Part of why I think tort “reformers” have the opinions that they do is that they keep consideration of their point of view in the abstract. It is much easier to argue that people’s benefits should be slashed, or that the ability to access justice through the courts should be denied, when speaking in the abstract.

Wait a minute: when tort reformers cite instances like the McDonalds coffee case, they're accused by you guys of relying on anecdotes instead of hard evidence. Now, when they talk in the abstract, you condemn them for not relying on anecdotes?

I condemn them for trying to gut the justice system and for valuing profit above all else... but that's just me.

Even as an anecdote, why are we supposed to find it persuasive for any policy recommendation? Where's the "unfair hurdle"? Hey, I'm against unfair hurdles, too: let's agree to abolish unfair hurdles. Now let's define what the heck that means.

Unless workers' compensation gives money to every single American, there is always going to be someone who wants to win a workers' compensation case who will be disappointed that he or she didn't, no matter where one draws the line. We know nothing about the facts of this case other than that the claimant was unhappy with the news his own lawyers gave him, and that he had an unsuccessful marriage that he blames on his case. Even so, we can draw the line so that this particular anecdotal person wins his case when before he would have lost (but where, since we don't know why he lost?), and there will be some other sad story of someone who is still on the other side of the line. Even if we draw the line to give workers' compensation to every single American (and shut down the economy in the process, making everyone worse off), there are still people who are going to be on the other side of the line because they're not American.

Give workers' comp to every single American and shut down the economy? But then people who aren't American will be unhappy? Talk about going off on a tangent.

To paraphrase Bill Murray in Groundhog Day, "Don't write angry!"

Hi Ted,

Thanks for your comments.

So is your position is that workers' compensation is not a broken system? Is your position that workers' compensation fairly, equitably and promptly compensates workers?

If it is your position, I like Lee on a previous comment, invite you to a duel of ideas and statistics and reports that we can have here as a back and fourth as to your assertion.

Ted, I challenge you to a workers' compensation duel.

Do you accept?

Cyrus: I made three points in my Sep. 25 comment, and you addressed none of them:

1) What are you defining as an "unfair hurdle" in workers' compensation that you propose to correct?
2) What policy change are you proposing that would solve the problem in the anecdote you quote without creating identical (or even worse) problems somewhere else?
3) The post you've made isn't persuasive because it's devoid of substantive content.

This is consistent with your repeated refusal to actually engage anything I or other reformers say.

As for a "duel," I'm no Aaron Burr, and I don't find workers' compensation to be sufficiently interesting that I'd want to divert time from the research I'm doing to have a "back and fourth" on it. However, a chapter in the book I'm writing is about the Milberg Weiss indictment; as you are a Milberg Weiss Senior Fellow at DMI, perhaps you'd be interested in having a debate about that that we can host as part of our "Featured Discussion" series at Point of Law. That series regularly features opposing points of view (including two debates on medical malpractice where I participated); in addition, when I organize panels, I regularly invite representatives of Public Citizen or CJD or the plaintiffs' bar to sit, an invitation that has yet to be reciprocated.

Hi Ted,

If you are so interested in the source of the funding for my fellowship, that in response to every point I make you find some way to bring it up, as if in doing so you negate my point, that’s your own issue.

But, if you do, I must insist that each time you do, in the following paragraph you discuss your own funding stream in detail as well about which I am curious. Not just a link but the actual broken down sources of your funding.

Moreover, as Justinian points out in a previous comment below

[Ted] isn't it hypocritical of you to complain that you're the victim of ad hominem attacks, and then attempt to discredit Cyrus and this entire blog by making this of course is getting off trackthis of course is getting off track an ad hominem attack against Cyrus' employer?

Perhaps you've forgotten that you recently bristled when someone tried to discredit you and AEI by pointing out that convicted felon Ken Lay was a trustee of and contributor to AEI. Your response to that ad hominem attack on you on the WSJ Law Blog

"Is this the same Ted Frank that used to do legal work on behalf of Merck and who is now on the payroll of some “think tank” that is funded by tobacco and pharmaceutical money? And the same one where Ken Lay used to be a trustee?
(http://blogs.wsj.com/law/2006/08/17/vioxx-is-time-on-the-plaintiffs-side/#comment-8616)

was in turn:

"I promise you that Ken Lay did not speak to me from beyond the grave to help me draft the comment to Mr. Lattman’s post. I’m not sure why you’re attacking me on multiple websites to obsess over someone I have never met or spoken to as opposed to, say, discussing whether my statements are accurate.”

As Justinian said after this section, and as I echo,

We'll let the readers decide who here is a hypocrite.
I would refer you back to that comment and encourage you to engage the issues.

