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August 14, 2005

Journalisming Done Right

By Ezra

This LA Times debunking of mythical lawsuits is the best piece on tort issues I've read in a major paper in the last year. I just exited a class where the teacher taught almost solely through the lens of a few weird, anomalous court cases, cases that either didn't seem to exist or he radically misinterpreted. That, unfortunately, is the same level on which the tort reform debate operates -- scare stories about criminals tripping on sideway cracks and grannies fleecing fast food chains for millions because they didn't know coffee was hot.

It's crap. All of it. It's crap in the context of malpractice, and it's crap here. And major props to the LA Times for pointing that out. It's a reality check that's long overdue, and they couched it in an article that's both comprehensive and entertaining. Read it.

August 14, 2005 | Permalink

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» Urban Legend and Tort Reform from Dodecahedron
Like rallying public opinion against the estate tax, this is one more example of right-wing corporatist interests' more or less successfully hoodwinking average Americans into supporting something that directly opposes their interests. [Read More]

Tracked on Aug 14, 2005 3:25:46 PM

» Winnebago/Stella myths, pt. 4 from Overlawyered
Reader Gerald Affeldt writes:I first heard a version of the "Winnebago cruise control" story while I was in the Navy stationed at Whiting Field in Milton, Fla. in 1977. And I've heard different versions of... [Read More]

Tracked on Aug 15, 2005 2:58:33 PM

» Winnebago/Stella Award myths, pt. 4 from Overlawyered
Reader Gerald Affeldt writes:I first heard a version of the "Winnebago cruise control" story while I was in the Navy stationed at Whiting Field in Milton, Fla. in 1977. And I've heard different versions of... [Read More]

Tracked on Aug 15, 2005 3:15:24 PM

» Winnebago/Stella Award myths, pt. 4 from Overlawyered
Reader Gerald Affeldt writes:I first heard a version of the "Winnebago cruise control" story while I was in the Navy stationed at Whiting Field in Milton, Fla. in 1977. And I've heard different versions of... [Read More]

Tracked on Aug 15, 2005 3:40:15 PM

Comments

It'd be nice if this Schwartz fellow cited some actual 'out of control' cases if that's his angle. Bahh.

Posted by: Sandals | Aug 14, 2005 4:00:51 AM

I thought it was called "journamalisming"

Posted by: ItAintEazy | Aug 14, 2005 12:21:20 PM

|Well, when there are no OB/GYN doctors in your home town or a local clinic cites that they can no longer afford the insurance necessary to battle the lawsuits, you can turn to this article for comfort knowing that you are *still* right.

Posted by: Fred Jones | Aug 14, 2005 12:55:45 PM

Hey Fred, here in California, where the Insurance Commision keeps the insurance industry under control we don't have any problems with the cost of malpractice insurance despite the fact that we are a famously litiginous state. The cost of malpractice insurance is a lot more closely related to the success of the insurance industry's collective investment policies than it is to the actual cost of lawsuits. "Tort reform" didn't change insurance company pay outs a lick in Texas.

On the other hand, Ezra, there are frivolous lawsuits out there. Most of the time the plaintiff loses the suit if it does go to court, but defendants still go through a lot of stress and expense in dealing with this kind of crap. 80-90% of all medical malpractice suits that go to court are decided in favor of the defendant. Bad outcomes are going to happen and there are certainly better models for addressing them.

Posted by: J Bean | Aug 14, 2005 1:28:03 PM

Fred, go read the link under malpractice. You can keep your futile war against facts, but it really just makes you look the idiot.

Posted by: Ezra Klein | Aug 14, 2005 2:03:16 PM

Ezra,

It's crap. All of it. It's crap in the context of malpractice, and it's crap here

You're drawing a connection unreasonably. The LA times link talks about mythic cases, urban legends. Your malpractice link argues (successfully) that malpractice costs are not what makes US health care cost more than other countries. There's nothing in the latter link that even suggests medical malpractice cases are bullshit or that the arguments against it make use of bogus cases.

Posted by: QuietStorm | Aug 14, 2005 6:03:19 PM

Moreover, I can tell you that the cost of Errors & Ommissions Insurance (which covers lawsuit damages ONLY) is going through the roof, in most industries. In the financial services industry (which is the only one I have personal knowledge of), we've seen 20% increases year over year, for about three years running now.

