Can we get some tort reform? Please?

[flyingcheesehead]

4-Year-Old Girl Faces Negligence Charges, Judge Gives Suit the OK

Wow.

 

[Let'sgoflying!]

Is that true? A lawsuit will result in a criminal record??

 

[alaskaflyer]

1. That writer is an idiot.
2. Insurance probably won't pay without legal action against one of the insured.
3. Whether the child or the mother ends up liable makes for yawn inducing legal machinations with the end result being the same regardless, insurance will pay.

 

[Gary F]

I do not have a problem with parents being held responsible for the actions of their children or pets but I don't understand what the damages would be here. This was an unfortunate accident. The victim is no longer alive so who else has been harmed enough to justify a lawsuit? Loss of consortium for her 90 year old boyfriend?

I agree that we need tort reform, especially in the area of general aviation. Nobody is forced to fly in a GA aircraft and should be expected to accept some of the risk. People on the ground injured by GA aircraft are another issue. Juries often ignore NTSB findings and place blame on a mechanical component when pilot error is the real cause.

The fundamental purpose of the legal system is to enrich lawyers.

 

[Ghery]

I agree that we need tort reform, especially in the area of general aviation. Nobody is forced to fly in a GA aircraft and should be expected to accept some of the risk. People on the ground injured by GA aircraft are another issue. Juries often ignore NTSB findings and place blame on a mechanical component when pilot error is the real cause.

The fundamental purpose of the legal system is to enrich lawyers.

I believe (and I could be wrong) that NTSB reports and findings are not admissible in court. Something about wanting to keep the process less adversarial. The downside, as you note, is that juries are denied that information and make decisions not supported by the investigation.

Don't bother suing someone. The only winners are the lawyers. I remember a lawyer I was working with many (20+) years ago telling us about a painting in the law library when he was in law school. Entitled "The Lawsuit" it was a picture of a cow. One party was pulling on the head and the other on the tail. All the while the lawyer was miking the cow. Says it all.

 

[JeffDG]

Let the suit go, allow a default-judgement in favour of the plaintiff, declare bankruptcy...what assets does a 4 year old have, and with a judgement against her, her liabilities far exceed her assets. Lawyer for the plaintiff gets screwed. Everyone wins.

Bankruptcy is cleared by the time she's 12 (7 years, assuming she declares a year later).

 

[ScottM]

Is that true? A lawsuit will result in a criminal record??

Civil cases do not result in criminal records.

 

[Gary F]

I believe (and I could be wrong) that NTSB reports and findings are not admissible in court. Something about wanting to keep the process less adversarial. The downside, as you note, is that juries are denied that information and make decisions not supported by the investigation.

That is probably true. NTSB findings should be part of the evidence considered during a trial if you are interested in finding the truth but it would conflict with rule #1. Example.

Question: Should NTSB findings be allowed during a GA lawsuit?

Rule #1: The purpose of the legal system is to enrich lawyers.

Answer, Apply the rule: No, since it would usually indicate pilot error and reduce the number of lawsuits against deep pocket aircraft manufacturers.

If you want to predict how something works in civil law, determine which of the choices favor this Rule #1 and you will almost always get it right.

 

[flyersfan31]

1. That writer is an idiot.
2. Insurance probably won't pay without legal action against one of the insured.
3. Whether the child or the mother ends up liable makes for yawn inducing legal machinations with the end result being the same regardless, insurance will pay.

Easy for you to say -- you don't have to hire a lawyer to defend your 4 year old.

 

[JeffDG]

That is probably true. NTSB findings should be part of the evidence considered during a trial if you are interested in finding the truth but it would conflict with rule #1. Example.

The reason NTSB reports cannot be admitted as evidence is precisely because the NTSB is concerned with finding the truth.

If everything you said to the NTSB would come back in court, people would not talk to them without their liars lawyers present, and would provide only the specific information they were compelled to by law.

This way, people can speak more freely to the NTSB, and the NTSB can do their job with fewer lawyers meddling.

 

[John Baker]

We are a nation of lawyers. Our Constitution was written and endorsed by lawyers. Our banking system was devised by lawyers. Our medical system is overseen by lawyers. Our industries are governed by lawyers. Most of our elected officials are lawyers. Every aspect of our lives is governed by a lawyers opinion and a legal decision.

Tort reform.......are you shi**ing me?

John

 

[Obi Heed Kenobi]

1. That writer is an idiot.

Here's the real article: http://www.nytimes.com/2010/10/29/nyregion/29young.html?_r=1&src=ISMR_HP_LO_MST_FB

2. Insurance probably won't pay without legal action against one of the insured.
3. Whether the child or the mother ends up liable makes for yawn inducing legal machinations with the end result being the same regardless, insurance will pay.

