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Tort Reform
Law, National Politics, Personal, Texas Politics Comments (0)
I get asked from time to time how I can be a conservative and be against tort reform.
The primary answer is rather simple: I have faith in our jury system. We empanel and empower a group of men and women from our communities to sit in judgment of our legal concerns. The tort reform movement, at least as we have it here in Texas, is all about taking power away from those juries and placing it in the hands of the Legislature. This, in my opinion, runs completely antithetical to a conservative’s belief that the Legislature is usually the last place to try to fix problems.
Yes, the courts aren’t any better when they’re filled with activist judges. But our forefathers provided for juries to settle our cases, not judges and not legislators.
And then there are the cases. People like to talk about the famous McDonald’s Coffee Case. A woman gets $2.9 million for a cup of hot coffee. What people don’t often tell you is that the coffee was served about 35 degrees Fahrenheit short of the boiling point of water (McDonalds claimed that, contrary to their own research, people bought the coffee intending to drink it at home). At those temperatures, the coffee could cause 3rd degree, or full thickness, burns in 2-7 seconds of contact. If there was ever a company that deserved to pay $2.9 million for such callousness, it was McDonalds. And, to boot, it worked. Coffee in that area was being sold at 158 degrees Fahrenheit just a couple of weeks after the case settled out of court.
But, that today I read two New York Times stories about CSX and Union Pacific Railroads.
If McDonalds deserved a $2.9 million verdict for refusing to take steps to prevent burning its customers, what do these railroads deserve for failing to take steps to keep people from getting killed?
I mean really. Let’s look at some of the stuff they did:
- In writing that report, though, Officer Summers now says he did not know an important fact: While he was busy investigating the crash scene, a CSX maintenance worker named Philip Stephens had come to check on the signals. One of two flashing left-hand lights, the ones meant to alert a driver close to the crossing, was not working, Mr. Stephens found.
He quickly traced the malfunction to a loose wire – the signal had not been damaged in the crash – and fixed it. He then wrote a report documenting his repairs. But Officer Summers says there was no mention of a broken signal when he spoke with Mr. Stephens at the scene.
In any event, it would be four more years, Officer Summers says, before he realized that he had not been told the entire story. As he said in court papers, “It appears that CSX materially altered the scene of the Feaster accident without ever advising me of that fact.”
- In the Feaster case, Mr. Lovette, the CSX claims agent, soon reported that the tapes no longer existed.
Mr. Lovette, a claims agent for 27 years before Hilary’s accident, would testify that he thought the tapes were recycled every 30 days. Another CSX official, however, said that Mr. Lovette had never asked for them.
- But a railroad manager [for Union Pacific] beat the lawyer there by several hours. In the predawn darkness, the manager secretly swapped the suspect parts for newer ones. . . . That might have been the end of the Lopezes’s case had Mr. Scarpelli’s legal team not noticed more than a month later that the serial numbers on the parts they had inspected did not match those given to them by another representative of the railroad.
In a court proceeding Mr. Ryan explained under oath that he drove to the crossing a few hours before Mr. Scarpelli’s inspection to replace potentially defective signal parts. A dozen years earlier, the manufacturer had reported that those parts had malfunctioned in one instance and cautioned that signals with those parts might fail to warn motorists of oncoming trains in time. In other words, they could cause a “short signal.”
- “Documents have been routinely destroyed despite defendant’s knowledge that they are relevant to this lawsuit,” Judge William R. Wilson of Federal District Court wrote in 2001, referring to Union Pacific. And, Judge Wilson added: “This does not square with the discovery rules nor with `traditional notions of fair play and justice.’ ”
- The [Union Pacific accident investigation] manual advised care in deciding “the degree and extent to which obviously harmful and possibly inflammatory evidence is documented.” For example, the company said “gory” pictures might inflame the jury. “Statements documenting hazardous conditions in great detail serve only the same purpose when such conditions are known to have existed,” the manual stated.
Company investigators were further cautioned about taking pictures of any obstructions that might have blocked a motorist’s view. “A panoramic view taken at one point might show a possible view obstruction, while an unobstructed view may be demonstrated by moving slightly closer to or away from the crossing,” the manual stated.
It also recommended that investigators fully document evidence that could implicate the motorist, including photographing the vehicle’s speedometer, and the controls for the radio, air conditioner, heater and stereo — all possible signs that a driver was distracted or might not have heard the train horn.
Wow. And those are from just two railroads.
And, they show why I’m against “tort reform.” The purpose of punative damages is to punish to such an extent as to cause reform. It is to punish. The purpose is not to make a lawsuit into a “lottery” (as TLR calls it), but to punish. You cannot put Union Pacific or CSX into a prison for manslaughter, but you can hit them so hard financially that their shareholders demand reform, if for no other reason than to save their share prices.
Some people object that some of these damage awards could put companies out of business. And to that I say: Good. Let them go out of business. If they don’t know how to run their business in a way so as not to KILL PEOPLE then they deserve to go out of business and if a jury’s verdict does that, then the jury has really only served the public good.
MickC @ July 11, 2004