ThePopTort

"Tort Reform" Imprints

Sometimes we get so caught in the specifics of this bill or that bill, that we forget what’s behind all of them: an orchestrated 40-year corporate campaign to obtain control over the civil justice system. Taking power away from juries. Electing anti-consumer judges. Eliminating liability for corporate wrongdoing. Keeping injured victims out of court. It's all part of the same cruel, anti-democratic and anti-free market movement known as “tort reform.” And for those who want to learn more, there are some great new materials out there.

Professor Andrew F. Popper, Bronfman Professor of Law at American University Washington College of Law, has just published the second edition of his book, Materials on Tort Reform. As reported in TortsPro Blog, “In the quest to cut the Gordian knot of tort reform, the hope is to provide all points of view in an accessible and compelling manner.” This isn’t a book just for law students or faculty members. It’s a great read for anyone curious about it all.

Then, there's this new published and fully-sourced on-line piece by Billy Corriher, deputy director of Legal Progress at the Center for American Progress. The piece leads with an analysis of a U.S. House of Representatives bill passed on June 28 – H.R. 1215 – “that would erect steep hurdles for injured patients looking to hold health care providers accountable for medical malpractice.”

But then, the article talks about where this bill fits into the larger “tort reform” movement, including the link to Big Tobacco:

The Seventh Amendment to the Constitution states that “the right of trial by jury shall be preserved.” Commenting on the right to a trial by jury, John Adams said that Americans have “no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Corporations that don’t like being sued bankroll tort reform efforts

The medical and insurance industries launched a movement in the 1980s to limit lawsuits, and the so-called tort reform movement gained momentum when Big Tobacco got involved after facing massive lawsuits for its poisonous, addictive products. A 1986 memo from the Tobacco Institute laid out a plan for creating groups that appeared to be grassroots-driven but were actually “coordinated” by Big Tobacco.

There's so much more interesting stuff, so do check out the whole article.

And finally, for a fascinating “where are we now” overview, Joe Palazzolo at the Wall Street Journal this week looked at what this movement seems to have wrought – statistically, at least. Here’s some of what he found:

Fewer than two in 1,000 people—the alleged victims of inattentive motorists, medical malpractice, faulty products and other civil wrongs—filed tort lawsuits in 2015, an analysis of the latest available data collected by the National Center for State Courts shows. That is down sharply from 1993, when about 10 in 1,000 Americans filed such suits.

A host of factors are fueling the decline, including state restrictions on litigation, the increasing cost of bringing suits, improved auto safety and a long campaign by businesses to turn public opinion against plaintiffs and their lawyers.…

Anthony Sebok, a torts professor at Benjamin N. Cardozo School of Law in New York, contends the public perception of tort filings has never matched reality. Even at peak growth in the mid-1980s, tort cases amounted to about 20% of civil filings in state courts, on average.

“We as a society seem to be OK with plaintiffs when they are debt collectors coming in and using the court system more than they used to, but we somehow instinctively think it’s a bad thing when victims of accidents come in and do the same thing,” he says.…

More than 30 states have capped damages in medical malpractice or other cases since the 1970s, according to the Center for Justice & Democracy, a group that opposes such laws.

In other words, “tort reform,” in one of its various cruel shapes and sizes.

HuffPo Repost: Blocking the Courts: The Trump Triple Threat

One thing seems undeniably true about the health care bill’s demise: when the public has a right to something, it’s pretty hard for politicians to take that away. But things aren’t always so simple, especially when the public may be unaware of what officials are up to. Take the issue of access to the courts. Most American’s believe they have a fundamental right to go to court if they’ve been hurt by corporate or other misconduct. Voters certainly did not send politicians to Washington to block that access. But in three separate instances so far, the Trump administration (with Congress’ help) has begun doing just that, and the general public has no idea.

The problem actually started six years ago, when the U.S. Supreme Court began doing terrible damage to the right to access the courts. The Supreme Court decided that when it comes to remedying harm caused by corporate wrongdoing, companies themselves could keep Americans out of court. They could force customers or employees into private, secretive arbitration systems controlled by the very corporations that cheated or harmed them in the first place. And no class actions, where individuals can join with others in one case, would be allowed. When a company practices a pattern of discrimination or receives a windfall through small injuries to large numbers of people (think, a bank charging millions of customers illegal fees), a class action is the only realistic way for individuals to access the courts, and for a law-breaking company to be held accountable.

To fix misguided Supreme Court decisions like this, Congress or federal agencies must act. And indeed, the agencies got busy.