This nails it.

Here's a little secret for those that don't know it: insurance drives the majority of all litigation, in one way or another. Period.

This Granny's medical insurance (or the gov't) suing Mommy & Daddy's homeowners insurance.

 

[Obi Heed Kenobi]

Is that true? A lawsuit will result in a criminal record??

No.

Although, to keep it aviation-related, it wouldn't surprise me at all if it were used to put you on some list at the TSA.

 

[Obi Heed Kenobi]

I do not have a problem with parents being held responsible for the actions of their children or pets but I don't understand what the damages would be here. This was an unfortunate accident. The victim is no longer alive so who else has been harmed enough to justify a lawsuit? Loss of consortium for her 90 year old boyfriend?

Hehe, nice image.

The principle involved is called "subrogation." Granny underwent an expensive surgery, that apparently resulted in some complications causing death - meaning that those complications were also expensive.

When that happens, the insurer (or entity, as the case may be) providing benefits is allowed to sue in the name of the recipient if there is negligence.

If the recipient sues, the insurer can collect whatever it paid out of the judgment the recipient gets.

The concept has two prongs: 1) to prevent a "double recovery" (insurance benefits and a lawsuit) for the victim; and 2) it helps keep our rates down (or our taxes).

Make any sense?

I agree that we need tort reform, especially in the area of general aviation. Nobody is forced to fly in a GA aircraft and should be expected to accept some of the risk. People on the ground injured by GA aircraft are another issue. Juries often ignore NTSB findings and place blame on a mechanical component when pilot error is the real cause.

I'm in favor of "tort reform" across the board. But, it's not in the form that most people seem to reflexively think of (reducing awards or abrogating causes of action).

What I'm in favor of is an increased burden for filing. As the system stands now, I can make up something and sue anyone I want. As long as I have the required "legal elements," nothing more than an algebraic equation of A+B+C+D = Judgment, my lawsuit cannot be dismissed. Even if it's patently obvious that I've made up A through D, my lawsuit cannot be dismissed. Here's the kicker: my lawsuit does not have to be supported by any evidence at all. It can be based on mere allegations alone.

I'm in favor of doing away with this standard. I hate it. I mean, I frigging hate it.

What I'm in favor of is requiring a reasonable amount of actual evidence - even a sworn affidavit under penalty of perjury (with discretion to decline to prosecute a bona fide case of it statutorily removed) - to file a lawsuit.

In other words, to get into court, allegations are no longer enough. There must be some kind of evidence supporting your claims for you to make them.

That harms no one - good cases remain. It has only benefits - crappy cases are gone.

The fundamental purpose of the legal system is to enrich lawyers.

I share your cyncism. I'm not going to go into details, but it's well-founded.

 

[Gary F]

The reason NTSB reports cannot be admitted as evidence is precisely because the NTSB is concerned with finding the truth.

If everything you said to the NTSB would come back in court, people would not talk to them without their liars lawyers present, and would provide only the specific information they were compelled to by law.

This way, people can speak more freely to the NTSB, and the NTSB can do their job with fewer lawyers meddling.

I do not believe that being questioned during a NTSB investigation protects you from being deposed for a court case. This is public information so plaintiff's attorneys can drag anybody they want to court to testify. How are potential witnesses protected from what they say during the NTSB investigation? Excluding the actual NTSB report allows plaintiff's attorneys to cherry pick what information they want from the NTSB investigation to be presented to the jury.

 

[Obi Heed Kenobi]

I believe (and I could be wrong) that NTSB reports and findings are not admissible in court. Something about wanting to keep the process less adversarial. The downside, as you note, is that juries are denied that information and make decisions not supported by the investigation.

Don't bother suing someone. The only winners are the lawyers. I remember a lawyer I was working with many (20+) years ago telling us about a painting in the law library when he was in law school. Entitled "The Lawsuit" it was a picture of a cow. One party was pulling on the head and the other on the tail. All the while the lawyer was miking the cow. Says it all.

I remember seeing that as a kid....

And, here it is (sorry for the small pics, they're the best I could find).

 

[Gary F]

Here's a little secret for those that don't know it: insurance drives the majority of all litigation, in one way or another. Period.

This is a poorly kept secret.
Insurance = money
The purpose of the legal system is to enrich lawyers.
This is why some physicians go bare (no malpractice insurance), to make it unprofitable to go after them.

This Granny's medical insurance (or the gov't) suing Mommy & Daddy's homeowners insurance.

