TorteDeForm

Justinian Lane

The real hypocrites in the drama surrounding Bork’s lawsuit

By now, anyone who reads blawgs is aware that conservative icon Robert Bork has filed a million dollar lawsuit against the Yale Club in New York City as a result of injuries he sustained when he tripped and fell at the club.  A slip-and-fall lawsuit isn't ordinarily newsworthy, but this one is for several reasons.

  • Former Supreme Court nominee Robert Bork is a leading conservative scholar who has written on more than one occasion that Congress should enact some sort of tort "reform" to protect business interests.
  • Bork is not only asking for damages "in excess of $1 million dollars" but is also asking for punitive damages - which is nearly unheard of in cases such as his.   
  • Despite the fact that Bork is a leading constitutional scholar and law professor, his lawsuit makes two blatant and basic errors.  First, he is requesting attorney's fees, which are not recoverable in a personal injury lawsuit.  (This, perhaps more than any other, is the reason most personal injury attorneys operate on a contingent-fee basis.)  Second, he also asks for prejudgment interest, which is not available in New York.

The New York Times and the Wall Street Journal have good coverage of the case, and I've written briefly at Tortdeform.com about reactions in the blogosphere. 

First, a quick rehash of the facts as alleged by Bork in his lawsuit: 

Bork was invited to speak by The New Criterion at the Yale Club in June of 2006.  Instead of a traditional stage, the Yale Club had a foot-tall dais with a lectern on top.  Bork, who was 78 at the time, tripped and fell while trying to step up to the dais.  He injured his head and his left leg during the fall.  However, he did successfully climb on the dais and deliver his speech.  Bork reports that he suffered serious injuries that required surgery and months of physical therapy.  He claims he was unable to work for much of the year, and to this day suffers from impaired mobility. 

Eric Turkewitz notes that Bork's surgery may have been outpatient surgery.  This suggestion is bolstered by the fact Bork's detailed complaint does not state he was hospitalized for his injuries.  The fact that Bork was able to climb back on the dais, give his speech, and leave the event unassisted makes me question how severe the injuries actually were.  But I am willing to give Bork the benefit of the doubt and assume he is not exaggerating the extent of his injuries.

Now, let's restate the fact pattern and omit the plaintiff's identity:

A 79 year old man tripped while trying to step onto a foot-high platform.  He fell and hit his head and leg, but was able to give a speech and leave on his own.  He has minor surgery and some physical therapy.  A year after his injury, he sues the restaurant where he fell for over $1 million dollars plus punitive damages.  What reaction do you think most "reformers" would have to such a case?

There's no need to speculate.  Instead, let's look at the fact pattern from another famous case:

A 79 year old woman spilled hot coffee on herself while trying to put cream in it.  She suffered third degree burns and needed surgery and months of physical therapy.  Over a year after her injury, she sued the restaurant who served her the coffee and asks for punitive damages.

The case I'm referring to is of course Stella Liebeck's famed "McDonald's coffee case."  There are definitely a lot of similarities between the cases: A 79-year-old is seriously injured by a product not generally considered to be dangerous, and the injuries are caused at least in part by the 79-year-old's own negligence. 

It's not an exaggeration to say that the "reform" movement has crucified Stella and used her as exhibit 1 in the case against the civil justice system.  Rare indeed is the "reform" advocate who hasn't criticized Stella or her lawsuit.  But the "reform" blogs are strangely silent about Bork's suit - with one notable exception.

Let me give credit to Ted Frank at Overlawyered for having the courage to give his honest opinion of the case.  Ted wrote, "Before someone accuses us of playing this down, let me be out front and say that I find Judge Bork's slip and fall suit against the Yale Club embarrassingly silly."  "Embarrassingly silly" is quite polite compared to some of the comments from the "reformers" about Stella and her lawsuit.  But the same readers at Overlawyered who live to vilify plaintiffs are instead attacking Ted for daring to suggest that Bork's lawsuit is silly and that Bork doesn't deserve punitive damages.  One commenter stated, "Let me add that your insinuation that Judge Bork has capitulated to negative forces in the practice of law, to which he has vocally and persuasively combatted for years, is an unacceptable cheap shot at a great man."

