H -°, L 7° | Tomorrow: 
H 17°, L 4°Debate began in the Senate this week on the Class Action Fairness Act, a bill intended to revamp the rules and procedures governing class-action lawsuits and to place more of such suits in the federal judicial system instead of state courts. The tort reform movement — those in favor of changing the rules regarding the body of U.S. civil law in which damages are sought by plaintiffs for extra-contractual liabilities — has burgeoned under the Bush administration and will likely see its efforts come to fruition in the act, which has strong Republican support and is likely to pass quickly in both houses.
The major point of contention in the debate is the status of class-action suits, in which many plaintiffs lump together their claims in a single legal action. But whereas bill opponents like Patrick Leahy, D-Vt., believe that “class actions allow the little guys to band together, allow them to afford a competent lawyer and allow them to redress wrongdoing,” tort reformers contend that the current system is too permissive of “frivolous” lawsuits (witness the recent spate of lawsuits seeking damages from fast-food chains for making their customers obese) and that the practice of “forum shopping,” in which groups of plaintiffs search for the state venue in which they are most likely to win and receive large awards, makes a mockery of civil justice.
Plaintiffs’ attorneys (or, as the language of tort reform has it, “trial lawyers”), consumer advocacy groups, and even several state attorneys general have been vocal in opposition to the bill. They have some allies in the Senate, including Diane Feinstein, D-Calif., who is seeking passage for an amendment to CAFA that would ensure that class-action suits are heard in federal courts (which frequently dismiss class actions in which laws from different states are in play). Without the amendment, however, the likely effect of CAFA is that more plaintiffs will have to press their claims in federal venues, and fewer cases will be heard and less damages awarded.
It can hardly be doubted that some suits — such as the “obesity suits” — are frivolous, but is a wholesale restructuring of tort law necessary to weed them out? Tort reformers say they want to end the strain placed on the courts by a deluge of frivolous suits. But according the Department of Justice’s Bureau of Justice Statistics, cases decided in court (the only ones in which damages are awarded) make up only 3 percent of all tort cases.
The reality is that CAFA is only the most recent visible part of the tort and civil law reform movement that is currently thriving under the Bush administration. State legislatures and the increasingly conservative federal judiciary are already chipping away at individual citizens’ courses of redress in an incremental process of capping damages, narrowly construing liability laws and affording special protections to whole categories of negligent defendants. CAFA was not drafted in a vacuum; it is the capstone of an effort on the part of business interests, the insurance lobby and conservative politicians to change tort law and civil law in general to protect large businesses from claims brought by ordinary people regarding negligence, health and safety violations and other abuses.
The diminution of plaintiffs’ avenues of redress under tort law mirrors a broader trend in conservative politics of diminishing the government’s role as an active guarantor of the rights and liberties of citizens, embodied by (for example) the current assault on Social Security, the weakening of business and environmental regulation, and the privatization of government services. The debate in the Senate is the offspring of a conservative mindset that regards common-good regulation — environmental protection, workplace safety requirements, rules governing negligence, medical malpractice laws — as imposing unreasonable burdens on businesses. But the debate rarely focuses on the individuals who rely upon class-action suits as remedies for injuries suffered at the hands of negligent doctors or unsafe employers.
If the CAFA passes, its supporters should at least be honest: tort reform isn’t about restructuring the legal system for the common good. It’s about screwing the little guy out of his day in court.
Rob Hunter ([email protected]) is a senior majoring in political science and philosophy.
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You make false and illogical conclusions with incoherent and illegitmate “evidence.” 3L
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Time for Rob to move off of legal topics. He butchered the Commerce Clause a little while back and now did the same thing with tort reform….
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Yeah, he does not get tort reform at all. Under the current system, the “little guy” barely makes anything. Actually, it’s almost certain that all of us or our parents have been plaintiffs in a class action at some point. I, for example, was a plaintiff in a class action against Comcast regarding something or other to do with late fees. What was my reward? Five dollars off my bill for one month. What was the trial lawyer’s reward? A few million dollars. In addition it has raised the insurance premiums of physicians to ridiculous scales, which has in turn increased the cost of medical care, and has increased the insurance premiums of small businesses as well. The current system also makes it impossible for these small businesses to fight back, as they cannot risk the chance they will lose if they get an overly plaintiff-sympathetic judge or jury, as it would ruin them. Thus, the plaintiff makes off with the maximum amount the small business owner can afford to pay in a settlement. Also, current tort law allows a consumer to file suit anywhere the company does business. Thus, if a group from Montana had a class action against a company that sold anything in Illinois, they could forum shop to a trial lawyer’s favorite courtroom: Madison County, IL.
Tort reform is badly overdue. This is from a kid who is going to law school next year, just so you know.
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Your five bucks from Comcast is not representative of class-action lawsuits, and you should know that.