The LAT article itself does a poor job of debunking anything. The argument seems to be, "Since there are urban legends about a subject, that means the subject is trivial." Nowhere does it cite any hard statistics to prove its point.

Posted by: Mastiff | Aug 14, 2005 6:55:59 PM

The tort reform movement is fueled by these kinds of inane made up BS stories. The tort reform movement is a sham. It's an assault on the jury system, it's an assault on the 'little people' making these kinds of important decisions. The tort reform movement is a front for business and insurance interests who want judges and mediators to make the decisions behind closed doors with no input from regular citizens. The tort reform movement is un-democratic, un-American, and ultimately evil in my opinion, and it's built on lies and distortions.

Posted by: saidD | Aug 14, 2005 8:18:07 PM

During the runup to the Iraq war and the rolling out of the "new product" in september 2002, I quickly realized that there was no case for invading Iraq, because if there were a good case for it, the White House wouldn't be using such transparently false claims to defend the idea ("45 minutes", aluminum tubes, "unmanned drones attacking America", "mushroom cloud", etc.). I heard this stuff and thought, "they've got nothin'."

Likewise, if tort reform were a good idea, then defenders of the idea would present actual stories of serious tort abuse rather than using made up stories. Since the urban legends are driving the public debate on tort reform, I can only conclude that advocates of "tort reform" haven't got a case for their position.

Posted by: Constantine | Aug 14, 2005 11:31:04 PM

The LA Times story is as invented as the urban legends it cites. No tort reform advocate is relying on the "Winnebago story"--the people publicizing that bogus story the most are the tort reform opponents, because then they can pretend that there's no problem. (The only example it cites of an advocate using the story is, er, well some guy who called in on a talk radio show. Oh, well it must be systematic then. This is news?)

"If tort reform were a good idea, then defenders of the idea would present actual stories of serious tort abuse." Imagine that! For real stories of lawsuit abuse, see Overlawyered, http://overlawyered.com. We publish hundreds of examples of abuse a year without having to resort to urban legends, and we debunk the urban legends when we come across them. It would be nice if the LA Times and other tort reform opponents would focus on these, rather than the irrelevant invented stories. Litigation abuse costs our economy hundreds of billions of dollars a year, has driven dozens of companies into bankruptcy, cost tens of thousands of jobs, and likely thousands of lives.

Posted by: Ted | Aug 15, 2005 7:00:43 AM

Thanks to Ezra and John Cole, I read the article and wrote a post on my blog. Somehow I earned a visit from Ted Frank at overlawyered.com [he comments above]. As you might expect, we don't see eye to eye. The full exchange is at my place.

But my final point to him (and others) is this:

I did a little searching and came up with this Wall Street Journal article on the case. It pretty much backs up everything in my original post. One difference—"coffee is usually served at 135-140 degrees." is true for home coffee machines. Many restaurants serve coffee hotter than that (in the 150s), but experts noted the risk of severe burns is exponentially reduced at those temperatures.

[...] I will agree that there are frivolous lawsuits out there. But there are several safeguards already built into the system. Judges can throw them out ahead of time [...] And judges can alter the judgements reached by juries, as he did in this case—significantly.

The big objection corporatists and laymen alike have is the large cash settlements that seem out of proportion to the negligence and/or the suffering. That usually comes in the form of the punitive damages. When you are dealing with a giant corporation with $40 billion in annual sales, a company that admits it considers costs incurred by burning customers and employees a negligible cost of doing business, it might take a large sum to get their attention and to change that equation.

WOW! I just noticed the last part of Ted's boilerplate rhetoric above and this jumped out:

Litigation abuse costs our economy hundreds of billions of dollars a year, has driven dozens of companies into bankruptcy, cost tens of thousands of jobs, and likely thousands of lives.

Frivolous litigation costs thousands of lives? Care to back that up in any fashion, Ted?

Posted by: Mr Furious | Aug 15, 2005 10:50:31 AM

Fred, go read the link under malpractice. You can keep your futile war against facts, but it really just makes you look the idiot.

Well, Ezra, you can be as the blind man who encounters the elephant by reading only what is fed to you, or you can take a look around and see the truth.

Here....try this this and get back to us about how there is no crisis and how lawsuits are inconsequential.


http://sihp.brandeis.edu/council/pubs/Malpractice/CouncilMalpracticeBackgroundpaper.pdf

Posted by: Fred Jones | Aug 15, 2005 11:03:30 AM

J Bean,

Actually, one of the few things California did right was institute tort reform, years ahead of everyone else. You're basically arguing that no one else should institute tort reform BECAUSE IT WORKS. Just so you know.

