There may be some cases in which the unreformed tort system is good for some consumers, but for the vast majority it is a terrible bargain. Imagine you are selling widgets, and one defective widget is produced that results in a jury verdict of $100 million. Where do you think that $100 million is coming from? It's coming out of the pockets of all other consumers, since raising prices is the only way to make it back. Even if the company has insurance that pays the claim, the insurance company raises rates as a result and then guess who pays for those higher rates? You do, in higher prices!

The problem with the tort system as it is is that it is a lottery that favors those lucky enough to have juries that will give tremendous rewards (and lawyers know where to bring cases in order to get these enormous rewards - you will find that a huge number of these suits are tried in Mississippi no matter where the plaintiff might be). Since you and I will probably never be in that situation, we pay for those people with our money and get nothing in return.

Yes, it sucks to be injured by a defective product, but does it suck for millions of dollars worth, over and above medical bills and such? I bet most people reading this would spill hot coffee on themselves in an instant if someone gave them $1 million to do it. So why award someone way more than that because it happened by accident? Medical bills and reasonable pain and suffering are justified, and even some punitive damages. But you are fooling yourself if you think that some fat cat at the company is going to pay the bills. YOU will, through higher prices.

As a future lawyer, I think I am somewhat qualified to say that the real evil here is gigantic awards to plaintiffs who hire their attorneys on a contingency fee basis. There's no possible way that an attorney should get $30 million for doing a small amount of work on a class action.

The other problem is that it's very difficult to place a price on human suffering. Juries go way too high or way too low all the time.

Toyota passed over Mississippi a few years ago for the Tundra truck assembly plant due to Mississippi not having tort reform laws. The plant went to San Antonio Texas. Since then Mississippi past tort reform laws, and Toyota announced they are building a Highlander assembly plant in Mississippi. I think providing jobs are a good reason for tort reform.

If you really want to fix the problem, change the law so that the plantiff in the court cases has to pay the legal fees of the defendant if the plantiff loses the case. that'll stop frivolous cases that clog up the court system.

Tort reform is being pushed primarily by insurance companies. In most "enormous settlement" cases, it is the defendant's insurance company footing the bill (product liability, medical malpractice). Insurance companies are raising their rates, and blaming it on these "ridiculous jury awards." Thus, the potential defendants want reform because they think it will lower their insurance bills (and I doubt that insurance companies will all of a sudden lower their rates because of tort reform).

At the end of the day, tort reform is a ploy to benefit insurance companies, just like the DMCA is a ploy to benefit the recording industry.

@rhambus: While agree with most of what you say, I take it with a grain of salt because of the reference to coffee, and no doubt a reference to the famous McDonald's case. Your tone indicates you think this to be one of the trivial trials, but did you know the woman's labia was fused to her inner thigh, requiring multiple corrective surgeries?

I can think of few things I would want a large sum of money over medical costs for, but my genitals being burned and subsequently fused to my leg is right at the top.

While I think some tort reform needs to take place, creating expert panels will ultimately lead to another layer of bureaucracy waiting to be corrupted in some form or another by corporate interests.

As someone who has had to buy malpractice insurance to work, and who works with people who've had to alter their medical practices to afford malpractice insurance, I can't say that tort reform is a bad idea. There are simply too many predatory personal injury attorneys out there seeking money from frivolous lawsuits. The system is broken. Hospitals and doctors settle because it's easier than winning, insurance companies settle for the same reason. Lawyers collect huge fees and the people who were injured, usually by no real fault of the doctor, are left without the huge cash payment the lawyer promised, mostly because the lawyer took it all. Obstetricians have to cut out high-risk pregnancies or nix the OB practice altogether just to stay afloat. It's insane, it's bad for patients and doctors.

What if you cap damages to avoid those "gigantic awards to plaintiffs," and insurance rates go up anyway?

@rhambus: The legal system is no lottery. Bad cases are thrown out or settled for peanuts as a rule, and the same goes for the best cases.

Where there really is an issue of liability or damages, the legal system plays its part, and the jury determines whether the plaintiff should be compensated, how much compensation is fair, and in rare cases, whether punitive damages are appropriate to punish and deter future conduct.

@kerry: Which frivolous lawsuits are you aware of that have resulted in "huge fees" and "huge cash payments"?

Frivolous lawsuits are already illegal and punishable by sanctions, payment of defendants' attorney fees, and, possibly, disbarment. At best, a frivolous lawsuit will net a "nuisance settlement" of a couple thousand dollars. No lawyer can make a living off of that.

