Tort reform in action: rapist wins back $3.1 million from his victim

“Tort reform” is a phrase used to describe legislated control over the amount of money that plaintiffs are allowed to recover in civil suits. Operating on the presumption that state legislative bodies know more about justice than the actual victims of injustice or physical harm do, many states, like Ohio, have worked to limit plaintiffs’ recoveries, confined mostly to either certain types of actions (medical malpractice, suits against municipalities, etc.) or certain types of harm (emotional distress is usually the big loser in tort reform).

Now, tort reform is a great thing for a lot of people. If you’re a large insurance company that wants to screw over the insureds under your care, tort reform is a really good idea. If you’re a drunk, incompetent, or negligent doctor or lawyer, tort reform is probably going to save you a lot of money some day. If you’re a manufacturer or retailer and you want to be able to get away with lax safety standards or other general disregard for the public health and safety, tort reform is likely near the top of your lobbying agenda. And, in Ohio, tort reform is apparently now working out like gangbusters for sexual predators:

A jury decided in June that a 21-year-old woman, sexually assaulted by her pastor when she was 15, should get upwards of $3.6 million for the post-traumatic stress she’d endured in the years since he attacked her.

Because of a state law that went into effect in 2005, though, she’ll get less than a sixth of that amount.

A judge ruled in Delaware County Common Pleas Court this week that the woman could receive no more than $500,000 because of the state’s limit on compensatory damages for emotional stress in civil cases. The limit was a key element of an effort to rein in lawsuits, a priority of Republicans’ in the state legislature in the mid-2000s.

In short, a jury of Ohioans came to the deliberated-upon conclusion that a woman’s years of suffering, including post-traumatic stress disorder after being raped during a counseling session by her pastor, was worth $3.6 million dollars in compensation. But the good Republicans of Ohio’s state legislature have decided that it would ultimately be injurious to the public good to permit juries to even contemplate damages in excess for $500,000 for such frivolous touchy-feely claims as “emotional distress” for victims of savage sexual abuse. Essentially, the rapist was given back $3.1 million of a $3.6 million debt he owed to the victim of his aggression because the state of Ohio feels that the suffering of such victims is never worth more than $500,000.

The overarching problem with tort reform is that it could only ever be good for people who lose lawsuits, and bad for everybody else. That tort reform is good for negligent, reckless, or just downright dangerous defendants is a no-brainer: the incompetent doctor, the drunk driver, the “lemon” dealer, the careless manufacturer, the discriminatory hirer and firer, the stingy landlord, everyone who could benefit from injuring the public stands to gain from tort reform. Even when damages are limited just to specific harms like emotional distress, the unjust will still find a way to win: in short, the state legislature of Ohio does not value the emotional well-being of its citizens, at least not enough to permit juries to even contemplate their value over $500,000.

The rapist’s political champion, Republican state representative Kirk Schuring, is quoted with the traditional red herring of tort reform:

I don’t know how you assign a dollar amount to emotion. … There’s probably never going to be an adequate dollar amount. And $500,000 is not a small sum of money. … And who’s to say that $3.6 million is enough? Why not $36 million?

Who is to say that $3.6 million is enough? A jury of your peers is. That is the system contemplated by the Constitution, the system that Schuring is supposed to serve. If the damages are generally not worth that much, if the claim is truly frivolous, then it is up to the jury, the trier of fact, to make that determination in a flexible, organic, case-by-case process, not just writ large from above. And yet, despite his professed agnosticism on the question of how much emotional damages are worth, Schuring seems to be 100% certain that they are never worth more than $500,000. Who’s to say that $500,000 is always enough?

