Last week in The Atlantic, Andrew Cohen wrote on the real world effects caps on damages have on the victims of tragedies and the ability of judges and juries to deliver justice. Below is a summary of the article.

When Congress passed the Amtrak Reform and Accountability Act in 1997, the railroad industry had successfully lobbied to include in "accountability" legislation a statutory-mandated limitation on damage awards in major railway negligence cases. The Amtrak Reform Act imposes such a cap, limiting the ability of American judges and juries to perform their constitutional roles in determining award amounts in civil cases where liability has been proven. 

" The new law meant that the average citizen could no longer use the justice system to determine the fair amount of damages in mass casualty cases. The statute told judges, juries and victims alike that federal lawmakers had determined, in advance, the amount of pain corporate America would be allowed to suffer at the hands of legitimate plaintiffs who had proven gross negligence cases in court. The railway industry cheered the arbitrary cap. So did the insurance companies. Certainty is a good thing in the world of the law and universe of business."

 

On September 12, 2008, an accident occurred in Chatsworth, California. Twenty-four people were killed and more than 100 were injured, many horrifically, when a Metrolink passenger train ran a red light and slammed head-on into a Union Pacific freight train. The passenger train engineer, who died in the crash, was texting someone and missed the stop signal.

 

 

"Metrolink, and a French company named Veolia Environment, which had employed the engineer (and which, it was said, had known before the crash of the man’s chilling propensity to text while steering trains full of people), decided not to fight liability. They took the blame. In 2010, two years after the accident, knowing that the damage award for their gross negligence would be huge, the companies paid into a special fund the $200 million ordained by the Amtrak Reform Act. And then they essentially washed their hands of the matter—as they were permitted to do by federal law."

 

Superior Court Judge Peter D. Lichtman was given the task of dividing up the money to the hundreds of people impacted by the deadly crash.  By all accounts, the exercise was brutally emotional for all concerned.  Judge Lichtman issued a 33-page ruling describing the results of the hearing and ordering the distribution of the $200 million fund. The opinion, which you can read here, is heartbreaking.

 

Heartbreaking—and particularly effective at describing in vivid detail the other side of so-called "tort reform." This other side focuses upon the terrible consequences people often face because legislators have limited the amount of damages that can be awarded to plaintiffs in negligence cases against big companies.   The opinion showcases the true cost of "tort reform" and, on a larger scale, the real cost of the nation’s current crest of corporatism. Here you have innocent victims whose rights and liberties were limited so that corporations could have litigation certainty. Here you have an honorable American judge hamstrung by statute to do right to the litigants before him. Justice in America in tort cases does not have to be, as the judge said, a "Sophie’s Choice" Yet in many respects it is.

 

From the evidentiary hearing, Judge Lichtman concluded:

 

Simply put, the sheer weight of the freight train crushed the lighter and more flexible passenger train. The fate of every passenger riding on Metrolink #111 that day, be it death, serious injury or the ability to walk away hinged on a passenger’s choice of seat and that seat’s direction of travel.

 

 

The judge wrote about the way the victims and survivors reacted in those first few moments.  And then the judge turned his attention to the assessment of the damages caused by the accident. He wrote:

 

This Court is powerless to express any words concerning the 24 souls that lost their lives that day. Each one of the victims was remarkable. Many families were left without any providers, not to mention the loss of a mom or dad. There were a number of families that lost their sons and daughters as well. The average age of the children who died was 19 years old…. Several of the passengers that died left behind special needs children at home with an already stretched budget and caregiver.

 

 

The argument against "tort reform"— the giving back to judges and juries the power to dispense justice—is a great populist argument in an age where there seems to be so much populist rage. And some Tea Party members, indeed, have been reluctant to vote for a federal malpractice damages cap. But not out of any expressed concern for the 7th Amendment’s right to trial by jury. And certainly not because the caps are unjust to individual plaintiffs. Instead, the Tea Partiers argue that a federal malpractice limitation law would encroach too heavily upon 10th Amendment rights "reserved to the states." In other words, the Tea Party, great populist bastion that it is, doesn’t mind if states dramatically limit the power of judges and juries to dispense justice—it just doesn’t want the feds doing it as well.

According to OpenSecrets.org, members of the House Transportation and Infrastructure Committee alone received just under $52 million during the 2010 election cycle from corporate political action committees, including $6 million from the transportation industry.

"I believe the American people often are duped into believing that so-called "tort reform" almostly always has to do with a greedy plaintiff, a frivolous lawsuit, an ambulance chaser on the make, and a beleaguered corporation.  Nor do I believe that most Americans understand how deeply these "tort reforms" undercut the fundamental democratic importance of the jury’s verdict. Judge Lichtman’s order is a testament to the neutering of the justice system—another policy choice which I don’t believe has ever been sufficiently explained or justified to the American people. So here’s what to do. The next time a politician shouts "tort reform" in your face, tell her or him to go spend a day with the victims and survivors of the Chatsworth crash, to live in their world for just a few hours, before talking again about why it makes sense to continue to give to the rich at the expense of the poor."

 

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