As of the writing of this post, I haven't found any other article on a"reform" or conservative blog about Bork's lawsuit.  The right's unwillingness to criticize their own has given rise to the witty acronym IOKIYAR - "It's OK if you're a Republican."  Understandably, dozens of progressive bloggers have described Bork's lawsuit as a clear-cut case of IOKIYAR and have called Bork a hypocrite.  (IOKIYAR also describes former Senator Rick Santorum and his wife's obesity lawsuit against a chiropractor.)

Perhaps Bork is a hypocrite.  Then again, perhaps he's an injured citizen who truly believes he has a legitimate lawsuit.  While my gut reaction is that Bork's lawsuit is baseless, I'm inclined to do for him what I'd do for any other similarly situated plaintiff: Put my faith in the jury system to sort out the matter.  "Reform" advocates who criticize the jury system should take note of the fact that Bork requested a jury trial instead of a bench trial.  If noted "reform" advocate Bork is willing to trust a jury, perhaps the other "reformers" should, too.  Instead of attacking an injured 79-year-old, let's save the slings and arrows for the hypocrites who bash Stella but defend Bork.

The real hypocrites here are the many "reformers" who viciously attack Stella Liebeck for her lawsuit but who refuse to find fault with Bork or his lawsuit.  Their unwillingness to criticize Bork reinforces my own belief that the "reform" movement is dedicated to ensuring only the rich and powerful have access to the civil justice system.  

Cross-posted to Corpreform

Justinian Lane: Author Bio | Other Posts
Posted at 5:44 PM, Jun 10, 2007 in Civil Justice
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Comments

As long as we're talking about hypocrisy, are you now taking the position that Stella Liebeck was not entitled to punitive damages?

[Justinian: Leave it to Ted - I pay him a compliment and he goes on the warpath..

No, Ted. *I* still believe the jury got it right in Stella's case. But no one in the "reform" movement does. And besides you, I've yet to see any "reformer" bash Bork. While I do not want to rehash Stella's case again, the similarities are interesting, aren't they?]

Posted by: Ted | June 10, 2007 7:58 PM

How hard did you look? David Bernstein also criticized Bork, as did a majority of OL and VC commenters.

You said "punitive damages are unheard of in a case like this." So did the Liebeck jury get it right, or did it do something "unheard of"?

I've been consistent. Every reformer who's commented on the case has been consistent. You have not.

[Justinian: I looked at every blog on Technorati with a "Bork" tag.

Yes Ted, the Liebeck jury did get it right. See, the Yale Club hadn't had over 700 other people have serious falls on the dais, and they weren't also making a million bucks a day renting the dais. If you want to accuse me of inconsistency, this isn't the post to do so. If you want to rehash Stella's case yet again, let's move it to my site or to email, so as not to hijack this thread.]

Posted by: Ted | June 11, 2007 1:46 AM

I think Bork has lost his mind (certainly a possibility , given his age). Punitive damages are a blight on the legal landscape. Since they are a quasi-criminal sanction they should (1) be held to the same standards used in a criminal trial ("beyond a reasonable doubt"), and (2) if awarded, payable 100% to the jurisdiction of the court in which the trial is held with NOT ONE PENNY payable to the plaintiff or plaintiff counsel

Since most claims for punitive damages are simply attempts at leverage (it is always about the money, nothing more, nothing less - any attorney who tells a jury otherwise is lying through his/her teeth), making them payable to the State would eliminate close to 100% of such claims

Posted by: Paul W Dennis | June 11, 2007 5:57 AM

You're the one who brought up Liebeck, not me. And your hypocritical double-standard is showing. Bork's suit for punitive damages is indistinguishable from Liebeck's as a theory of tort law recovery.

[Justinian: Liebeck's suit was a product liability suit. Bork's is a premises liability suit. McDonald's had over 700 reports of other injuries caused by their product. Yale Club had no other reports of injuries caused by the dais. At least, not that we know of. Seems fairly distinguishable to me.]

Posted by: Ted | June 12, 2007 5:33 AM

I predict that if I place scalding hot coffee in a styrofoam cup between my thighs in a moving vehicle, there is a high probability I will squeeze it. Why the public has to pay for my extreme stupidity and inability to predict the future with greater than 51% chance of accuracy has yet to be explained.

With 1000's of lawsuits at every moment of the day, the corporation is not even upset by lawsuits anymore. It is a mere intermediary for the transfer of money from the public to the land pirates, in higher prices.