What is sleazy, and I think it is sleazy is that you feign victimization on this blog, and you feign gentlemanly interactions, but then consistently have a swift boat style of commenting where you attempt to discredit with one off hand insult or reference – to a degree that has honestly shocked and appalled me, especially coming from somebody as well respected as you from within your tort “reform” movement.

If you want to have a back and fourth about a critique of funding, let’s do so in a focused back and fourth - I welcome it. However, don’t mix our funding back and fourth with a discussion of the actual larger issues being discussed (moreover until MW is found guilt of anything (as was Ken lay) then I don’t see how their funding, as opposed to funding by a different plaintiff side firm is relevant to the above points.

If your problem is with plaintiff side law firms funding fellowships then I’d like to hear your reason why – and remind you that your side of this issue is incredibly more wealthy as it is the majority of corporate American financial strength, but whatever.. I digress.

Your conduct continues to convince me that you attempt to use personal attacks and rough language on this blog because you do not feel that your points are all that compelling on their own – as I have mentioned to you before.

I will address your substantive comments in my next comment.

Hi Ted,
Thanks for your Sept. 25th comment.
I was really busy traveling and so was not able to respond until now. Apologies.
Here we do not have the details of what unfair hurdles this man faced. The writer does not go into these details. Just as it is the first post viewers are asked to read on the website of workers’ comp stories that it is taken from (http://workerscompensationinsurance.com/) ), it was used here as an introduction to the series – i.e. one of many stories to come, many of which will go into more detail.

I included this piece because it really shows the effects that the tort “reform” movement can have. There has undeniably been a rollback of the worker’s compensation system, such that it now is less effective at fairly and quickly compensating injured workers through a would be “no-fault system.” A recent report by the Center for Justice and Democracy details this (http://www.centerjd.org/press/release/060920.htm) as do others if you are interested.

Future posts for this series will fill in the part missing here: what were the unfair hurdles that led to this suffering? This post is about the suffering, not the hurdles, but we will get to the hurdles in due time.
So we have at last found a point of agreement “let’s agree to abolish unfair hurdles.”

So as you say, let’s define what unfair hurdles mean. A great example would be the unfair hurdles faced by those exposed to the contaminants at Ground Zero who are now ill.

(I have written about this multiple times with a focus in most pieces on the workers’ comp hurdles these workers faced.

Federal and NYC Governments Make It as Hard As Possible for 9/11 Victims (http://www.tortdeform.com/archives/2006/09/federal_and_nyc_government_mak.html)

(follow internal links to all posts)

Recently, the NY state legislature had to step in to deal with fixing the many unfair hurdles that these people were faced with.

Ted, pointed question, do you believe that the hurdles the Ground Zero workers faced, before the passage of this legislation were unfair or not?

You’re against unfair hurdles, we both seem to be, do these hurdles qualify?

Hi Ted,

As a follow up, you say that it’s not important enough for you to talk about, but I think many of this nation’s heroes who are dead or dying as a result of exposure, might take issue with your view.

Just something to consider.

Cyrus: Please stop misstating my views. I never said workers compensation was not important. I don't know whether you're being sloppy or dishonest, but either way, it's offensive.

Hi Ted,

Thanks for your comment on Tort Deform.

On September 27th at 10:32 am, in response to being invited by me to a back and fourth on workers' compensation issues you left a comment which included the statement.

"I don't find workers' compensation to be sufficiently interesting that I'd want to divert time from the research I'm doing to have a "back and fourth" on it.

Please explain how this response does not carry with is an implicit assertion that workers' compensation isn't important for you to talk about it?

You also didn't answer my question to my substantive question of September 29th at 8:53 pm which asked......

"Recently, the NY state legislature had to step in to deal with fixing the many unfair hurdles that these people were faced with.

Ted, pointed question, do you believe that the hurdles the Ground Zero workers faced, before the passage of this legislation were unfair or not?

You’re against unfair hurdles, we both seem to be, do these hurdles qualify?"

I await your answer.

Cyrus: Simply put, you don't get to dictate my agenda. I don't want to have a "back and fourth" with you over China, either. It doesn't mean that Sino-American foreign policy isn't important. It means that a pointless informal blog debate on the subject neither complements the work that I do or is worth diverting time away from my life to be at your beck and call. Say something interesting and coherent on workers' compensation, and I might change my mind. You have yet to do so.

For example, you write: "I included this piece because it really shows the effects that the tort reform movement can have." No. It does no such thing. You have shown absolutely no evidence that the reform movement has had any effect on this person's case, given no evidence that there is a meaningful policy change that would solve this person's problems, or even given any evidence that this person had a meritorious case to begin with (much less one that was blocked by "unfair hurdles"). It's just quoting someone complaining, and you have absolutely no policy proposals to address this person's complaint. Or are you going to legislate a requirement that the worker's ex-wife return to him?

Hi Ted,

Thanks for your comment on Tort Deform.