AND, I *LIVE* in Texas, and the caps have already had an effect (and a positive one). You can check the facts, or you can keep living in your own fantasy.

saidD,

Calling the system "undemocratic" shows tha tyou havee no idea how the system actually works. Just for starters, go do a little research on how jury selection is actually done in practice (in high-dollar, high-dollar-lawyers cases). You're find nothing even remotely "democratic" about it. And you also might look into a few other things, like the REAL cases that aren't about some made-up winnebago.

Constantine,

www.overlawyered.com There ya go; thousands of REAL lawsuits, with REAL abuse, right at your fingertips.

Mr Furious,

Having worked food service (before and after the McDonalds case), I can tell you that the industry standard for coffee is 190 degrees F. Home systems are similar (their target temperature is a bit lower, but their quality control is quite a bit lower, too, meaning you get a wider range... including very hot). I have personally seen people DRINK coffee (very carefully) almost immediately after pouring it, meaning it was still well over 170 F. That's the way they preferred it. Thank you, drive through please.

"thousands of lives" - not that Ted needs help, but I'll give you a quick one (without much support, I'll admit, as I don't have it readily available):

The point Ted is making is about (among other things) innovation, change, etc. One example: add a safety feature, get sued. Go read Overlawyered for many fine examples of that in action. Another example: that nurse case, where the guy was getting bounced from hospital to hospital, but none of them gave him bad rferences. Why? Fear of lawsuits. There are some deaths right there DIRECTLY attributable to the current legal system. He successfully continued killing because the LEGAL SYSTEM made it impossible to stop him.

You get the idea. Ted can do a much more thorough job than I.

Posted by: Deoxy | Aug 15, 2005 4:39:54 PM

Ted (and Deoxy?) appear to be sowing astro-turf as shills for the Manhattan Institute. Or is Ted just a pseudonym for Walter Olsen?

Overlawyered.com is run by, and was created by, Walter Olsen (Ted Frank's boss), who is listed as a Senior Fellow at the Manhattan Institute.
http://manhattan-institute.org/html/scholars.htm

The Manhattan Institute is yet another think-tank that is little more than a front organization for the familiar right-wing extremists Scaife, Olin, Bradley among others. Check out the $16 million in grants from these extremists at:
http://www.mediatransparency.org/recipientgrants.php?recipientID=198

There is also a profile of the Scaife, Olin, Bradley foundations at:
http://www.mediatransparency.org/conservativephilanthropy.php

These right-wingers are paid and paid well to regurgitate the corporate line. These purveyors of corporatism (check Mussolini's definition) aren't looking out for the average citizen. They're attacking our Constitutional rights to a trial by jury.

Apparently, Walter and Ted comprise overlawyered.com. Ted, playing second banana, must be sucking up to his boss. The stupidity of his arguments are exceeded only by the level of his dishonesty.

First (on http://ezraklein.typepad.com/blog/2005/08/journalisming_d.html) Ted states "[at overlawyered.com] _We_ publish hundreds of examples of abuse a year without having to resort to urban legends, and _we_ debunk the urban legends when _we_ come across them." [emphasis added]

Then at http://misterfurious.blogspot.com/2005/08/bscourts-legal-urban-legends.html he claims to be a 'neutral observer' while his name links to overlawyered.com.

But even disregarding whether or not he is "neutral" and "honest," his arguments range from lame to laughable (this also applies to the posts and refutations at overlawyered.com). They make claims, but do not back their claims up with any substantive citations. To swallow their arguments, you have to trust them at their word. And Ted's parroting of the "free-market knows best" mantra that "If McDonald's is selling their coffee "too hot", customers can switch to other vendors that sell cooler coffee" is absurd when your talking about a health or safety issue. By Ted's logic, there shouldn't be any state inspections of restaurants at all. If you take your family to a restaurant and one of your children dies from food poisoning, well just take what remains of your family to a different restaurant next time you go out to eat.

Oh, and one of your kids gets killed from a neighbor tossing an errant lawn dart? Ted's solution: Move what remains of your family to another neighborhood!