As I read the post, I thought, this is a plaintiff's lawyer. Yup. THe notion that "tort reform" is categorically bad is pretty ridiculous. Maybe one can't agree with everything insurers and manufacturer's want, but the plaintiff's bar's self interest is as bad as, if not worse, as theirs when it comes to defending their turf. Simple, common sense fixes like a "loser pays" rule and requiring people to opt in, instead of out, of class action suits, are slapped down by greedy trial lawyers much in the same way business fights for their interests. And give me a break, juries are NOT equipped to understand complex cases, or understand that their multi-million dollar verdics just get cycled right back to their own premiums and prices. PLaintiffs lawyers like juries because they have on average half the IQ of an average college grad, because they are bored and easily manipulated, and because they are, in essence, a lottery.

Remember all the great science about the evils of silicone breast implants?

Oops. Turns out it was speculative bunk. And a jury bought it, making lawyers rich, putting a company out of business, and causing thousands of people - consumers! - to lose their jobs.

It seems to me that some sort of reform might be useful for these tort lawsuits. Any time a 'ridiculous' amount of money is awarded to someone it seems to me rather unfair, or at least unproductive from a socio-economic standpoint. And that is the same for huge payouts to compensate people for their suffering as it is for the huge bonuses for corporate executives for their "performance" on the job (a practice that I'm sure garners some measure of contempt from most Consumerist readers). In either situation, what does one really need with all that money? Buying a Bentley to me seems just as wasteful and ostentatious for a jerkface businessman, someone who won the legal lottery of tort lawsuits, or perhaps a hip hop performer (or any other type of musician for that matter).
Of course, defining 'ridiculous' for payoffs and awards and such is darn near impossible, and I certainly don't envy anyone attempting to design and implement changes designed to make our legal system more sensible. And I also don't envy those who wish to limit settlements just because they must serve their corporate overlords because I like to be able to sleep at night (hopefully such motives aren't the majority).

Fun fact about the McDonald's Coffee case that gets everyone in a tizzy. McDonald's coffee, at the time that the woman's lap was singed to bits, didn't make coffee like we make it at home, or even at your local Starbucks, for that matter.

Rather, because they found that customers generally took their meals 10mins away, the coffee was colder than they liked. So they developed a process to super-heat the coffee so that it could be served at a higher temperature point than boiling (the normal max, since steam allows excess heat to escape).

Awesome for those customers, not so good for customers that foolishly place cups in lap.

Had the spill been of normally boiling-hot liquid, the woman wouldn't have lost sheets of the flesh girding her loins.

THAT was why they found fault with McDonald's. Not mitigating or warning that this was waay hotter than your average boiling-hot liquid.

Okay, you're a CEO of a multi-billion dollar corporation. You did something wrong. What would get your attention? Filthy lucre. How much? A slice of those multi-billions. Otherwise, there's no penalty.

You can argue that that money shouldn't go to a plaintiff, since it seems disproportionate to the actual damage. Give it to puppies? Unicorns? Perhaps someone actually impacted by the malfeasance makes more sense.

The only way for a plaintiff to get a day in court is to hire a lawyer. Only way for a lawyer to rationally face off against a legion of corporate attorneys is to adjust the risk/reward ratio so it balances out. Fairest way of doing that is to reward lawyers only if they win - thus penalizing lawyers that file frivilous suits.

Given we don't live in a utopia where unicorns frolic with puppies in Candyland lawns of lollipops, the current system is the best way to achieve a result that most agree is needed.

@Sam Glover: I, my parents, my dog and my sister have all been victims of frivolous lawsuits. I was lucky enough to win. The person who sued me for injuries she claims were sustained during a traffic accident I was also involved in was a liar, and the jury saw that pretty clearly. She just wanted some money. It went to court, it did not get thrown out, we had no interest in giving this woman a dime.
I'm pretty sure malpractice insurance keeps getting unreasonably high because a lot of people are promised "huge cash settlements" by ads for personal injury attorneys, and file lawsuits for injury resulting from, say, a high risk pregnancy. Because some doctor is not a miracle worker, and did the best job he could with the information at hand, but the kid still was born imperfect, he gets sued. The lawyer walks away with his cut, the plaintiff gets less than they thought they would, and the kid is still imperfect. How is that not predatory? How does that benefit anybody but the attorney? I'm not saying there should be massive tort reform, I'm just saying I'm skeptical of those who unilaterally condemn it. And I'm also skeptical of the insurance companies and hospitals who settle these suits as a matter of policy. What a waste of money, and it all just gets heaped on the backs of the patients, who have to pay more to see their doctors, who have to pay more to their insurance company to stay in business. It's all broken.

@kerry: As I said, juries are good at sorting out liars. The system worked for you.

See my previous comments for examples of states that have installed damage caps. Malpractice insurance keeps going up anyway, so lawsuits can't be the culprits.

