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A common critique of the tort “reformers” is that they base the majority of their advocacy for tort “reform” by highlighting and mischaracterizing a small amount of “poster child” cases as examples of the need for reform.

A problem with this approach is that upon closer examination the major “poster child” cases the tort “reform” movement uses to this end, are actually legitimate lawsuits which this movement often mischaracterizes.

Even when members of this movement site to cases which were wrongly decided, they then argue that the entire system is broken, and not that just one judge made an incorrect decision despite the functionality of the overall system.

I would like to hear some tort “reformers” response to this characterization of their movement’s message and ideas.

Cyrus Dugger

Which “poster child” cases were not frivolous?

How many “poster child” cases must there be before the system is broken?

If you want a good example of a systematic failure of the judicial system to weed out frivolous (and outright fraudulent) cases, just look to asbestos and silicosis litigation.

Cyrus, I dispute every factual statement in your premise.

1) The majority of my advocacy is not based on poster-child cases. I use poster-child cases to illustrate underlying problems and the poor public-policy results that the plaintiffs’ bar is seeking in those cases.

2) I’ve been forthright that the legal system makes both Type I and Type II errors. But such errors are inherent in the system, and my vision of reform simply suggests that we not ask our court system to do things that it is not well suited to do, with adverse public policy results. In product-liability cases where unbounded damages are possible, a 90% success rate (which is the most I’ve ever seen the plaintiffs’ bar claim, and they usually claim “success” for something lower than that) is disastrous.

3) I do not mischaracterize “poster-child” cases, and have yet to see any credible example where I have, even though I’ve written thousands of posts for Overlawyered. What’s fascinated me is that I’m happy to forget all about the Stella Liebeck case, which I think is most accurately characterized as an aberration, since 13 out of 14 identical reported cases were decided correctly for the defense.

Rather, it’s the reform opponents that use the McDonald’s coffee case as an example. Walter and I are fascinated how it’s consistently in the talking points of opponents when we debate them on reform. We want to talk about the issues, and the other side brings up the coffee case.

When I talk about Stella Liebeck, I do so solely as a debunker of the false ATLA claim that this case was correctly decided, and as a debunker of the lies that reform opponents—including you, Cyrus—repeat. If you want to look at “mischaracterizations,” just look at your post about the McDonald’s case.

Hi Ted,

Thanks for your comment.

For the benefit of furthering this discussion, please post a comment here on overlawyered and tear apart my post on the McDonald’s case available at http://www.Tortdeform.com.

Why You Should be Able to Sue McDonald’s if You Spill Coffee on Yourself

http://www.tortdeform.com/archives/2006/09/why_you_should_be_able_to_sue.html

Cyrus, Overlawyered has a search function where you can find multiple posts refuting claims you make about the McDonald’s coffee case. You can also search Point of Law to find refutations of your analysis of the Leonard v. Nationwide case, and I was generous enough to leave a comment noting where you misrepresented the SDNY’s opinion in the Whitman case.

In fact, every post of yours that I’ve bothered to check up on has dramatic and fundamental errors of law or fact. (Even your on-line biography fails to note the title of your fellowship at DMI–or did Milberg Weiss withdraw their fellowship?) You have a .000 batting average as best I can tell, while you have yet to identify a single misrepresentation I’ve made in any of my posts or any of Walter’s posts, even though we have thousands of posts to our credit. Check out the beam in your eye, friend.

Enormous PILE of beams… in each eye.

Hi Ted,

Thanks for your response.

I think we may disagree about the strength of each other’s various legal analyses. We may have to leave it at that.

My request was that you not link me to your previous post about McDonald’s, but that you yourself rebut my post, here and now in this discussion in this comments section as you have attempted to do through comments over on http://www.tortdeform.com regarding the posts there.

As to your other comment, I am what I am which is Senior Fellow in Civil Justice at the Drum Major Institute. My fellowship like all fellowships has a funder which is Milberg Weiss. Like almost all of the major public interest fellowships this one is funded by a corporation or law firm which decides to support an organization efforts in a specific subject area of their work.