Tort reform is often proposed a protection for businesses – and in a sense, it certainly is. Businesses facing unnaturally-limited damages have a clear picture of how much (and how little) they need to care for the safety of others. The grand purpose of civil liability is to provide economic disincentives for bad behavior. Removing a disincentive to behave badly (for example, limiting emotional damages that sexual predators and their principals can suffer) is the same as incentivizing such behavior. The only thing that keeps businesses from behaving negligently is the prospect of successful plaintiffs’ recoveries for harms they suffer, as valued by juries. But now, in Ohio, businesses, governments, and individuals know that any harms they inflict on plaintiffs’ emotions are relatively cheap now, compared to what prior to tort reform would have been liability that actually scales to the harm done to the plaintiff.

The next big area of focus for tort reform is medical malpractice. With the healthcare industry’s rapid changes in the last few years, combined with the new pressures insurance companies face thanks to proscriptions against denying coverage based on pre-existing conditions and other provisions of the Affordable Care Act, the heat is on to cut costs wherever possible and tort liability is certainly up there. Unfortunately for the friends of the negligent and the reckless, tort reform is empirically known not to cause decreases in insurance premiums. All that it changes is that insurance companies and doctors are faced with fewer reasons to monitor and improve their safety procedures. When a medical malpractice judgment can cost millions of dollars just to settle, you have millions of reasons to make sure your doctors don’t commit malpractice; the hospital, being a much cheaper cost-avoider than patients, is properly responsible for policing its own internal safety procedures and for compensating the public when it fails to do so. Artificial limitation of malpractice recovery instead shifts the costs of malpractice onto the public: limiting recovery to, say, $500,000 for medical malpractice, would shift all harms from medical malpractice in excess of $500,000 to the victim.

Whether it’s a rape victim having to pick up the tab for almost 80% of the damage done to her by a sexual predator, or the victim of medical negligence having recovery limited by the dedicated ideologues of big business lobbying interests, tort reform is bad for victims, and good for the negligent and the reckless. The sad case of the Ohio rape victim is the logical result of tort reform: juries have less freedom, victims have less compensation, and wrongdoers laugh all the way to the bank.

Food warning labels for GMO products are inherently deceptive

Imagine that you, an ordinary American consumer, are out shopping for groceries. You, like most savvy consumers, prefer to get the best deal you can – best product for the best price. But because it’s food you’re shopping for, safety is a huge factor in determining which foods are “best” for you and your family. Imagine that you see the following warning label on a product you might otherwise like to buy:

Scary, right? Certainly not something you’d be comfortable giving to your family to eat. And how relieving it would be to see the reverse kind of label on a competing product:

No brainer, right? You’d probably spend a few extra cents or dollars on a product that looks the same but that just sounds safer – even if you didn’t know what dihydrogen monoxide was, the fact that they felt it necessary to warn you about it makes you suspicious.

Of course, “dihydrogen monoxide” is merely water. But, if weren’t aware of this particular prank, that first label could look kind of scary to you, right? And the one after just looks so inviting, by contrast. So if you, the consumer, saw the labels alone, but didn’t really know what they were warning about, you would be perfectly justified in being bothered by the first one, and tempted by the second one. It would influence your buying decision for reasons that might be totally opaque to you.

There are a lot of perfectly valid warning labels on food products for safety reasons (“gluten-free,” “contains nuts”) and labels on other kinds of products that might otherwise give a consumer useful information that she’d want to know when buying that product (“Made in USA,” “Not from concentrate”). But now there is a push from lobbyists for the organic-food industry to compel grocers and manufacturers to label products that say “Contains GMOs.” (Genetically-modified organisms)

We don’t yet know what the hypothetical labels for GMO-containing food products would look like, but I somehow doubt they’d have the same kinds of colorful illustrations that non-GMO product makers put on their foods. The second label above is representative of the somewhat deceptive advertising strategy of non-genetically-modified foods, though I’ve admittedly dramatized the plant and the butterfly. It creates a sense of comfort in the consumer, a sense of relief about a product that the consumer presumes to be somehow superior. But there’s no equivalent to the first label, the scary warning label – yet.

Maine and Connecticut have already passed laws requiring stores to label GMO products, but thanks to lobbying from grocers and manufacturers, those laws contain provisions keeping them from going into effect until a certain critical mass of other states pass similar laws. And it looks like Massachusetts is going to be next.

