The Civil Justice System

Tort: "A civil wrong or injury resulting from a breach of legal duty that exists by virtue of society's expectations regarding interpersonal conduct" —Barron's Law Dictionary

The civil justice, or tort, civil holds citizens accountable when their behaviors breach society's expectations of how we should treat one another. Proponents of so-called "Tort Reform" seek to remove that accountability, most often to the benefit of large companies and CEOs. ATLA supports the civil justice civil as a fundamental check on the power of businesses and governments and opposes efforts to limit the legal rights of citizens.

Impact of Civil Justice Restrictions

• Older Americans Suffer Most from Civil Justice Restrictions (Updated 2/7/05)
• Women Disproportionately Hurt by Legal Restrictions (Updated 2/7/05)
• Caps Doubly Unfair the Youngest Victims (2/7/05)
• Restrictions Do Not Curb Ridiculous Lawsuits Between Businesses
• Federal Lawmakers Almost Shielded Firestone and Ford from Liability

Older Americans Suffer Most from Civil Justice Restrictions.

A $250,000 cap on non-economic damages—the only compensation a jury can provide for an injury itself as opposed to reimbursement for the injured person's out-of-pocket expenses—is unfair to the most severely injured victims of medical negligence. It would discriminate against seniors and would do nothing to make health care safer or lower doctors' premiums.

A cap on non-economic damages discriminates against seniors.
When a retired person is injured or killed by medical negligence, there are no lost wages to be reimbursed by economic damages. Other than reimbursement for out-of-pocket medical costs, the only form of compensation is non-economic damages, which would be limited to $250,000.

Are these cases frivolous?
Supporters of caps on malpractice awards refuse to name one case in which a victim received more than $250,000 in a case anyone would consider "frivolous." The arbitrary limit would apply in all cases, including the following:

Ruth Waites, Texas
At 84, Ruth Waites went into a nursing home in Borger, Texas, operated by a health care company under investigation nationwide for providing substandard care. She developed painful bedsores which were never treated, and ultimately died from the resulting infection. One bedsore, on her tailbone, was the size of a grapefruit, and reached to the bone. ["Judge Orders Settlement in Nursing Home Case," Lubbock Avalanche Journal December 9, 1997]

Richard Flagg, New Jersey
At 60, Richard Flagg, a barge captain in New York harbor and Vietnam vet, was diagnosed with a bleeding tumor in his left lung which required that the lung be removed. The surgeon mistakenly removed the healthy right lung rather than the diseased left lung. Because of the surgeon's mistake in removing the healthy lung, the patient's remaining lung-which contained the tumor-could not be removed. Mr. Flagg survived for three years permanently connected to an oxygen tank before the tumor killed him.

Zivko Zivkovic, Utah
87-year-old Zivko Zivkovic, a retired pathologist, went in for a routine colonoscopy, but had to have emergency surgery after the doctor perforated his bowel. Surgeons were unable to repair the colon and performed a complete irreversible colostomy. After surgery, doctors realized that, during the procedure, Zivkovic had suffered a heart attack, which caused him to sustain mild brain damage, and that they had slashed his prostate and torn his bladder neck, requiring further surgery. This series of egregious medical errors left Mr. Zivkovic requiring around-the-clock care. ["Stories of Medical Malpractice," Center for Justice & Democracy]

Seniors are more likely to be injured or killed by negligence, bad drugs, and medical devices.
Seniors rely on health care, especially prescription drugs and medical devices, much more than the population at large. Congressional efforts to shield bad nursing homes, hospitals, and doctors will disproportionately hurt seniors. Likewise, efforts to prohibit punishment for the makers of faulty medical devices and dangerous drugs has a disparate impact against seniors.

Potential danger of medical devices is immense.
The Bjork-Shiley heart valve was sold for seven years, and tens of thousands of people were implanted before the manufacturer was forced to withdraw it from the market. Hundreds of patients died instantly when the valve failed catastrophically. Elderly patients were faced with the emotional turmoil of knowing there was a chance that the valve could suddenly fail, or the risk of having another round of heart surgery to replace the faulty valve. Efforts to protect manufacturers would shield the makers of dangerous products like the Bjork-Shiley heart valve.

