ThePopTort

It's Tamper Time!

Big corporations that harm people but don’t want to be held accountable, are nothing if not creative. Lobbying for laws that take power and authority away from civil juries, check. Buying judges, check. Forcing disputes into secretive systems that they control, check. Trying to convince everyday Americans that stripping away their constitutional rights is a good thing, check. (I would cite some earlier PopTorts as evidence of this but we’d be here all day.)

But if the goal is to flip the legal playing field so dramatically in their favor so they never lose a case, why stop there?  There is tampering to be done!

In Dallas, U.S. District Judge Ed Kinkeade is bringing in the U.S. Attorney’s Office and the FBI to investigate after plaintiff attorney Mark Lanier “raised concerns Monday about possible witness tampering” by Johnson & Johnson subsidiary DePuy Orthopaedics. According to law.com:

The issue came up after orthopedic surgeon Dr. David Shein filed an affidavit in Alicea v. DePuy Orthopaedics Sunday night alleging that a DePuy Orthopaedics Inc. sales representative told him during a surgery-related conversation at his hospital in the Bronx on Oct. 13 that “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony.

Shein said in the affidavit that the sales rep complained to him that the lawyers were “peppering him” and the “business in Dallas was freaking [him] out.” Shein said in the affidavit that the sales rep told him DePuy lawyers had contacted him on Oct. 12 and that the conversation made him anxious.

“He said the lawyers were ‘on him like crazy.’ They were putting ‘big time pressure’ on him,” Shein wrote in the affidavit about his conversation with the sales rep.

DePuy’s defense team (which apparently includes U.S. Chamber of Commerce lawyer John Beisner, a partner at Skadden Arps in Washington, D.C.) denies all this – but then asked for a gag order. Which the judge denied.

This story reminds me of a recent fascinating academic article about corporate influence over jury pools, called “Buying the Verdict.”  The researchers:

document strong evidence that firms systematically increase specialized, locally targeted advertising following the firm being taken to trial in a given location - precisely following initiation of the suit. … Moreover, firms concentrate these strategic increases in locations where the return on their advertising dollars are largest: in smaller, more concentrated advertising markets where fewer competitor firms are advertising. They focus their advertisement spikes specifically toward jury trials, and in fact specifically toward the most likely jury pool. Lastly, we find that the prevalence and intensity of this behavior is increasing over time.

This seems similar to what insurance companies used to do in the 1970s and 1980, when they ran ads with false information meant to influence jury pools to rule against plaintiffs or to lower verdicts.  At least one court considered these ads "jury tampering."

Specifically, in the 1978 case Quinn v. Aetna Life and Casualty Co., the New York Supreme Court said these ads "violate[d] the state public policy against jury tampering, unduly burden[ed] plaintiffs' right to an impartial jury, and distort[ed] the trial process by providing otherwise inadmissible insurance evidence..." Moreover, because the ads contained so many inaccuracies, two companies - Crum and Foster and Aetna - were forced to sign consent orders with state insurance commissioners in Connecticut and Kansas, agreeing to stop publishing these ads. (Kronzer, “Jury Tampering – 1978 Style,” 10 St. Mary’s L.J. 399 (1979) at 400, n. 9.)

The great Taoist philosopher Lao Tzu once said: never take over the world to tamper with it. Those who want to tamper with it are not fit to take over the world.  Somehow, this seems awfully fitting.

Civil Jurors Deserve More Respect

To paraphrase Rodney Dangerfield, people who serve on civil juries can’t get no respect from anyone this week.

In Iowa, a local judge has vacated an August verdict which awarded about $1.6 million to a young woman whose ear was torn off in a rollover crash. The judge did this because she said jurors were “influenced by certain statements her attorney [Nick Rowley] made at trial that the defense [i.e. an insurance company] has argued were improper." This “prejudiced the defendant and ‘it is probable a different result would have been reached, but for that misconduct.’”

Only problem is, the jury forewoman said that was ridiculous, that these statements were not even discussed by the jury. WTF?

[Forewoman] Karen Hudecek said it was her job to make sure deliberations and decisions were based on the law and evidence presented.

“I understood that this meant we as the jury were not supposed to consider or base our decision on anything said by the lawyers, which was objected to and sustained by the judge. There was nothing said by any of the lawyers which was objected to and sustained that was discussed by the jury in deliberations. None of the statements addressed by Mr. Rowley in the new trial order of Judge Lingreen influenced our deliberations or our unanimous jury verdict,” Hudecek said. …

“In the end, we worked hard as an Iowa jury and we as the jury worked together to compromise and agree to a verdict that was based on the law we were given and the evidence the judge instructed us we were able to consider.…

Rowley said he believes the judge has bowed to the power of the defendant’s insurance company.

