Tuesday, October 26, 2004

What about the @$*&%#@* trial lawyers?

Posted by Craig Westover | 1:27 PM |  

I received this email today in response to yesterday’s Pioneer Press column on the vaccine shortage --

Your column on flu vaccine was totally factual, that's is something of a rarity. I would have mentioned the trial lawyers being a threat to the manufacturers of the vaccine, how do you see that?

I wrote the “Vaccine shortage” column several weeks ago. It was held because space was needed for Pioneer Press Editorial Board endorsements. I intentionally did not mention trial lawyers because that is such a hot button issue and, frankly, such an easy target. I didn't want the main point of the column -- the impact of government price controls and supply management -- to get lost in a knee-jerk reaction to trial lawyers.

I've done considerable reading since, and if I had to do it over again, I'd probably make a mention of the impact on the vaccine shortage of law suits as I do in this post. However, while I feel that lawsuits are way out of hand in terms of number of suits and the amount of damages sought, I am still bothered by “tort reform” that requires the federal government to step in and say who Americans can sue and for how much.

My daughter, the law student “Justice is Blonde,” describes the tort system as “social insurance.” It provides a check on big business -- which is just as likely to be corrupted by power as is big government -- by putting a price tag on products that cause harm to consumers. In the long run, the cost of lawsuits is cheaper for society than damage caused by shoddy products. It also promotes self-regulation, which to a degree in theory, should forestall government regulation, which is always the significantly worse alternative.

Point taken, but the problem I see is that courts have moved away from judgments based on company negligence or disregard for safety to awarding damages simply if harm is done. For example, if a company knowingly or through carelessness delivers contaminated vaccine, it deserves to be sued and to some extent for punitive damages. However, if a company puts out a vaccine that saves tens of thousands of lives with the knowledge that some number to the right of the decimal place per 1,000 inoculations will have an adverse reaction and might even die, should the company be held liable for that death?

The latter is the question we really ought to be thinking about instead of lamenting how rich John Edwards is. In a lot of ways, conservative demonizing of all trial lawyers is a lot like Kerry/Edwards pillorying the “wealthiest Americans.” Sometimes conservatives lose focus, too.

In general, first we should fix the government price control system, which in theory would allow companies to price for the cost of lawsuits, and then see what needs to be done vis a vis tort reform.

UPDATE: "Justice is Blonde" checks in --

Regarding your comment about tort reform and vaccines. You cannot get punitive damages EVER as a matter of common law for negligence causes of actions. If it is ever the case that a vaccine company is given punitive damages for any thing it is for an INTENTIONAL tort.

Okay, all of your conservative friends fail to get this, so I will lay it out for you so you can explain it to them.

Punitive damages are damages for no reason other than to punish the company. You can only get those for intentional torts.

Compensatory damages include pain and suffering, you can get those for anything. They are designed to compensate the victim and make her whole again.

Bush wants to limit not just punitive damages but take away pain and suffering in medical reforms. This is stupid.