Senior citizens enrolled in HMOs have poor physical outcomes.
A four-year study published in the Journal of the American Medical Association cited poor physical outcomes for senior citizens enrolled in health maintenance organizations (HMOs). "Patients who were elderly and poor were more than twice as likely to decline in health in an HMO than in [a fee-for-service] plan," says the report. Under current law, HMOs have virtual immunity from liability for their actions denying care. Why should we extend that kind of immunity when it does not improve care?

Age discrimination cases would be set back.
By definition, victims of age discrimination are older Americans. When an older worker is fired as the result of illegal discrimination, the harm goes beyond the mere loss of wages to humiliation and other emotional injuries. Yet court cases and recent tax law changes treat damages from discrimination cases as taxable income, unlike damages from a physical injury. This differential treatment of damages puts older Americans who have been the victim of discrimination at a huge disadvantage, and will effectively prevent many from seeking justice.

Securities fraud disproportionately affects seniors.
Senior citizens are disproportionately likely to be the victims of securities fraud. Although Americans over 65 are only 13% of all Americans, nearly 1 in 3 victims of securities fraud are seniors. Since securities are a large part of most pension, 401(k) and other retirement savings, fraud in securities is a major concern to seniors. Unfortunately, that concern is not shared by Congress, which has voted in the past to severely limit the ability of aggrieved investors to hold companies accountable. Efforts are underway to completely federalize securities fraud cases, which would close out the ability of investors to hold companies responsible for losses even in state court.

Women Disproportionately Hurt by Legal Restrictions

A $250,000 cap on non-economic damages—the only compensation a jury can provide for an injury itself as opposed to reimbursement for the injured person's out-of-pocket expenses—is unfair to the most severely injured victims of medical malpractice. It would discriminate against women and would do nothing to make health care safer or to lower doctors' premiums.

A cap on non-economic damages discriminates against women.
When a stay-at-home mom is injured or killed by medical malpractice, there are no lost wages to be reimbursed by economic damages. Other than reimbursement for out-of-pocket medical costs, the only form of compensation is non-economic damages, which would be limited to $250,000. Further, women typically earn less than men, even for the same job; so, for the same injury, women would receive less compensation than men.

Are these cases frivolous?
Supporters of caps on malpractice awards refuse to name one case in which a victim received more than $250,000 in a case anyone would consider "frivolous." The arbitrary limit would apply in cases like the following:

Linda McDougal, Wisconsin
Linda McDougal, a 46-year-old Navy veteran, accountant, wife, and mother in Wisconsin, went in for routine mammography and was diagnosed with an aggressive form of breast cancer. She had a double mastectomy. Two days after the surgery Linda was told she had never had cancer. Two doctors and a technician had mixed up her test results with another woman, who was falsely told she was cancer-free. McDougal has had ongoing infections and has undergone one emergency surgery and several other surgeries as a result of the unneeded mastectomies.

Kim Jones, Washington
32-year-old Kim Jones remains severely brain-damaged and in a comatose, vegetative state after undergoing routine tubal ligation surgery following childbirth at a medical center in Washington State. After the operation, hospital staff failed to notice that Kim had stopped breathing, since her vital sign monitors had been removed. Though successfully resuscitated, Kim suffered multiple seizures and was given seizure-control medication that worsened her condition. Today, Kim is unable to control her bodily functions, has no discernable mental functions and is being cared for at a convalescent center. According to news media reports, the anesthesiologist was impaired by narcotics he had been diverting from patients. ["A Cause of Action: Washington Families Search for Justice," Washington State Trial Lawyers Association, 2003]

Dialyn Powers, Arkansas
Dialyn Powers, 39, went to the hospital for a hysterectomy. During a normal pre-operative procedure, a nurse-anesthetist (NA) taped her eyes closed, used a drug to temporarily paralyze her, and intubated her—but he forgot to turn on the anesthesia. When he realized his mistake, instead of alerting the surgeon, he turned on the gas late, gave Dialyn a shot of narcotics and another drug meant to give her amnesia, and allowed the surgery to proceed. Dialyn was awake when her surgeon was in the process of cutting her open. She remained awake and feeling the surgery for 12-35 minutes. She now suffers from post-traumatic stress disorder.