If Granny was a U.S. citizen she would be elgible for Medicare. Although there would be un-reimbursed medical expenses, I am not sure if they would be high enough to justify an expense of a lawsuit. I doubt that Medicare would be eligible to recover anything from a judgment.

 

[Obi Heed Kenobi]

...
The purpose of the legal system is to enrich lawyers.
....

It's certainly a popular quote.

If Granny was a U.S. citizen she would be elgible for Medicare. Although there would be un-reimbursed medical expenses, I am not sure if they would be high enough to justify an expense of a lawsuit. I doubt that Medicare would be eligible to recover anything from a judgment.

They're allowed, by law, to either subrogate or take the amounts paid out of granny's estate.

I'd say the expenses here - between a hip surgery and the resulting complications - were probably pretty high.

 

[Gary F]

They're allowed, by law, to either subrogate or take the amounts paid out of granny's estate.

I'd say the expenses here - between a hip surgery and the resulting complications - were probably pretty high.

They may be allowed by law but does it ever happen? I doubt that the plaintiff is motivated by a concern about the costs incurred by Medicare.

 

[John Baker]

I remember seeing that as a kid....

And, here it is (sorry for the small pics, they're the best I could find).

IF you press and hold your Ctrl key then click the + key, you can enlarge the pics as much as you want.

John

 

[Steve Foley]

What I'm in favor of is requiring a reasonable amount of actual evidence - even a sworn affidavit under penalty of perjury (with discretion to decline to prosecute a bona fide case of it statutorily removed) - to file a lawsuit.

How different is that from Rule 11(b)(3)?

"the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery"

 

[Obi Heed Kenobi]

They may be allowed by law but does it ever happen? I doubt that the plaintiff is motivated by a concern about the costs incurred by Medicare.

Again, there are two components to it.

First is subrogation. The public doesn't know how often it happens because the litigation is frequently conducted in the names of the actual people, rather than in the names of the insurance companies. For instance, in Colorado, you can't sue an insurance company directly - instead, you have to sue the individual who is insured. So, the case name will be something like David v. Gary, instead of Blue Cross v. Farmers. Regardless, it's the insurance companies that: A) make the decision to sue; and B) call all of the shots.

Second is the gov't taking it out of the estate of the beneficiary. This is less common, but still happens.

 

[Obi Heed Kenobi]

How different is that from Rule 11(b)(3)?

Technically, you're absolutely right. Rule 11 should require fact pleading, because your allegations are supposed to be based on fact.

Unfortunately, there are a lot of practical reasons that Rule 11 is good in theory, but somewhat ineffective in practice.

The biggest problem is the same as with 12(b). By the time you get to the point that you can show the pleadings are unsupported by the actual facts (which is required for a Rule 11 sanction), you're at the summary judgment stage. At that point, the harm's been done - you're months if not years in.

Also, there are all kinds of little tricks that can be thrown in by a savvy plaintiff to delay the inevitable - thus increasing your expenses.

So, my solution is just to do away with the 12(b)(6) standard. Just get rid of it. Go from notice pleading to fact pleading. Instead of presenting mere words in a complaint, you present the facts that back up those words.

It doesn't have to be a complete case - that would be absurd, and would encourage all kinds of bad faith activity. But, just enough where it can be said, "hey, this isn't BS."

Even just taking a complaint and verifying it - making the plaintiff sign it under penalty of perjury - would be good enough for me. And then hammering the people that perjure themselves.

 

[Gary F]

I feel fortunate that we have some legal experts adding to the discussion.

Disclosure: I am a member of a profession considered to be at high risk of lawsuits.

As far as I am concerned, the parent of the child is at fault for inadequately supervising her kid. Naming the kid as a defendant is a legal quirk. If the elderly lady had survived she would be entitled to substantial compensation. I am not sure what the lawsuit will accomplish since she died.

I believe that we should have an efficient, fair legal system. The current system is not fair due to the reason previously stated and not to be repeated. This is how I would improve the system.

1. Institute some type of loser pays even if it is only a option for the jury.
2. Eliminate joint and several liability. If the jury holds you 20% responsible, you should only pay 20% of the judgment.
3. Improved enforcement of the Daubert standard to keep junk science out of the courtroom.
4.Highly technical cases (patent disputes, medical or engineering malpractice, certain defective product cases) should be tried in specialty courts where expert witnesses are selected randomly from a list of qualified practitioners in that field. Minimum educational standards for jurors or at least an intelligence test like the ability to read and explain something from a newspaper.

 

[Obi Heed Kenobi]

I feel fortunate that we have some legal experts adding to the discussion.

If you're referring to me, that's absurd and I take offense.

Disclosure: I am a member of a profession considered to be at high risk of lawsuits.