Now granted, this type of bad judicial behavior is atypical. Most judges have enormous respect for juries and “a high level of day-to-day confidence” in what they do. See more here.

Far more worrisome is the behavior of politicians, who continuously try to take power and authority away from jurors in the form of so-called “tort reform.” Caps on damages are probably the worst offender. Indeed, as we reported in April, the Ohio Supreme Court had a case before it, examining whether to allow a sexual assault victim to be victimized - again - by the state’s $250,000 non-economic damages cap.

Specifically, “Jessica Simpkins was raped at the age of 15 by her church pastor – a man hired by Grace Brethren Church in Sunbury despite the knowledge that he had previously sexually abused two girls. In a civil suit, a jury awarded Simpkins $3.5 million for pain and suffering, but the amount was reduced to $250,000 due to a state law that caps damages.” Indeed, a recent article in Slate explored the horrendous impact of non-economic damages caps on sexual assault victims.

[A]s more and more victims of sexual assault are taking their cases to the civil justice system, the caps are having unforeseen consequences. “If you rape a child, you get the benefit of tort reform,” says Simpkins’ lawyer John Fitch. Tort reform, he adds, “makes it financially impractical for children like this to hold those responsible accountable in the legal system.”

Well guess who just came to the aide of Jessica Simpkins’ rapist (who is apparently now out of jail), and the civil juries who try to hold rapists accountable? That’s right, the Ohio Supreme Court just upheld the state’s damages cap as specifically used against Jessica Simpkins. (Here’s the decision)

Justices Paul E. Pfeifer and William M. O'Neill wrote withering dissents castigating lawmakers for imposing limits on civil lawsuit damages, a decision they said should be up to juries.

“It turns out that ‘tort reform’ (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of damages they cause -- even it they rape a child,” Pfeifer wrote. He said the damage caps were “designed to protect doctors and corporate interests.”

O’Neill wrote: “I cannot accept the proposition that a teenager who is raped by a pastor fits into a preordained formula for damages ... a cookie-cutter approach simply does not work.

“This child was raped in a church office by a minister and a duly empaneled jury established an appropriate level of compensation for loss of her childhood innocence. We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing,” O’Neill concluded.

What is wrong with this country?! Rodney? Anyone?

Erin Andrews’ Exemplary Jury

Photo by Neon Tommy

Most Americans know barely anything about our judicial system, and the civil jury is one of its least understood features. Even groups involved with law-related education focus little attention, if any, on civil juries. Few probably know that the right to jury trial was a key issue over which the American Revolution was fought, or that the failure to secure the right to civil jury trial in the Constitution almost caused its defeat. And who really understands how civil juries check corporate, government and professional irresponsibility?

Forget law schools. No group seems better equipped to provide this kind of “education” than civil jurors themselves. Study after study shows that immediately after a trial, jurors have very strong impressions about their experiences. Almost all will say the experience was positive and that the system works well. (See more here.) But understandably, you won’t find many civil jurors willing to talk to the media about their experiences after a trial. Actually, it’s probably more rare that news reporters would even care what a juror had to say in the typical civil case.

So how great is it to see a bunch of news reports today quoting jurors who recently served in the very high-profile Erin Andrews “peep hole” case against Marriott and her stalker, particularly juror Terry Applegate? News outlets from NBC News to People Magazine took the time to interview her as to why the “jury of five men and seven women on Monday ordered [stalker] Michael Barrett – who served more than two years in prison for the 2008 incident – to pay the Fox Sports reporter about $28 million with the companies that operate the Nashville Marriott paying the remaining $27 million.” Here’s what she told The Tennessean:

"We considered not only the impact [the verdict] had on Erin Andrews, but also the message, I guess you might say, that might be provided to the hotel industry overall ... I truly appreciated the opportunity to do it, although it was difficult and lengthy, I think it’s true of every juror. We all remarked about how impressed we are about our judicial system here in the United States."

Indeed, more than any other single institution, juries give everyday people the chance to participate in government, which enhances their regard for the American system of justice. As this case shows, civil jurors are competent, responsible and rational, and their decisions are not arbitrary or emotional, but reflect continually changing community attitudes about corporate responsibility and accountability.

