Are there too many lawsuits in the United States? Is there a “lawsuit crisis”? Is there such as a thing as a “frivolous lawsuit”? Are legitimate cases delayed because attorneys and litigants engage in rampant “lawsuit abuse”? Many in the corporate world would answer all of these questions with an emphatic “YES”. The notion, of course is ridiculous; it is a myth perpetrated by similar business interests such as the U.S. Chamber of Commerce, the insurance industry, the tobacco industry, and the pharmaceutical industry, among other multi-billion dollar industries.
Sensing a pattern here? Under the guise of “Citizens Against Lawsuit Abuse” groups (there are no real "citizens" involved), these billion dollar corporate interest groups attempt to dupe the public into thinking there is a problem that the civil justice system, by itself, can’t control. These groups suggest that damages caps, for instance, are necessary to combat “lawsuit abuse”. Use your own common sense. Damages caps are limitations on the amount a citizen can recover. Why would we need a damages cap on something that is “frivolous” or “worthless”? I can see punishing a litigant or a lawyer for bringing a worthless lawsuit, but why in heaven’s name do we need a “cap”? The answer, of course, is that we don’t; the “lawsuit crisis” is a lie. No sensible lawyer, working on a contingency fee (almost all of the cases sought to be limited are contingency fee cases), would accept a worthless case. He cannot make a living doing so on a regular basis; surely all of you reading this understand that simple truth, don’t you?
More vocal opponents of the civil justice system argue that awards are “too high”, that some sort of “lawsuit lottery” exists. Question: For what amount of money would you trade your health? Your ability to walk? Talk? Eat? Taste? See? Hear? Move? Procreate? Would you sacrifice an arm or both arms for money? A leg? Both legs? Would you sacrifice your breasts for money? How about your testicles? Would you have surgery? Break a bone? Tear cartilage or ligaments? What would body function or body part would you sacrifice for money? How much would it take? The truth is that it takes a serious injury, one that none of us would want, one that has catastrophic consequences, to enable a litigant to obtain a “high” award. There is no “jackpot justice” or “lawsuit lottery”. There is only “justice” and just compensation for a loss. None of us would trade places with the victims; none of us would trade our good health for money. The money simply assists the disabled, seriously injured victim in getting by.
Are there anomalies? Sure there are. Every system has anomalies. But they are few and far between; they hardly constitute a “lawsuit crisis”. Those cases that are cited as poster children for “lawsuit abuse” are misconstrued, misreported, distorted, embellished, or outright lied about. The most famous example, debunked in the recent “Hot Coffee” documentary, brilliantly conceived by Susan Saladoff, is the case where a woman sued McDonald’s for a coffee spill in 1994.
Forget about the fact that McDonald’s kept its coffee at scalding temperatures, some 20-degrees hotter than other similar coffee providers. Forget that the company had hundreds of previous, similar, settled (as in “McDonald’s paid money to its victims”) incidents related coffee spills and coffee temperatures. And forget that McDonald’s was so indifferent to public safety that they refused to turn down the temperature or warn the public. The woman suffered 3rd degree burns on her thighs, groin and buttocks; she had multiple skin grafts and endured a 7 day hospital stay at age 81. She offered to resolve the case for repayment of her medical bills only; McDonald’s refused. The jury awarded her the amount of McDonald’s coffee sales for a day; the judge reduced the award (unfairly, in my opinion) to $480,000. Does that case sound “frivolous” to you? Is the result unreasonable? But, here comes the U.S. Chamber of Commerce and one of their ‘Citizens Against’ groups shouting “Millions for spilling coffee on yourself? Outrageous!” There are only two things that are outrageous about the McDonald’s coffee case: 1. McDonald’s tortuous behavior and callous indifference to public safety, and 2. The judge’s reduction of the verdict. Yet, this is the case that has become the poster child for tort reform. And these groups pull out one of these “funny sounding” cases every year, and cries for lawsuit reform begin anew.
Remember the Ford Pinto? Many companies, today, like Ford, in the old days, do cost analysis to determine whether it is less expensive to make their products safer or litigate and pay claims filed due to the product’s defect. If judgment costs are less than safety improvements, the product is not made safer. Thus, if the system reduces recoveries for these kinds of product defects, if it fails to punish the perpetrators, safety and health will suffer. If awards are reduced to levels where inadequate safety standards are acceptable to industry, industry has no incentive to make products less hazardous. Simple arithmetic, isn’t it? In the battle between safety and profits, profits will win every time, unless the system punishes misconduct.
When a pharmacist deliberately dilutes its cancer medication and shortens the lives of its customers, should the company be punished? Should 4200 victims share millions? A couple billion? What is enough? What is too much? Should the award compensate the victims or punish the company? Should it do both? In 2002, a jury awarded the representative plaintiffs $2.2 billion. The judge reduced the award to $330 million. To my knowledge, the award has never been collected, but the message was clear. Despicable conduct should have serious consequences. The pharmacist is doing time; the award is uncollectable. Do you consider this an “outrageous” award as some legal reform advocates do? If this is “lawsuit abuse”, isn’t the ‘abuse’ being perpetrated by the defense, by the pharmacist and not by the innocent victim?
There are tobacco lawsuits, the Exxon Valdez-Alaska oil spill, the BP disaster in the Gulf, State Farm’s outrageous “It’s a flood, not a storm” defense in Hurricane Katrina, exploding tire cases, defective toy cases, and many other examples of corporate indifference to the public and to public safety. If conservative politicians, bankrolled by corporate interests have their way, all of these examples would be victims of an artificial cap on damages. In the BP disaster, BP is already the beneficiary of an industry friendly cap on damages. Did you know that? The figures that are often bandied about for new liability reforms are between $250,000 and $500,000. Would this be enough to deter the bad behavior of these multi-billion dollar corporations so that their misdeeds were not repeated? Would it adequately compensate, take care of the medical costs for life, say, of an 18 year old paraplegic? Of course not!
Legal reform measures are being debated in Congress as I write this. A bill, H. R. 5, threatens your safety and your constitutional rights. The bill is favored by most Republicans and opposed by most Democrats. True conservatives, those in favor of less government and the separation of powers, should oppose this bill. But, they don’t. They get too much of their campaign war chests from the very corporations that seek to injure, maim and kill citizens without serious economic consequence. Contact your elected officials and tell them to vote “no” if this piece of legislation ever comes to a vote. And if the bill does come to a vote and your elected officials vote in favor of it, do whatever you can to support his/her opponent in the next election. Your vote and your voice are the only weapons you have to combat corporate abuse and corporate control of your elected officials. Fellow citizens: You have the power; use it!
Mark M. Bello is the owner and founder of Lawsuit Financial Corporation where he is instrumental in providing cash flow solutions and consulting when necessity of life lawsuit funding is needed during litigation. Mr. Bello has thirty-four years experience as a trial lawyer and 13 years as an underwriter and situational analyst in the litigation funding industry. Mr. Bello is a sustaining and Justice PAC member of the Michigan Trial Lawyers Association, Justice PAC member of the American Association for Justice, Member of the American and Michigan Bar Associations, Member of the Public Justice Foundation, out-of-state member of the Mississippi Association for Justice and a business associate of the Florida Justice Association, Tennessee Association for Justice, Central Ohio Association for Justice and the Consumer Attorneys of California. He is also a proud member of the InjuryBoard.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series—Mark Bello is also the CEO of Lawsuit Financial and the country’s leading expert in providing non-recourse lawsuit funding to plaintiffs involved in pending litigation. He is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.