Trust me when I say that I share the cynicism. There are numerous cases where I've been absolutely certain that attorneys are filing things solely because there is a client that will pay for it - not because it's in the client's best interests. And that's just the start of my gripes.

As far as I am concerned, the parent of the child is at fault for inadequately supervising her kid. Naming the kid as a defendant is a legal quirk. If the elderly lady had survived she would be entitled to substantial compensation. I am not sure what the lawsuit will accomplish since she died.

Overall, I agree.

The reason the kid is a part of the lawsuit is because if I'm the defense attorney, and you don't name the kid, I can ask to have the case dismissed on the basis of "failure to join a necessary party." It's silly, I agree - but it's one of those things you have to do if you want to win.

In my personal view, and I try to apply this as much as possible, I place substance over form. Fortunately, the law has undergone a sea change in that regard in the last century - substance is now much more important. There are still instances where "form" and "procedures" do matter, but in large part those are instances where the forms or procedures are the substance.

I believe that we should have an efficient, fair legal system. The current system is not fair due to the reason previously stated and not to be repeated. This is how I would improve the system.

I understand why you say this. In my eyes - which obviously come from a different perspective than yours - the system needs some serious tweaking. There's room for a lot of improvement, but I think it's small course adjustments rather than a 180.

Point by point:

1. Institute some type of loser pays even if it is only a option for the jury.

I agree.

The problem arises when you've got a judgment-proof plaintiff - which is very frequent. The thought becomes, "OK, I've got nothing they can take, the worst that can happen is that they get blood out of a turnip, so why not file a few suits and see if I get some settlements...."

2. Eliminate joint and several liability. If the jury holds you 20% responsible, you should only pay 20% of the judgment.

This is the system we've got in Colorado. Fault can be apportioned between the responsible parties - if some co-defendants aren't actually part of the lawsuit. And, a defendant isn't responsible for paying more than his pro rata share of liability, even if the other responsible parties are judgment-proof. It's a great system, in my opinion.

Two related concepts arise when the plaintiff is partially at fault for his own injuries (say he's drunk when he falls on some subway tracks and gets run over, but the train operator should have seen him and stopped).

Most states have adopted "comparative negligence," where fault can be apportioned between the plaintiff and the defendant.

Personally, I prefer the other doctrine of "contributory negligence" - if the plaintiff's fault is a but for cause of his own injuries, he can't recover. So, if the guy wouldn't have fallen on the tracks but for his own drunkenness, he can't sue (that might not be the best example, but you get the idea). Unfortunately, only Maryland and N. Carolina use it.

3. Improved enforcement of the Daubert standard to keep junk science out of the courtroom.

Case names are scary to me.

All I can say without going into incredible detail is that Daubert is both good and bad. It's good because it's lenient (established science isn't necessarily right) - yet bad for exactly the same reason (crazy ideas are usually crazy).

P.S. - if anyone has made it this far, Daubert is the case discussing the standard for the admissibility of expert witness testimony. Lay witnesses testify to facts like "the bolts used were grade X;" and an expert witness will testify to something like "Grade X bolts would not have failed under the conditions used, because they were strong enough to support the weight."

4.Highly technical cases (patent disputes, medical or engineering malpractice, certain defective product cases) should be tried in specialty courts where expert witnesses are selected randomly from a list of qualified practitioners in that field. Minimum educational standards for jurors or at least an intelligence test like the ability to read and explain something from a newspaper.

This is one of several good proposals.

A system that we've got here is that, for any case involving "professional negligence" (medicine, engineering, architecture, etc.), you have to obtain a certificate of review before suing.

What that means is that you've got to find another professional who will sign a certificate saying, "yes, you've stated a claim here." Granted, that's got its own problems (hired guns, anyone?), but in my personal experience, it's worked pretty well.

Another option is to look at contractual remedies - arbitration clauses are becoming pretty popular for exactly this reason.

 

[Bob Noel]

Here's a little secret for those that don't know it: insurance drives the majority of all litigation, in one way or another. Period.

.

hmmmm, so if our society would like to reduce litigation, perhaps reducing insurance would be useful?

 

[mantakos]

Okay, so a little girl crashes her bike into an old lady and there are a lot of big medical bills. Somebody has to pay those medical bills. Who should that be?
-harry

 

[ejensen]

What about the idea I've heard that punitive (not actual or compensatory) damages go to a victims fund or somewhere other than the plaintiffs and lawyers pockets?

 

[Gary F]

I understand why you say this. In my eyes - which obviously come from a different perspective than yours - the system needs some serious tweaking. There's room for a lot of improvement, but I think it's small course adjustments rather than a 180.

