© David Burton 2005

The liability tort madness is costing Americans a fortune. Americans bring suit for pain, suffering, obesity, hot coffee and endless other reasons. The cost in legal fees, time lost, overloading our courts and insurance is incalculable.

In November of 2002, the courts were asked to consider a suit against McDonalds for causing obesity. I’m a diabetic. Should I bring suit against the sugar companies for causing my diabetes? I suffer from hypertension. Should I bring suit against the salt companies for causing my hypertension? If the tort lawyers have their way, the answer to these questions is $YES$. And who ends up paying for the court costs and damage awards? You and I and every other citizen of this country do.

As reported in an article in the January 24, 2003 Boston Herald, titled Big Mac repels attack, it was reported:

“U.S. District Court Judge Robert Sweet in New York City deserves the thanks of a grateful nation for whacking the Big Mac lawsuit.
   “Saying the law is not intended to protect people from their ‘own excesses’ – re: stupidity – the good judge dismissed class-action litigation claiming that McDonald’s food caused everything from diabetes to obesity in children. ‘Nobody is forced to eat at McDonald’s’ was the gist of Sweet’s 65-page ruling.”

Does this end the story? – not on your life.

“Meanwhile, the avaricious attorneys fronting this half-baked cause say they’ll amend and refile their complaint.”

Two articles in the October 30, 2005 Boston Sunday Globe show that this madness is not abating. First, in the article titled, Man paralyzed in ’02 accident now suing bars that served him, by Jonathon Saltzman, we read, “On an early May morning three years ago, Robert E. Nunez II got into a horrific car crash . . . after a night of bar-hopping during which he says [my emphasis] he had eight drinks of vodka and soda. The accident left him a paraplegic.
   “Nunez . . . acknowledges in court papers that he was driving drunk and also carrying a phony ID card because he was just 19 at the time, too young to legally drink in Massachusetts.”

Nunez is suing “two bars for negligence on the grounds that they allegedly breached their duties by serving an underage customer.” The public might be better served by throwing out the suits and instead taking Nunez into court for falsification of a document and for endangerment to himself and the public by allowing himself to drive after becoming drunk.

In the second article, appearing on pages 25-27 of the the Sunday supplement, Michael Blanding writes in an article titled, Hard on Soft Drinks, that Richard Daynard, an associate dean at Northeastern University, is soliciting parents and teenagers across the state of Massachusetts to serve as plaintiffs in a lawsuit against the soft drink industry. We here have a great lesson being taught to our school children - Don’t take responsibility for your own actions. Blame someone else and take them into our overcrowded court system. As noted by Dan Mindus, senior analyst with the Center for Consumer Freedom, an industry-funded group that decries lawsuits against food companies, “There is a rush to blame soda companies [for childhood obesity] that far outweighs any scientific evidence.”

What is needed is a revision in our tort laws that makes persons and their lawyers who file these frivolous lawsuits bear the defendants’ legal costs and the court costs, maybe with penalties added. We need to unclog our civil courts and we need to reduce the costs to society that result from unnecessary and unjustified civil suits.

Why do we put up with this form of legalized robbery? - because tort lawyers make enormous amounts of money from these cases. Why don’t we amend the laws to prevent this form of pick-pocketing? - because of the lawyers’ lobby and the fact that too many of our legislators are themselves lawyers.

How much money do tort lawyers make? Consider this. In the August 16, 1993 issue of Forbes magazine, in an article by Jody Brennan, titled He’s one of us, it was reported that Peter Angelos, representing about 10,000 asbestos plaintiffs, would likely rake in nearly $300 million in fees (supposedly 1/3 of winnings).

While we hear of the large amount of awards, what we fail to hear is the larger number of cases that never go to court because the defendants find it cheaper to settle out of court. I call that legalized extortion. It doesn’t matter whether or not the plaintiff has a legitimate claim. The only issue is whether or not it’s cheaper to settle out of court than to go through with a trial. How many nuisance claims are settled this way is unknown.

Consider something more recent and closer to home. Jennifer Heldt Powell in an August 8, 2003 article appearing in the Boston Herald wrote that, “Rest home and nursing home operators say (insurance) hikes … are forcing them to cut back on staff and services and may drive them out of business.
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“It’s a problem across the country due in part to large settlements against nursing home in other states. Several insurers have quit the business, leading to less competition.
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“Higher insurance costs are hitting nursing and rest homes nationwide, creating concerns about their ability to survive.
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“For private-pay facilities, costs are passed on to the residents. In some cases, the costs will be too much for them. Nursing homes funded largely with Medicare and Medicaid dollars will put off new purchases and renovations, hire less staff or dip into savings.
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“Nursing home operators are pushing for national legislation to limit malpractice awards. The lack of reasonable limits really threatens the ability of nursing homes to be able to provide reasonable quality of care to their residents."

Around the beginning of 2003, we’ve seen physician strikes in West Virginia and Florida because of exorbitantly high malpractice insurance premiums. Ultimately, these costs end up being passed on to you and me in higher medical insurance costs or in higher fees paid to our medical providers. In some cases, the effect is to restrict or eliminate medical services.

Why are Massachusetts auto insurance rates so high? - because drivers in Massachusetts file so many claims, particularly personal injury claims. Who ends up absorbing these higher insurance rates? The driving public in Massachusetts does.

How do we solve this problem? We need to change the laws. We need to cap liability claims to reasonable amounts. We need to make it harder to bring obviously trivial and foolish suits. We need to make it expensive for both the plaintiff and the lawyer to bring frivolous court cases.

Can this presently be done? Maybe not. The lawyers’ lobby and the presence of large numbers of lawyers in our legislatures make tort reform highly questionable. Citizens need to file referenda to change the laws of their states. Citizens need to let their legislators know that they want real reform or they will vote for new legislators. Maybe we need to put a law on the books that prohibits lawyers from becoming legislators.