If there is a problem--which I am not conceding--then the fix lies not in easy measures like damages caps and lawsuit screening, but in a true and honest investigation of doctors' safety practices, insurance companies' risk-management practices, and rules designed to deter frivolous lawsuits and excessive attorney fees.

Sam Glover: I did personal injury defense for a number of years and I must say that I think you're completely off the mark, or at least as far as California is concerned.

The issue is not whether a jury will do a good job with a case. Juries are usually quite phenomenal in their verdicts. Runaway verdicts are rare, and typically over-reported in the media. So let's leave that aside.

Here's the reality -- every case, no matter its merit, costs money. I have litigated many cases where the injuries were negligeble if not non-existent. So why did the plaintiff get money? Because the automobile policy at issue was $15,000. Faced with the possibility of $20 to $30K in defense costs, many insurance companies will simply settle rather than face the specter of the cost of litigation.

And if you think that plaintiffs' attorneys don't take advantage of this fact, you're dead wrong. I can name at least 3 "plaintiffs' mills" within 2 miles of my office. These firms are focused not on merit, but on volume. Bring in tons of cases and settle, settle, settle. Many, many of those cases lack merit or the claims of injuries are grossly exaggerated.

You next say that courts are currently able to handle non-meritorious cases. You're wrong about that too. In California, it is next to impossible to be deemed a vexatious litigant. Any attorney, with more than 24 hours total legal experience can draft a complaint that survives demurrer and pushes forward, thus probably compelling a settlement of some kind.

The real problem, however, is not so much in tort reform but in reform of the profession. Judges are far too leary of sanctioning attorneys for bringing frivolous cases. While there are many statutory and equitable powers available to the court to curb improper litigation, those powers are far too rarely exercised.

There needs to be something done. The system is broken. I can cite for you many, many cases just from my own personal experience that should never have been brought.

And at the risk of violating one of my own maxims (that of attacking the argument, not the arguer) I have to say this -- anyone who believes that the legal system is fine the way it is and not in need of some kind of reform is either: 1) naive; 2) evil; or 3) profiting mightily from the lack of tort reform in this country.

Am I missing something?

There are way too many trivial lawsuits flying around out there. Granted there are a lot of cases where the plaintiffs deserve an award (not usually as high as they get though)
It does cost us in the long run. Every time someone sues over something and needs thousands more than they have lost it costs someone money and that money has to come from somewhere.

On a side note, I bought an insulated mug that had a warning on it that the contents may be hot. This is a mug that I would be filling myself with liquid that I have either heated or not heated. This is what it has come to. They have to warn us about something that WE may have done or I may be able to sue the mug company for burning myself and i may win.

personal responsibilty hurts a little sometimes, but it may be worth it for eveyone.

@bluegus32: If I am naive, I suppose I wouldn't know about it. But I am not evil, nor am I rich by any stretch of even the most hyperactive imagination.

The legal system can always use improvement. Full-scale tort reform as it is advertised by most proponents is not the way to go about it. I believe this as a plaintiffs' attorney and as a former insurance defense attorney (auto accidents, construction defect, and products liability).

"Tort reform" is just corporatist speak for "removing one of the last lines of defense consumers have against big business". Basically huge jury payouts are seen by free marketers as market regulation. And if you are a corporatist, or free marketer, regulation equals bad.

Now you see already the half truth talking points in this comment thread (right at the top even), straight from talk radio. The idea that some jury would hand out a million dollar punishment, to a company that is too small to ever hope to pay it, is moronic, and the thought that such a ridiculous decision wouldn't get overturned is naive. These huge plaintiff awards may be excessive, but they are also necessary.

If award caps go through, companies can just factor in the cost of the payouts for their misdeeds. Whether it's lax health standards, non-existent quality control, or reckless disregard for employee or public safety, if the savings is greater than the expected payouts, they WILL make the cuts, and consumers lose out.

One of the main problem with this tort reform movement, and the idiots who go along with it, slavishly echoing the talking point that it drives up the cost of business, and therefore the cost to the consumer, is that these same apologists never look at the reality of the situation. The reality is that product cost is dictated by what the market will pay, not how much they need to charge to make up for the 'cost of business'. You are never going to have to pay $30 for a cup of coffee, because some business needs to augment the cost of a payout. And on the other side, the reality is that when they do get their payout caps, like with medical malpractice caps, only and a total idiot would think that the insurance companies or the hospitals would lower their prices, and pass the savings along. And the reality is they don't.

Tort reform, the free market, communism, and the Easter Bunny are all great and wonderful ideas in theory, but it's in the real world where they fail to perform.

Sam Glover: How about this -- how about modifying tort recovery laws so that no litigant may be permitted to collect punitive damages personally? Maybe require that all punitive damages awards are to be paid out to the charity of the plaintiff's choice? Also, require that no attorney may collect on a percentage of a punitive damage award, only on the actual damages award.

