In 2004, truck driver Simon Loza Mejia violated company regulations, and took his eight-year-old Diana Yuleidy Loza-Jimenez along on a long-haul trip from Oregon to Bakersfield. That November 27, he was pulling away in the truck, but apparently didn’t bother to check where his daughter was, and ran over her. This was, argued her attorneys, the fault of her father’s employer—and a Sacramento County judge agreed with the argument that it was legally irrelevant that her father was the one who ran her over. Unsurprisingly, a jury ignorant of the facts awarded Diana, whose lower body was crushed, a jackpot verdict of $24.3 million, over $20 million of which was noneconomic damages. (Andy Furillo, “Sacramento jury awards record $24.3 million to girl run over by dad’s truck”, Sacramento Bee, Mar. 9 (h/t @BobDorigoJones)).
Commentary’s Jennifer Rubin notices:
A friend points out a little nugget of absurdity and political mendacity in the Pelosi health-care bill. Remember Obama’s effort to try a “test” for tort reform? (We don’t actually need a test, since it has worked to lower medical malpractice coverage and help increase access to doctors in states that have tried it.) Well, Pelosi’s bill has an anti-tort-reform measure. On pages 1431-1433 of the 1990-page spellbinder, there is a financial incentive for states to try “alternative medical liability laws.” But look — you don’t get the incentive if you have a law that would “limit attorneys’ fees or impose caps on damages.”
In other words, Congress is providing a financial incentive to uncap damages. Marvelous.
Late [July 31], the California Court of Appeal issued its decision in the case of McMahon v. Craig, holding unequivocally that California law does not permit an animal owner to recover damages for his or her emotional distress at the injury or death of an animal caused by negligence, and that there can be no recovery of damages for loss of the companionship of a non-human companion.
The report is first-hand, for it was blogger Wallace who represented the winning side in the case. Congratulations are in order.
One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.
I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.
The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.
Dustin Dibble was intoxicated when a Manhattan subway train ran over him in 2006, but a jury found the transit authority 65% responsible in February: $2.3 million for the lost right leg.
James Sanders stumbled onto the tracks and was hit by a train in 2002, but a New York City jury again found him only 30% responsible: $7 million for a lost right leg and eye.
Gloria Aguilar did not look both ways when she crossed the street; there was a dispute whether she was in the crosswalk. A Manhattan jury–after a seven-week trial–found the transit authority 100% responsible, and awarded $27.5 million for her lost left leg; a judge refused to reduce that figure.
Clearly a left leg is more valuable than a right leg. Or, as I’ve noted several times in the past, noneconomic damages are essentially random jackpots.
New York City is appealing all three verdicts. (Liz Robbins, “Woman Run Over by Bus Is Awarded $27.5 Million”, New York Times, Apr. 16).
Let us stipulate: when Rita Cantrell tried to pay for her goods with a thirty-year-old $100 bill, Target employees were foolish in being unable to recognize the old currency, and mistakenly identified it as a possible counterfeit. Cantrell fled the store when Target asked if she had another means of paying, raising suspicions, so Target security staff passed along a photo of Cantrell to 70 other local stores participating in a loss-prevention consortium to notify them of the incident. One of the stores recognized Cantrell as one of its employees and called in the Secret Service, which investigated, and found that the bill was real; Target passed along a new notice clearing Cantrell of any wrongdoing.
Cantrell, shaken and embarrassed by the involvement of the Secret Service and her employer, incurred $200 of medical expenses–and sued. Cantrell acknowledged that Target had a right to notify other stores of the incident, but complained that the manager could have worded his e-mail differently, and, besides, some of the members of the loss-prevention consortium did not have retail operations and thus did not need to know about the incident. Notwithstanding Target’s motion for summary judgment, the court let the case proceed to a jury, which happily proposed that Cantrell be made a millionaire for the inconvenience–$100,000 in “compensatory” damages, and a 30-1 punitive damages ratio. Magistrate Judge Bruce Howe Hendricks entered judgment without touching the figure or waiting for post-trial briefing, and Target says it will appeal, so we’ll see what the Fourth Circuit does with this next year. (Cantrell v. Target Corp., No. 6:06-cv-02723-BHH (D.S.C. 2008); Eric Connor, “Jury set $3.1 milion award in Target case, lawyer says”, Greenville News, Oct. 28).
“Sixty-five percent of those attending the ABA Annual Meeting session said they were better than average at predicting the settlement value of a case, and 76 percent said they were better than average at predicting when a trial court judgment would be reversed on appeal.” But when asked a multiple-choice question on basic Bayesian statistics, only 34% of the attendees got it right–just nine points better than chance. (The most popular answer was also the most incorrect.) The ABA Journal blog also reports that attendees also suffered from severe cognitive bias on such issues as non-economic damages:
A hypothetical described a case involving a school teacher who lost his arm in an accident. Half were told that the plaintiff offered to settle for $100,000, and the other half learned of a $10 million settlement offer.
A majority of the $100,000 group said a judge would assess the value of pain and suffering between $500,000 and $2 million. But a majority of the $10 million group went higher, saying the value would be between $1 million and $5 million.
When even the lawyers and judges can’t accurately peg noneconomic damages, what other evidence do we need to show that uncapped and unscheduled noneconomic damages are unconstitutionally arbitrary and irrational?
We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.
For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.
“[U]nlimited damages … could have a significant impact on state and local budgets, since government entities are not infrequently named as defendants in wrongful death suits, and there are similar concerns as the State undertakes efforts to attract and grow businesses here.”
“Unfortunately, I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages.”
He urged the Legislature to consider alternatives “granting more flexibility for courts to reduce excessive non-pecuniary damage awards and defining non-pecuniary damages less expansively.”
My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:
It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million). Products liability verdicts have become so run-of-the-mill that even nine-digit verdicts and their aftermath receive only local or specialty press coverage, with cursory national coverage. But Buell-Wilson demonstrates much that is wrong with the current liability regime, including the fact that the media is so jaded by litigation abuse that a $368 million verdict is barely newsworthy.