Despite the claims of “Protecting people’s rights to use the court system,” to anyone who stops and thinks about it, the problem is obvious. We have allowed the lawyers to create a society in which none of us are responsible for ourselves in any way. Rather, it is everyone else’s responsibility to protect me from everything – including myself.

Of course the lawyers who created this environment (and I am not saying all lawyers are responsible) did this for completely altruistic reasons – the crapshoot chance of 30% (or more) “contingency” payment had nothing to do with it.

I think that we have a certain select portion of the legal community that have sacrificed their souls, their ethics, and their common sense for the chance to “strike it rich” in the big game – and rather than actually being concerned with the law, and with what is right – they have concentrated on creating a market for their “services.”

But that’s just me *shrug*

Cyrus, you say nothing in your post that I haven’t already addressed multiple times. Which is why I was unimpressed that you made no attempt to address my rebuttal of the ATLA talking points, and simply thoughtlessly repeated them.

Generally, when fellowships have a specific funder (not all fellowships do—mine doesn’t), they’re titled with the funder’s name, as was the case with the original press release naming you the “Milberg Weiss Senior Fellow”. In less than four months, that title has changed. Curious. Is there some embarrassment or lack of gratitude? I ask, not because I think it’s relevant, but only because your blog is quick to allege undisclosed conflicts of interest and claim that it’s evidence of corruption. Motes and beams and all that.

Well, if Ted is too exhausted to respond to Cyrus’s post, I’ll at least take one quick stab at it.

Cyrus’s post recites a lot of facts (most of which are not in dispute or are not important, such as whether she was the driver or passenger), but the only thing resembling a legal argument is the following:

“You should be able to buy coffee without having it horribly disfigure you if you trip. People trip all the time. People spill all the time. Eventually, it will happen to everybody. When coffee is served at a temperature at which it will always melt human skin, you should be able to sue the person or corporation responsible – even if you were an idiot for spilling it on yourself. It is clear that one day, we will all have our turn being that idiot.”

That sounds pretty much like “It’s not frivolous because I said so,” but even if we parse that to contain a legal argument, it seems to be, “If there exists the possibility of serious injury if one misuses a product, we should be able to sue the one who made or sold that product.” But of course that proves too much. There certainly exist a significant number of people who will cut themselves with steak knives; does that mean that “you should be able to sue” the restaurant who provides you with one when you order a steak? What principle distinguishes between these?

And automobiles — let’s not get started on them. We know for a fact that tens of thousands of people will be killed (not merely injured) every year. Are the automobile manufacturers liable for every one of those? If not, why not, given the principle articulated above by Cyrus? (Remember, Cyrus’s claim is that the fact that the user was an idiot shouldn’t matter, so no matter what the driver did, the corporation is “responsible” for providing the product that enabled this to happen.)

If Cyrus thinks we should entirely eliminate negligence as a doctrine and make all corporations strictly liable as insurers of the users of their products, that’s one thing. But if so, he should say so instead of trying to demonize corporations by saying we need to “hold them accountable” for “making unsafe products,” when he really means we ought to hold them accountable for making products.

One other point about the “idiot” thing — Cyrus says that “eventually it will happen to everybody,” but of course that’s not even close to true; they only found 700 instances of it happening out of zillions of cups of coffee sold.

Hi Death & Common & Sense,

Thanks for your comment.

I will always encourage people to question the source(s) of funding of all organizations.

Indeed, I invite you now to disclose your own.

As to my fellowship, all I can respond with is the truth, which is the ultimate formal name of the fellow was in constant flux in the months before I began working. If that works into some narratuve regarding MW that fits your fancy, that’s fine with me, but it is what it is.

But going forward if you chose to discuss the funding of my public interest fellowship, I really must insist that you disclose your own – whatever kind it may be or is.

Hi David, (apologies for double post)

Thanks for your comment. You are incorrect that the facts were not in dispute. I can and will supply an entire list of tort “reformer” public comments which completely distorted these facts beyond recognition in making their case.

As you know from reading the entire thing, this post is not focused on the legal issues, but in debunking the facts which you attempt to minimize above.

Readers should take a read and judge for themselves whether the facts are in dispute.

If they weren’t in dispute, it would have been a waste of time to write the post….. because there would be nothing to debunk.