I would bet that if we did this, the number of oh-so-noble plaintiffs and plaintiffs' attorney who fight for huge awards "on principle" would decrease. Might this not be a step in a positive direction?

Also, what about some kind of modification of tort laws that would allow a defendant to be compensated for their legal fees should they prevail?

@kerry:

The person who sued me for injuries she claims were sustained during a traffic accident I was also involved in was a liar, and the jury saw that pretty clearly.

So what are you complaining about? The system works!

I personally don't believe there is such a thing as a "frivolous lawsuit." Truly puerile suits usually either get thrown out of court, or are lost by the plaintiff. I would rather let the court system do its job than arbitrarily slam the courthouse door on millions of people based on a few people's capricious notion of what constitutes a "frivolous" complaint.

PS: As any first-year law student can tell you, the McDonald's hot coffee suit is one of the most misunderstood cases in the history of the US legal system. Contrary to popular belief, the woman had a legitimate complaint and deserved every penny she got.

What's he complaining about?

Gee, how about whatever thousands (minimum) of dollars he had to pay to HIS lawyer to get the threat of a bankrupting judgment out of his life? All the time he had to spend defending himself against a greedy crook and her contingency lawyer?

But nah, he's got nothing to complain about. Why would he--there was a lawyer involved who made money! That's all that matters!

@Kanchi:

"Tort reform" is just corporatist speak for "removing one of the last lines of defense consumers have against big business".

Boom. Well said. That's really what it boils down to. To the corporatist, the company's bottom line is more important than its customers' rights. A company can make harmful products with impunity and hide behind the spectre of the one-in-a-million exorbitant payout and have its pocketed politicians bellyache about "tort reform."

"Tort reform" is indeed just code for "we don't want to take responsibility for our mistakes."

I find it hard to buy a personal experience as representative of the entire life experience as a whole. I refer exclusively to several arguments that address either points or other arguments by referring to examples from an individual's own life. My follow-up would be: Does that example represent the exception or the rule, the state of things or a small sliver of how things appear to be?

When a national restaurant chain gets tagged for unsanitary procedures, does it affect how you look at the individual restaurant or the chain as a whole? Should it affect your opinion of the entire company? I can only state my opinion: just because it happens on a small scale, doesn't mean that it's happening on a large scale.

I had this very discussion with a friend the other day. What we as consumers have to realize is that everyone in the business world is after our money first and foremost. They're not looking to make friends, they're looking to make money. The sooner we become cynical (or paranoid depending on your point of view) about the motives of those telling us why we need to think certain things, the sooner we'll be better off as a society.

Humans are free-thinking and free-spirited organisms. It's time we started using our brains to demand more facts from those advancing conclusions without evidence.

@Keegan99:

Sooo...all those women who got sick with the same symptoms and diseases, where the only connection between all of the cases was the presence of silicone breast implants...they were just fakin' it?

Further on the McDonald's case, the "huge" number the jury awarded was entirely rational. The jury looked at the memos McDonald's had circulated about the super-heated coffee, in which McDonald's stated it knew that a certain number of injuries per year would result b/c of the higher temperature, but that this would be more than offset by the huge profit increase from having the hottest coffee in the fast food market.

The jury awarded the woman ONE DAY'S COFFEE PROFIT for McDonald's. 1/365th of what McDonald's felt those injuries would be worth when it was weighing customer injury vs. profits.

I see a lot of misconceptions in this thread about tort reform. The statistics that show "huge and growing rewards to plantiffs" are often misleading -- a small county near me was reported with horror as having "six medical malpractice tort cases with an average reward of $25 million!" and being where plaintiffs go to find a sympathetic jury, having far more such cases than surrounding counties.

Well, no. It was the county that HQ'd the hospital that served several surrounding rural counties, so it carried med mal cases for a large portion of the state. And that "average reward of $25 million"? ONE case had a reward of nearly $150 million, gross negligence resulting in death. The other five were under $100,000 (IIRC). That "average reward of $25 million" is one huge case of $150 million divided by ALL SIX CASES BROUGHT THAT YEAR, even though the other five were tiny.

As for making lawyers rich, yes, some do get rich. But the cost of bringing these tort lawsuits is ENORMOUS. A lot of that "huge" amount of money lawyers are getting is paying for the costs of bringing the case (which come out of the firm's pocket and if they lose, they get nothing, not even fees from the client) and paying not just the lead attorney but a large support staff (secretaries, paralegals, stenographers, associate attorneys). Because litigation is so all-consuming, only large firms (with consequently large payrolls) can afford to manage several plaintiffs' cases at a time, so this may be all that's paying the bills for several months.

