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August 14, 2005

“Tort reform”
Posted by Patrick at 08:59 AM * 27 comments

Merv Grazinski set his Winnebago on cruise control, slid away from the wheel and went back to fix a cup of coffee.

You can guess what happened next: The rudderless, driverless Winnebago crashed.

Grazinski blamed the manufacturer for not warning against such a maneuver in the owner’s manual. He sued and won $1.75 million.

His jackpot would seem to erase any doubt that the legal system has lost its mind. Indeed, the Grazinski case has been cited often as evidence of the need to limit lawsuits and jury awards.

There’s just one problem: The story is a complete fabrication.

It is one of the more comical tales in an anthology of legal urban legends that have circulated widely on the Internet, regaling millions with examples of cluelessness and greed being richly rewarded by the courts. These fables have also been widely disseminated by columnists and pundits who, in their haste to expose the gullibility of juries, did not verify the stories and were taken in themselves.

Although the origins of the tales are unknown, some observers, including George Washington University law professor Jonathan Turley, say their wide acceptance has helped to rally public opinion behind business-led campaigns to overhaul the civil justice system by restricting some types of lawsuits and capping damage awards.

“I am astonished how successful these urban legends have been in influencing policy,” Turley said. “The people that created these stories did so with remarkable skill.”

Los Angeles Times, August 14, 2005

The proposal of any new law or regulation of commerce which comes from [businessmen], ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men, whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it.

—Adam Smith, The Wealth of Nations (Book I, Chapter 11, Conclusion)

Comments on "Tort reform":
#1 ::: BSD ::: (view all by) ::: August 14, 2005, 09:15 AM:

"Tort Reform" in a nutshell:

Its proponents are liars who don't care if you die.

While a lot of the right-wing program is close on to monstrous, you'd be hard-pressed to find another plan, "issue", or hobby-horse where the basic venality and callousness of the whole damn thing is not only so well displayed, but some obvious and self-acknowledged.

#2 ::: Epacris ::: (view all by) ::: August 14, 2005, 09:54 AM:

I remember this subject was discussed earlier, under the two posts: More astroturf (June 10, 2005) and Common fraud (December 03, 2004), and perhaps elsewhere hereabouts.

#3 ::: Josh Jasper ::: (view all by) ::: August 14, 2005, 10:29 AM:

[insert witty parallel between urban legends as a reason for tort reform and global legends about WMDs in Iraq as a reason for invasion]

#4 ::: bryan ::: (view all by) ::: August 14, 2005, 11:20 AM:

fiction is better than fact. that's a fact.

#5 ::: bryan ::: (view all by) ::: August 14, 2005, 11:21 AM:

fact is better than fiction. that's fiction.

#6 ::: Don Fitch ::: (view all by) ::: August 14, 2005, 12:20 PM:

Yup, "Tort Reform" seems to be part of the package "People should have fewer options". The popularity of this trend is discouraging to those of us who incline in the opposite direction, and it's going to be difficult to get the pendulum to swing back, but we have to try.

#7 ::: mythago ::: (view all by) ::: August 14, 2005, 01:40 PM:

Actually, BSD, they do care if you die, depending on whether settling a wrongful-death lawsuit would be cheaper than paying for your ongoing medical care.

The only point of tort reform is for businesses to be able to make their balance sheets predictable. It's so difficult to choose to make an exploding Pinto when you have to factor in nebulous things like punitives and non-economic damages. When a business can simply say "Look, we'll make $X more paying off the survivors than putting in the safety switch," they're much happier.

#8 ::: Jasper Janssen ::: (view all by) ::: August 14, 2005, 01:51 PM:

When a business can simply say "Look, we'll make $X more paying off the survivors than putting in the safety switch," they're much happier.

Since there are memos from inside Ford that suggest that exactly that was in fact considered, I don't see what the difference would be. Well, except that then they'd actually be *right*.

#9 ::: mythago ::: (view all by) ::: August 14, 2005, 02:00 PM:

That was, in fact, exactly what happened in the Pinto case. The reason that businesses have not repeated Ford's decision so much is that juries were outraged at Ford's cold-blooded decision to save money by selling deadly cars, and socked Ford hard with punitive damages.

