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The House of Representatives has passed another so-called tort reform bill that would limit recovery of people harmed or kill by acts of malpractice. H.R. 5, the “Protecting Access to Healthcare Act” would impose a cap of $250,000 that would severely cut the damages of victims and make it far more difficult for such victims to secure contingency counsel. The bill passed 223 to 181 with seven Democrats joining Republicans to pass the bill. The bill is unlikely to be considered by the Democratic-controlled Senate.
If enacted, H.R. 5 would cap the nonecomomic damages that a plaintiff in a health care lawsuit could recover. It would also preempt existing state laws on proportionate liability, allow courts to reduce contingent fees, and abolish the collateral source rule. For over 200 years, the authority to determine these matters and other aspects of medical liability law has rested with the states. For some reason, Republicans want to ignore 200 years of history, ignore state’s rights, and curtail the rights of ordinary citizens to seek complete justice.
We have written frequently about other misguided tort reform efforts in the United States. Click here to see our previous posts. A 2011 film called Hot Coffee puts faces on the rights at stake, and details the impact of caps and other tort deform efforts. It is a must see for anyone concerned about civil justice. You can view our post about the movie by clicking here.
We urge you to call your U.S. Senator and urge him/her to reject this misguided attempt to strip us of our rights, and leave tort law to the states.
A new study commissioned by Cintas Corporation found that nearly one in three American adults are unlikely to dine at a restaurant where someone they know had slipped and fallen.
The study, conducted by Harris Interactive, found that 30 percent of more than 1,000 adults surveyed were “very unlikely” or “somewhat unlikely” to dine at restaurants where such accidents occur.
“We’ve always known that slip-and-fall accidents result in increased costs due to litigation or injury, but this research shows that the cost of an accident might be even greater than initially thought,” said David Collette, Director of Marketing and Strategy, Cintas Foodservice. “Implementing a safe floor program not only mitigates hard costs and gives restaurant operators peace of mind, it can also offset potential long-term costs associated with lost business down the road.”
The survey surprisingly showed very little difference between gender or age, but interestingly, it showed adults residing in the Northeast are significantly more likely than those who live in the Midwest or South to say they would be very unlikely to dine out at a restaurant with a recent slip-and-fall accident (23 percent in the Northeast vs. 13 percent in the Midwest and 11 percent in the South).
Each year, more than 3 million food service employees and over 1 million guests are injured as a result of restaurant slips and falls, according to the National Floor Safety Institute (NFSI). A recent NSFI study indicates that the industry spends over $2 billion on such injuries each year and that these injuries are increasing at a rate of about 10 percent annually. A safe floor program helps reduce the opportunity for these accidents by providing restaurants with a program to protect, maintain and deep clean floor surfaces.
“As the economy begins to recover and restaurants compete for business, this research shows that a slip and fall accident can derail these efforts and send customers out the door,” added Collette. “A safe floor program not only protects employees and guests, but also a restaurant’s bottom line.”
The Massachusetts Supreme Judicial Court ruled that teenagers who host underage drinking parties but do not supply the alcohol cannot be held liable in a civil lawsuit if a partygoer is injured. The court also cleared parents or property owners of any liability if they knew nothing of the party or played no role in providing the alcohol. In its ruling in Juliano v. Simpson, the court noted that liability attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol. You can view the complete text of the court decision by clicking here. The Boston Globe report on the case is available by clicking here.
The case arose out of these facts: On July 2, 2007, 19 year old Jessica Simpson invited several friends, including 19 year old Christian Dunbar, to a party at her home while her father Peter Simpson was away. Dunbar attended with 16 year old Rachel Juliano, his then girlfriend. On their way to the party, Dunbar obtained a “thirty-pack” of beer and a bottle of rum at a package store. They arrived at the Simpson residence between 6 P.M. and 8 P.M., and Dunbar brought the alcohol that he had procured into the house. Over the course of the evening, Dunbar consumed one or two mixed drinks and six or seven of the cans of beer that he had brought to the party. Jessica drank beer as well, from a supply that she had obtained earlier. Although there were some alcoholic beverages belonging to Peter in the house, Jessica neither consumed those beverages nor offered them to her guests. Jessica stayed in the company of her guests throughout the evening.