Keep reading.

Policing: Congress’ Bad New Federal Idea

On this very sad anniversary of the senseless police shooting of Alton Sterling in Baton Rouge, we are reminded of two subsequent after-effects/events: the horrendous ambush killing of three Baton Rouge police officers 12 days later; and, to date, the frustrating lack of charges filed against Sterling’s shooters, which is nothing if not typical. As the Center for Justice & Democracy notes in a new fact sheet, a 2015 Washington Post investigation found that “Among the thousands of fatal shootings at the hands of police since 2005, only 54 officers have been charged, …. Most were cleared or acquitted in the cases that have been resolved.”

On the flip side of this heartbreaking cycle of violence comes another terrible ambush killing of a police officer, this time in New York City. As the New York Times described it, “A two-time convict who has voiced anger at law enforcement officers in the past shot and killed a New York City officer through a police vehicle window in the Bronx early Wednesday, in what the police commissioner called an 'unprovoked attack.’” 

This grave situation is crying out for meaningful solutions. Unfortunately, some DC politicians are responding in the worst possible way. Their idea is legislation called the “Back the Blue Act,” which was recently the subject of a scathing post by Maj. Neill Franklin (Ret.), a 34-year veteran of the Baltimore Police and Maryland State Police Departments who runs Law Enforcement Action Partnership, which “seeks criminal justice solutions that improve public safety.” Indeed, for those who may be pointing to today’s NYC tragedy with a “war on cops” narrative to advance this bill, Maj.  Franklin says “don’t”: 

Unfortunately, I know the pain of losing a close comrade to street violence as well as anyone. During my 34-year police career in Maryland, I lost my close friend, Corporal Ed Toatley, and numerous other friends who wore the blue. Today, as Executive Director of the Law Enforcement Action Partnership, I remain committed to improving safety for my fellow police officers. For that reason, I oppose the “Back the Blue Act” introduced by Sen. John Cornyn (R-Texas) and Rep. Ted Poe (R-Texas).…

My colleagues and I know that legislation intended to increase safety can in fact have the opposite result for officers on the street. Back the Blue would not deter individuals from assaulting police just by making a federal case out of these attacks. Instead, the bill would make us less safe and less effective by worsening what is already the greatest threat to policing today: the downward spiral of police-community relations.

As he notes, federalizing crimes connected with assaults on local police officers, and replacing “case-by-case decisions made by local judges, reflecting the community’s values, with one-size-fits-all sentences” will do absolutely nothing good and will make matters worse for everyone. Yet that’s not the only thing wrong with this bill. As criminal justice Washington Post blogger, Radley Balko recently wrote,

[P]erhaps the most disturbing part of the bill is the new restrictions it puts on suing police officers for constitutional violations. As we’ve discussed here several times before, it’s already extremely difficult to even get in front of a jury with a claim against law enforcement, much less win an award. Police officers are protected by qualified immunity, which requires you to show that not only were your rights violated but also a reasonable police officer should have known that the actions in question were a violation of the Constitution. Under this bill, even if you can show all of that, if the police can show that the violation and resulting injuries were “incurred in the course of, or as a result of, or . . . related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence . . . (including any deprivation in the course of arrest or apprehension for, or the investigation, prosecution, or adjudication of, such an offense),” then the officers are liable only for out-of-pocket expenses. What’s more, the bill would bar plaintiffs from recovering attorneys fees in such cases.

This means that if the police raid your home with a search warrant for pot and shoot you dead, even if your family can show that the shooting was unlawful, the police would be liable only for something like funeral expenses if they could show that “more likely than not,” you had sold some pot, or at some point possessed a large enough quantity of the drug to merit a felony charge. In some jurisdictions, merely resisting arrest is a felony. In theory, this could mean that under a scenario in which the police falsely arrest you, you resist, and they then severely beat you, if they could show that the beating was the result of your resisting, not the false arrest, you could be barred from suing for anything other than the cost of treating your injuries. If the resisting charge could be filed as an assault, that’s already a felony in most jurisdictions, and even where it isn’t, under this bill it would become a federal felony.

As the Center for Justice & Democracy recently wrote in its new fact sheet, preventing civil lawsuits will also make us all less safe, because “successful civil lawsuits filed by victims have been a critical tool for police departments to identify and remedy potentially widespread abuses.… Indeed, lawsuits can have a direct and positive impact on law enforcement, with settlements in individual cases leading to better training, safer policies and overall better practices.”

For plenty of recent examples, go here. And then, add this one to the list of bills to resist!