Women are exposed to more medical negligence.
Historically, women are more often exposed to dangerous medical products and medical negligence than men. Some medical malpractice claims are unique to or more prevalent against women, including obstetrical malpractice and sexual assault by health care providers. In addition, women suffer harm from gender-specific products such as breast implants and birth control devices.

Congress should work for real health care solutions.
The Congressional Budget Office has calculated that even the most drastic limits on medical malpractice damages would reduce overall health care costs by less than one half of one percent—and would do nothing to help the 100,000 Americans who die each year from preventable medical errors. Congress should work to improve patient safety and reduce medical negligence before it shields bad doctors and the insurance and pharmaceutical industries from accountability.

Caps Are Doubly Unfair to the Youngest Victims of Medical Negligence

A $250,000 cap on non-economic damages—the only compensation a jury can provide for an injury itself as opposed to reimbursement for the injured person's out-of-pocket expenses—is unfair to the most severely injured victims of medical malpractice. It would discriminate against children and would do nothing to lower health care costs or doctors' premiums.

A cap on non-economic damages discriminates against children.
When a child is injured or killed by medical malpractice, there are no lost wages to be reimbursed by economic damages. Other than reimbursement expenses for out-of-pocket medical costs, the only form of compensation is "non-economic damages," which would be limited to $250,000. Instead of a big-government, one-size-fits-all limit, we should let juries decide what appropriate compensation is for a paralyzed child who'll never play sports, a disfigured teenager who'll never go to a prom, or a mother who loses her child forever.

Are these non-economic losses—the only compensation for a child's permanent, life-altering injuries—less valuable than the economic loss of an adult's wages?

Are these cases frivolous?
Supporters of caps on malpractice awards refuse to name one case in which a victim received more than $250,000 in a case they would consider "frivolous." The arbitrary limit would apply in cases like the following:

Tricia Newenham, Maine
At 15, Tricia Newenham was an energetic teenager who'd been named her middle school's student of the year and was on track to become the first in her family to attend college. She took an over-the-counter cold medicine containing phenylpropanolamine, or PPA, and shortly thereafter had a massive stroke. She spent a month in a coma, and emerged totally blind and mentally impaired. The drug company that made the cold medicine had covered up an internal study showing PPA increased the risk of sudden hemorrhagic stroke, especially in young women. PPA was withdrawn from the market shortly after Tricia's stroke. ["A Dose of Denial," Los Angeles Times, March 28, 2004]

Heather Lewinski, Pennsylvania
17-year-old Heather Lewinski's face remains scarred for life after a Pittsburgh plastic surgeon performed radical surgery to correct a skin disorder near the left corner of her mouth when she was 8. The doctor claimed to have done the tissue expansion procedure on children many times before when in fact neither he nor any doctor in the United States had ever done the surgery to treat a condition such as Heather's. Following the operation, Heather was left with horrific facial scarring and a grotesque, stroke-like "tugging" at the corner of her mouth. She testified to Congress, "I will be 18 in a few months, and I have never kissed a boy" and she worries she will never marry and have children.

Alexandra Katada, Texas
During the birth of Sandra Katada's daughter Alexandra, the doctor contorted and stretched Alexandra's spine, destroying her nerves and leaving her partially paralyzed. The doctor applied so much force that, in addition to the spinal injury, the baby's elbow was broken and pulled from its socket. Damage to the spinal nerves responsible for stimulating the growth of her rib cage meant that when the rest of her body grew over the next several months Alexandra suffocated inside her small rib cage. Eight months old, she died on Valentine's Day, 1994.