Sometime before 11 P.M., Dunbar and Juliano began to argue outside the house. They were loud enough to draw the attention of several guests, as well as Jessica, who went out to investigate. Juliano pushed Dunbar, and a friend of his intervened, removing Dunbar to another part of the property while Jessica spoke alone with Juliano. Soon afterward, Juliano and Dunbar prepared to leave the party. Concerned that Dunbar was still upset from the argument and that Juliano had consumed too much alcohol to drive, Jessica proposed that she drive the two home. Juliano agreed not to drive herself, but Dunbar insisted that he take Juliano home. At approximately 11 P.M., Dunbar and Juliano left the Simpson residence with Dunbar driving. Shortly thereafter, the automobile struck a utility pole, causing injuries to both Dunbar and Juliano.
The court’s refusal to expand liability to the Simpsons in the cases stems from doubt that a social host can effectively prevent a guest from drinking the guest’s own supply of alcohol, in contrast to the host who furnishes liquor to guests. The latter host who furnishes liquor is like a bartender in a licensed establishment who is well situated to “shut off” guests who should not be drinking because of age or intoxication. The court noted that “[s]ociety may fairly expect” a host in the latter situation to take such action.
But in cases where guests provide their own liquor, the court takes a much different approach. The court acknowledged also that there were “a number of practical difficulties” inherent in imposing on social hosts a duty “to police the conduct of guests who drink their own liquor.” Among those difficulties, the court noted the unpleasant–and potentially counterproductive– enforcement methods available to hosts, such as physically ejecting an intoxicated guest from the property, thereby increasing the likelihood of that person driving while intoxicated.
Nationally, nine States impose social host liability for injury to third parties where a host merely provides a location for underage drinking, including Colorado, Florida, Hawaii, Minnesota, Nebraska, Nevada, Pennsylvania, Tennessee, and Texas. On the other hand, courts in at least four States (Alabama, Maryland, Vermont, and Wisconsin) have declined to impose liability premised on the control of property.
Drinking and driving is a persistent and widespread societal problem. Imposing tort liability is one way to curb this behavior. Indeed, and as Juliano pointed out in her legal brief submitted to the court, the prospect of civil litigation clan be a formidable incentive with real-life results. Studies sponsored by the U.S. Department of Transportation indicated that increases in civil dram shop liability corresponded with statistically significant drops in alcohol involved traffic crashes (See DOT HS 807 629 (1990) for the full text of the study).
But as is shown from this case, courts are reluctant to step in and impose civil liability when the legislative body is reluctant to do so. As the court noted in the Juliano v Simpson, the Legislature’s decision to deter and punish those who facilitate such conduct by the imposition of criminal penalties, but not impose civil liability, supported its decision to not expand tort liability. As the court noted, a number of bills have been filed over recent years seeking to add a civil liability provision to criminal statutes such G.L. c. 138, § 34 which was at issue in this case. These bills have been rejected to date. Since the 2003, the Legislature has rejected four attempts to add a civil liability provision (2003 Senate Doc. No. 1100; 2005 Senate Doc. No. 1020; 2007 Senate Doc. No. 968; 2009 Senate Doc. No. 1775). Each bill sought to insert the following language into the statute: “Any person who violates this section shall be liable in tort for injuries or death caused to any person as a result of the operation by a person under the age of twenty-one who is under the influence of alcohol.”
Following a Board meeting on the 2010 multi-vehicle highway accident in Gray Summit, Missouri, the National Transportation Safety Board (NTSB) called for the first-ever nationwide ban on driver use of personal electronic devices (PEDs) while operating a motor vehicle.
The safety recommendation specifically calls for the 50 states and the District of Columbia to ban the nonemergency use of portable electronic devices (other than those designed to support the driving task) for all drivers. The safety recommendation also urges use of the NHTSA model of high-visibility enforcement to support these bans and implementation of targeted communication campaigns to inform motorists of the new law and heightened enforcement.
