ThePopTort

Liability for Killer Trees and Tree Killers

For all you zealous government budget cutters out there, remember this old adage: sometimes, an ounce of prevention is worth a pound of cure.  Translated into more modern budget-cutting jargon, government money spent to prevent horrendous injuries or death saves taxpayers boatloads of money in the long run, not to mention priceless amounts for the families involved. 

Today, it was reported, “The family of a 7-year-old Omaha [Nebraska] boy who died in 2010 when a falling tree branch struck his head has reached a settlement with two governments to receive $155,000.”  The family had asked for $3 million.  At least they received something for the life of their child.

The little boy lived on property owned by the Omaha Housing Authority.  Reportedly, “OHA officials have said they were not sure whether the housing authority or the city was responsible for inspecting and maintaining the tree.”  Well, maybe now they’ll figure it out because tragedies like this are preventable if governments do their jobs properly.  That’s what other cities have started to figure out, as well.

In Illinois, metallic-green beetles have been "wiping out ash trees across the region” and “municipalities are spending thousands of dollars to remove and replace trees.” 

“They have no choice but to spend the money on it because otherwise it becomes a huge liability,” said Julieann Heminghous, emerald ash borer outreach coordinator for the state.

Financially, it is more sound to remove trees before they fall and damage property or injure or kill someone, she said.

Similarly in New York City, following a devastating 3-part series about horrendous injuries and deaths due to falling trees in city parks, and “[a]fter years of declining budgets for the care of New York City’s street trees, city officials and lawmakers more than doubled the amount for the fiscal year that began" in July, 2012.

That’s a welcome change from the attitude of some city lawyers who, according to the earlier series,

[H]ave aggressively fought several of the cases, denying blame in what they called tragic accidents. They argued that the city was not required to regularly conduct state-of-the-art inspections to determine whether trees were rotting or disease-ridden.

As the Times also noted,

Tree-care experts say the testimony and records raise broad safety questions nationally. Preventive care of urban trees has been a budget casualty from Philadelphia to Chicago to San Jose. “It’s a problem here and everywhere,” said Douglas Still, the chief city forester in Providence, R.I. “Pruning programs are being cut, not increased.”

Some tree-care experts fear cuts will bring more accidents — and damage payouts. “It’s an old adage — an ounce of prevention is worth a pound of cure,” said Randall Swanson, a forestry professor at Paul Smith’s College in upstate New York. “Preventative measures can go a long way toward reducing the possibility of tree-related injuries.”

Weekend Update, PopTort Style

We’ve invited SNL’s city correspondent Stefon to tell you what you need to know about ThePopTort’s hottest story updates this weekend! (If you don’t know Stefon, here’s one of his recent New York City club recommendations: “New York’s hottest club is Taste. Nightlife designer Tranny Griffith is back with an all-new club that answers the question Huh?!? Don’t look for a bouncer – there isn’t one. Instead the door’s guarded by ten jacked homeless guys in old-fashioned bathing suits. And inside it’s just sick: ice sculptures, winos, Germufs – German smurfs – a Teddy Ruxpin wearing mascara, an old lady wearing Kid 'N Play hair, and none other than DJ Baby Bok Choy.”) Ok, here goes.

Back in October, we told you about the Center for Justice & Democracy’s new study, Headline Blues: Civil Justice In The Age Of New Media. This report shows how the media are producing a deeply skewed and distorted understanding of our civil jury system.  Along those lines, this week’s hottest irresponsible media story was coverage of a medical malpractice jury verdict in Colorado. This verdict will be drastically cut due to the state’s cap on non-economic damages but you’d barely know that thanks to news articles like this and this. Coverage of this verdict has everything: screaming headlines of an eye-popping verdict, sensationalization of the verdict throughout most of the articles, irresponsible placement (i.e. far down into the articles and in one case the very last paragraph) of the fact that state law “caps” damages regardless of what a jury awards.  