I am quite surprised. I did not expect such a balanced and fair minded response. I agree that reform does not means replacing the current system with a completely new one.

I understand that attorneys name everybody who could possibly be involved but why not require some due diligence in picking your targets. If somebody named in a lawsuit is clearly not involved then they should be compensated for legal expenses incurred defending themselves. This happens all of the time in medicine when many physicians in the patient chart are named in a lawsuit when it is obvious only one or two are involved.

Joint and several liability is more or less the rule in the U.S. and used in some form in 46 states.

If "established science isn't necessarily right", then what do we replace it with? Speculation?

Paradoxically, law firms often require arbitration to settle lawyer client disputes as the trial lawyers are fighting tooth and nail to have it eliminated everywhere else.

Also, the jury selection process desperately needs reform. Eliminate unconditional peremptory challenge and restrict challenge for cause. If an attorney is less confident in being able to manipulate a jury, the legal merits might take precedence in the decision to file a lawsuit.

Also strongly agree with Mr. Jensen above, great idea.

 

[Obi Heed Kenobi]

I am quite surprised. I did not expect such a balanced and fair minded response. I agree that reform does not means replacing the current system with a completely new one.

Well...thank you!

I understand that attorneys name everybody who could possibly be involved but why not require some due diligence in picking your targets. If somebody named in a lawsuit is clearly not involved then they should be compensated for legal expenses incurred defending themselves. This happens all of the time in medicine when many physicians in the patient chart are named in a lawsuit when it is obvious only one or two are involved.

I hear what you're saying. I agree.

This would, however, require some comprehensive reform - including penalties against defendants that throw up all kinds of roadblocks (the proverbial, "you'll go blind on paperwork" type of defendants). I'm in favor of reforming all of that.

Joint and several liability is more or less the rule in the U.S. and used in some form in 46 states.

Unfortunately I can't really speak to anywhere but Colorado....

Here's what Colo's statute says about it, which I'd like to see become the nationwide standard.

"(1) In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss, except as provided in subsection (4) of this section."

Subsection 4 deals with conspiracy, which I think is a fine exception.

It also has some other provisions that are fair to both defendants and plaintiffs and that I think are in the best interests of society - unfortunately it's too lengthy to discuss here!

If "established science isn't necessarily right", then what do we replace it with? Speculation?

Well, not to get too political, but imagine a lawsuit that involved the science on global warming. Right now, it seems like "established science" (i.e., the establishment) says one thing - but there are some very strong dissenters, who might be right. Let's try to stay away from the politics of it, I'm just using it as an example.

What the Daubert standard allows is for a party to present testimony from one of those dissenters - and then the jury gets to decide who's full of BS.

Would it be right, or just, or fair, for the standard just to be that the "science" that has more adherents is the only admissible evidence?

Paradoxically, law firms often require arbitration to settle lawyer client disputes as the trial lawyers are fighting tooth and nail to have it eliminated everywhere else.

Yup. Lawyers are a bunch of ----ers.

Also, the jury selection process desperately needs reform. Eliminate unconditional peremptory challenge and restrict challenge for cause. If an attorney is less confident in being able to manipulate a jury, the legal merits might take precedence in the decision to file a lawsuit.

Want to hear me go on a rant? In the interests of keeping my language clean and avoiding carpal tunnel syndrome - I completely agree.

Also strongly agree with Mr. Jensen above, great idea.

I agree, and would actually take it a step further. I'd prefer to see punitive damages eliminated from the civil system - "punishment," i.e. punitive, is the realm of the criminal system.

If there's conduct that needs punishment, it should be dealt with through through criminal court - with all of the protections (beyond reasonable doubt, etc.) that apply, and with all of the consequences (jail and/or fines).

This also quickly turns into a really long discussion, so I'll leave it at that.

 

[Gary F]

Well, not to get too political, but imagine a lawsuit that involved the science on global warming. Right now, it seems like "established science" (i.e., the establishment) says one thing - but there are some very strong dissenters, who might be right. Let's try to stay away from the politics of it, I'm just using it as an example.

What the Daubert standard allows is for a party to present testimony from one of those dissenters - and then the jury gets to decide who's full of BS.

Would it be right, or just, or fair, for the standard just to be that the "science" that has more adherents is the only admissible evidence?

You win. Agree with everything you have posted. I will need to write down today's date as I never thought this could happen.

 

[AdamZ]

Is that true? A lawsuit will result in a criminal record??

No thats not correct. Sometimes a civil suit will accompany a criminal prosecution.

1. That writer is an idiot.
2. Insurance probably won't pay without legal action against one of the insured.
3. Whether the child or the mother ends up liable makes for yawn inducing legal machinations with the end result being the same regardless, insurance will pay.

