Access to Courts
Tort reform aims to reduce the ability of victims to bring tort litigation and to reduce damages they can receive.
Utah is famous for a lot of different things, and one of those things is our people’s kindness. We shouldn’t feel bad about initiating a lawsuit, but often times my clients do. I have to reassure my clients constantly that it is ok to sue and that it’s not immoral. Hopefully this article will explain more about tort reform and give comfort to those in the middle of the process.
Tort reform is the reason why there’s hesitation in the average person to sue, and that’s not by accident. Big business has spent billions on restricting your access to courts. Yes, billions with a B, convincing the American people it’s not in our best interest to sue. The most famous example of trying to limit your access to the courts is the marketing campaign and pr machine put into action against Ms. Liebeck and her suit against McDonalds. McDonald’s and their insurance company spent big dough misleading the American people about the facts of the case, and they didn’t stop there. McDonald’s was really the beginning of the tort reform movement.
Did you know the plaintiff in a lawsuit can’t mention the presence of insurance without a mistrial and big business is constantly lobbying to impede your ability to use the courts? That’s tort reform. Talk to anyone who works for the insurance industry and the first thing out of their mouth will likely be about frivolous lawsuits. Our judicial system has rules in place specifically designed to prevent frivolous lawsuits but the lie that our courts are slammed with unworthy suits continues to be perpetuated. There are multiple stages and deterrents like attorneys fees to avoid frivolous suits but the lie that our courts are slammed with unworthy suits continues.
It’s no secret that I believe in an open court system. My position is quite clear, I believe the judicial system is in the best position to settle disputes. I say that because I believe in you and my neighbor to judge the facts. I believe in the jury system. Time and time again, the jury system has proven to me juries are the best way to settle disputes. Is it perfect? No, but nothing is. My hope is that you believe in an open court system as much as I do and you begin to see who’s really on your side.
One of the most powerful lobbying groups in Washington is the U.S. Chamber of Commerce. Last year the Chamber spent over $100 million on federal lobbying. However, the Chamber’s influence does not stop at lobbying congress. The Chamber also lobbies the courts through Amicus briefs. The goal is to avoid responsibility for the opioid crisis. Amicus briefs have become a favorite tool for lobbying groups across the country.
Ohio was one of the first states to initiate lawsuits against major opioid manufacturers to combat the opioid crisis. Against Ohio, the manufacturers argued every defense under the sun to prevent themselves from taking responsibility for the opioid crisis in America. The amicus brief argued Primary jurisdiction, Preemption, and First and Fifth Amendment principles. The Primary jurisdiction argument is that the court does not have the authority to adjudicate the lawsuit. The Preemption argument is based on a hypothetical ending with the manufacturers being forced to commit heinous acts. And finally, the First and Fifth Amendment arguments proposed that drug manufacturers cannot be forbidden from fraudulently marketing. They want to be able to continue to fraudulently market to continue to push the opioid crisis.
Most of these arguments don’t pass the sniff test but that’s not really the point. Preemption was based on the FDA forcing manufacturer conduct. The Chamber simultaneously argued that the FDA has limited powers and cannot oversee the manufacturers. The focus of these Amicus briefs is persistence. By persistence, I mean the same way a river is persistent against a rock. The arguments don’t need to make sense, they just need to muddy the waters. The goal of their Amicus brief is to make it impossible to sue drug manufacturers.
Opioid manufactures are persistent, in fact, so persistent that they’ve had a chilling affect on one case in particular. Mr. Caltagirone is a man who was prescribed a fentanyl laced lollipop for migraines, but unfortunately, Mr. Caltagirone became addicted. He went in and out of treatment, and eventually died from an accidental methadone toxicity. Prescribing fentanyl for migraines is a bit overzealous, it also sounds insane, and that’s because it is insane. Fentanyl is designed to provide relief for cancer patients in around the clock pain, not for migraines.
Mr. Caltagirone’s estate sued the manufacturer of Actiq for continuing to illegally conduct off-label promotion and in 2008, the manufacturer of the fentanyl laced lollopop paid the government $425 million dollars as a settlement for off-label marketing. Unfortunately, this is business as usual, no one was forced to stop selling a product, and no one went to jail. The only punishment was a drop in the bucket fine. I’m not sure why, but the government doesn’t understand Economics. When someone makes a billion dollars profit, and only has to pay 40% of the profits back in fines, than there is no incentive to stop the immoral conduct.
According to the DEA, more than 6 million fentanyl prescriptions are dispensed each year. There are not 6 million cancer patients who meet the criteria for fentanyl. Most experts estimate the need being closer to 3 million. The trial court dismissed Mr. Caltagirone’s case and it is now on appeal. The Chamber filed an amicus brief for the appeal in Pennsylvania. The Chamber’s amicus brief argued that Plaintiff’s attempt to enforce the FDCA through a state law tort claim stands as an obstacle to the FDA’s discretion and is preempted. That precise argument is also being made by the opioid manufacturers in Ohio. The opioid manufacturers are attempting to stretch Buckman’s precedent into an all encompassing force field. They want Buckman to protect all drug and medical device manufacturers from state tort claims, but so far it is not working. It’s no coincidence that the U.S. Chamber of Commerce is filing a brief in an individual drug death lawsuit that happens to support other arguments they are making across the country.