In her statements, Ms. Applegate thanked Erin Andrews for bravely bringing this case. We certainly agree and thank her dedicated legal team, as well. But let’s thank juror Applegate, too. She has helped us all understand - the system really works.

Take Our New “Tort Litigation” Quiz!

We told you we might be back with another PopTort Pop Quiz, and we weren’t kidding!  And now that everyone's back to school ... It’s time for our “Tort Litigation Quiz”! 

Let’s set the stage with our first question, shall we? It should help with the rest:

1. What percentage of civil cases are “tort” lawsuits?

a. Less than 10%
b. 25%
c. 50%
d. More than 75%

The answer is “a”, and the number is just 7%. Or to put it another way, 93% of civil cases have nothing whatsoever to do with personal injuries. So who exactly is “sue-happy” in America? You’ll find out soon!

Bonus question: Which of the above percentages represents the number of civil cases involving contracts and small claims cases?

That would be: “d.” Actually, it’s 80%. See question #2 to understand what kinds of cases we're talking about.

Explains the National Center for State Court (NCSC), “The picture of contemporary litigation that emerges … is very different from the one suggested in debates about the contemporary civil justice system. State court caseloads are dominated by lower-value contract and small claims cases rather than high-value commercial and tort cases.”

2. What types of lawsuits constitute most of these “contract” cases that are flooding the courts? Are they:

a. Consumers suing banks?
b. Consumers suing credit card companies?
c. Consumers suing health insurance companies?
d. None of the above

The answer, of course, is “d.” Consumers aren’t suing much at all - for anything. They’re the ones being sued.

According to NCSC, contract caseloads consist “primarily of debt collection (37%), landlord/tenant (29%), and foreclosure (17%) cases.” Moreover, says NCSC, from 2005 to 2010, “contract caseloads increased 52 percent (10.5% per annum), much of it occurring in 2008 with the onset of the recession.” (emphasis added.) In addition, “[l]ong-term NCSC data show a 63 percent increase in contract litigation in 13 states from 1999 to 2008. In contrast, tort filings fell by 25 percent in those same states during the same ten-year period.”

So who’s sue-happy in America? That would be banks and lenders, that’s who.

Back to torts.

3. What percentage of tort cases are decided by judges or juries?

a. 80%
b. 50%
c. 25%
d. 15%

The answer is “d.” Says NCSC, “Only 15 percent of tort cases were disposed by judgment.”

4. What percentage of the civil caseload is made up of those high-profile medical malpractice or products liability cases?

a. Less than 1%
b. 10%
c. 40%
d. 75%

The answer is “a.” Says NCSC, “Although medical malpractice and product liability cases often generate a great deal of attention and criticism, they comprise…less than 1% of the total civil caseload....”

But what about the ones that do reach a jury? Aren’t jury verdicts huge?  Let’s find out.

5. Seventy-five percent of tort judgments are:

a. Less than $5 million
b. Less than $1 million
c. Less than $100,000
d. Less than $20,000
e. None of the above
f. All of the above

You guessed it. The answer is “f”, all of the above! Seventy-five percent of tort judgments are less than $12,200! And as to juries specifically, NCSC found that “50 percent of jury awards in tort cases were $30,000 or less, and 75 percent of jury awards in tort cases were less than $152,000. Jury awards exceeded $500,000 in only 17 cases (3% of cases in which judgment exceeded zero), and exceeded $1 million in only 13 cases (2%).”

For more great stuff, get the Center for Justice & Democracy’s new briefing book, Tort Litigation: By the Numbers. 

And if you are interested in medical malpractice statistics, you can find those in our continuously updated Medical Malpractice Briefing Book: By the Numbers. 

So study up.  You know we’ll be back.

Huff Post Repost: Respecting the Seventh Amendment

There are few democratic institutions in America more embattled than the civil justice system. No matter what one thinks of "tort reform," the political term often used to describe laws to weaken this system, one thing is clear: For the last 35 years, questions about the future of civil juries have been dumped on the plate of Congress and every statehouse in America. Many legislatures have been pressured to undermine the civil jury system by restricting access to the courts and limiting juries' power and authority. We are seeing more proposals to limit the right to jury trial than ever before.