As for the personal injury mills, it's interesting to talk to attorneys who work there. (Not the guy who owns the place -- one of the younger associates.) Friends of mine at local PI mills tell me they reject from 25 to 300 cases (depending on the firm) for every 1 they take. (However, I'm sure there are shady PI mills that just bring nuisance suits rather than engaging in legitimate ambulance-chasing.)

I say all this when my bread-and-butter (i.e., my husband's salary & benefits) comes from tort DEFENSE work. I'm not a plaintiffs' attorney rah-rah.

I do agree with Bluegus, though -- Judges need to be way more liberal with the Rule 11 sanctions.

---------
Why I'm not in favor of "capping" damages as "tort reform":

One of the worst cases I ever saw was in North Carolina -- I reported on the attorney who brought the case for a magazine profile. A woman came to her office saying her ob/gyn had molested and raped her during a routine exam, and that her complaints to the insurer, hospital ombudsman, and all other channels had been ignored or rebuffed. (Cops had insufficient evidence.) The attorney couldn't bring the case because of costs involved and NC's caps (at the time) on med mal recovery.

A few months later another woman walked into her office -- with the SAME COMPLAINT about the SAME DOCTOR. The attorney took out an ad, and more than THIRTY women responded with variations on the same story. At that point (I think with 6 plaintiffs) she could finally afford to bring the case.

During the course of the case, it came out that the hospital had had nearly 100 complaints. His last hospital had had over 100 complaints (and had shuffled him off to his new hospital WITH A GOOD RECCOMENDATION to avoid his continuing liability!). His insurer had several hundred complaints. THEY HAD ALL BURIED THEM, AGAINST STATE LAW AND THEIR OWN POLICIES, TO AVOID HAVING TO DEAL WITH THE INSURANCE ISSUES OR ANY ADMITTANCE OF WRONGDOING. The ob/gyn had molested or raped literally hundreds of women and NOBODY responsible for overseeing or disciplining this man was willing to do their jobs.

The lawyer worked on the case for about 2 years straight, to the exclusion of almost everything else, for a total "payday" for her of $150,000.

North Carolina has since enacted tort reform for med mal cases, which cap damages so low that this case could not today be brought.

@bluegus32: Perhaps punitive damages should be redirected, but to whom? I'm fairly neutral on this. As to the attorney's share of the fees, if the fees are appropriate and awarded, why shouldn't the attorney be compensated for going to the trouble of securing the punitive damages? After all, the point of allowing contingent fees and attorney fees is to allow and even encourage plaintiffs' attorneys to bring lawsuits it would not be financially feasible to bring without them.

As I said above, numerous consumer protection laws already provide for attorney fees to defendants if they prevail and a plaintiff's case is shown to be frivolous. Maybe this doesn't happen a lot, but it happens often enough to make plaintiffs' attorneys second-guess their clients and cases.

For example, I do know of a recent FDCPA reverse-fee award, which I believe was in California. The award was large enough ($70,000+, if I remember correctly) to drive the plaintiff's attorneys' law firm out of business. Last I heard, neither of the two partners plans to practice law again.

@alfonzotan: Unfortunately, yes, the legal system is expensive. Unfortunately, there aren't many--if any--cheaper ways of doing what the legal system does.

Ask any criminal defendant who is acquitted after a long and expensive trial, innocent or not. On the one hand, the system worked, vindicating the defendant's innocence or his or her constitutional rights. On the other hand, that will be little consolation to a now-destitute criminal defendant.

Yes, it is expensive. That is precisely the justification for contingent fee agreements and attorney fee provisions.

@Sam Glover: Um, that doesn't help the guy who had to pay the thousands to defend himself against a frivolous suit, which contrary to all the lawyer-kissing in this thread, was not immediately thrown out; according to his account, it went all the way to a jury. That happens all the time--the guy across the way from me just spent (wasted) a week on jury duty in a similar case, again decided for the defendant but at a ruinous cost, thanks to a greedy plaintiff and a greedy contingency shyster.

But again, why complain--the lawyers are apparently the only people allowed to make money. At least if you ask a lawyer...

I applaud Sam's efforts against "tort reform" as it is currently offered. However, I also agree with bluegus32 to the extent that the current tort system could be improved.

While Sam and bluegus32 appear to be on opposite ends of the debate, I think they share in common the belief that the current efforts to reform the tort system are not so much about making it better. Rather, the alleged "reformers" are simply trying to make it impossible for plaintiffs to effectively bring meritorious claims and to insulate companies from paying deserved awards.

I highlight that because it seems, based upon comments made here and elsewhere, that numerous non-practioners have absorbed the conventional wisdom of "oh it's out of control! The coffee lady made millions for a slight burn! Lawyers are ruining everything!!11!!" Indeed, there are problems and the so-called "mills" described by bluegus32 are just part of them.