It seems like you are trying to wiggle out of a direct question.

If you don't know enough about it to say either way, that's fine with me, just say so.

So, pointed question.. for the second time.

"Do you believe that the hurdles the Ground Zero workers faced, before the passage of this legislation were unfair or not?

You’re against unfair hurdles, we both seem to be, do these hurdles qualify?"

I await your answer."

Still.

Cyrus: Ask me a question that doesn't commit the logical fallacy of plurium interrogationum. Moreover, it is vague, ambiguous, overbroad, devoid of detail, and you haven't given me any reason to think it's relevant to this post or to my comment, so I don't care to do the research to answer this sort of mis-phrased non sequitur.

Say something interesting and coherent on the subject, I may choose to address it, I may not. I don't demand that you write a Rule 33-compliant response to each of the 3000 posts on Point of Law; why do you persist on demanding answers to vague questions where I've never stated an opinion one way or the other on anything remotely related to the question and, as best I can tell, neither have you?

Hi Ted,

Thanks for your comment on Tort Deform,

You seem to be a master of the wiggle out. Go ahead and do so, but it is clear to anybody reading these comments that it is not for the reasons you state above.

What is rather ironic, is that this discussion came about because of a comment you left about the issue which you chose to leave here on Tort Deform on September 25th.

To refreh your memory your comment is included in full below.

Moreover, you pointedly said,

"Where's the "unfair hurdle"? Hey, I'm against unfair hurdles, too: let's agree to abolish unfair hurdles. Now let's define what the heck that means.

I am responding to this comment which you left on Tort Deform, and was trying to determine where you would draw line for unfair hurdles in workers' comp that you discuss in said comment.

You seemed very sure in your previous post that you had sufficient knowledge of the said "unfair hurdles" such that you would not need to do additional "research."

Hopefully, in the future, on Tort Deform you will not "demand" answers from others, or be overly aggressive in your discussions about issues in other areas of the law with which you have more experience.

(Your previous comment is below in full)

"Even as an anecdote, why are we supposed to find it persuasive for any policy recommendation? Where's the "unfair hurdle"? Hey, I'm against unfair hurdles, too: let's agree to abolish unfair hurdles. Now let's define what the heck that means.

Unless workers' compensation gives money to every single American, there is always going to be someone who wants to win a workers' compensation case who will be disappointed that he or she didn't, no matter where one draws the line. We know nothing about the facts of this case other than that the claimant was unhappy with the news his own lawyers gave him, and that he had an unsuccessful marriage that he blames on his case. Even so, we can draw the line so that this particular anecdotal person wins his case when before he would have lost (but where, since we don't know why he lost?), and there will be some other sad story of someone who is still on the other side of the line. Even if we draw the line to give workers' compensation to every single American (and shut down the economy in the process, making everyone worse off), there are still people who are going to be on the other side of the line because they're not American.

You haven't addressed my previous comment yet, other than to repeat it.

Ted,

Seriously.. just cut everybody here a break and answer the direct question that is put to you.. for once....

(indeed now multiple times)

that was in response to a comment that you left here.

Nobody made you comment on this issue.... please don't just leave comments on here that you can't defend when pressed.

So, pointed question.. for the third time.

"Do you believe that the hurdles the Ground Zero workers faced, before the passage of this legislation were unfair or not?

You’re against unfair hurdles, we both seem to be, do these hurdles qualify?"

I await your answer.

Still...

and it's getting increasingly boring to watch your wiggle routine....

I beg of you Ted....

just say something...

anything substantive in response to my direct question to you very first comment in this thread.....

which is again something asked of you only becasue you left a comment here on Tort Deform (i.e. I didn't go over to overlawyered or personally email you and demand said answer from you) bringing up the issue of what hurdle are "unfair"

Once again.....

"Do you believe that the hurdles the Ground Zero workers faced, before the passage of this legislation were unfair or not?

You are the director of this aspect of your think tank's program.... surely you must have some sort of response...

seriously...

Ted had a lot more substance back in the days before he drank the AEI Kool-Aid. These days, everyone who disagrees with him is a strawman-building liar.

Maybe he's not allowed to publicly disagree with AEI or its funders.

Since I'm not paid to advocate anyone's position, I freely lay blame where blame is due. And like you, I agree that the 9/11 workers are indeed facing unfair hurdles. It's disgraceful to put profits ahead of heroes.

Cyrus, on September 25, at 9:40 pm, I made three points. I've repeated them several times, and you have yet to address any of them. Why should I countenance your attempt to change the subject to something that is not discussed in either your post or my comment to your post, when you repeatedly refuse to address what I actually say?

You can have the last word, and continue to play your Big Lie game of pretending that I'm somehow the one dodging the issue.

Sigh...

Ted.. seriously.

This has just become silly.