If the framers of our Constitution were alive today, they would be appalled by this development. Our nations' founders considered the right to trial by jury in civil cases to be one of our most important rights. In virtually every major document and speech delivered before the Revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. The right to civil jury trial was a key issue over which the American Revolution was fought. It was so essential to our nation's founders that they preserved it directly in the Bill or Rights as the 7th Amendment. In a 1979 case, U.S. Supreme Court Justice William Rehnquist explained:

Keep reading.

More Heartburn From McDonald’s Coffee

Last week, renowned British street artist Banksy, whose Better Out Than In “artist residency on the streets of New York” is the talk of the town, created a piece called “Shoe Shine.”  It’s a “performance/sculpture hybrid … featuring an exaggeratedly impoverished-looking young man shining the shoes of a giant Ronald McDonald” which “will visit the sidewalk outside a different McDonalds every lunchtime for the next week.” Ad Week observed,  “It's going to be a long week for McDonald's store managers.”

We hope that’s true for McDonald’s corporate exes, too.  This week, the callous corporate behavior of this company is once again on full display in this New York Times/Retro Report video about the McDonald’s coffee case. 

Although the HBO documentary film Hot Coffee did a better job showing how corporate America and their political allies used this case to push a so-called “tort reform” agenda to limit corporate liability for recklessly harming or killing people, it does a good job telling the story of what really happened in the case: From the gruesome photographs of Stella Liebeck's third degree burns and skin grafts, to the court exhibits showing the hundreds of similar burns because McDonald’s chose to sell coffee at superheated temperatures, to the fair and thoughtful reasoning of the jury. 

This is information the majority of Americans don’t know.  The media has done a terrible job informing the public about this case.  It's typical, though, i.e., limiting coverage to headlines and soundbites that never tell the real story of why people go to court or why juries – who are the only ones who hear the evidence in a case – decide how they do.  For more examples, check out our earlier post on the Center for Justice & Democracy report, Headline Blues, discussing how “new media” trends, which rely on headlines or brief, sensationalized descriptions, are producing an even more distorted understanding of our civil jury. system.

Retro Report did a good job examining the media’s shoddy coverage of this case.  Let’s hope we see more of that.

Liebeck V. McDonald's: The Big Burn from Retro Report on Vimeo.

Huff Post Repost: The Slow Death of Justice in California

Here's a little known bit of American history trivia: The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. Not only that, 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.

Unfortunately today, the civil jury is an embattled and vulnerable institution in the United States. Beginning in the 1980s and ever since, we have seen a non-stop barrage of legislative and, in some cases, judicial attempts to significantly weaken the civil justice system with laws that corporate America calls "tort reform." And now, the question as to whether this constitutionally protected institution deserves to function at all has been reduced to budgetary and fiscal squabbling.

North Dakota in 1989, and Vermont in 1990, each reacted to state budget squeezes by suspending civil jury trials (although North Dakota's 18 month moratorium was later declared unconstitutional by the North Dakota Supreme Court). Between November 1991 and February 1992, civil jury trials in New York came to a halt when budget cuts left the state judiciary without staff to handle them.

And today, there's California.

Keep reading.

Take the Tort Quiz!

We told you we might be back with another PopTort Pop Quiz, and we weren’t kidding! It’s Civil Justice Quiz Time!  Let’s just see how many you get right this time.

1. Tort case filings are what percentage of all civil cases in our courts?

a. More than 50%  
b. Between 25% and 50%   
c. Between 10% and 25%   
d. Under 10% 

The correct answer is: d.  According to the National Center for State Courts, tort cases represented only 6 percent of all civil caseloads in the reporting states.

2. From 1999 to 2008, the number of tort filings:  

a. Increased by more than 25%   
b. Increased by 10%   
c. Dropped by 10%   
d. Dropped by more than 10%

It's d once again! Tort filings fell by 25 percent in those states studied by the National Center for State Courts!  

3. The median damage award in tort cases is:  

a. $1 million   
b. Between $500,000 and $1 million   
c. Between $100,000 and $500,000   
d. Less than $100,000

Once again, horribly predictable.  The answer is d. In fact, the median award in tort cases is just $24,000!  

For more great stuff, including why our judges love the civil jury system, get the Center for Justice & Democracy’s new BRIEFING BOOK, TORT LITIGATION AND JURIES: BY THE NUMBERS. 

And if you are interested in medical malpractice statistics, you can find those in our continuously updated Medical Malpractice Briefing Book: By the Numbers.

So study up.  You know we’ll be back.

