Posts Tagged ‘emotional distress’

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

August 12, 2013

“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.

Why $100 million suit over Sandy Hook trauma is a good thing

December 31, 2012

Connecticut attorney Irv Pinsky has filed a $100 million claim against Connecticut, on behalf of an anonymous mother of a 6-year old survivor of the Sandy Hook High School, for “emotional and psychological trauma and injury, the nature and extent of which are yet to be determined.” Comments sections around the internet are already filling up with sneering attacks on the crassness of it, the exploitation of it, the greed of the lawyers and sometimes even the greed of the family – but, what else is new? People hate lawyers, especially personal injury lawyers, and people hate so much as the appearance of profiteering off of tragedy, usually perfectly commensurate with their misunderstanding or lack of discernment about the issue at hand. This is just such a case. The two issues relevant here are why it is such a good thing for society that people are able to file lawsuits such as this (regardless of any appearance of crass enterpreneurialism on the part of lawyers), and the relative strength or weakness of the present action.

It is a good thing that people are allowed to sue parties who seem to be only distantly related to tragedies shortly after those tragedies because society should permit economic weapons to be used to incentivize increased care by those parties. In this case, the defendant entity is the one that we hold far and away to the highest standard of any group in our society – the state. It is the party that profits off of our hard work through taxes, that we trust to pool social risks and to protect against foreign invaders, that we empower to delineate the contours of our duties and freedoms, and that we (usually rightly) blame first when something goes wrong. It should be easy to file suit, if not win suit, against the state, because we want juries and judges to have as many opportunities as possible to punish the state, through both the economic damage and the public shaming ritual of losing a lawsuit, for failing to live up to our very high expectations for it. If a competent court or the duly chosen members of a jury decide that the state has failed in its charge, then it deserves to be punished just as much as anybody else. And since the state plays such an integral role in protecting, controlling, and managing our lives, it owes us a corresponding level of access to its own goings-on, and access to the courts is our most useful kind of access perhaps second only to access to legislatures.

But we also want judges and juries to be able to say that what is perceived to be a failure by the state is actually an unjust assignment of blame. Not long after the attack, the state was accused of a litany of failures: failure to regulate firearms, failure to screen out potentially violent or mentally ill children (that everyone blamed the state for failing to discriminate against the mentally ill without any clear evidence of mental illness in the shooter is a disgusting feature of our discourse about the Sandy Hook tragedy, but perhaps that is best left for another day). For the same reasons that we want it to be easy to blame the state for its failures, we want to be able to recognize when the public has unfair expectations of the system.

And, of course, we want parties that have actually been wronged to be made whole by compensatory damages and to deter their trespassers by punitive damages.

But as to the present case, laudatory as I have been for the right of lawyers to file such suits, this particular suit is of questionable merit. If I read the news articles correctly, Attorney Pinsky has chosen a particularly difficult theory to prove – negligent infliction of emotional distress. I won’t get into the details of it, because 1) it has several ins and outs and 2) those ins and outs vary by state and Connecticut is not my home turf, but to truncate the analysis considerably, showing NIED requires showing that the defendant, through either negligent action or inaction, caused the plaintiff to suffer a “sensory and contemporaneous” emotional shock that objectively harmed the plaintiff. There’s a lot of qualifiers there, and they all stack up against the plaintiff.

When you read Pinsky’s comments, you see that his case is doubly difficult because his chosen nexus is not the shooting itself, but specifically the broadcast over the loudspeakers of the initial shooting in the Sandy Hook Elementary lobby office. So instead of proving that the entirety of the attack caused emotional harm to the anonymous child, Pinsky must convince either a judge or a jury that:

  • the state could reasonably foresee, or should have reasonably foreseen, that, during a school shooting, someone would turn on the overhead loudspeakers to warn others in the school,
  • there were reasonable steps the state could have taken to mitigate the harms caused by the element above or to prevent them entirely,
  • that the elements above caused the plaintiff’s child to suffer serious objective harms (say, stress-induced digestive problems, diagnosable depression or PTSD, not merely “feeling sad” or “being scared”) because of a sensory experience contemporaneous with the results of the defendant’s negligence.

In short, good luck, Attorney Pinsky.

As an aside, there are certain strategic aspects to this case that you should know are standard tools of the trade. Specifically, the $100 million damages sought. Even if the anonymous child in this case went out was diagnosed with every emotional disorder from depression to hysterical pregnancy as a known direct result of the shooting, if Pinsky proved every other element of his case, there’s no way in hell that $100 million would pop out of that case. What Pinsky is doing is highballing his figure because he’s hoping to settle for a catastrophically lower sum. The state knows that it would almost certainly win any lawsuit, but Pinsky can save face and look like the reasonable one because he has plenty of space to revise his settlement proposal downwards until he meets something that will probably be slightly higher than his expenses, if the case proceeds at all. When you see a damages figure far out of proportion to any reasonable interpretation of a case, you are seeing the preliminary settlement offer broadcast to the defendant. By starting at $100 million, Pinsky is hoping that he can look reasonable and accommodating when he gets talked down to less than $1 million, because he knows and the state knows that the suit is likely to fail, but less than $1 million is better than nothing.