This isn’t the first time the Chamber has used this strategy to fight the opioid crisis. For years, the Chamber has filed amicus briefs with the purpose of narrowing the law. Their goal is to make it impossible to sue drug manufacturers responsible for this opioid crisis. The last few years has seen a ramped up effort by the chamber. Now the Chamber seems particularly focused on thwarting arguments against opioid manufacturers. Most of the opioid lawsuits out there haven’t made it far enough to have these issues decided but If the drug industry is able to use individual cases to stack the legal deck in their favor, governmental entities, and other individuals may never get a fair day in court.
You may have not heard of the term Tort reform before because it’s not very common, but it’s extremely important. Tort Reform is a war against consumers, it’s as simple as that. The best example of tort reform’s campaign against consumers is what happened in our country when a grandmother from New Mexico was severely burned by a cup of coffee. The coffee was not just “hot,” but dangerously hot. McDonald’s corporate policy was to serve the coffee at a temperature that caused serious burns. Ms. Liebeck was wearing sweatpants that kept the coffee against her skin. She suffered third-degree burns and required skin grafts. Liebeck’s case was also not far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee. Including reports of third-degree burns, and had paid settlements in some cases. Moreover, the Shriner’s Burn Institute published warnings to the food industry that its members were causing serious burns by serving beverages above 130 degrees Fahrenheit.
Stella Liebeck, was 79 years old, sitting in the passenger seat of her grandson’s car with a cup of coffee. After the car stopped, she tried to hold the cup between her knees while removing the lid. However, the cup tipped over, pouring scalding coffee onto her. She received third-degree burns over 16 percent of her body, requiring hospitalization for eight days. She also received skin grafting, scarring, and disability for more than two years. The areas which had full thickness injury had to have skin grafts for coverage. Ms. Liebeck brought a suit against McDonalds and was apparently willing to settle for $20,000 but McDonalds made a strategic decision to fight the claim. This turned out to be a bad business decision for McDonalds but a good decision for the rest of the public.
McDonalds kept their coffee temperature between 180 and 190 degrees Fahrenheit. They used this temperature based on a consultant’s advice that this was the range needed for the best taste. McDonalds later admitted that they had not studied the dangers associated with these high temperatures. It is also important to note that other fast food restaurants sold their coffee at significantly lower temperatures. Most coffee served by people in their homes is in the 135-140 degree range.
The Plaintiff’s expert testified that liquids at 180 degrees would cause a full-thickness burn to human skin in two to seven seconds. Having the temperature of the liquid below 155 degrees causes the likelihood of a burn injury to fall exponentially. Essentially, if the coffee served to Ms. Liebeck was 155 degrees, she would have avoided significant injury when she spilled it.
The case is considered by some to be an example of frivolous litigation. ABC News called the case “the poster child of excessive lawsuits”. McDonald’s asserts that the outcome of the case was a fluke but we know better. Mcdonald’s attributed the loss to poor strategy, but we know it was because McDonald’s simply didn’t care about its customers. Detractors also highlighted the fact that Liebeck spilled the coffee on herself rather than any wrongdoing on the company’s part. Liebeck’s opponents argued that the vast majority of judges who consider similar cases dismiss them and this should have been too. The jury disagreed due to McDonald’s complete misunderstanding of Liebeck’s injuries. The jury ended up awarding $200,000 in compensatory damages and $2.7 million in punitive damages. The compensatory damages were reduced by 20 percent for Liebeck’s contribution. Even though the punitive damages award seemed high, it only amounted to about two days’ worth of coffee sales.
One of the main benefits emanating from the trial was revealed when a post-verdict investigation showed that that temperature of the coffee at the local Albuquerque McDonalds had been reduced to 158 degrees Fahrenheit, a level still dangerous but less likely to cause injury if spilled. Perhaps the system worked after all. A products liability case with a high monetary award resulted in a much safer product. The case was not so “frivolous” after all.
We’ve all seen arbitration agreements and I bet all of us have agreed to arbitration instead of exercising our rights to the court system but the question is why? Why as a society are we willing to give up our right to the court system? Why are we willing to give up the right to have juries/our peers judge our grievances and why are corporations so insistent on these arbitration clauses?
The most recent example of corporations asserting an arbitration clause in a massive way was Pokemon Go. Ever since Pokemon Go’s introduction to the public, people have started wandering around getting hurt, exposing themselves to crime, and finding dead bodies.
The law has had to evolve as society changes, and a host of legal issues have arisen that courts are just beginning to hash out. Look no further than the Match.com murder lawsuit and the Google Maps pedestrian accident case. If a Pokemon Go user is injured, or attacked, or lulled into trespassing, could there be liability? I don’t know. Nobody does. We can speculate generally about the companies liability, but the actual answers have to wait for our judicial system to catch up.
Maybe you’re thinking, only an idiot would get hurt playing Pokemon Go or these frivolous lawsuits are destroying America.I firmly believe you’re wrong but we can discuss that later. Right now reading this, are you so sure that you want to waive your right to use the court system forever?
Maybe you are. That’s fine. But bear in mind you’re not just waiving the right to sue over injuries, you’re also waiving the right to participate in class actions brought by others. If a service you’re using has all of your personal information stolen by hackers, and there’s a class action, you’re out of luck. If an app systematically cheats you on in-app purchases, and there’s a class action, you’re out of luck. Your only remedy is arbitration. Companies use arbitration clauses because there’s a risk of them being sued and being held responsible for something. They are afraid of a jury rightfully compensating the injured.
The moral of the story, is that you don’t want to cut off options open to you before you have to, it’s best to opt out of arbitration clauses whenever possible. Your future self might not care but it’s a risk that simply has no upside for those being asked to take it.