Next, we told you last year about the painful impact of Indiana’s state liability “cap” as applied to the Indiana State Fair state collapse.  This tragedy had everything: 7 deaths, many injuries, some catastrophic. A state law that capped damages at $5 million for the entire incident, upped to $6 million by the General Assembly. And now this week, we learn that anyone who accepts a paltry state settlement must also accept a limited private settlement from companies that built the stage along with a complete waiver of liability for any claim against them. And victims are given a whopping two weeks to act. 

Finally, one of the U.S. Supreme Court’s hottest cases next term is Kiobel v. Royal Dutch Petroleum, which we last covered here.  This case presents important issues for a Court hell bent on immunizing corporate wrongdoers from liability.  This includes the possible (some think likely) drastic curbing of the age-old Alien Tort Statute. The ATS is a remarkable federal law that until now has allowed people from countries outside the United States to sue foreign individuals and multinational corporations that commit human rights violations abroad - like torture, crimes against humanity, war crimes, genocide, disappearances, summary execution, etc. Thompson Reuters provides a new analysis here, noting that “the State Department's legal adviser, former human rights litigator Harold Koh, refused to sign the Justice Department's recent amicus brief advocating certain limits on the ATS's reach overseas.”  That should tell you something right there. 

On the other hand, and for no particular reason, here are some great NYC club recommendations.  Have a great weekend!

Challenging the Barbarity of Caps

In honor of Memorial Day, here are a few patriotic factoids.  The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.  What has happened to our nation's respect for civil juries?

We’ve covered the tragic case of former student Ashley Zauflik, who was the victim of an out-of-control school bus, which mowed down about 20 kids.  Ashely lost her leg, and a jury awarded her $14 million.  But because the bus was owned by the school district and not a private company, an outrageous and frankly cruel law was triggered, which caps total compensation to her at $500,000.  Yesterday, the judge in the case was forced to cap her award at this amount, even though the school district has an $11 million insurance policy.  The judged practically begged the state Supreme Court to do something, saying,

“There is no dispute that the circumstances of this case create an unfair and unjust result” Bucks County Judge Robert J. Mellon said while upholding the liability limit on school districts and municipalities. A “reevaluation of the constitutionality of the statutory cap on damages … is necessary.”

Pennsylvania, step in line.

Florida’s high court is now considering that state’s non-economic damages cap in medical malpractice cases.  The case, “McCall v. U.S., concerns 20-year-old Michelle McCall, who bled to death while giving her birth to her son” due to the negligence of the medical staff. Among the damages awarded in that case was $2 million in non-economic damages, including compensation for her son’s pain and suffering. The cap reduced this to $1 million.

“The Florida judiciary has already determined in the past that damages caps violate the state constitution because they don’t provide access as everyone has understood it,” says Robert Peck, the lawyer representing McCall’s estate in the case. “Access means full redress for the injury received. So a person who receives $1 million when full compensation should have been $2 million did not have that access.”

Meanwhile, in April, the Missouri Supreme Court upheld that state’s wrongful death cap, but a new challenge has now reached the court.  At the end of March, writes Tort Prof Blog,

[T]he Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution.  In 2011, a jury decided that physicians failed to act when an unborn child showed signs of distress in the womb.  The child was born with cerebral palsy and will not progress beyond the mental capacity of a three-year-old.  The jury awarded $4,821,000 in total damages.  Of that amount, $1.45M was non-economic and was reduced to $350,000 pursuant to the cap.

And in Mississippi, a local judge ruled in April that Mississippi's cap was unconstitutional, noting, "The issue is not whether the limits imposed under the statute are reasonable. Rather, the issue is whether the Legislature has the authority to impose any limits, reasonable or not."  He said the framers of the constitution created the civil justice system and put the courts in charge of it.  Meanwhile, the state Supreme Court is already considering the constitutionality of the cap, after the question was certified to it by the U.S. Court of Appeals for the Fifth Circuit in a case against Sears.  In that case,

Lisa Learmonth sued Sears, Roebuck and Co. after she was in a collision with one of the company's vans near Philadelphia, Miss., in 2005.