"Also, what about some kind of modification of tort laws that would allow a defendant to be compensated for their legal fees should they prevail?"

Isn't this the case in some European countries? The U.K? I may be misremembering. Regardless, this would be a first good step that would have only a slight harm plaintiffs with legitimate causes of action.

Squeezer99 makes a widely used argument for just about everything:

"Toyota passed over Mississippi a few years ago for the Tundra truck assembly plant due to Mississippi not having tort reform laws. The plant went to San Antonio Texas."

The problem with this line of thinking is that it never ends. What happens when Toyota tells Texas that Mexican workers don't have health care and get paid $1 an hour? Should Texas do the same? This line of thinking leads to states competing to turn themselves into third-world countries.

Thankfully, a lot of states and municipalities are learning (after making numerous concessions in the past) that the attempts to compete with overseas manufacturers are ultimately not good for local residents.

@alfonzotan: As I have pointed out numerous times, if the lawsuit truly was frivolous, then the defendant could recover his attorney fees. This happens, and it scares the hell out of plaintiffs' attorneys.

The rewards for taking frivolous cases are meager at best, and the risks are great. I am sure there are attorneys who do this, although I have not yet come across one. But the law provides a remedy.

@Sam Glover: Convenient. File another lawsuit to recover the money you had to spend on the lawsuit you never should have had to put up with in the first place.

While all those lovely billable hours roll on and on and on...

Eyebrows McGee: Must say that I always value your perspective on things. Glad you're here.

As to your arguments, I am not going to argue the McDonald's case because there is no winning that argument. It's been beaten to death and nobody will ever change their opinion on it. I do think the jury award was excessive in that case. However, excessive or not, it can hardly be said that one case is representative of an entire system.

And I also agree that tort caps is not the solution. The problem with the system is not in huge jury awards. Juries usually do a good job in properly determining damages and the right to them. No, my problem is in the minutia. The small, numerous, and non-meritorious cases that infect the system. The system is not harmed by one large jury verdict. 99% of cases settle before trial. It's those 99% that we should be focusing on, not on those that actually make it to trial.

Bottom line -- I think you and I are in agreement that sanction awards for attorney misconduct need to be much more forthcoming. That means if you file a lawsuit where the car accident was at 1 mph and you claim $2 million dollars in damages that have no basis in reason (I have seen countless of such claims), then you as the attorney get hit for the other side's defense costs. Attrneys need to be reigned in.

Sam Glover: As I said, redirect the punitive damage awards to the charity of the plaintiff's choosing. A punitive damage award is by its nature designed to punish, not to compensate a plaintiff. So let's keep it at that. Let the plaintiff obtain recovery on damages but give the punitives to someone else. I think this would gaurantee that a plaintiff's motivation in seeking punitives would be a little bit more genuine.

As for the attorneys, you may be right. There must be some compensation for their efforts. Maybe make attorneys' fees subject to court approval, though, as we do for attorneys of minors. So, if an attorney worked a sum total of 2 months on a case, don't let him or her get $50 million as a contingency.

I don't know. I'm still cogitating on that one.

@alfonzotan: Now we are getting into legal procedure, but no, it does not require a further lawsuit. And those "lovely billable hours rolling on and on" are also recoverable.

And, for what it's worth, about 90% of the caseload of suits clogging the civil court system are companies suing companies. Not individuals suing each other or companies.

One of tort "reform's" talking points is that our legal system is being clogged by irresponsible individuals (and their shysters).

Patently, provably false. Makes you think their other talking points are off the mark as well.

@Sam Glover: "As I have pointed out numerous times, if the lawsuit truly was frivolous, then the defendant could recover his attorney fees. This happens, and it scares the hell out of plaintiffs' attorneys."

Sam, that's a fool's game in California. In California, attorneys' fees for a frivolous suit can only be brought only if 1) you take the original suit to trial (at your own cost) and win and 2) you then file a separate suit for malicious prosecution.

This avenue is only available for people who have $100,000 to spend on two trials and are willing to eat up 2 to 5 years of their lives on the endeavor. This is not a viable option nor is it a remedy with any teeth. I do not know of a single attorney here in California who is actually fearful of this. Maybe it's different in your jurisdiction.

@tentimesodds: "As a future lawyer, I think I am somewhat qualified to say".

I hope your future lawyer self learns to avoid self-sabotaging your arguments. Where you said "future lawyer,"and "somewhat qualified" you should have said " ," and " ".

@bluegus32: No Rule 11 in California? Or just a procedural mess to take advantage of it? That isn't really a tort reform issue so much as a problem with procedure, it seems to me.