Pretty much sums it up.

That is probably true. NTSB findings should be part of the evidence considered during a trial if you are interested in finding the truth but it would conflict with rule #1. Example.

Question: Should NTSB findings be allowed during a GA lawsuit?.

Good question and the answer is a definite maybe. As I understand it the reason they are not admissable is that they don't want the NTSB investigators to be advocates for one side or the other plus they want them to concentrate on investigation for safety improvment. If their findings are to to become evidene then it is likely that folks may not speak to them or be truthful. Another example of this is in medicine. When a Physcian at a hospital screws up they often have a peer review an a Morbidity and Mortality review or something like that. The purpose of the review to to review and deconstruct the care and procedure to see what went wrong and why. The idea is to help the physcian and medical community learn from their mistakes. The findings of these review are inadmissable in a Malpractice suit in PA and I suspsect other states as well. I think the feeling is that they want the medical staff to be open and honest so that they create a positive and truthful learing enviorment. If they knew what they said would end up in court then openess and honesty would suffer. On the other hand I often ask myself eh Why not if the NTSB is truly impartial. Their investigators could always be cross examined.

Rule #1: The purpose of the legal system is to enrich lawyers.

Thats a load of horse fecal matter. I mean really? Whats your support for that. That there are scuzzy lawyers out therethat there are lawyers who are wealthy? That Frivolous cases can get court? That is no better than saying Pilots are all rich folks. People have distorted views of the legal system and attorneys because for the most part folks who end up in the legal system are not happy BEFORE THEY END UP IN THE SYSTEM. Perhaps they have been screwed by another business or person or they have been hurt by someone or are falsely accused. So when someone walks into a lawyers office they are usually ticked off to begin with.

That said I can understand your frustration. Heck I'm an attorney and I get frustrated. The reason there are so many dang rules it to try to keep things fair. But the more rules .....well you know what happens the more frustrating and confusing it gets.

If you want to predict how something works in civil law, determine which of the choices favor this Rule #1 and you will almost always get it right.

Again Horse fecal matter. See above. Now if you have some data I'd like to see that.

...
The principle involved is called "subrogation." Granny underwent an expensive surgery, that apparently resulted in some complications causing death - meaning that those complications were also expensive.

When that happens, the insurer (or entity, as the case may be) providing benefits is allowed to sue in the name of the recipient if there is negligence.

If the recipient sues, the insurer can collect whatever it paid out of the judgment the recipient gets.

The concept has two prongs: 1) to prevent a "double recovery" (insurance benefits and a lawsuit) for the victim; and 2) it helps keep our rates down (or our taxes).

Make any sense?.

Subro is part of it but it goes beyond that. Lets say you negligently injure an individual they are in pain and can't sleep or do what ever it was that they could do before. The Law says they are entitled to compensation for their suffering. Then they die. Does the person who hurt them get a pass because the injured person dies? Well if The same person neglintly burns down the other persons house do they not have to pay becuse the homeowner dies before the claim is settled? Of course not.

I'm in favor of "tort reform" across the board. But, it's not in the form that most people seem to reflexively think of (reducing awards or abrogating causes of action).

What I'm in favor of is an increased burden for filing. As the system stands now, I can make up something and sue anyone I want. As long as I have the required "legal elements," nothing more than an algebraic equation of A+B+C+D = Judgment, my lawsuit cannot be dismissed. Even if it's patently obvious that I've made up A through D, my lawsuit cannot be dismissed. Here's the kicker: my lawsuit does not have to be supported by any evidence at all. It can be based on mere allegations alone.

I'm in favor of doing away with this standard. I hate it. I mean, I frigging hate it.

What I'm in favor of is requiring a reasonable amount of actual evidence - even a sworn affidavit under penalty of perjury (with discretion to decline to prosecute a bona fide case of it statutorily removed) - to file a lawsuit.

In other words, to get into court, allegations are no longer enough. There must be some kind of evidence supporting your claims for you to make them.

That harms no one - good cases remain. It has only benefits - crappy cases are gone.

Jeez David what the hell is going on in Colorado? That is nothing like what happens here in Pennsylvania. There are several stop gaps. Motions for Summary Judgment, Motion for Judgement on the pleadings, Sanctions motions against attorneys during the course of the litigation, Dragonetti cases against plaintiff's for frivilous litigation and much more.

As for the Term Tort Reform, its a joke. Tort Reform is and ambiguous term that can mean 20 different things to 20 different people and is different in every state.

This is a poorly kept secret.
Insurance = money
The purpose of the legal system is to enrich lawyers.
This is why some physicians go bare (no malpractice insurance), to make it unprofitable to go after them.

