The Pop Tort: John Edwards and the Valerie Lakey case

by Ted Frank on February 21, 2008

For all the complaints about tort reformers supposedly relying upon urban legends to promote their cause, one more frequently sees trial lawyers promoting fictional versions of their victories. As Hillary Clinton and Barack Obama kowtow to John Edwards for his endorsement, it’s worth exploring the case on his record he refers to most frequently. Remarkably, not a single mainstream media organization has questioned Edwards’s self-serving version of the Valerie Lakey case. I correct this problem in today’s American:

Sta-Rite had already been putting warnings on its pool drain covers, and the 1993 case did nothing to change their product design or the warnings conveyed to buyers. The drain cover in the Lakey case was sold in February 1987 with a warning label; soon thereafter Sta-Rite began embossing the warnings on the cover. This safety innovation was used against them at trial, the argument being that they should have acted earlier. But no one could reasonably think that an additional warning to screw in the drain cover would have made an iota of difference. The cover already had holes for screws, county regulations already required the pool drain cover to be screwed down, the pool managers testified that they had done so several times in the year before Lakey’s accident—and Edwards had already recovered millions from the municipality for its failure to keep the cover screwed down.

{ 8 comments }

1 William Nuesslein 02.21.08 at 10:53 am

Great article,Ted!

Do you know who removed the pool drain cover or why?

2 E-Bell 02.21.08 at 1:05 pm

William, the article says that “children” removed it. I imagine that no one saw who removed the drain cover, but the operative theory is that it wasn’t properly secured.

This site gives a good accounting, as documented by contemporary press articles about the case.

It’s incredibly clear that the fault lay not with any design flaw – but with negligent maintenance. The settling defendant(s) were at fault and the verdict against Sta-Rite was a travesty.

3 duaneage 02.21.08 at 1:54 pm

the thought of Edwards running justice is chilling. Another great example is his “channeling” closing arguments when he claimed to have children speaking through him

4 William Nuesslein 02.21.08 at 3:42 pm

Thanks to E-Bell for the reference. It seems to me that the cover was being removed by the children. Why would they do that? To play with the vortex. The life guards must have seen that. I wonder if the actual harm to the child was done by those pulling her away from the drain? A rational analysis would have some measure of exposer. There were a dozen incidents before the subject tragedy, but what defines a problem and how many pool years were covered. The jury failed in this case. Gosh it is a very sad case!

5 iNonymous 02.21.08 at 6:37 pm

The fact that the product was later changed is nt evidence that the product as it existed at the time of the injury was defective. I thought this was black letter evidence law.

6 Joel Smith 02.21.08 at 7:50 pm

iNonymous:

If memory (i.e., of the MBE) serves me correctly, subsequent remedial measures are only inadmissible against a defendant to the extent the measure is taken after the injury. If a product is changed pre-injury, it’s evidence that: (1) the product could have been made safer; and (2) that the defendant believed that it was worth the cost to make it so. (Of course, N.C. evidence law may be totally different.)

7 OBQuiet 02.22.08 at 8:35 am

Joel,

I am no lawyer, so your points on the law may well be correct. The problem with those points is that not all changes are for safety reasons.

1. There is no evidence that the product is safer. Even if fewer accidents of this sort happen, it is more likely that the decrease was caused by POOL OWNERS fear of liability driving them to do better maintenance. Does anyone think it improved because they swim to the bottom of the pool, notice the warning embossed on that cover and come back with a screw driver?

2. Lawsuits change the cost equation.

So changing how the warning was delivered cannot be taken as evidence that the product was unsafe. It is more likely evidence that the company felt it could save costs overall by spending more and staying out of court defending itself from unfounded lawsuits.

8 Joel Smith 02.22.08 at 12:10 pm

Good points OBQuiet. I was more commenting on the admissibility of the evidence at trial based on the Rules of Evidence. It’s a defense in product liability suits to prove that the product couldn’t have been made safer, or that even if it could have been, it would have been unreasonably costly to do so. Thus, a pre-injury remedial measure is relevant to rebut such defenses. (A post-injury remedial measure is inadmissible.) But a juror would be more than reasonable in thinking the way have have — that such a measure is by no means conclusive proof that the product was unsafe.

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