“According to NHTSA, more than 3,000 people lost their lives last year in distraction-related accidents”, said Chairman Deborah A.P. Hersman. “It is time for all of us to stand up for safety by turning off electronic devices when driving.”
“No call, no text, no update, is worth a human life.”
On August 5, 2010, on a section of Interstate 44 in Gray Summit, Missouri, a pickup truck ran into the back of a truck-tractor that had slowed due to an active construction zone. The pickup truck, in turn, was struck from behind by a school bus. That school bus was then hit by a second school bus that had been following. As a result, two people died and 38 others were injured.
The NTSB’s investigation revealed that the pickup driver sent and received 11 text messages in the 11 minutes preceding the accident. The last text was received moments before the pickup struck the truck-tractor.
The Missouri accident is the most recent distraction accident the NTSB has investigated. However, the first investigation involving distraction from a wireless electronic device occurred in 2002, when a novice driver, distracted by a conversation on her cell phone, veered off the roadway in Largo, Maryland, crossed the median, flipped the car over, and killed five people.
Since then, the NTSB has seen the deadliness of distraction across all modes of transportation.
- In 2004, an experienced motorcoach driver, distracted on his hands-free cell phone, failed to move to the center lane and struck the underside of an arched stone bridge on the George Washington Parkway in Alexandria, Virginia. Eleven of the 27 high school students were injured;
- In the 2008 collision of a commuter train with a freight train in Chatsworth, California, the commuter train engineer, who had a history of using his cell phone for personal communications while on duty, ran a red signal while texting. That train collided head on with a freight train – killing 25 and injuring dozens;
- In 2009, two airline pilots were out of radio communication with air traffic control for more than an hour because they were distracted by their personal laptops. They overflew their destination by more than 100 miles, only realizing their error when a flight attendant inquired about preparing for arrival.
- In Philadelphia in 2010, a barge being towed by a tugboat ran over an amphibious “duck” boat in the Delaware River, killing two Hungarian tourists. The tugboat mate failed to maintain a proper lookout due to repeated use of a cell-phone and laptop computer;
- In 2010, near Munfordville, Kentucky, a truck-tractor in combination with a 53-foot-long trailer, left its lane, crossed the median and collided with a 15-passenger van. The truck driver failed to maintain control of his vehicle because he was distracted by use of his cell-phone. The accident resulted in 11 fatalities
- In the last two decades, there has been exponential growth in the use of cell-phone and personal electronic devices. Globally, there are 5.3 billion mobile phone subscribers or 77 percent of the world population. In the United States, that percentage is even higher – it exceeds 100 percent.
Further, a Virginia Tech Transportation Institute study of commercial drivers found that a safety-critical event is 163 times more likely if a driver is texting, e-mailing, or accessing the Internet.
“The data is clear; the time to act is now. How many more lives will be lost before we, as a society, change our attitudes about the deadliness of distractions?” Hersman said.
As the U.S. Chamber’s Institute for Legal Reform (ILR) holds its annual summit – a strategy session on eliminating Americans’ access to the civil justice system – a new report exposes ILR’s corporate board members that hypocritically use the courts for their own gain against competitors, customers and even each other.
In its newest report, Do As I Say, Not As I Sue, the American Association for Justice (AAJ) exposes the hypocrisy of 10 ILR board members that regularly use the legal system to advance their own agendas, while at the same time advocating legislation that would close the courthouse doors to anyone who would hold them accountable for their own wrongdoing.
“These corporations, like all Americans, have a right to seek justice through the legal system,” said AAJ President Gary M. Paul. “What makes their actions shameful and hypocritical is that these companies are members of ILR’s board for the sole purpose of denying American workers and consumers this same right.”
One ILR board member highlighted in the report is Honeywell International, which has regularly taken competitors to court, but would prefer not to be held accountable for distributing defective body armor to law enforcement personnel across the country, or downplaying the dangers of asbestos exposure.
In return for its financial contributions to ILR, Honeywell has received policy and public relations help when its negligence has been uncovered. Four days after an Illinois jury delivered a multi-million dollar verdict against Honeywell for conspiring to hide the dangers of asbestos, ILR issued a press release stating that the decision “confirms a troubling trend in the State of Illinois where there is a hostile ligation environment.” Additionally, the Madison County Record, an Illinois-based propaganda-as-news outlet fully owned by ILR, featured an article headlined, “McLean County Continues Inching Closer to Becoming a ‘Judicial Hellhole.'”