Congress should work for real health care solutions.
The Congressional Budget Office has calculated that even the most drastic limits on medical malpractice damages would reduce overall health care costs by less than one half of one percent. Instead of "reform" that hurts the weakest members of our society, Congress should work for real health care solutions to provide coverage for the 8 million American children who have no health insurance.

February 7, 2005

Real Frivolous Lawsuits in America are Businesses Suing Businesses

Civil justice restrictions advocated in Congress cut off the rights of consumers injured or killed by faulty products. They do nothing to curb the truly ridiculous lawsuits filed each year by businesses against each other. Why should businesses have the courts to themselves?

Examples of Truly Frivolous Lawsuits Filed by Corporate Attorneys

Brand Name Drug Company Sues Generics Makers

Drug manufacturer GlaxoSmithKline sued two generic drug companies after learning that they were seeking approval from the Food & Drug Administration to manufacture and market a less expensive, generic version of SmithKline's anti-depressant drug Paxil. Despite the fact that after a certain period of time all companies have a legal right to create generic versions of prescription drugs and make them available to more consumers who could not afford the band name, the sham litigation allowed SmithKline to delay a generic version of Paxil from entering the market by almost 3 years. The Legal Intelligencer, 5/23/05

Media Company Tries to Own Everyday Words

Fox News sued Al Franken for using the term "Fair and Balanced" on his book cover. Calling the motion "wholly without merit, both factually and legally," the judge, Denny Chin of United States District Court threw out the case. Judge Chin said the case was an easy one, and chided Fox for bringing its complaint to court. The judge said, "Of course, it is ironic that a media company that should be fighting for the First Amendment is trying to undermine it." New York Times, 8/23/02

Rental Car Company Tries to Own Commonly Used Phrase

In 1998, Enterprise Rent-A-Car filed lawsuits against Rent-A-Wreck of America (a tiny rental company) and Hertz Corp. and threatened to file lawsuits against several other car-rental companies who use the phrase "pick you up," claiming that "We'll pick you up" is Enterprise's slogan. While those suits were pending, Advantage Rent-a-Car counter-sued Enterprise, claiming that Advantage had used the phrase "we'll pick you up" long before Enterprise did. Enterprise argued in its lawsuits that the phrase means more than "we'll give you a ride"; it means "we'll pick up your spirits." Competitors said that there was no other way to say "we'll give you a ride." Enterprise attorney Rudolph Telscher said that "we'll decide in the courtroom who is correct here." San Antonio Business Journal, 11/6/98

Lingerie Company Tries to Own #22 and #95 Most Popular Baby Names

Victoria's Secret went all the way to the Supreme Court in an effort to sue Victor's Little Secret, a gift and novelty shop selling sex toys and "Everything for Romantic Encounters" from a strip mall storefront in Elizabethtown, Ky. Victor Moseley, who opened the shop in 1998, named it Victor's Secret after himself, but changed the name to Victor's Little Secret a few months later in a futile effort to satisfy a sharply worded complaint from Victoria's Secret. In 2003, Victor was the 95th most popular baby name for a boy and Victoria was the 22nd most popular baby name for a girl. Moseley v. V Secret Catalogue, Inc., No. 01-1015

Haagen-Daz Tries to Own a Nationality

In 1980 the manufacturers of Haagen-Daz ice cream, in a suit against Frusen Gladje, tried to lay claim to the concept of premium ice cream with a "Scandinavian flair." Haagen-Dazs, Inc. v. FRusen Gladje Ltd. A.B., 210 U.S.P.Q. 204 (S.D.N.Y 1980)