A federal jury in 2008 determined Sears was liable for Learmonth's injuries and awarded $4 million in damages. The parties agreed $2.2 million was for non-economic damages, and the federal judge reduced that part of the damages to $1 million.

Hey, if you want an excuse to escape the relatives this Memorial Day weekend, just tell them that you want to bone up on a very patriotic topic, and then go here.  Much healthier than eating hot dogs.  Happy reading!

New Orleans Buoyantly Looks Up (We Hope)

When the story hit over the weekend about how defensive players on the New Orleans Saints “maintained a 'bounty' program funded primarily by players … for inflicting injuries on opposing players,” I thought, “we sure could use some news about this great city where someone hasn’t been hurt!”  (Or maybe it was just a bad weekend.)

Those hurt by BP’s Deepwater Horizon explosion and massive oil spill were certainly the subject of big news late Friday, when BP agreed to “settle health and economic damage claims by individuals and businesses who were harmed by the Gulf of Mexico oil spill,” removing Ken Feinberg and the tainted Gulf Coast Claims Facility from the claims process and, if approved, substituting instead Patrick Juneau, an experienced special master from Lafayette. BP estimates that the deal will cost about $7.8 billion but the settlement is uncapped, “meaning there's no limit on how much money is available to pay damages.” 

The plaintiffs say that the new process will be more transparent than the Gulf Coast Claims Facility. Calculations will be made under formulas approved by the court, so people will be able to see exactly how their award was made and can dispute it if necessary. Few details are available about how the claims will be organized, but they take into account the types of damage and proximity to the coast. Each claim will be multiplied by a "risk transfer premium" that will differ by type of claims since no punitive damages were awarded by a court. The plaintiffs say that the risk transfer premium will ensure that their deal will pay more in compensation than what Feinberg did, but not enough details have been worked out from their agreement in principle to say what the multipliers are and how large the biggest multiplier is.

"Under the new program, eligible claimants will generally be paid greater benefits than under the GCCF," said Stephen Herman and Jim Roy, liaison counsels for the plaintiffs, in a press release.

Yet that’s not all.  Hurricane Katrina made the news late Friday, too.  As the Times-Picayune reported it,

The U.S. 5th Circuit Court of Appeals on Friday upheld a lower court ruling finding the Army Corps of Engineers responsible for flooding portion of the Lower 9th Ward and St. Bernard Parish during Hurricane Katrina because of its failure to maintain the Mississippi River-Gulf Outlet. If upheld by the U.S. Supreme Court, the ruling could eventually result in residents, businesses and local governments being reimbursed for damages of as much as $20 billion, according to the lead attorney representing plaintiffs in the case.

We should also note that this decision, “found the corps to be immune for damages to thousands of New Orleans residents caused by flooding when walls along drainage canals in western New Orleans failed,” even though “negligent and wrongful acts of federal employees” may have been involved.  But, said the Court, “the failure to maintain the MR-GO was unrelated to the flood control activities represented by the levees along its banks, and instead was the equivalent of a Navy captain failing to maintain a ship that crashes through a levee.”

AP notes that the lower court judge,

[A]warded a total of nearly $720,000 in damages to five plaintiffs who sued. The corps also has received roughly 500,000 administrative claims that could become fodder for similar suits.

Plaintiffs’ attorney Pierce O’Donnell expressed hope that Friday’s ruling could stimulate settlement talks with the government to resolve the pending claims.

“This is a landmark victory, not just for the people ravaged by Katrina’s flooding but for all Americans,” he said. “We must hold our government accountable when it inflicts avoidable harm on its citizens.”

Next up – shaking that “Murder City” title.  One step at a time.  

Corporate Rights Without Responsibilities, Take Two

Yesterday marked the 19^th anniversary of 1993 terrorist bombing of the World Trade Center.  It’s hard for many of us to even recall this event in light of the horrific events of 9/11, yet that first bombing did kill six people and injured hundreds of others.  Many of those victims sued the Port Authority of New York and New Jersey, since the agency had been warned about the trade center’s vulnerability to bomb attacks.  But it’s been some struggle. Last September – that’s right, September 2011 – a divided state Court of Appeals finally found the agency immune from suit.