The Uniquely American Disrespect for Civil Juries

There was a fascinating article in Bloomberg last week discussing how more and more patients in China are resolving their disputes with malpracticing physicians by killing the doctors.  Not only that, more and more Chinese are happy about it.  This is obviously a terrible, terrible thing.  But there’s a lesson here for us.  And no, the lesson is not to give the NRA any more kooky ideas. (“Hey, now that we’ve got all these great Stand Your Ground laws, lets try to arm more hospital patients!")  Rather, the lesson has to do with what can happen when innocent, injured people – or their parents, their families - know they have no legal recourse or way to seek justice before a fair and unbiased jury.

You might think that we have no need to worry.  We have the Seventh Amendment and state constitutions and laws everywhere guaranteeing the right to civil jury trial.  While that may be true, we are reaching a new level of disrespect for the civil jury system in this country that should start frightening everyone. 

Let’s start with today’s news that the State of Virginia is fighting the two families who won a verdict last week against the State for helping to cause the Virginia Tech massacre five years ago, during which 33 were killed.  The jury found that the State was negligent for delaying alerting the campus that a killer was on the loose.  After listening to all the evidence in the case, the jury said the families deserved $4 million each.  Little did they know – because they were not told – that the state had a $1 million liability cap. Attorneys for the parents are trying to fight the cap, and the state is fighting them – and, we might add, the power, authority and integrity of the jury system.

Then last week, the Dallas Morning News reported that because so much so-called “tort reform" was now on the books in Texas, the civil jury system is virtually disappearing.  Writes the paper:

The right to have disputes decided by a panel of fellow citizens is cited in the Declaration of Independence and explicitly confirmed in the constitutions of Texas and the United States. But new statistics show that the right to “trial by jury” is quietly and steadily disappearing thanks to a mixture of tort reform laws and Texas appellate court decisions that have made it more difficult for parties in a lawsuit to have their disputes decided by juries. 

By the way, this business of not telling hard-working jurors that state lawmakers have “capped” damages is nothing new. Read this story about a heartbreaking California case.  Nor is it news how angry jurors get when they find out that their efforts to be fair and just have been cheapened and devalued by politicians.  And if they’re angry, imagine how angry the families might be. Just sayin’.

Take Our Medical Malpractice Lawsuit Quiz!

OK kids, take out those #2 pencils. It’s PopTort PopQuiz time! Thanks to the Center for Justice & Democracy's new 13-page fact sheet called The Truth About Medical Malpractice Litigation, we have all kinds of new info about what’s going on in the world of medical malpractice lawsuits.  So study up and see how many you get right!

1. Medical malpractice case filings are what percentage of all new civil cases filed in our courts?

a. More than 50%
b. Between 25% and 50%
c. Between 10% and 25%
d. Under 10%

The correct answer is: d. Actually, it’s far less than that.  According to an April 2011 National Center for State Courts report, “despite the widespread prevalence of medical negligence,” in 2008 medical malpractice case filings “represented well under 2 percent of all incoming civil cases, and less than 8 percent of incoming tort cases.”

2. From 2000 to 2009, the number of medical malpractice case filings:

a. Increased by more than 25%
b. Increased by 10%
c. Dropped by 10%
d. Dropped by more than 10%

It’s d once again! In an October 2011 study, researchers found that from 2000 to 2009, med mal filings fell by 18 percent in the general jurisdiction courts of seven states reporting.  In five of those states, filings fell by between 18 and 42 percent. 

3. Some of the largest headline-grabbing medical malpractice awards in New York ultimately resulted in settlements that were what percent of the jury verdict?

a. 100%
b. Between 50% and 100%
c. Between 10% and 50%
d. Between 5% and 10%

OK I know I’m getting horribly predictable here, but again, the answer is d. The fact is that insurers for doctors and hospitals rarely pay what juries award. Usually it’s not even close. As Cornell Law Professor Valerie P. Hans and Duke Law Professor Neil Vidmar explain in American Juries: The Verdict, parties usually “negotiate a settlement around the defendant’s insurance coverage.” They also found, for example, “[s]ome of the largest medical malpractice awards in New York that made national headlines ultimately resulted in settlements between 5 and 10 percent of the original jury verdict actually being paid.”

For more great stuff, including excerpts from the October 2011 study by California State University, Northridge Economics Professor and Cato Institute Adjunct Scholar Shirley Svorny, who analyzed existing empirical data and found that the medical malpractice system works just as it should, continue reading here. Then get ready. You never know when another PopTort PopQuiz may be popping up!