So, should the state compel grocers and manufacturers to “warn” consumers about GMO foods?

Proponents have an easy job here. I mean, it’s not like the labels are technically lies – many foods really do contain genetically-modified organisms, and many consumers probably would want to know which do and which don’t. So what’s the problem?

Consumer protection is one of the most valuable roles of the state. The state compels businesses to protect the public, either by making its products safer or by providing information that they would want to have for their safety, because the free market simply won’t do it on its own – it never has, anyway.  But manipulating the machinery of consumer protection  for pure propaganda purposes sets a bad precedent in an age where corporate interests have unrivaled access to the government.

The valid role of consumer protection is to provide accurate information about the safety of certain products or to otherwise provide information that speaks to valid consumer concerns (“Made in USA” or “Made in China” is the classic non-safety-related valid consumer concern). But there’s a huge difference between warning people about an actual danger in food, and creating unwarranted fears about competitors’ products. Food warning labels for GMO products are inherently deceptive because they automatically (and I think deliberately) create an impression in the mind of the consumer that GMO products are dangerous, even if the warning labels don’t say so explicitly. They don’t protect the consumer from any information, they don’t speak to a valid consumer concern, they instead validate an unfounded growing public paranoia over perfectly safe, healthy foods.

And lets be clear – any fears about GMOs are unwarranted. The American Medical Association, the World Health Organization, the National Academy of Sciences, the European Commission’s European Research Area, even academic parties like the University of California, are among the many thousands of ruthlessly empirical voices that have verified that GMOs aren’t just not bad for you, but that there are many reasons to think that they’re actually a better investment than unenhanced foods. Higher crop yields, better nutritional density, certainly nothing that would make you want to put a warning label on something.

Misleading consumers about the dangers of your competitors’ products is bad enough, but it’s just a part of business. It makes good economic sense to wage private battles against your competitors through clever, if not entirely honest, marketing. But it’s much worse when you use the machinery of consumer protection to do it for you, at the expense of the taxpayer and at the expense of the integrity of the consumer protection system. The role of consumer protection is consumer protection, not corporate advocacy. What the non-GMO lobby is pushing for is the incorporation of the state’s consumer protection interests into its own marketing agenda, not protecting the public from a valid health concern.

Furthermore, consumers who have pseudoscientific attachments to unenhanced foods, or similarly pseudoscientific aversions to GMOs, already have plenty of very visible alternatives. Organic food makers are always happy to slap their eye-catching labels on their products as they can. There are entire stores dedicated to non-GMO food products. Every consumer who wants to know the difference knows the difference already, and those consumers who don’t are apt to be misled by the mere existence of a “warning” label into believing that there’s something real to be warned about. And that’s fine – I have no problem with non-GMO food producers from playing up their marketing strategy all they want.  That’s business, that’s markets doing what they do. What bothers me is the scary prospect that, with a sufficiently savvy marketing strategy, they can get the government to spend your tax dollars doing it for them.

Consumers have somehow lost sight of the fact that non-GMO foods are still made by businesses that are in what they do for the money. And their marketing strategy is working just fine on its own – everybody hates Monsanto, everybody feels warm and fuzzy about organic foods. They don’t need the state, using your tax dollars, to wage another volley in their marketing war on GMO foods, especially at the expense of the integrity of the valuable consumer protection process.

Deception is more than just straight-up lying to people. Deception can be done by insinuation, which is precisely what a “Warning: contains GMOs” label is. It is an invitation to fear something based on no evidence but lots of feelings. The market is what should be deciding whether safe, healthy GMOs or safe, healthy non-GMOs end up on the dinner table, not the government. The legitimate policy goals of consumer protection are far too important to sacrifice in service of the narrow interests of the organic food lobby, and warning labels that rely on nothing but innuendo are the first step towards a scary future where lobbyists can get the state to wage corporate marketing battles.