Lately, New York state courts haven’t been terribly kind to victims of terrorism and human rights abuses. 

Tomorrow, the U.S. Supreme Court hears an incredibly important case called Kiobel v. Royal Dutch Petroleum, stemming from a federal lawsuit brought under the Alien Tort statute, a remarkable federal law that allows people from countries outside the United States to sue foreign individuals and multinational corporations that commit human rights violations abroad - like torture, crimes against humanity, war crimes, genocide, disappearances, summary execution, that kind of thing.  No other country in the world has a statute like this.

Under the Alien Tort statute, those who order or authorize the violations can be held liable.  Those with command responsibility, including those with authority over the actions of their troops and subordinates, who knew about the violations, can be liable.  Also, some cases have allowed suits against groups involved in human rights violations (e.g., the Zimbabwe African National Union-Patriotic Front, the Islamic Salvation Front).  Individuals who commit genocide, crimes against humanity and war crimes can be held liable even if they are not acting with the authority of the state.  (See more here.)

And until Kiobel, corporations headquartered or doing business in the United States have always been liable, as well.  (We've covered some of this here.)  But the 2nd Circuit changed everything.  An article in the Harvard International Law Journal explained it this way:

On September 17, 2010, a two-judge majority of the Second Circuit held in Kiobel v. Royal Dutch Petroleum Co. that “corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the [Alien Tort Statute].”  The Alien Tort Statute (“ATS”) is a well-known tool that grants U.S. federal courts jurisdiction over civil suits brought by aliens for torts committed in violation of international law. The statute has been used for the past three decades to hold perpetrators of human rights abuses accountable in U.S. courts. Some ATS cases have involved conflict zones, and since the mid-1990s, ATS cases have been brought against corporations for their alleged involvement in human rights violations.

Prior to the Kiobel court’s ruling on September 17, no appellate court had ever held that corporations were not subject to suit under the ATS.  Indeed, numerous corporate ATS cases had proceeded through the courts with no indication that corporations could not be held liable or that this was an issue of subject matter jurisdiction. By ruling that the scope of liability for a violation of a given international norm does not extend to corporations, the Second Circuit majority, in the words of concurring Judge Leval, “deals a substantial blow to international law and its undertaking to protect fundamental human rights.”

The scary part now is that the U.S. Supreme Court is about to get its hands on this case.  Why scary?  When you think about it, treating corporations like people should be a no-brainer for this Court.  As David Savage at the LA Times put it,

Two years ago, the Supreme Court said corporations were like people and had the same free-speech rights to spend unlimited sums on campaigns ads. Now, in a major test of human rights law, the justices will decide whether corporations are like people when they are sued for aiding foreign regimes that kill or torture their own people.

But then again, there’s this other principle at work with this Court - letting corporations get away with whatever they want. Peter Weiss, vice president of the Center for Constitutional Rights in New York, wrote a powerful op ed in the New York Times over the weekend, explaining:

Next week, the Supreme Court will hear a case with many potential ramifications for American and international law, and for corporate responsibility for human rights around the globe. The justices will be asked to decide whether the corporations to which they have been extending the rights of individuals should also be held accountable for crimes against human rights, just as individuals are....

[D]ozens of successful alien tort claims have been brought in American courts — at first against individuals, and eventually against corporations. As a result, many foreign victims of egregious crimes — ranging from torture and slave labor to the execution of loved ones — that were sanctioned, endorsed or commissioned by corporations have found justice in our courts.

Yet in September 2010, a divided Second Circuit — the very court that had rendered the Filártiga decision — held that only individuals, and not corporations, can be sued under the statute.

