March 10, 2011
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Everyone has heard of the woman who spilled coffee on herself and won $3 million from McDonald’s. Perhaps you recall an editorial similar to the one that ran in the San Diego Union Tribune: “A winning lottery ticket…absurd… a stunning illustration of what’s wrong with America’s civil justice system.”
I saw the injuries. One look was all it took. An 82-year-old woman with such severe burns on the insides of her upper thighs, inches from her vagina, that they required skin grafts. You can see it too, in the documentary Hot Coffee, when it’s released. Hot Coffee is the most exciting movie ever made about tort reform.
The jury found out that McDonald’s served their coffee at temperatures between 195 and 205 degrees, “high enough to peel skin off bone in seven seconds or less.” They found out from McDonald’s own files that there had been 700 previous burn incidents serious enough that people had made formal complaints. The woman in the case only wanted her medical bills paid. The jury thought money might get McDonald’s to change its behavior, because burning at least 700 people hadn’t seemed to bother the company.
That’s what the courts and civil suits are for. To make whoever broke it pay for the damage that’s been done. The courts are also the only place where we—as ordinary, individual citizens—can force other individuals and corporations—tobacco, automobile, chemical, pharmaceutical, insurance, and banking—to open their books and divulge at least the recorded truth, often a history of previous offenses and cover-ups.
The courts are a way to make bad behavior—injurious, even murderous acts—cost enough to make a corporation stop.
Without lawsuits we wouldn’t know that tobacco companies knew that cigarettes caused cancer even while they advertised them as healthy; that Firestone tires made Ford SUVs roll over; that the Catholic Church harbored and protected hundreds of pedophile priests; that Vioxx damaged people’s hearts and killed them.
Big business hates lawsuits. They hate being made accountable. They hate having to pay. So what can they do about it?
They hire PR companies to spread stories—frequently less than complete, often completely false—about frivolous lawsuits. They spend hundreds of millions of dollars promoting those tales. At the same time, almost every settlement contains a non-disclosure agreement. The offenders are free to trumpet their tales far and wide. The victims must stay silent.
The poster child for the victims of frivolous lawsuits is the noble physician. No less a person than ex-president George Bush has told us that it’s the trial lawyers who are driving good ob/gyns out of their practices and depriving communities of decent medical care. It’s malpractice insurance (due to the frivolous lawsuits) that is making health care unaffordable.
Almost everyone believes this story.
Then there are the facts.
“Medical malpractice kills more people than automobile and workplace accidents combined.” ( The Medical Malpractice Myth, Tom Baker, University of Chicago Press, 2005). You would think, therefore, that we spend more on malpractice insurance than on automobile insurance. In 2003, doctors, hospitals, and other providers spent $11 billion on malpractice premiums. U.S. businesses—not individuals—spent $27 billion on auto liability premiums and $57 for workers compensation premiums. “Medical societies own research showed that the real problem was too much medical malpractice, not too much litigation,” Baker writes.
Litigation seems to be a particularly American disease. Why? Most lawsuits are for medical bills (the McDonald’s case), and for lost wages and the inability to work. Other industrialized countries have universal health care, more significant unemployment insurance, social welfare, and pension benefits. We don’t believe in collective responsibility and collective solutions. The people who do the damage are supposed to pay for it. The only way to make them pay is to sue the bastards.
The second story in Hot Coffee is about a child who was born with brain damage caused by medical errors. The family sued for enough to care for their son, even after they were gone, which is what they worried about the most. The jury figured what it would cost and awarded that amount.
But the corporations were a jump ahead. They made campaign contributions to “pro-business” legislators. They hired lobbyists to sell them on “tort reform.” There was now a cap on how much could be awarded, significantly less than what the jury determined, transferring the burden from the insurance companies to the victims, the parents. After the parents die, their son will become, in all likelihood, a ward of the state. His care will be paid for by taxes, transferring the burden from the insurance companies to us.
Such laws have been passed in many states. They've been challenged. A series of state courts held they were unconstitutional under state constitutions, or federal law, because they take away the rights of individuals to get justice.
What do you about that?
Replace the judges. In most state judges are elected. Judicial campaigns are -- or used to be—pretty small, low-key campaigns. Five, ten, maybe twenty-five thousand dollars would do it. But then, Karl Rove, in his early days in Texas, came up with a great idea. Find “pro-business” judicial candidates, go to big businesses—tobacco, insurance companies, big banks and the rest of the usual offenders—and ask for big contributions. Then funnel the money through an organization with a name like Citizens Against Lawsuit Abuse to avoid revealing who is really footing the bill and spend fifty, a hundred, five-hundred thousand dollars – whatever it took – to elect judges who would vote reliably vote for big business.
It worked so well in Texas that the practice was exported. I recommend John Grisham’s novel, The Appeal. It’s devastating. It’s worse now that I know it’s essentially a true story; first, of how hard it is to bring a real lawsuit, to win it, and how a corporation can beat its responsibility by destroying a good judge and putting their own boy in.
The final story in Hot Coffee is about a young woman who went to work for Halliburton in Iraq. She was housed, in spite of promises and her complaints to the home office, among men. She was drugged and gang-raped. When she tried to bring charges, she was put in a shipping container with armed guards to keep her in. The Bush administration had set up a system in Iraq that made it virtually impossible for military contractors, as individuals, or the companies they worked for, to be held criminally liable. For anything. Her employment contract had taken away her right to sue.
When you hear about frivolous lawsuits and tort reform, what that really means is taking away your ability to make right some harm that’s been done to you. The goal is to create a place where big corporations cannot be held responsible, even if they leave your child disabled for life, kill your spouse, or set you up to be raped.
That’s class warfare. And we’re losing.