Man you must really like shoveling out barns. Any physcian who goes bare in order to avoid a malpractice suit has to be stupid. The reason for insurance is to protect the physcian's assets. With out it the doc stands to loose everything.

If Granny was a U.S. citizen she would be elgible for Medicare. Although there would be un-reimbursed medical expenses, I am not sure if they would be high enough to justify an expense of a lawsuit. I doubt that Medicare would be eligible to recover anything from a judgment.

Wanna bet? Medicare has an automatic lien against any recovery for granny and if the attorney does not protect that lein he or she will be personally liable for that lien. AND if Granny is lucky and survives the Attorney needs to calculate the medicare setaside for how much medicares potential future expenses will be for treatment in years to come.

What about the idea I've heard that punitive (not actual or compensatory) damages go to a victims fund or somewhere other than the plaintiffs and lawyers pockets?

Here's the thing about punitive damages. They are meant to punish willful misconduct and behavior not compensate for negligence. Kind of a slap on the wrist if you will to prevent the offender from committing future bad acts ie concealing the toxicity of a certain product or other known but concealed danger. So if your gonna go after punitive damages then two things have to happen

1) The Plaintiff has to agree to sue for punitives.

Why the heck would anyone want to go through the misery of litigation if they are not going to get something for it.

2) An attorney has to invest a ton of work, and money on research and investigation in order to support a punitive action.

Why the heck would an attorney do all that without being compensated.

 

[flyingcheesehead]

What about the idea I've heard that punitive (not actual or compensatory) damages go to a victims fund or somewhere other than the plaintiffs and lawyers pockets?

Hey, that was my idea!

I'd better go patent it.

 

[SCCutler]

Hey, that was my idea!

I'd better go patent it.

So sorry - Stenbock & Everson already did.

 

[Obi Heed Kenobi]

...

Jeez David what the hell is going on in Colorado? That is nothing like what happens here in Pennsylvania. There are several stop gaps. Motions for Summary Judgment, Motion for Judgement on the pleadings, Sanctions motions against attorneys during the course of the litigation, Dragonetti cases against plaintiff's for frivilous litigation and much more.

....

For sure, but to get to all of that, you've got to go through at least some proceedings more extensive than just a motion to dismiss.

Take a MSJ, for instance. Let's say that I file a BS claim against you, but it's enough to get by a motion to dismiss. You know it's BS and have the evidence that supports it, so you immediately file a SJ against my claims. In response, I file an affidavit saying "I need to do discovery so I can dispute this" (I think that's FRCP 56(d), it's 56(f) in Colo.).

Your average judge is going to say, "well, of course he needs time for discovery, motion granted." Now, you've got to go through discovery on at least a limited basis, which is going to take at least a month. All the while running up bills.

My thought is: why deal with that on back end via sanctions after it's happened? Why not take care of it on front end, which can be done in 99% of cases by simply requiring that a complaint be accompanied by some evidence?

PS - I don't think that fraudulent claims are a major problem, but I've seen more than a few of them. It's not like CO is the "come here and file frivolous lawsuits state."

 

[Obi Heed Kenobi]

BTW, I just looked at who was online. There are five, and four of us are lawyers.

Scott's the fifth, and he might as well be one.

 

[AdamZ]

I am quite surprised. I did not expect such a balanced and fair minded response. I agree that reform does not means replacing the current system with a completely new one.

I understand that attorneys name everybody who could possibly be involved but why not require some due diligence in picking your targets. If somebody named in a lawsuit is clearly not involved then they should be compensated for legal expenses incurred defending themselves. This happens all of the time in medicine when many physicians in the patient chart are named in a lawsuit when it is obvious only one or two are involved..

Believe it or not they often can get their cost paid. See every state is different so what you can and can't do here in Pennsylvania can be very different from What David can and can't do in Colorado. For sure I have represented clients who had absolutly NOTHING to do wth ANYTHING and they get sucked in. If the Plaintiff's evidence does not add up I can move for dismissals and have the ability to seek sanctions against the othe attorney not just the party but the other attorney if I tell him precicely why his pleading is frivilous. I was actually the first guy in PA to use the motion to nail another attorney for a frivilous motion.

Joint and several liability is more or less the rule in the U.S. and used in some form in 46 states. ..

Some form are the opperative words here. Joint and several is an option but Juries and judges are free apportion liability in percentages. Also here in PA we have something called Comparative Negligence so if the plaintiff is 50.1 % they get Nada.[/QUOTE]

If "established science isn't necessarily right", then what do we replace it with? Speculation?

Paradoxically, law firms often require arbitration to settle lawyer client disputes as the trial lawyers are fighting tooth and nail to have it eliminated everywhere else..