That ruling, in a case known as Kiobel v. Royal Dutch Petroleum, came less than a year after the much more famous — and criticized — Supreme Court decision in Citizens United, which removed restrictions on political spending by contributions and wildly expanded the concept of corporate personhood.

Together, these decisions have triggered a wave of outrage among advocates for human rights, which see in them a signal from the courts that corporations have extensive rights but few responsibilities under American law.

Rights without responsibilities.  Welcome to the eighth blunder of the world.

UPDATE:  Indeed, it sure doesn't look good for the victims.

A Tale of Two (or Three) Settlements

If Charles Dickens were to come back to earth, I’ve got a great novel idea for him because let me tell you, the plight of the French peasantry has nothing on these folks.

As we’ve been covering here at ThePopTort, the horrendous situation created by Indiana’s $5 million overall incident “cap” on damages is finally hitting home.  Yesterday, Ken Feinberg, who has done such a bang up job for victims of the Gulf oil spill on behalf of BP (not really), and who was tapped to do the same on behalf of the state for victims of the Indiana State Fair stage collapse, announced yesterday that the families of the seven people killed will get $300,000.  And get this (not that we should be surprised).  Just as he did for BP,  Feinberg is pressuring these families to sign quickly and requiring a complete liability release, so if they take this paltry sum, these families can’t even challenge the cap in court:

If families and victims agree to the payments, they wouldn't be allowed to sue the state. Indiana law caps the state's liability at $5 million, and some victims' families have already filed lawsuits challenging that limit. The offers must be accepted or rejected by Monday....

Attorney Mario Massillamany said his client Lisa Hite suffered head injuries and a fractured heel but was offered only about $7,000. Her medical bills are already six times that amount, let alone her lost wages and future bills.

Plus they offered "$500,000 to a 17-year-old boy who suffered full-body paralysis."  Yet Indiana isn’t alone in its cruelty.  On Monday a Philadelphia area jury awarded $14 million to a young women who had to have her leg amputated while still a high school student, when a school bus plowed into a group a students.  But Pennsylvania has a $500,000 liability cap for municipalities and school districts, so the judge is going to have the ignore the jury (whose award included $3 million so she can get things like prosthetics) and reduce the award to the cap – if she’s lucky.  As AP writes, like Indiana’s law,

The $500,000 cap applies to all awards stemming from a single incident. And seven others have sued over injuries from the crash. If the cap is upheld, Zauflik could be left to share the $500,000 with any others who win damage awards.

Meanwhile, yesterday a big settlement was announced for the families of those 29 miners killed last year in the Massey Energy Upper Big Branch mine explosion in West Virginia.  The company, now owned by Alpha, will pay $46.5 million to the families of those killed and to the two co-workers who lived.  That’s $1.5 million per family.  The company will also “spend $80 million to boost safety in all of its underground mines and set up a $48 million fund for mining-safety and health research. Alpha Natural Resources also agreed to pay $34.8 million in fines and fees that Massey Energy owed to the Mine Safety and Health Administration.”

CBS reports,

“The settlement was bitterly criticized by some of the dead men's relatives, who said they won't be satisfied until charges are filed against those they consider responsible for the catastrophe, the nation's deadliest mine accident in 40 years.

Gary Quarles, whose son Gary Wayne Quarles died in the disaster, said: "I want to hear names, and I want to know what they're going to be charged for. Today would have been a fine day for them to have told us.” The families still want criminal prosecutions.

Yes, the settlement begs for more.  But compared to victims of disasters caused by government entities, at least they’ve left the starting gate.

Talking Turkey About State Liability

Immunity can sometimes be appropriate, like for innocent turkeys or unindicted co-conspiring Presidents. OK, bad example.  But it’s really not something deserving of institutions with the capacity to harm or kill people – even if they’re state governments. 

