When I hear people speak of tort reform, I wish them well. It is one of those areas of debate where giant swaths of time and mental energy can be wasted because any sweeping legislative tort reform in the U.S.A. is essentially an impossibility.
This is due in part to how a debate-killing slice of legislators at the State and Federal levels are embroiled in the existing system either as practitioners of the law, or they have a vested interest in giant corporations that depend on the stability of the current status quo. All of that being said, I do have two proposals, hopefully, upon which it is worth wasting the words and your time. They address two horns of the bull: the value of a human life and a potential cap on punitive damages.
Major Problem: The Value Given to a Life
Often in civil cases where the defendant is accused of accidentally causing a plaintiff’s death (be it by ignorance, false advertising, malice, or crooked manipulation of science), if a jury finds in favor of a plaintiff and against a billion-dollar corporation with lots of insurance coverage, then the issue of the value of the dead is immediately raised. What is the value of a dead guy?
Well, the argument often goes: how much would he have made during his lifetime? How much did he suffer at the hands of the plaintiff before death? How much insurance coverage is out there being offered versus the cost of tying up the courts for the life of the starving widow in needless delays based on appealable innuendoes?
A solution to this area of the problem would be to fix the value of a dead guy as a particular number and to have it be equal across all situations regardless of the previous level of achievement or failure in the dead guy’s life. A life is a life is a life, the future is uncertain and a child’s life is no more precious than an octogenarian’s.
To say he could have been employable for three more decades totally negates the possibility of his getting struck by lightning the day after he fell down the clearly-marked staircase and cracked his skull on a railing a million other people had used safely while descending the stairs. All of this, mind you, after he downed three martinis and was walking while talking on his cell phone.
I have a suggestion for this part of the puzzle. What value should be assigned for a tragically and legally significant dead guy? My answer is the amount should be equal to what our military pays as a widow’s benefit to any man killed in the line of duty. If it is a string of payments, then go with the present value thereof. My point is that our nation’s most valued dead guy should be one who dies in the service of our nation while wearing the uniform. I’m sure a serviceman’s widow’s benefit is likely currently quite pitiful, thus every ambulance-chasing, slip-and-fall law firm in the nation and their representatives would immediately want that number raised, (and damn quickly), especially if their law firm’s insurance settlement powers were dependent on that number being as high as possible. So, we get a double benefit if this idea were employed: the servicemen’s widow’s benefit would rise and the courts would no longer be subject to the huge waste of time arguing about how one dead guy is worth more than another and why. We find in favor of the plaintiff… boom, money assigned, next.
Major Problem: The Issue of Punitive Damages
Another aspect of civil cases needing tort reform lies inside the arena of punitive damages.
In days of old (really old), most people believed life and death were the result of God unless a crime had been committed. No one was made to think that John Deere purposefully manufactured a wood chipper while laughingly omitting a sign telling the operators not to let their clothes get tangled in a limb before throwing it in, all in pursuit of saving the company 12 cents on a sticker. And/or if a new operator of a meat grinder put his finger into one and it took his arm off, in the days of old (really old), most Americans would have said, “well that will teach him… glad he didn’t get killed, and he’s still got one good arm.” But with unlimited punitive damages possible at the whimsy of juries, their sympathies can be aroused to increase a punitive damage award via the application of creative fiction, slanderous innuendo or pettifoggery in manufacturing a sinister motive on the part of a business. And so, plaintiffs often must be demonized as truly malicious malcontents with owners running their companies between séance sessions conjuring up Beelzebub and envy-arousing, jet-setting trips to Europe with their mistresses, all in pursuit of shooting the punitive damage award through the stratosphere. Of course, the plaintiff can never survive to pay it, but now a real negotiation for real money is perhaps possible, so says the law firm two years into a case on contingency.
How to solve this issue is again to peg a punitive damage ceiling to some relevant number and I would propose it be no more than two times the dead guy number above. “What?” cry out the social justice warriors trained to think punitive damages discourage truly malicious people from being mean and/or taking advantage of purchasers of products and services. “Wait a minute,” say I. The criminal system is the place intended to offer a negative incentive against malicious, evil, and criminal behavior, not our civil system. If a doctor has been giving medically inept surgeries and killing people for his jollies, then he should go to jail. If he killed somebody because sometimes the vagaries of the lifesaving arts create a dead guy, for which all concerned are sorry, then OK, dead guy payment. If he has been killing people because he has been demonstrably stupid, then the medical profession should strip him of his ability to do it anymore and perhaps a widow should sue the hospital or review boards in civil court, and punitive damages would cap out at two times the dead guy’s number if a jury felt those entities needed some sort of jolt to remain more diligent in the future.
Not a Cure-all, but a Start
I admit that the above would not solve everything. But it would be a giant change in how much over-insurance there is and the ever-present over-litigation that it inspires. And it certainly would have a positive effect on military widow’s benefits.
And whether or not the fixed rates were higher or lower than you might like, having the cap be a number known by all concerned would free up giant swaths of courtroom time now spent arguing about ridiculous numbers, and the fictions often conjured by the worst of the legal profession’s practitioners ever in pursuit of “the big one” full of the delusion that then they can pay off their Porsches, ex-wives and mistresses, then retire.
And then, I woke and felt strangely like Jerry Maguire.