—with umbilical cord impaction leading to cerebral palsy—to working class parents when C-section clearly should have been ordered.

The story of these clients’ lives and their trials is compelling, as is the description Edwards provides of his legal strategy and argument in the cases. But what also emerges from Edwards’ narrative is an understanding that there really isn’t a level playing field between a patient and a large hospital when the patient is injured. That is to say, there isn’t a level playing field without the courts and without the expertise of a qualified attorney like Edwards. In both of these cases, the clients were left with devastating, life long, and expensive care needs as a result of the mistakes their doctors made. Any ceiling for damages simply would not have allowed the victims to receive the compensation they needed for their care.

In a third case, Edwards tells the story of a young boy of 7 whose parents were killed by a truck driver on a North Carolina highway. Again, the story pits a working class family—in this case a grandmother and her grandchild—against a large corporation protecting profits and denying responsibility for the mistakes of one of its workers. In the aftermath of this courtroom victory, Edwards explains that North Carolina enacted a “reform” of its own, limiting the damages collected by a plaintiff for an action carried out by an employee of a company.

III

The final case Edwards describes led to Tucker Carlson callously calling him a “Jacuzzi lawyer”. The victim here was a young girl, Valerie Lakey, who was tragically and needlessly caught in a pool drain, the suction of which was powerful enough to eviscerate her, leaving her in need of colostomy and TPN for the rest of her life. An excerpt from the book’s description of the accident:

“And apparently then at some point the suction broke because he had her in his arms... And that’s when I saw there was—the water was really red with blood and there was tissue all around.” ...

David (Valerie’s father) later testified that “at that point i must have been hysterical because I just picked her up and held her. I laid down next to the pool and I just held on to her and I prayed until the ambulanc got there... And David talked to her. Over and over again, “Daddy love you. Daddy loves you. Daddy loves you.”...

“What happened?” gasped Sandy (Valerie’s mother). “Did she drown?”

“Sandy,” said (a friend’s) mother in a quaking voice, “I’m holding her intestines in my hand.”

The case is one of “joint and several liability,” and it is worth noting that this kind of liability is a target of many tort reform efforts, including Ohio’s, where this kind of liability has been severely limited by the law. It means that multiple parties can be held liable for the same act, and in this case, that referred to the country club where the incident occurred and the county which inspected the pool. Each party then, was considered to be liable, even though each party may have only had partial cause in tragedy. Settlements were reached with each party except the manufacturer of the drain cover, and this company became the defendants in the lawsuit.

As the case unfolded, it became clear that tragedies similar to Valerie’s had occurred many times across the country, even leading to death in some instances. It also became clear that the manufacturer was aware of the problems with their drain cover, and ignored it, in spite of the fact that a 2 cent solution to the problem was clear to expert engineers who testified in the case. Furthermore, it became clear that the company’s lawyers had instructed their product safety specialist to lie on the witness stand about his knowledge of the product’s defects.

The jury gave the Lakey’s a substantial award, as one might expect, to compensate Valerie’s family for the lifelong medical needs she would endure, but also to punish the company for its egregious conduct.

However, what makes the Lakey case even more remarkable is that Edwards’ son Wade was tragically killed in a car accident prior to the trial’s commencement. Throughout Four Trials, Edwards links elements of his own biography to the stories he tells about his clients, making connections between his world and theirs. The result is a masterful non-fiction narrative which is compelling and moving throughout. But nowhere is the connection between client and lawyer as clear as in this section of the book. Edwards confesses at the end that when he was fighting for Valerie, he was fighting for his own son Wade at the same time. When he spoke to the jury about Sandy’s love for her daughter, he was speaking at the same time about his wife Elizabeth’s pain for her own lost son. Edwards speaks eloquently and without sentimentality about his own mourning and how his work helped him deal with his grief.

With this context in mind, Tucker Carlson’s mindless wisecrack becomes even more odious, as do the remarks he made to Tim Grieve in Salon around the time of Edwards’ speech at the 2004 Democratic convention:

“My contention is not that the girl wasn’t grievously injured or deserves compensation, nor is it that he doesn’t have the right to make $8 million off her suffering. My only point is that if you’re going to make 7 or 8 or 6 or whatever million dollars off her suffering, don’t claim it’s an altruistic act,” Carlson said.

Right, but isn’t calling it a “Jacuzzi case”—without further explanation—somehow dismissive of what actually happened? “Are you going to lecture me? Are you going to ask me a question or lecture me? My point is not that it’s a wine-and-cheese thing, and I’m not against Jacuzzis. That’s not my point at all.”

Carlson said calling the Lakey tragedy a “Jacuzzi case” is just a “shorthand” way to ask whether Edwards should really be seen as acting altruistically for the “little people” when he made so much money off the case. “I’m merely saying that, if you’re going to make all that money, don’t turn around and tell me that you’re better than I am,” Carlson said.

A couple of points. First, people get paid for their work. Lawyers do, doctors do, teachers do. Sometimes they work for free, and other times they don’t. When a jury assigns $24 million in punitive damages, maybe it’s OK for an attorney to take a cut. Especially when the attorney and his firm assumed an enormous and potentially business-killing risk, and sank hundreds of thousands of dollars into preparation for that particular trial. Even the altruistic work that teachers and doctors do sometimes earns them a living.

But then again, Carlson’s derision isn’t all that surprising considering the corporate interests he represents. To them, a child’s injury is simply a calculation in a balance sheet, a normal part of doing business. (In the case involving the truck that killed a boy’s parents, a company official even admitted as much, arguing that “it was a given that some lives would be lost” in his industry). On the other hand, Edwards never failed, at least in this book, to see his clients as individuals, as people with dreams and aspirations that he took the time to know and care about, to see their pain and to see a path to return some semblance of normalcy to their shattered lives. It is a moral vision which stands in sharp contrast to the tort reformers of our country.

Links

(Note: This is the third in a series of Ohdave posts on the candidacy of John Edwards. Links to the other pieces follow in the "Links" section of the post's original page at Into My Own.)

Bookmark and Share

| Back to the Front Page  
 
THE DAILY JOURNAL
Read Pierre’s Latest at


 
The Latest Comments
 
GOOGLE GOOGLE NEW YORK TIMES NEWSPAPERS NETFLIX UK INDEPENDENT NETFLIX
 
  
RECENTLY IN THE DAILY JOURNAL: NOTEBOOKS ORIGINALS
RECENTLY IN THE DAILY JOURNAL: CRUMBS & CRIBS

   
 
Add to Google Reader or Homepage Subscribe in NewsGator Online Subscribe in Rojo   Add to My AOL Subscribe in FeedLounge Add to netvibes Subscribe in Bloglines Add to The Free Dictionary