Justinian Lane

Principles, Profits, and Plastic Toolboxes

Cyrus Dugger recently wrote an op-ed in the West Virginia Record, in which he criticized West Virginia Chamber of Commerce President Stephen Roberts for filing a lawsuit seeking noneconomic damages against the family of a child who injured his daughter. While Cyrus didn’t call Roberts a hypocrite directly in his article, it is strongly implied. I’m inclined to agree with Cyrus; I do believe it is hypocritical for an individual who condemns noneconomic damages to seek them. Not everyone agrees. Overlawyered’s Ted Frank has this to say:

“That one argues that the law should be changed for the good of society doesn’t at all require that one refuse to take advantage of a bad law. There’s no requirement that reformers who find themselves in the situation of being plaintiffs abstain from receiving legally available non-economic damages. Reformers aren’t arguing that individuals are bad people for seeking non-economic damages, but, rather, the legal system’s award of unlimited non-economic damages is bad public policy.”

Mr. Frank, if I do the very thing I oppose, that does indeed make me a hypocrite.

The following quote, also from Mr. Frank, succinctly exposes the greed and hypocrisy that fuels tort reformers:

“As a matter of federal tax policy, I oppose permitting deductions for state taxes… But come April, I promise you that on my 1040 Schedule A, I’m going to deduct the thousands of dollars of state income tax I paid and collect the resulting refund. Does this make me a hypocrite? Of course not: it just means that I’m not an idiot. I’m not arguing that people shouldn’t take deductions that are available to them; I’m arguing that the deduction shouldn’t exist. Self-flagellation on my taxes doesn’t make me any purer or my policy arguments any more correct, it just means that I suffer all the costs of a tax policy I oppose without realizing any of the benefits.”

The tort reform movement is full of clichés: Runaway jury. Greedy trial lawyer. Frivolous lawsuit. Allow me to respond with a few others: Lead by example. Put your money where your mouth is. Actions speak louder than words. Or as Ghandi said far more eloquently, “Become the change you wish to see in the world.” Mr. Frank, if you refused to deduct your state taxes from your federal taxes, I wouldn’t assume you were an idiot. I’d assume you were a man of integrity who was trying to lead by example. Instead, I assume you’re just another conservative who thinks taxes are for “other people” to pay.

You argue that Mr. Roberts should seek the full measure of noneconomic damages the law allows – even if those damages exceed the cap he and his organization lobby for.

That’s no different than a “pro-life” woman justifying her abortions because abortion is legal. It is the height of hypocrisy.

The other night, I couldn’t sleep and was looking for something to do around midnight. Just about everything was closed, except for Wal-Mart. I thought I’d head over there just to look around, as I haven’t been in a Wal-Mart in years. (Like many people, I don’t shop at Wal-Mart because I oppose their policies.) While I was wandering the hardware section, I found a very nice plastic toolbox for $14.99. I’m in the market for a new toolbox for my Bronco, as the cheap one I have now is just too small. I’ve been to Autozone, Lowes, Home-Depot, and Tractor Supply Co. looking for a good toolbox. I found one I kind of liked for $30.00, which struck me as too high for a plastic toolbox that was just OK. Wal-Mart’s $14.99 toolbox was not only better than the $30.00 toolbox, but it also included a free screwdriver set! Faced with such a bargain, I did the only thing I could: I walked out of the store empty-handed.

Not buying the toolbox at Wal-Mart wasn’t a tough decision for me. I’d rather go without a toolbox, or pay too much for a toolbox than compromise my principles just to save a few bucks. That’s because as much as I value money, I value my principles more. Mr. Frank might think my “self-flagellation” makes me an “idiot.” No, Mr. Frank. It makes me a man of integrity. I have my own moral code, and I’m not going to violate it for something as vulgar as mere money. I urge people to boycott Wal-Mart because of their policies, so I lead by example and refuse to shop there, no matter how great their bargains. If I did the very thing I oppose, I would indeed be a hypocrite. Like Greg Abbott.

Greg Abbott lost the use of his legs when a tree fell on him while he was jogging. He sued the homeowner the tree belonged to and received what is presumed to be a settlement of several million dollars in noneconomic damages. He used that settlement to help fund his successful bid for Texas Attorney General. One of the platforms of his campaign was capping noneconomic damages at a level less than he received. Tort reformers may see nothing wrong with his actions, but I see Mr. Abbott as little more than a hypocrite. Is that an ad hominem attack? Probably. But what kind of an ad hominem attack could I make against Mr. Abbott if he refused to accept more than $250,000 in noneconomic damages for his paralysis? I would still disagree with him, but I would deeply respect him. I would see him not as a hypocrite, but as a man of integrity.

I believe that men like Ted Frank and Greg Abbott and Stephen Roberts have the right to use the same civil justice system they fight so hard to mutilate. But can you imagine how powerful – and persuasive – it would be if a tort reformer refused to accept a settlement or jury verdict because it was too large or violated some other principle of tort reform? That’s not likely to happen, because tort reformers value profits more than principles.

Perhaps they should learn from the example of John Cabllero, who was a triathlete and a rig worker for Esenjay Petroleum. He suffered broken bones, loss of vision and hearing, and brain damage when a faulty pipe exploded. A jury awarded him $30 million dollars in punitive damages after it was revealed that Esenjay had no safety plan at the site where John was injured. Rather than taking the money, he offered to forego the $30 million dollars if Esenjay would implement a safety plan to protect his fellow workers. To sweeten the deal, John even paid $15,000 of his own dollars to develop the safety plan! Esenjay gladly accepted his offer. When John Caballero said it wasn’t about the money and then gave up $30 million dollars to protect other workers, he clearly showed himself to be a man of integrity. Too bad the leaders of Esenjay weren’t men of integrity. Esenjay tried to renege on their agreement to implement a safety plan, so John had to sue them once again in order to force Esenjay to do what it agreed to do. Esenjay agreed to implement the plan, and John dropped his lawsuit. Tort reformers claim they want to ensure people are protected, but they fight to eliminate the sort of lawsuit that protected Esenjay’s workers. Is it any wonder we call them hypocrites and liars?

Perhaps I’m being too hard on tort reformers. Maybe they’re not hypocrites. So I’d like to offer one of them the opportunity to prove me wrong.

Mr. Stephen Roberts, your organization advocates restricting noneconomic damages as follows:

“Establish a uniform standard for non-economic awards, taking into consideration whether the claim causing situations caused severe physical injury. If so, the maximum should bear some relationship to a standard formula beyond just compensation for damages determined by the verdict.”

Mr. Roberts, I challenge you to immediately take the two following actions:

1: Define the “standard formula” that should be used to compensate your daughter.

2: Issue a press release that you will neither seek nor accept any settlement or jury verdict which results in your daughter receiving compensation higher than the “standard formula” would award her.

Are you a man of integrity, Mr. Roberts? Will you lead by example? Will you become the change you wish to see in West Virginia? Or do you agree that no “standard formula” could be fair to your daughter?

Posted at 8:38 PM, Nov 29, 2006 in Civil Justice | Permalink | Comments (2) | TrackBack (1)