Manufacturer of Barbie Sues Musicians and People Who Help Sick Children

Toymaker Mattel spent five years litigating until the Supreme Court turned down their request to reopen a trademark suit against MCA Records Inc. Mattel had claimed that the preteen girls who buy Barbie dolls were duped into thinking the song "Barbie Girl" was an advertisement for the doll or part of Mattel's official line of Barbie products. The song, by a Danish group called Aqua, includes the lyrics, "I'm a blonde bimbo in a fantasy world/Dress me up, make it tight, I'm your dolly." Mattel Inc. v. MCA Records Inc., 01-633, Associated Press, 2/22/03

Mattel, Inc., the maker of Barbie, is waging an aggressive trademark war against unsanctioned use of the Barbie name, attacking the founders of the "Barbie Makes a Wish" weekend that raises money for critically ill children; artist Paul Hansen, sued for $1.2 billion for making $2,000 from the sale of his Exorcist Barbie, Tonya Harding Barbie, and Drag Queen Barbie; and Mike Grove, who distributes Sizzler toy cars to sick and dying children. Mattel made almost $4 billion in annual sales in 1996, but has filed copyright and trademark infringement suits against all three toy enthusiasts.Wall Street Journal, 1/9/98

Insurance Company Sues Elderly Woman Killed by Truck

An 81 year old woman stepped in front of a truck on a Missouri highway and was killed. What happened next added insult to her family's injury. The trucker's insurance company charged the elderly woman with negligence, and is suing her estate for damages. Wall Street Journal, 1/15/99

Kellogg and Exxon Fight Over Whose Tiger is Friendly

In 1998, Kellogg Co. sued Exxon Corp., claiming that Exxon's "whimsical tiger" logo, which had been in existence for over 30 years, would confuse consumers who associate the tiger logo with Kellogg's Frosted Flakes mascot, "Tony the Tiger." A federal judge in Memphis threw out the suit, saying that Kellogg was "grossly remiss in failing to assert its rights" sooner. This didn't stop Kellogg, which further clogged the courts by appealing the verdict to the Sixth U.S. Circuit Court of Appeals in Cincinnati. In its brief, Kellogg argued that the Exxon tiger, like Tony, "walks or runs on his two hind legs and acts in a friendly manner." Forbes.com, 10/17/00

Wal-Mart Thinks Competitors Can't Use Carousels in Check-Out Aisle

Wal-Mart Stores Inc., the world's largest retailer, is going to court to prevent wares bought at rival Kmart Corp. from going for a spin at the register. Bentonville-based Wal-Mart has a patent on its carousel that holds its blue plastic shopping bags. The cashier drops items into bags as merchandise is rung up, and spins the rack to make the effort easier for both the cashier and the customer lifting out the bags. Wal-Mart is suing in a Delaware court to keep Troy, Mich.-based Kmart from using a similar device. The Associated Press, 7/17/03

Hormel Tries - and Fails - To Sue Jim Henson for Being Funny

In November 1995, Hormel Foods, the maker of the luncheon meat SPAM, sued Jim Henson Productions to stop the creator of the Muppets from calling a character in a new movie Spa'am, claiming that the character was unclean and grotesque and would call into question the purity and quality of its meats. A federal court rejected Hormel's claims, and Hormel also lost on appeal. Pacific Business News, 5/30/01
Disney Sues to Protect the Reputation of Snow White, A Cartoon
In 1989 Walt Disney Company used a lawsuit to force a public apology from the Academy of Motion Picture Arts and Sciences for an "unflattering" representation of Snow White in the opening sequence of the 1989 Academy Awards ceremony. USA Today, 5/1/89
Updated June 2005

Federal Lawmakers Almost Shielded Firestone and Ford from Liability

For years Congress has debated dozens of tort 'reform' proposals that would limit the legal rights of ordinary Americans and protect businesses that place dangerously defective products into the stream of commerce. In the wake of recent tragedies involving rollovers and tire tread separation, American motorists and their families should wonder how Congress comes so close to enacting bills that allow wrongdoers like Firestone and Ford to avoid responsibility.