The reason for inserting arbitration clauses in attorney fee agreements is that our malpractice carriers get furious when we sue clients. Why? Because its a common tactic for a deadbeat client to claim malpractice in order to avoid payment of a bill. I write arbitration clauses in to my clients fee and service agreements for the same reason. Not sure where you live but where I am the Insurance Companies are the ones removing Arbitration Clauses from insurance polices and the attorneys are the ones that want to keep them in so its just the opposite.

Also, the jury selection process desperately needs reform. Eliminate unconditional peremptory challenge and restrict challenge for cause. If an attorney is less confident in being able to manipulate a jury, the legal merits might take precedence in the decision to file a lawsuit.

...

mmmm thats a slippery slope that I really don't think will do anything to change the system Peremptory challanges are critical in criminal cases and Challanges for cause are already limited. Believe it or not some jurors can BS just to get on a jury to advance their belief ( usually retired ones LOL) Also remember that each side has the same number of challanges and there is no such thing as unlimited peremptory challanges.

 

[AdamZ]

BTW, I just looked at who was online. There are five, and four of us are lawyers.

Scott's the fifth, and he might as well be one.

ROLMAO Brilliant David!! You have just proven we have NO LIFE

 

[AdamZ]

For sure, but to get to all of that, you've got to go through at least some proceedings more extensive than just a motion to dismiss.

Take a MSJ, for instance. Let's say that I file a BS claim against you, but it's enough to get by a motion to dismiss. You know it's BS and have the evidence that supports it, so you immediately file a SJ against my claims. In response, I file an affidavit saying "I need to do discovery so I can dispute this" (I think that's FRCP 56(d), it's 56(f) in Colo.).

Your average judge is going to say, "well, of course he needs time for discovery, motion granted." Now, you've got to go through discovery on at least a limited basis, which is going to take at least a month. All the while running up bills.

My thought is: why deal with that on back end via sanctions after it's happened? Why not take care of it on front end, which can be done in 99% of cases by simply requiring that a complaint be accompanied by some evidence?

PS - I don't think that fraudulent claims are a major problem, but I've seen more than a few of them. It's not like CO is the "come here and file frivolous lawsuits state."

Good points all in PA to bring any type of professional liability suit you need a certificate of merit from an expert ie a Physican or nurse in a medmal case, accountant in an accounting case lawyer in a legal mal case.

Also consider this dismisal early on may be good but then a friviously litigious party will just try the odds and file again. The back end sanction hits em where it hurts in the wallet.

Plus I've always wondered this, how do you deal with a frivilous defense? Wouldn't that necessarily have to wait till the end of the case.

 

[Gary F]

Is this a Good cop - Bad cop thing?

Thats a load of horse fecal matter. I mean really? Whats your support for that. That there are scuzzy lawyers out therethat there are lawyers who are wealthy? That Frivolous cases can get court? That is no better than saying Pilots are all rich folks. People have distorted views of the legal system and attorneys because for the most part folks who end up in the legal system are not happy BEFORE THEY END UP IN THE SYSTEM. Perhaps they have been screwed by another business or person or they have been hurt by someone or are falsely accused. So when someone walks into a lawyers office they are usually ticked off to begin with.

That said I can understand your frustration. Heck I'm an attorney and I get frustrated. The reason there are so many dang rules it to try to keep things fair. But the more rules .....well you know what happens the more frustrating and confusing it gets.

I'll take credit for rule #1 and I really believe it. I am convinced that someone's world view is systematically corrupted by law school. Either I spend to much time at PointofLaw and Overlawyered or perhaps you should start visiting them.
http://www.pointoflaw.com/
http://overlawyered.com/

As for the Term Tort Reform, its a joke. Tort Reform is and ambiguous term that can mean 20 different things to 20 different people and is different in every state.

So the system is perfect as is? Not for those of us on the receiving end of it. Even I will admit that the medical profession is in serious need of reform.

Man you must really like shoveling out barns. Any physcian who goes bare in order to avoid a malpractice suit has to be stupid. The reason for insurance is to protect the physcian's assets. With out it the doc stands to loose everything.

If it makes you feel better, I am insured. Fortunately, I have never needed it. Would going bare be possible if the physician is married and living in a community property state or not?

Wanna bet? Medicare has an automatic lien against any recovery for granny and if the attorney does not protect that lein he or she will be personally liable for that lien. AND if Granny is lucky and survives the Attorney needs to calculate the medicare setaside for how much medicares potential future expenses will be for treatment in years to come.

OK, the plaintiff's will need to sue for that much more money. Who should profit from this lady's death and why? How will money make them whole?