Mad, Beautiful Ideas
Tort Law and Necessary Reforms

After Last Monday's post, where I discuss how I feel that I disagree with the some actions and feelings of one particular personal injury lawyer, Bill Marler, and the brief discussion I had with Marler regarding what was, frankly, a far more personal attack that it had any right to be, I've been thinking quite a bit again about the issue of Tort Reform. I'll get to that in a moment, but I want to start by talking about my stance on risk.

First, I agree wholehearted with Bruce Schneier that we, as humans, are absolutely awful at estimating risk. Going back to the discussion from last week, based on Marler's own statistics, since 1993 the CDC has had 667 reported cases of illness caused by E. coli O156:H7. The most recent (and largest) reported on Marler's site was from Spinach from Dole in 2006, which accounted for 205 cases.

Even assuming that only 1% of cases were properly attributed and reported (which I feel is a low estimate), that 2006 instance would have resulted in roughly 20,000 food poisonings. I'm chosing to focus on this 2006 instance because it's the largest instance, as well as the most recent. But what is 20,000 (or even 200,000) food poisonings in the large scheme of things? As of the most recent US Census (2000), the population of this nation was 281.4 million people. It is assumed that our population passed 300 million in 2006. But even with that 281.4 million number, amd guessing that only .1% of cases were properly reported to the CDC (a figure I guess is ridiculous), the odds of contracting E. coli O156:H7 are in the neighborhood of .07%, roughly 1 in 1,400.

Note that those figures are focusing on a particular strain of E. coli, one which is considered to be particularly vicious. With a more reasonable error rate of maybe 1 in 10 cases being properly reported, the likelihood drops to about 1 in 140,000. Now I'll admit, that figure is a little scary, since the odds of contracting this particular strain of E. coli significantly lower than hitting the grand prize in the Powerball. But, even at 1 in 1,400, most people will never contract this particular strain of the bacteria. At the more reasonable 1 in 140,000 figure, most people will never even meet a person who has been poisined with this particular bug.

In reality, the figures are a little different. Outbreaks tend to not be spread evenly across the entire population. The 1993 instance which brought Marler to the front of the Food Safety issue, was restricted mostly to Washington State, and more specifically, people who also ate at Jack-in-the-Box. However, since the meat-packing industry effects just about everyone, and according to the USDA 70% of all cattle were processed by only 4 companies by 1997 (a sharply increasing trend from 1980), it is clear that beef production (in particular) is an industry which can have widespread affects when something bad happens. I wonder what that figure is today, but I was unable to find any data.

A phone conversation I had with Mr. Marler on Monday on this, and a few other topics, contained a comment regarding that, while the odds are slim, if it happened to you or someone you love, how many of us would just say, "Oh, well, that's the luck of the draw." Not very many, and while I'd acknowledge the rarity of the case, I'd certainly still be upset. But I never tried to imply that people shouldn't be culpable for their actions. If someone causes an outbreak through deliberate action (or failure to act in a reasonable manner), they should be held accountable. If someone fails to respond in a timely, appropriate manner when an outbreak is discovered, then they are open to legal action.

For instance, last week it became apparent that there was a national Salmonella outbreak that was getting traced back to Peanut Butter under two particular brand names, King Nut and Parenell's Pride. King Nut issued a recall on January 10th for their peanut butter, but on January 12th, they issued a press release claiming that they absolutely couldn't be responsible for the outbreak, because they are only distributed Peanut Butter in 7 states that they recieved from the Peanut Corporation of America, who happens to distribute Parnell's Pride. It wasn't until January 13th, three days after King Nut's recall, that the PCA decided to recall their product. The potential link was first identified on January 8th, and confirmed on January 9th, making PCA's tardiness even more problematic. Especially when you consider that their primary market is large-scale food service operations (like, say, school lunch rooms), and by their own admission several of the lots in question were produced as early as July 1, 2008. Even the CDC recognized the source of the outbreak the day before PCA's recall.

Is the Peanut Company of America liable for these illnesses (and deaths)? Possibly. It's perfectly reasonable that PCA knew that King Nut Peanut Butter was really just their own peanut butter repackaged, and when King Nut recalled, they should have followed suit sooner than 48+ hours later. I can't speak to the conditions of PCA's factories where the peanut butter is made, so I can't say if there was any negligence on the part of PCA, but certainly an investigation is warranted.

Returning from nuts, to meat. I will not argue that the meat-industry has not generally shown a real lack of concern for quality and safety. In the case of E.Coli in beef, the evidence is clear. However, I would argue that the issue is far deeper than simply the packing. The majority of the cattleman's industry has led to the situation we have today. We took a ruminant that ate primarily nutrient poor grasses and began feeding it a diet rich in corn and grains which has drastically changed the stomach chemistry of cattle. Even some Free-Range, Organic, or Grass-Fed beef end their lives in some sort of Concentrated Animal Feeding Operation (CAFO) operation, where their diet is pretty much the same as the diets fed the 'normal' beef. High animal concentrations in small spaces also leads to immense disease problems, just look at the brucellosis problem in Yellowstone. Now brucellosis in Bison is not dangerous to humans (as far as we can tell), and may not be transmissible to Cattle (but most ranchers don't want to risk it), but when USDA estimates set the brucellosis rate at half the herd, clearly there is a population problem. If half of a town of 5,000 got infected with something, it would be considered a fairly serious outbreak.