Tort reform means limiting all damages you can't prove with a black-and-white receipt--that is, unpredictable damages. Nothing vague like punitive damages or non-economics (e.g. pain and suffering, loss of consortium). Those things mess up the bottom line and are such a pain in the tuchus when you're trying to decide whether to put a safety switch in that Pinto.

#10 ::: Aaron ::: (view all by) ::: August 14, 2005, 05:13 PM:

I was wondering if there's a list anywhere that shows some of these legendary stories (The burgular who sued after injuring himself leaving a property and won?) or explains them in context properly (the McLibel case which actually makes sense oncxe your hear the details?).

It would be interesting to see.

#11 ::: Berry Kercheval ::: (view all by) ::: August 14, 2005, 05:27 PM:

The True Stella Awards, named after the infamous McDonalds Coffee victim, tries to keep track of real and fictional outrageous lawsuits.

There are some silly suits out there, like the one against Piper Aircraft for faulty design of the Cub (one of the most popular aircraft ever, for over 60 years) when someone in an illegally modified Cub took off against advice, struck a van and his passenger was injured.

#12 ::: mythago ::: (view all by) ::: August 14, 2005, 05:48 PM:

named after the infamous McDonalds Coffee victim

Which is highly ironic, because if you know the facts of the case, it wasn't a frivolous lawsuit at all. Stella's PR budget doesn't quite match that of the Golden Arches, though.


#13 ::: Metal Fatigue ::: (view all by) ::: August 14, 2005, 10:29 PM:

Which is highly ironic Randy acknowledges on the referenced website.

#14 ::: Lenore Jean Jones ::: (view all by) ::: August 15, 2005, 10:22 AM:

I second the recommendation for Randy Cassingham's True Stella Awards. (Actually I first it - I believe I mentioned the site in a prior thread.) He's not at all against tort reform, but he comes to it from an independent, consumer-oriented position. We need to retain the right to punish real bad behavior, but the plethora of silly lawsuits in this country costs consumers tons of dough.

#15 ::: Patrick Nielsen Hayden ::: (view all by) ::: August 15, 2005, 10:42 AM:

"but the plethora of silly lawsuits in this country costs consumers tons of dough"

I'm no longer even sure about that. I'd like to know whether "silly lawsuits" really do consume more time and expense, as a portion of the legal system or of the economy, than they did in 1960 or 1930 or 1900. I wouldn't be remotely surprised to find that the ratio hasn't actually changed much.

What I know is this: first, business interests have an enormous incentive to push back against the power of citizens to use the courts against them--the kind of incentive that, in the normal operation of human affairs, is so great that it will lead to all manner of cheating, lying, and gaming the system. And second, that the techniques and technologies of PR, of the manufacture of public opinion, are wildly more sophisticated than they were in 1960, 1930, or 1900.

Conservatives are always telling liberals that we don't understand human nature, but at the same time they ask us to believe that with immense amounts of wealth and power at stake, the wealthy and the powerful won't lie and cheat--and won't figure out ways to cooperate in their lying and cheating. To suggest that the masters of the universe actually behave just like all other human beings is to invite accusations of "conspiracy theory", to say nothing of (heavens!) "class warfare." Adam Smith is an icon to right-wingers, but if you actually read him, he's fantastically sharp on these subjects.

#16 ::: Barry Ragin ::: (view all by) ::: August 15, 2005, 11:54 AM:

I am continually amazed at so-called strict constructionists who pretend the 7th amendment was never added to the Constitution:

Amendment VII.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

#17 ::: Jonathan Vos Post ::: (view all by) ::: August 15, 2005, 11:55 AM:

Adam Smith: Economist Guest of Honor at Intersection.

"On the Firth of Forth just across and to the north of Edinburgh, in County Fife, will be found a town, Kirkcaldy; it is here, in the year 1723, Adam Smith was born..."

"If one is interested in the study of economics -- and one should certainly be if they are at all interested in governmental policy, then one should begin with a good dictionary and a copy of Adam Smith's Wealth of Nations. This is likely all that one needs to do; and this is indeed fortunate. For, to go beyond Adam Smith, it is to go beyond into the writings of the thousands of economists that have written since; and, thus, to go into a thicket full of obscure, and for the most part, meaningless terms...."