Any money Bork manages to force from the Yale Club should be retrieved by CMS for all Medicare expenses he incurred. CMS should get its money back before he pays his lawyer. Any settlement may cost him money. To deter.

Justinian when you say 700 prior injuries from scalding coffee, you forget the denominator. Fractions are a fifth grade math subject, eliminating lawyer grasp of this point. Lawyer math stops at the fourth grade level, that needed to count money.

If 700 injuries took place after 700 million coffees were consumed uneventfully, that makes the chance of injury 1 in a million. That might makes scalding hot coffee buying safer than being a pedestrian or taking a shower. Dispensing scalding hot coffee protects one from the dangers of walking on the street or doing more dangerous activity.

Does scalding hot coffee drinking meet the legal standards for strict liability? Your defense of the coffee claim, suggests you want that. Coffee dispensing should carry strict liability, like blasting with dynamite or keeping adult tigers in a small apartment. Most of the public would disagree once informed of the legal requirements for strict liability.

http://www.thelockeinstitute.org/journals/tortliability5.html

In a democracy, incompetent, unaccountable, cult criminals on the bench should not make law. I suggest you get legislation or regulation enacted if your intent is to end scalding hot coffee selling. Do not try to take shortcuts that threaten democracy and the rule of law, by the abusive power grab of the pro-lawyer biased cult criminals on the bench.

[Justinian: FYI, the car Stella was in wasn't moving. If Bork gets a recovery, he will be obligated to repay Medicare, as are all injured plaintiffs. That's a downside to granting immunity to product manufacturers - Medicare will end up paying for injuries manufacturers used to,]

Posted by: Supremacy Claus | June 12, 2007 6:52 AM

Enough already with Stella! Everyone knows the facts...McDonald's had been warned about the temperature of their coffee (approximately 1,000 degrees Kelvin); McDonald's refuses to reduce the heat because it will require re-brewing; Stella buys the coffee puts between her legs and really gets burned; Offers to settle with McDonald's for med pay only...they refuse; She gets a large jury award (for which her comparative negligence is taken into account); appeals follow...she never collects the verdict.

Who cares anymore? It is an example of the jury system at work followed by the appellate courts at work. Bork's suit is nothing like Stella's...its a run of the mill trip and fall. He's probably around 10-15% at fault and the Yale Club probably knew that there was a problem with the stage. His damages claims are the problem. He finished his speech and now can't work again?

As for the comment about CMS. They won't get the whole thing, they'll settle for a fraction.

Posted by: Frank Galvin | June 12, 2007 9:28 AM

Paul Dennis: Please, tell me if you are lawyer, so that I may know there is at least one of you out there not totally mentally crippled by your legal training.

I strongly support both your points. Current doctrines are lawless and unconstitutional.

Posted by: Supremacy Claus | June 12, 2007 3:41 PM

Sorry - I'm not an attorney - I started law school back in 1973 (I scored a 720 on the LSAT) but decided quickly that I was not interested in being an attorney. I suppose,in retrospect, that I should have become an attorney as they have a virtual license to steal in the current environment, whether as ambulance chasers or as civil litigation defense attorneys.

[Justinian: 720? When I took it the max you could get was 180. Are you incredibly brilliant, or did they change the scoring system?

And thanks for recognizing hourly defense attorneys make a killing, too.]

Posted by: Paul W Dennis | June 13, 2007 9:40 PM

A couple of items for the record:

To Frank: 1,000 degrees Kelvin is 1,340 degrees Fahrenheit. At that temperature, the coffee would have vaporized, taking the cup with it, before it ever made it to Stella Lieback's lap.

To Paul & Justinian: Evidently the LSAT has gone through three different scoring systems over recent decades. When I took it in 1990, the range was 10-48. That seems to have changed the following year to the current 120-180. And at some time in the more distant past it used the same scale as the SAT -- 200 to 800.

[Justinian: Thanks for the math correction - I'd like to think even Ted Frank would consider 1,300 degree coffee to be defective.]

Posted by: David Rosenblatt | June 14, 2007 10:20 AM

To David Rosenblatt: I'm aware of the fact that 1,000 Kelvin is 1,340 Fahrenheit, I was exaggerating to make a point. Obviously when you took the LSAT, there was no section on discerning sarcasm in written materials.

[Justinian: More than once, I've said the HTML spec needs to include sarcasm tags.]

Posted by: Frank Galvin | June 15, 2007 5:03 PM