These people are full of it and are trying their best (did I mention the $16 million in grants?) to hoodwink the public. They don't want citizens to have judicial recourse when they've suffered at the hands of a corporation - as Ted admits in response to a statement that in the McDonald's case the fact that the original award was later greatly reduced, was proof that the system worked: "The system *didn't* work in Liebeck's case. Not only did a case get to a jury, but a jury was allowed to award punitive damages when McDonald's hadn't done anything actionable." Note that Ted doesn't want a citizen to have access to a jury trial. His reasoning is that McDonald's wasn't wrong. Of course this is just his opinion. A jury, looking at the evidence and hearing arguments from both sides, decided otherwise. But Ted doesn't even want a citizen to have their side heard. Why?

A better article on tort restrictions (or tort "reform" by those preferring Orwellian speech), is one focused on V.P. candidate John Edwards in the Washington Monthly magazine. It's long, but covers a lot of the tort issue. The key paragraph:

In 1993, a five-year-old girl named Valerie Lakey had been playing in a Wake County, N.C., wading pool when she became caught in an uncovered drain so forcefully that the suction pulled out most of her intestines. She survived but for the rest of her life will need to be hooked up to feeding tubes for 12 hours each night. Edwards filed suit on the Lakeys' behalf against Sta-Rite Industries, the Wisconsin corporation that manufactured the drain. Attorneys describe his handling of the case as a virtuoso example of a trial layer bringing a negligent corporation to heel. Sta-Rite offered the Lakeys $100,000 to settle the case. Edwards passed. Before trial, he discovered that 12 other children had suffered similar injuries from Sta-Rite drains. The company raised its offer to $1.25 million. Two weeks into the trial, they upped the figure to $8.5 million. Edwards declined the offer and asked for their insurance policy limit of $22.5 million. The day before the trial resumed from Christmas break, Sta-Rite countered with $17.5 million. Again, Edwards said no. On January 10, 1997, lawyers from across the state packed the courtroom to hear Edwards' closing argument, "the most impressive legal performance I have ever seen," recalls Dayton. Three days later, the jury found Sta-Rite guilty and liable for $25 million in economic damages (by state law, punitive damages could have tripled that amount). The company immediately settled for $25 million, the largest verdict in state history.

Larry Dean

Posted by: Larry Dean | Aug 17, 2005 12:03:51 AM

Here's the link for the Washington Monthly article:

http://www.washingtonmonthly.com/features/2001/0110.green.html

Posted by: larry Dean | Aug 17, 2005 12:08:18 AM

First, I am NOT paid, nor am I affiliated with Overlawyered in any way (other than that I do read most of the stuff they post).

You have just libelled me. By your own beliefs, apparently, I should sue you, and it should go before a jury. AND you would have to PAY for your defense, even if you prevailed in court. To get that money back, you would hve to SUE ME, and the rate of success for those suits is stupendously low. Think about it.

Not every suit deserves to go bfore a jury - the result is simply and utterly ridiculous. I don't like the way you look, so I sue you for iflicting "pain and suffering" on me when I see you at the supermarket. You get the idea.

Your example of the drain is irrelevant - no one has said ALL suits are bad - that's your strawman.

Of course, most of your post is simply ad hominem, so I don't know why I bother.

Your "lawn dart" comment is similaryly laughable - a ridiculous strawman. (Actually, not only could you take the neighbor to court, but they would also be facing CRIMINAL charges.)

*I* am not trying to "hoodwink" the public - I am trying to INFORM the public. The "too hot" coffee that Ms. Liebeck spilled ON HERSELF is the same temperature that people order and prefer their coffee servrd to them EVERY DAY. And yet, the number of injuries from said coffee is staggeringly, stupendously low.

By your logic, if I bought a baseball bat and HIT MYSELF IN THE HEAD WITH IT, I should sue the baseball bat maker.

That is completely absurd.

Posted by: Deoxy | Aug 17, 2005 1:29:34 PM

Walter Olson is not my "boss." I've never received a penny from him, and I don't work for MI. In fact, everything thing Larry Dean writes about me is wrong, so I shouldn't bother going further.

The Washington Monthly and Dean tells less than half the story of the Sta-Rite case, which sold its drain with a protective cover that had been removed by children at the pool minutes before Lakey's unfortunate injury. But why let facts get in the way of a good urban legend? Oh, I'm sorry, it's only tort reformers who use urban legends, though Dean can't identify a single example when I've done so.

Posted by: Ted | Sep 4, 2005 7:54:33 PM

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