So, in the realm of food safety, there is clearly a lot of room for improvement. Both on the parts of government (FDA and CDC, primarily), but also on the parts of the handful of companies we've ended up handing the majority of our food production to. But enough on Food Safety, Risk, and Accountability. This post is, ostensibly, about Tort Reform.

Tort law is the name given to a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations.[1] A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or "liable," for those injuries. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents.

From the Wikipedia article on Tort

Now, part of the reason that Tort law has such a bad name these days is because of Personal Injury Lawyers who will take any suit, on the off-chance that it might work out in court. Things like that woman who spilled McDonald's Coffee on her lap and sued because it burned her, or inmates suing the prison system because they only had access to the wrong kind of peanut butter (chunky v. smooth, not salmonella-laced v salmonella-free).

Now, for every asshole lawyer out there who takes on bullshit cases like these, there are several who really do try to only take cases they feel involve real fault. Mr. Marler assures me that his firm works hard to only take cases they feel are valid, and while I still disagree with that particular case of the raw milk dairy in Massachusetts (mentioned in the post on Food Safety and Accountability), I accept that the firm of Marler-Clark had evidence which suggested to them that there was fault.

However, while many lawyers aren't shifty, there are enough who are, that it leaves a poor impression for the entire profession. The Bar Association's across in most US states require membership to practice law, and have method for revoking bar membership for cases where people step beyond appropriate lines. Traditionally the Bar has been very reluctant to do this policing, and that is understandable. But there are cases like Jack Thompson, who spent 11 years of his career on a tear against the Video Game and Pornography industries, because of his strong feelings that such things undermined his Christian Values. In short, he used the law, not as a tool to find Justice, but as a weapon to fight something he disliked on religious grounds. It wasn't until last year, that the Florida Bar finally disbarred him (a process that had begun in 2007) for professional misconduct.

Now, by their definition, his professional misconduct was related to defamation, lying (even under oath), and attempts at coercion to win his cases. However, I think that the Bar, as a professional organization needs to take a more active role in policing their own members, even in Jurisdictions where the Bar lacks the legal power to disbar their own members. Clearly, this wouldn't change the need of the Bar to not take disbarment proceedings lightly, but for cases where people are clearly using the law as a weapon, and have a demonstrable history of this, the bar should be more proactive. A lot of lawyers lament the reputation of their chosen profession, and I suggest taking things further and supporting better policing of the profession from inside the profession. Particularly for instances, like Thompson, where the research they use to present their cases is routinely sourced from research institutions who have an obvious agenda, and who routinely contradict a larger body of evidence to the contrary.

But there are more issues that simply this. In much of the US, there are no penalties for bringing a frivolous suit against a defendant. In Britain, the rule is that the loser of a case is required to pay the legal fees of both sides. I like this situation a lot, but there is a definite fear that this system unfairly benefits the wealthy (which largely will constitute large corporate entities), in that they can generally afford to pay the legal fees far better than the people seeking the damages. So, while the system discourages frivolous cases, it can also make prosecuting potentially legitimate cases, that certainly should be heard by the courts, from being brought forward all together.

Mr. Marler described to me a system in a Mid-Western state (I forget which one, and my Yahoo!-fu is not helping), where a panel of judges would decide on the 'value' of a case, and whomever lost the case by at least 10% was responsible for both side's legal fees (if no one won by the 10% figure, both sides pay their own). I know very little about this system, but it sounds intriguing, and like a really good compromise between the the "British" and "American" systems of Tort Law.

As a final note, I'm not convinced that a jury is appropriate for civil cases. For one thing, the Sixth Amendment to the US Constitution, only talks about a jury in criminal prosecutions, so there is no constitutional reason for a Jury in a civil case, but I'm willing to allow the decision to be made by a jury based on the rule of law as presented by the Judge, and both sides of the case. The Jury simply won't be as educated on the law, either existing case law or the written law (nor will they be as educated on researching it) for me to feel completely comfortable turning the decision, which is ultimately a decision based on the interpretation of the facts and the law, into an fully educated decision.

Then, there is the issue of unreasonable awards. The $2.9 million award for the old woman spilling the McDonald's coffee on her lap, or the $15.6 Million settlement for the 9-year old Seattle girl who was poisoned in the E. Coli outbreak at Jack in the Box that made Bill Marler famous, seem on the surface to be patently absurd. There may well be underlying circumstances that make those judgments make much more sense, but on the surface, this feels ridiculous. This concern, however, may be somewhat unfounded. Certainly, there are cases where Juries provide judgments which are ridiculous, but Mr. Marler (and a few other litigators I've asked), have indicated that there experience is that most of the time, Juries are not willing to make judgments for enormous sums of money. This is functionally hear-say, but I'd be interested in seeing an analysis of these sorts of judgments.

There is no perfect system. The system that we have is probably one of the best, particularly compared to China. However, in my opinion, a lot of problems that this country is facing, comes down to the ease of filing and lack of repercussions there are for filing lawsuits that are baseless. Medical Malpractice Insurance is higher than it historical ever has been, in part because of the increased trend of people suing doctors. Some doctors deserve it, but many probably don't.

People are emotional, particularly when things happen to them or their loved ones. Their desire may often tend to be toward retribution instead of justice, and the system needs to ensure that the line between retribution and justice, which can get blurry, is better considered. Some of that burden needs to fall on the state, through deeper penalties for baseless suits, but some of it too should rest with the bar association, in the self policing they do of their members. Certainly, some of this is already done, but I'm not convinced the self-policing of the profession is vigilant enough.

Above all, we all would do well to remember that sometimes bad things happen, and it truly is nobody's fault.