Below is a sample of federal tort 'reform' proposals and how they would protect Firestone and Ford at the expense of consumers:

Limits on Non-Economic Damages

Non-economic damages compensate people for losses that cannot be measured by considering missed income or out-of-pocket expenses—such as the very real suffering associated with injuries (like blindness, loss of limbs, loss of fertility, and gross disfigurement). Non-economic damages often make up the bulk of awards given to those who don't earn any income at all, such as children, homemakers, and the elderly. Unfortunately, however, nearly every congressional tort 'reform' bill proposes severe limits on the amount wrongdoers have to pay victims for their non-economic damages.

If these tort 'reform' measures limiting non-economic damages were in place today, the rights of victims of the Firestone/Ford product defects would be severely curtailed. Since many of the cases involve injury to families, including women and children, victims of the Firestone/Ford accidents would be especially impacted. Victims wouldn't get fully compensated for the damage the companies caused, and Ford and Firestone would escape justice.

Limits on Class Actions

Class action lawsuits enable large numbers of plaintiffs with similar injuries to gather together to seek justice from defendants and provide a deterrent to further misconduct. By grouping many claims into one, fewer judicial resources (including judges' and clerks' taxpayer-paid time) are used, and dockets are kept clearer. In addition, class actions allow victims to disgorge the wrongdoers of their ill-gotten profits - showing others that they cannot harm individuals for profit.

Even though society clearly benefits from class actions, corporate wrongdoer-sponsored tort 'reform' measures seeking to cripple class actions are frequently proposed in Congress. If class action limits had been enacted, those who suffered at the hands of Firestone and Ford might be forced to bear the burden of seeking justice separately. In addition, the thousands of consumers seeking to be repaid for their loses involved in replacing faulty tires might be forced into court, clogging our civil dockets.

Caps on Punitive Damages

Juries may award punitive damages in cases that involve the most egregious misconduct, such as when a defendant recklessly or knowingly disregards public safety. These cases are rare, and as such, so are punitive damages. As they are the exception rather than the rule, punitive damages pack a punch. They send the powerful message to wrongdoers that flagrant misconduct and disregard for public safety are intolerable.

Evidence has emerged during the Congressional hearings involving Firestone and Ford, that indicate that these two giant corporations knew years ago that the tires commonly used on certain SUVs contained a lethal defect. Yet they consciously withheld that information from consumers and regulators, choosing instead to continue manufacturing and marketing the tires.

Congress has considered passing bills that would cap punitive damages at as little as $250,000. This is a severe and arbitrary limit on penalties which are expressly used to punish reckless misconduct and deter similar future misconduct.

Ford posted a profit of $7.2 billion in 1999; Firestone sales for 2000 are expected to total $7.15 billion.1 In the vast expanse of this corporate, multi-billion dollar financial landscape, $250,00 is an ant hill -- hardly a punishment for willful misbehavior, or an effective deterrent showing others that they, too, can endanger consumers and still be let off the hook.

English Rule / Loser Pays

English rule, also known as "loser pays," means that the loser in a trial pays the winning side's legal fees and costs. This limitation on people's legal rights has been proposed in federal tort 'reform' legislation.

In America, our civil justice enables individuals of little means to challenge the harmful actions of the most powerful and profitable companies in the world. Our system—based on contingency fees—works because injured people can depend on their attorneys to expend the resources necessary on their clients' behalf for a trial. The attorney is not paid anything and does not recoup any spent resources unless the client wins, but winning is never guaranteed.

A "loser pays" civil discourages injured citizens from holding wrongdoers accountable. How many victims of blown Firestone tire treads and Ford Explorer rollovers would challenge these multi-billion dollar corporations in court, knowing that these companies have endless resources with which to defend their actions?

"Loser pays" offers justice only for those who can afford it. Under "loser pays," the average American family simply would not have the money to risk financial hardship and probable bankruptcy if it lost its case and had to pay the legal expenses of Firestone and Ford. In effect, their right to go to court would be drastically eroded, if not eliminated.

Notes: 1 Knight-Ridder Tribune Business News, Jan. 27,2000 & Wall Street Journal, Sept. 12, 2000

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