Cyrus,

I don’t personally find funding relevant; ideas should be judged on their merits. I just think it’s curious that you’re not willing to be judged by the same standards by which your blog judges others. Motes and beams and all that.

For the record, my salary from the American Enterprise Institute is fully funded by the American Enterprise Institute, which discloses its policies on funding. My annual salary reflects a decrease of over 70% from the AGI I reported in 2004, the last full tax year I was an attorney–so if one includes opportunity costs, the majority of my funding is provided by me, because I am foregoing far more lucrative opportunities. If you think my views are available to the highest bidder, I invite you to get Milberg Weiss or any other plaintiffs’ law firm (whether under indictment or not) to double my salary to oppose tort reform and see whether I accept it.

Hi ted,

Thanks for your response.

I in turn say:

“I invite you to get [a tort “reform” organization] or any other [defendat’s]law firm (whether under indictment or not) to double my salary to oppose tort reform and see whether I accept it.

Ted, for once in our short but fiery online relationship, we truly find common ground.

Thanks for finding it.

Cheers,
Cyrus

above should of course read

“I invite you to get [a tort “reform” organization] or any other [defendat’s]law firm (whether under indictment or not) to double my salary to support tort reform and see whether I accept

(these comment boxes are pretty cramped)

“You are incorrect that the facts were not in dispute.”

The RELEVANT facts are not in dispute. She spilled the coffee on herself, causing burns.

How she did so or the degree of the burns is not relevant to who is at fault. She spilled a hot substance on herself.

Was she the driver? Well, no (and that is certainly not in dispute HERE), but it doesn’t matter.

Was she mildly burned? Again, no (not in dispute here, either), but again, referring to McDonald’s liability, that doesn’t matter, either.

What matters is the following: is coffee served hot? If not, OK, there might be a case. If so (and it IS so), then who did the spilling? The party who did the spilling is the party responsible.

The other facts of the case are not relevant to the finding of fault.

The “sourse of my funding”? What are you rambling about? I asked you nothing about “the source of your funding.” However, since you ask,”the source of my finding” is the sweat of my brow as a common working man. A common working man who has become disgusted with the mockery that you and your ambulance chasing ilk have made of our legal system.

You are incorrect that the facts were not in dispute.

Cyrus, I did not say that the facts were not in dispute. I said that “most of which are not in dispute OR are not important.”

I gave an example: whether she was the driver or passenger. Lots of people do admittedly get that wrong — but what does that have to do with whether the case is a “poster child” case for tort reform? It’s unimportant. Nothing in McDonalds’ liability, or lack thereof, turns on that point.

You (like many tort reformers) list details of the monetary give-and-take, for instance by saying that she offered to settle for $20,000, and McDonalds rejected it. I don’t know that this has ever been “in dispute,” but assuming arguendo that it was, what possible relevance does it have to whether the case was correctly decided? Ditto for the facts related to remittur. Again, I don’t know that these facts were ever in dispute, but even if they were, what do they have to do with whether the case should ever have been brought or was correctly decided?

The dispute over Stella Liebeck between tort reformers and anti-tort reformers is not over the facts, but over the legal issues. Assuming that some of the facts you raise have actually been incorrectly stated by tort reformers, that doesn’t vitiate the tort reform argument that the case was problematic (that’s a polite word for “bogus”) as a matter of law.

(To the extent that it was correctly decided under existing law, that’s an argument for why the law needs to be changed, not an argument that the case was legitimate.)

Liebeck v. McDonald’s was not correctly decided under existing law. The “open and obvious danger” doctrine applies; the case should have been dismissed at the complaint stage.

Liebeck v. McDonald’s was not correctly decided under existing law. The “open and obvious danger” doctrine applies; the case should have been dismissed at the complaint stage.

As I’m sure you know, I agree with you on that. My only point was this: often (as in the McDonalds case) the anti-tort reform movement seeks to defeat arguments that a particular suit is frivolous by presenting facts about what happened designed to “prove” that the case has legal merit. That’s Tort Deform’s approach here.

And I’m saying that if we accept for the sake of argument that they’re correct, then that’s evidence the law needs to be changed, not evidence that tort reform proponents should close up shop and stop criticizing the case.