I was lead plaintiff in a massive lawsuit that involved hundreds of people and a town covered in radioactive waste. People died. From start to finish, six years. The demand of my class had nothing to do with money (but I can’t go into specifics, thanks to a gag order we had to sign.) It was not trivial and affected the lives of literally thousands of people.
Don’t conflate the two. There is corruption everywhere, and a good portion of the blame for high medical costs falls squarely on the shoulders of the insurance companies.
Bush’s tort reform is motivated wholly by his love for big business, not to help the ‘small businesses’ you mention. I’m lucky my lawsuit was finished before Bush gutted the EPA and Superfund, or it’s likely the company at fault would have gotten off scot-free.
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If it wasn’t about money you wouldn’t have signed a gag order.
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Actually, the five bucks from Comcast is representative of class actions. Check out the statistics. Your case is not representative, and in the case of something major like that, yes the class could go through. Why are the trial lawyers and everyone else who endorses class actions so scared that they will have to go through federal court? Because then they won’t have access to the most liberal courts in the country.
And if anyone here has a relative who is a doctor, ask them about the results of class action law suits. If anyone knows someone who owns a small business, ask them about the results of class action law suits.
Oh, and by the way, Mr. radioactive waste. You are, obviously, either a fake or a moron. Because you just broke your supposed gag order.
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Just thought of this. Your story is completely implausible beyond that. The cost of defending a case like that for six years would have been so much money, that it would not have been worth it to settle. Gag orders beyond the length of the trial are parts of settlements. A deal, we’ll give you this if you stay quiet.
You’ve watched Runaway Jury a few too many times, my friend.
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No, the gag order was to protect their name - we were not asking for money. Yes, I broke the gag order by speaking of the case here (in the vaguest way possible), but it was in (an obviously futile) attempt to prove that not all class-action suits are trivial money-making fests for the attorneys involved.
BTW, both my folks own small businesses, so I don’t need to ask anyone for such advise, but thanks for your thoughtfulness.
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When did I say a settlement was reached?
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You can’t get a gag order as part of a judgment, it would be overturned as unconstitutional.
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A Frivolous Law Suit
A West Palm Beach, Fla. physician, Dr. Robert Plasko and his wife, filed suit in Palm Beach County Circuit Court, against Merck and a pharmaceutical sales representative. According to the suit, Dr. Plasko developed significant heart damage as a result of taking Vioxx for nine months in 2003.
Vioxx is an anti-inflammatory medication that was placed on the market in May, 1999, by Merck & Co. Merck had solid, unequivocal evidence as early as 2000 that Vioxx was unsafe by virtue of causing a significantly increased risk of heart attacks or strokes, yet did not withdraw Vioxx from the market until September, 2004. Dr. Plasko took Vioxx provided to him by a Merck pharmaceutical sales representative.
The fifteen-count complaint filed includes allegations of fraud, that Vioxx was a defective product, and that both Merck and the sales rep negligently failed to warn and failed to make material representations regarding the safety of Vioxx.
As a result of Dr. Plasko’s taking Vioxx and his subsequent heart damage, Dr. Plaski is now disabled and was forced to give up his medical practice of 16 years. Dr. Plasko states that as a consumer and a physician, he was misled by Merck and its sales staff, and he hopes this litigation will serve as a means to prevent such corrupt activity from happening again in the future.
The tort de-form shoe is on the other foot when it hits home, eh doc?
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You are completely misguided about this, and are an example of why lawyers have such a powerful grip over our society. They have brainwashed you and others into thinking that they are ‘fighting for the little guy’ - but do they mention that the little guy often gets nothing. Did they mention that by forming a class, you are diluting monies due to the truly injured to include people that are truly not injured - do you think lawyers care at all about this? All they care about is making the class as large as possible so that they can collect the biggest award - and pocket the majority. Why can’t we tie what individual plaintiffs in a class get to what the lawyers get? They should get no more than a fraction of what the plaintiffs get. Do these brainwashing lawyers mention the ills they cause to society? When a company has to pay ridiculous sums - who do you think will suffer because of this? Yes - some executives will take a pay cut, but in large the burden will fall on all the company employees - in the form or layoffs, decreaed pay and bonuses, reduction in the value of their pensions and 401k plans. Further, the investor is hurt, and the consumer of all their products is hurt - that is, you and I, and you have just allocated wealth from a large number of people in the corporation to a few people in the suit. Everyone ins society will pay the costs of this lititgation and to fill these lawyers pcokets. The long term effect is that companies hire fewer people, take less risk, are less innovative, and are more defensive and risk aversive. When companies become less innovative and are in contstant fear, do you think they will continue producing life saving and life improving products? Who does this serve? Why don’t we make it so that these lawsuits - instead of being a windfall for lawyers - cause obligatory changes in the way the company does business - rather than monetary form? Do you think one lawyer will care to bring these suits? Do you think one lawyer will ‘care for the little guy’ then? So much of this litigation is about one thing - greed. We must heed that fact when making decisions about tort reform.