For example, ask the victims of the Indiana State Fair stage collapse tragedy, which we’ve been covering here.  Many of these victims are in desperate need of compensation.  One party responsible for this devastating tragedy– the state of Indiana - is not exactly immune from liability.  However, practically speaking it is for many victims who will be unable to recover anything due to the state’s $5 million liability cap.  Many of them have now brought suit against the singing duo Sugarland, who these victims came to see.  “The complaint charges that Sugarland and the other entities owed a duty to provide a safe concert environment and use reasonable care in the direction, set-up and supervision of the concert. … Sugarland's contract specified the act had the final say on whether to cancel the concert due to weather,” said one of the victims’ attorneys.

It’s a tragedy all around, but one made far worse by the state’s Draconian liability cap.  Earlier we wrote,

Why is it that people don’t seem to realize the impact of these callous, one-size-fits-all caps until something happens to them?  Or to 160 people in a horrific train collision?  Or when environmental catastrophes occur like the BP explosion and oil spill?  Or when a horrifying stage collapse kills seven people and injures more than 40?  Who exactly do people think are hurt by caps?

Take note, Seattle Times, whose editorial yesterday calls for more onerous legal burdens on victims of state misconduct - in order to save state money.  Shouldn’t the focus be on stopping the injuries and deaths leading to claims in the first place, rather than trying to solve budget problems on the backs of the sick and injured?  It's a turkey of an idea.  On that note, Happy Thanksgiving everyone!

Holding Governments Accountable When They Hurt People

Don’t get me wrong, I'm not one of those anti-government types complaining about “too much government” or holding signs like “Government, keep your hands off my Medicare.”  I like my roads, fire departments and socialized medicine just fine, thank you very much.

But governments – and people who work in government - sometimes do very bad things to other people.  Shouldn’t they be held accountable just like anyone else?  There have been a few interesting stories in the news lately which highlight this point.

First of all, the deadline for filing claims in the Indiana State Fair stage collapse, which we’ve covered here, was Tuesday, and the number of claimant has now reached 100. But because of the Draconian $5 million cap on liability for the state, most of the injured will get nothing, and the catastrophically-injured won’t get anything close to what they need to survive. 

To provide another sense of the inequity of this, contrast this situation with 15 women who were raped and molested by jailers Oklahoma.  Yesterday, the county agreed to settle those claims for $13.5 million. 

In New York this week, a few “bad government” stories have also come to light.  The New York Times writes about a preemptive lawsuit being brought by a tenant named James Whelan who is fighting eviction, but the suit is about keeping his name off a tenant blacklist created by state government for tenants who are trying to stop illegal evictions!  Incredibly,

The New York State Office of Court Administration sells to private companies the names of everyone who is sued in housing court for eviction on the very day the case is put on the calendar. Those companies then compile the information and sell it to landlords looking to avoid difficult or irresponsible tenants.

But those screening lists do not make a distinction between renters who ultimately win their cases (perhaps they withheld rent because they had no heat) and those who lose …[!]

Mr. Whelan’s lawyer, James B. Fishman, says this practice has a chilling effect on tenants’ rights, as some people opt to move out rather than face their landlord in court and risk being blacklisted for years. (Companies that curate these lists are supposed to purge names after seven years, but some are notoriously sloppy.)

In the meantime, while New York City’s chief lawyer Michael Cardozo is running around town arguing that the legal rights of everyday New Yorkers should be stripped because their injuries are too costly, the city itself just had to pay $70 million to the feds and a whistleblower because the city was defrauding Medicaid.  The New York Times writes:

Preet Bharara, the United States attorney for Manhattan, reacted angrily to Mr. Cardozo’s contentions that the settlement reflected a mere technical problem, and that it accounted for “less than half of 1 percent” of the $18 billion cost of the program in the city over 11 years. He noted that the Justice Department’s original complaint, filed in January, had alleged tens of millions of dollars in improper billing, and that the settlement was within that range.

“It is unfortunate that Mayor Bloomberg’s counsel would contradict the stipulations that he personally signed and submitted to the court, in which he acknowledged that the settlement was fair and reasonable,” Mr. Bharara said. “The city’s argument that this case was about ‘paperwork’ was specifically rejected by Federal District Court Judge Jed Rakoff when he denied the city’s motion to dismiss this case.”