The irony does not stop with Honeywell – AAJ’s report also highlights the litigation hypocrisy of ILR board members FedEx, Dow Chemical Company, General Motors Corporation, Caterpillar, State Farm, Koch Industries, Abbott Laboratories, Prudential and Johnson & Johnson.
Online ads will run this week on major news sites and blogs to promote the report, Do As I Say, Not As I Sue: Exposing the Lawsuit-Happy Hypocrites of U.S. Chamber’s Institute for Legal Reform, which can be found at www.justice.org/USChamber. You can vie the written report by clicking here.
A new study released today by the national consumer rights organization, Center for Justice & Democracy, finds that news coverage of civil jury verdicts fails to provide an accurate picture of the civil justice system and that certain new media trends are making the situation worse. The study, “Headline Blues: Civil Justice In The Age Of New Media,” follows up on CJ&D’s January 2001 study, Reading Between the Headlines: The Media and Jury Verdicts. That report found the media’s coverage of verdicts to be deeply skewed, fueling common misperceptions that civil juries routinely award plaintiffs eye-popping verdicts for frivolous claims. Headline Blues finds this still to be true but certain new trends are producing even more distorted reporting.
According to CJ&D’s Executive Director Joanne Doroshow, “What people are learning about civil jury verdicts is becoming more and more skewed due to a number of factors. Digital news aggregators like Google and social media like Facebook and Twitter function by communicating only the briefest set of words and often just headlines. These headlines commonly emphasize large monetary awards, which do not reflect typical verdicts, and rarely note the misconduct that led to the verdict in the first place.”
“No matter how someone gets their news, whether from a local TV anchor, an online newspaper or blog, a car radio or a Twitter feed, most initial stories are still being written by journalists and editors at news organizations,” said Doroshow. “However, accuracy in reporting is often not receiving the attention it should. For example, we found that a verdict subject to state law that automatically ‘caps’ damages regardless of what a jury awards, is clearly something about which readers should be told. Yet from our analysis, this is not being done, or at least not being done clearly and responsibly.
“The economic pressures facing shrinking newsrooms, combined with the accelerating speed at which news must be produced, means that the public is being exposed to an overwhelming amount of brief, sensationalized and often incomplete coverage of civil jury verdicts. This is harming the public discourse about the civil justice system and preventing everyday people from understanding how important this system is to them in their daily lives.”
A copy of the full study can be found here.
In a new White Paper released today entitled WHAT YOU NEED TO KNOW ABOUT… PUNITIVE DAMAGES, the national nonprofit consumer group Center for Justice & Democracy “examines the truth about punitive damages” and argues that “the imposition or threat of punitive damages is so critical in the fight against reckless corporate behavior that any effort to restrict them undermines the safety of us all.”
According to the Center for Justice & Democracy’s Executive Director, Joanne Doroshow, “Punitive damages, which are awarded by juries to stop egregious wrongdoing, are one of the least understood features of the civil justice system. Conservative free-market economists have written that punitive damages help deter non-cost-justified misconduct so they are essential to a fair, safe and efficient society. We found that contrary to conventional wisdom, punitive damages are extremely rare. Their social importance lies not in their frequency, but in signaling to big companies that the financial consequences of acting recklessly can be severe.”
According to author Emily Gottlieb, Deputy Director for Law and Policy at the Center for Justice & Democracy, WHAT YOU NEED TO KNOW ABOUT… PUNITIVE DAMAGES debunks many common myths about punitive damages and “shows how punitive damages, either actual or potential, factor into corporate decision making about product safety.” Among the report’s findings are:
Punitive damages are rarely sought and rarely awarded (5 percent of civil cases, 3 percent of tort cases with plaintiff winners). Most punitive damage awards are quite modest ($64,000 median in civil cases; $55,000 median in tort cases).