#18 ::: bellatrys ::: (view all by) ::: August 15, 2005, 12:38 PM:

Three words:

"Frivolous asbestos lawsuits."

Says it all.

Yup, we wuz had in that, too.

The original "frivolous lawsuit" meme was to the best of my recollection, pushed entirely (the above-water part of it, that is) by Limbutt to start with, which is why everyone "knows" about the McDonalds' coffee case, which of course they don't actually know about at all, 99% of the time. --Who was running Rush behind the scenes, I don't know specifically - obviously the Hegemony generally and likely the GOP too, given that he was talking up the benefits of tax cuts a few months before Bushco/Cheneyburton started pushing them in the SCLM and has always been partisan.

The *Texas* connection to the Asbestos issue also seems significant.

#19 ::: bellatrys ::: (view all by) ::: August 15, 2005, 12:49 PM:

(I actually learned the specifics of the Hot Coffee Myth from the GAFF forums some years back - would *never* have come across them left to the SCLM.)

#20 ::: Sandy ::: (view all by) ::: August 15, 2005, 04:26 PM:

My favorite lawsuit story is still:

Our neighborhood had a burglar in my youth. He'd get out of prison, go in through the back door of some house [or a few], they'd catch him and he'd go back into prison for a while. Once he robbed a house in the snow and was surprised they caught him.

One time he got out of prison, went in someone's back door, and got shot. He sued the homeowner.

It got thrown out of court on the first day.

I know, everyone wants the "And no justice was done!" ending; that's why urban legends and wacky news stories get repeated. But, most of the time, the system works just fine, no matter what people say.

#21 ::: Jasper Janssen ::: (view all by) ::: August 15, 2005, 06:55 PM:

Which is highly ironic

As the LA Times explains in excruciating detail for this particular case, going so far afterwards as to mention both snopes and

#22 ::: Scott ::: (view all by) ::: August 15, 2005, 09:45 PM:

The thing that... irks me so much about Tort Reform, is that the upshot is actually to make malicious or deliberate actions punishable only to the same extent that an accident is punishable. The tort reform movement is saying in essence that in civil cases there is no difference between pre-meditated murder and manslaughter. For the record, I don't know if there's a difference in "Wrongful Death" cases right now, but I don't see how there could be following the TR proposition, and I sort of... believe? feel? that there should be.

Barry Ragin brings up the 7th Ammendment:

The trouble is that you can still have your case, and trial, and jury. They are just changing what your case, trial, and jury can do.

#23 ::: Barry Ragin ::: (view all by) ::: August 15, 2005, 10:22 PM:


actually, in many instances (see the recent Congressional action limiting liability of gun manufacturers, for example), they are removing your right to have a case heard by a jury at all.

#24 ::: dwight Meredith ::: (view all by) ::: August 18, 2005, 08:13 PM:

Business lobbies, insurance companies, and tort reformers have spent millions upon millions of dollars over the last few decades in a effort to convince the American people that neither the fault of the defendant nor the degree of injury makes any difference in whether or not a plaintiff is awarded untold riches. Civil litigation, they say, is just a lottery.

That is not true, but after been bombarded with that message year after year, it would not be surprising if people filed suits with little or no merit.

The tort reformers do not care if frivolous suits are filed. They know that such suits lose early and often. They are willing to provoke more such suits in exchange for having to pay less than full compensation in meritorious cases.

#25 ::: mythago ::: (view all by) ::: August 21, 2005, 12:43 AM:

I'd like to know whether "silly lawsuits" really do consume more time and expense, as a portion of the legal system or of the economy, than they did in 1960 or 1930 or 1900.

No. Realistic estimates are that 'silly lawsuits' are something like 2% of all lawsuits *filed*. Of course, you have to factor in that many people who could have filed a perfectly legitimate lawsuit never do, and that most people define "frivolous" by whose ox is being gored.

#26 ::: Cherry Emery ::: (view all by) ::: September 22, 2009, 10:21 AM:

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#27 ::: Terry can't tell if this is spam or not ::: (view all by) ::: September 22, 2009, 10:41 AM:

It blog, with only one a post, and it makes not much sense to me.

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