How about just following the law?  That might help.

The Indiana Fair Stage Collapse and Ruing a State Cap – Again.

Back in 1975, Indiana lobbyist Frank Cornelius, whose clients included the Insurance Institute of Indiana, helped secure passage of a hard $500,000 cap on compensation for patients injured by medical malpractice in Indiana.  On October 7, 1994, Cornelius wrote an op ed in the New York Times but it's not what you think.  The article was called “Crushed by my own reform,” and he wrote about the tragic, horrible mistake he made lobbying for this cap, saying he “rue[s] that accomplishment.”  Here's why. Beginning in 1989, Frank Cornelius experienced a series of medical catastrophes that resulted in his wheelchair confinement, respirator-assisted breathing and constant physical pain. Though his medical expenses and lost wages amounted to over $5 million, his claims against both the hospital and physical therapist at fault settled for a mere $500,000 – the cap.  (The Times archives don’t go back that far, but you can find lots of reference to this article like here, here.)

Why is it that people don’t seem to realize the impact of these callous, one-size-fits-all caps until something happens to them?  Or to 160 people in a horrific train collision?  Or when environmental catastrophes occur like the BP explosion and oil spill?  Or when a horrifying stage collapse kills seven people and injures more than 40?  Who exactly do people think are hurt by caps? 

Turns out that Indiana doesn’t just cruelly cap compensation for medical malpractice victims.  It also severely caps responsibility for the stage collapse - at $5 million.  This is about what one catastrophically-injured person – someone like Frank Cornelius, say – might need just to survive.  Or as the Indianapolis Star Tribune put it:

Consider this: If the families of the seven people killed each received the maximum allowed under the law, those payments would eat up $4.9 million -- leaving only $100,000 to split among the more than 40 other people injured. The medical bills of just one victim who spent more than a few days in the hospital would easily eclipse that.

The bottom line is not pretty. Despite the state's pledge to pay out the liability funds as quickly as possible, the sheer number of injuries and deaths means victims and their families are not likely to receive the $700,000 maximum allowed under law. And many are likely to receive payouts far short of their actual medical bills.

Indiana state Rep. Ed DeLaney (D-Indianapolis) says, “This is a place where we actively invited people to come, we chose not to regulate, and then we chose not to shut (the concert) down. Our role is so deep that we need to take care of our people.” So he plans to introduce a legislation to increase the cap, although he admits that even this effort may result only in a one-time only waiver of the cap and not a permanent change in state law.  I’m sure the Insurance Institute of Indiana’s new lobbyist is working overtime to make sure that doesn’t happen.  And looks like he/she may have some allies, like “Senate Appropriations Committee Chairman Luke Kenley, R-Noblesville, who says, 'I probably would not be in favor of that, not a general raising of the cap. I think this is a call to arms by trial lawyers a little bit' and 'Once you start arguing whether a cap should be raised one time, you should be saying, "Do we want the cap raised in all cases?"'  Uh, yeah.

The Star Tribune notes, “there is precedent for stepping outside the lines in the wake of a major tragedy -- both in Indiana and elsewhere.”  For example,

[I]n Minnesota, after the 2007 bridge collapse that killed 13 and injured more than 100 others, the Legislature waived its existing liability cap of $1 million per occurrence. In all, the state ended up paying out a total of $38 million to victims.  None of the lawyers took any fee. …

“When the legislature passes those kinds of (liability caps), they don't really think about that kind of catastrophic event until it happens,” said Carla Ferrucci, executive director of the Minnesota Association for Justice, a trial lawyers group. “What if (victims) need to have lifetime outside health-care support? And with medical bills being what they are, it's pretty easy to rack up a million-dollar medical bill.”

And what about taxpayers who might argue that the state shouldn’t pay these victims?  Well, when victims like this aren’t compensated, they’re forced onto Medicaid.   Taxpayers are gonna pay, one way or another.

(Photo by Joey Foley/Getty Images)