History shows that the imposition or threat of punitive damages has caused corporations to take dangerous products and services off the market and operate more safely. Manufacturers support caps on punitive damages because caps allow them to precisely budget their potential liability as a cost of doing business. However, if it becomes cost-effective for companies to simply pay victims and their families for deaths or injuries rather than fix the problem, the essential function of punitive damages to deter unsafe corporate conduct is undermined.
Since the 1990s, the U.S. Supreme Court has been placing arbitrary limits on punitive damages remedies. Moreover, in addition, 38 states have passed laws that impede consumers’ ability to seek punitive remedies. Legislative restrictions include: 1) outright bans on punitive damages; 2) damages caps; 3) mandatory apportionment of punitives to state funds; 4) heightened burdens of proof; and 5) bifurcated trials.
Congress is considering federal legislation – H.R. 5 – that would make it virtually impossible for medical malpractice and drug injury victims to obtain punitive damages from doctors, hospitals, nursing homes, pharmaceutical companies or medical device manufacturers, and would impose these federal limits in every state, overturning state law.
Many who have pushed for restrictions on consumers’ ability to seek punitive damages, including major companies pushing for caps on damages and other liability limits, do not hesitate to demand punitive damages when they feel their own interests have been compromised.
Federal and state tax laws generally allow corporations to deduct punitive damages payments. Allowing companies to deduct punitives as “ordinary and necessary business expenses” effectively rewards and subsidizes grossly irresponsible or intentional behavior, undermining their purpose to deter egregious misconduct.
Writes author Emily Gottlieb, “The availability of punitive damages protects us all by holding wrongdoers accountable for egregious misconduct and deterring its future occurrence. Laws that restrict punitive awards place the public at serious risk, and lawmakers should not be misled by falsehoods spread by corporate special interests about this most valuable and important feature of our civil justice system.”
The full study can be found here.
In a victory for consumers in Massachusetts, Norwegian Cruise Lines was ordered by the Supreme Judicial to pay damages, reasonable attorneys’ fees, and costs.
Plaintiffs brought an action against defendant, seeking a refund of two cruise tickets they purchased and cancelled following concerns about the September 11, 2001 terrorist attacks. The plaintiffs received their tickets for a cruise scheduled to depart on September 16, 2001. After the terrorist attacks of September 11, 2001, the Casavants, fearful of taking a cruise that was scheduled to depart from Boston on September 16, contacted Norwegian several times in an effort to reschedule it. Norwegian refused to reschedule their trip, deemed them to have cancelled their voyage, and refused to refund the price of the tickets. The plaintiffs subsequently retained counsel and sent Norwegian a demand letter pursuant to G.L. c. 93A, § 9(3), dated August 22, 2002, claiming that they were entitled to a refund of the price of the tickets plus interest and attorney’s fees based on a number of unfair and deceptive acts and practices on the part of Norwegian that violated G.L. c. 93A, §§ 2 and 9.
The case took nearly 10 years to work its way through the Massachusetts court system, including two trips to the appellate courts. But the plaintiffs were awarded with a victory by the Massachusetts Supreme Judicial Court. The court opinion detailing the background and history of the case can be viewed by clicking here.
The court ruled that the evidence at trial plainly established that defendant violated the Attorney General’s travel service regulations in two respects: fist, it failed to disclose the refund policy; and second, having violated the disclosure statement, it failed to refund the payments made by a cancelling customer within thirty days. These violations qualified as unfair or deceptive acts, and they caused plaintiffs a loss: the lack of a prompt refund of the ticket price.
The court also concluded that plaintiffs’ demand letter satisfied the requirements of G.L.c. 93A, section 9(3). The purposes of the demand letter were sufficiently fulfilled where it constituted fair notice of the claim and enabled defendant to make a reasonable tender of settlement.
Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts?
Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. The movie premieres on HBO this month. The HBO preview can be viewed by clicking the image below.
For more information on show times on HBO, click here.
We have written frequently about misguided tort reform efforts in the United States. Click here to see our previous posts. This film puts faces on the controversy and is a must see for anyone concerned about civil justice. You are urged to spend 86 minutes watching this film. The official film trailer can be viewed by clicking the image below.