And I'll certainly agree there needs to be change if that is the case. Defense attorneys file just as many improper pleadings, motions, etc., as plaintiffs' attorneys. All should be nipped in the bud.

@Paul D: It worked because I and my insurance company fought this liar tooth and nail, she wasn't expecting a fight, she and her attorney expected us to settle. The hospital I work for, as an example, would have settled to shut her up. She would have been rewarded for lying about an injury, her lawyer would have been rewarded for supporting that lie, and the folks who pay malpractice insurance would get to watch their rates go up. I'm not saying I support tort reform as presented here, I'm just saying that the system *is* broken and something needs to be done. Bluegus's comment that fixing the legal system is what's really needed, but I'm too cynical to believe it could ever work. As long as there is a way to get rich doing shady things, there will be unscrupulous people doing shady things to get rich.

@Sam Glover: Nope, nothing equivalent to the Federal Rule 11, or at least nothing that is used on any regular basis. Courts have inherent authority to issue those types of sanctions but none ever do. I have practiced in federal court and I know the very real fear of Rule 11 sanctions. This is a tangible fear that any attorney in federal court is very cognizant of. However, in California state court, there simply is no such fear. Those sanctions are never doled out and no California attorney is in fear of what might happen if s/he files a non-meritorious claim.

If people want their children to be delivered by OBGYN doctors in this country, we should start focusing on providing some sort of relief to malpractice insurance premiums, perhaps via Tort Reform. It has become nearly impossible to become an OBGYN in some sections of the country (N. NJ, for one), to the point where a hospital I rotated at had to close their entire OBGYN program due to the overwhelming liability. (say what you want about whether malpractice insurance companies would fleece doctors anyway, and whether prices are really based on cyclical stock market cycles, etc...)

There are certainly cases that have merit and should receive just compensation. However, I have heard of PLENTY of stories from the medical side where the cases were pure baloney and still were settled simply because it's cheaper for insurance companies than fighting the case.

I do not agree that people should not be able to bring claims in courts or that their pain and suffering should be limited by a court in terms of a financial settlement. But how about we limit how much of that "pain and suffering" can go to their lawyer? I also think that it's about time that a panel of experts is put into place to decide whether cases are legitimate or not.

I actually do medical malpractice defense - so I guess that I am biased right off the bat. The idea of a cap on recovery for pain and suffering doesn't sit really well with me, although some sort of cap for people whose injuries aren't permanent might work. What many people don't realize is how much it costs to defend even frivolous cases. I currently am working on one where the man is insance - literally, was for a long time up to the alleged non-permanent "injury." (As I recall he became itchy from a medicine) I would estimate that defense of this frivolous claim will cost at least $30,000.00 - and most of that is expenses - experts, testing, etc., not attorneys fees. If people filing truly frivolous claims were made to pay something towards an innocent defendant's fees and costs, it may discourage wholly baseless claims.

this is america. it is our god-given right to sue. taking away even the smallest vestige of that right erodes the very foundation of our rights. i don't like lawyers. but i like greedy, crooked, self-serving corporations even less. & history shows that breaking the law, malpractice, & negligence are rampant within many corporations. doesn't everyone know what an actuary does? these are people that calculate risk (including the cost of fines & lawsuits) into real dollars. companies make business decisions that cost the lives & happiness of people every day. if they are not suspecting the losses they encounter, they just need to get better at calculating the risk (or hire better actuaries).

just to be fair, i'll offer them a bone. hey corporations, you want some legal relief from the big, bad consumers? i'll give it to you, but i want something in return. any corporation that doesn't want to be sued simply needs to hand in their court-given right to juristic person status. without this status, they cannot be sued. of course, they cannot sue either, they cannot enforce a contract, they wouldn't be able to "own" property or assets, & there may be one or two other implications. that's a fair trade-off. if i have to give up my legal rights, then so do you.

Don't also forget that "Tort Reform" is a twofer.

It's a frequently-flogged GOP bulletpoint to crack down on trial lawyers, who have, in large parts, replaced Unions as a significant source of donations to the DNC.

Additionally, it protects the corporate interests--particularly producers of products known to cause damages to their users, society at large, or the environment (e.g. guns, cigarettes, oil)--who frequently give more heavily to Republicans.

@mac-phisto: I agree that companies often act in their own financial best interest, often at the cost of harming others. But what about doctors? (or anyone else sued for ridiculous reasons) Certainly there are corrupt doctors who aren't always looking out for the patient's best interests. Unfortunately, lawsuits don't seem to separate them from doctors who toe the line and do nothing but help people day and day out for 30 years before getting hit by ridiculous lawsuits by people who want to blame someone else for their pain and suffering, or that of a loved one. And if you don't believe ridiculous lawsuits in the medical realm happen, read up about it. It's very common place, to the point where it influences what specialties people choose to go into (including the OBGYN example in my previous post).

Just finished reading the next post about the RIAA suing someone and trying to depose her 10 year old daughter. Now how many of you would support tort reform if someone were to sue the RIAA over their actions?

The medical malpractice problem has more to do with insurance companies losing money in the stock market, and then having to jack up premiums to pay their executives the high bonuses they've become used to. Then they get the doctors to go on protest marches to get the state legislatures to game the legal system in their favor.

As a general rule, corporations (including health care providers) do what the bottom line dictates. In fact, if they don't do what the bottom line dictates, they are subject to shareholder lawsuits. That means lowering quality control a little bit to save money, and then betting that the liability costs will be less than the manufacturing cost savings.

Putting a cap on tort damages means lowering the corporations' incentive to spend money on safety. Plain and simple. Part of what keeps us safe from dangerous products, industry practices, pharmaceuticals, medical practitioners, etc., is the threat of liability in the event that the unsafe practice causes someone to get injured. If we remove that threat from the equation, then starting tomorrow we are less safe from these safety risks.

At the risk of flogging a dead horse, the McDonald's Coffee Case is the best case study for Tort "Reform".

At first blush, it's the PERFECT argument for tort reform: careless old biddy spills hot coffee on self, sues BigCorp for 174.8 gaJILLION dollars, broken US legal system filled with no-nothing juries agrees. SAVE AMERICA FROM THIS MADNESS!

...That's what I recall hearing from the 24/7 commentary. And I totally believed it. It sounds SO crazy, SO perfect. Damn Lawyers!!

Then you dig and realize: whoa. Point by point, the people decrying the case exaggerated or misstated the case. In fact, the jury was reasonable in its application of justice. I think the final amount was negotiated downward, but who won, who lost, on which merits, and by a large dollar amount, stands.

Now, it's the best case study for how Tort "Reformers" will say anything to get consumers to deprive themselves of their own rights.

BlueGus: if you think that the case has been "argued to death", perhaps that's a synonym for, "hmm - perhaps they have a point there." Sleep on it, and perhaps it can change your mind?

PS: shout-out to everyone for keeping the conversation civil and on-topic. This has been one of the best comment threads I've seen on Consumerist!

I think that a lot of the comments here are very well thought-out, but I am disturbed that once again, like with the Worst Company in America poll that for two years in a row now has become a political platform instead of choosing what company actually provides the worst products and services to customers (for all you guys know, Halliburton is great to customers), this has become a political fight. Since my original comment, I have seen few or none that addressed whether tort reform is bad for consumers. It might be bad for those injured by truly defective products, assuming that you feel that NOT getting a crapload of money for an injury is "bad."

The costs for companies to 1. make huge payouts and 2. avoid costly litigation in this country is immense. People on this website need to realize that these companies are not charities and are not going to take a hit on their profits because of lawsuits - they are going to pass that hit onto the consumer. After all, since tort verdicts and increased insurance raise costs for all companies, all companies can pass along the costs to you and remain competitive. In that way, it's functionally like a sales or VAT tax - nobody can avoid it so they all pass it on to you. The vast majority of consumers never file a lawsuit in their lives, and they are the ones who pay. So leaving aside whether or not tort reform is holistically "good," anything that lowers costs is likely to be good for consumers of that product.

As for the coffee example, I probably shouldn't have used it because I know the case has more merit than it appears to (although the fact is that the person still screwed up by spilling the coffee on herself - McDonalds didn't sneak up and pour it on her crotch). If I drop a Craftsman chainsaw on my foot, I don't sue Sears, and I would blame only myself if I was dumb enough to spill hot coffee on myself. Not everyone is that way, I know, but guess what - McDonalds made that coffee hot for a reason. And guess what that reason was - because consumers (that's us!) preferred it! They didn't do it to try to scald their customers - that would just be stupid. Now, because of that woman, your coffee is colder and less pleasing when you drink it. Is that better for those of you who use common sense with their coffee? I doubt it.

But if this seems excessively cold consider this: If the speed limit was 5 MPH, we'd probably have nearly no fatal accidents. So how come we don't enact that, even with a provision that, say, ambulances could go faster than that? It's because sometimes, convenience outweighs even safety, taken in the aggregate. It sounds cold, but it's just a fact of life.

Oh, and for those of you who have fooled yourselves into thinking that there's no such thing as a frivolous lawsuit, or that they always get thrown out, take a look at this article, for example (it was the first one on Google when I searched for "asbestos litigation fraud").

http://www.opinionjournal.com/columnists/kstrassel/?id=110...

Wake up, folks. These lawyers (of which I am one, although I don't practice tort law) can indeed be as unscrupulous as you think.