Benkei wrote:


The level for "frivolous" cases in the US requires a much higher level of frivolousness than in the Netherlands. I think that explains why those groups in the US in fact call it "ludicrous" cases to avoid the legal connotation. In general, these groups consider the legal notion of frivolous not sufficient and from my perspective I agree.



You ordered coffee. How about NO warning? Coffee is supposed to be hot and you're supposed to get burned if you throw it all over yourself. Entirely foreseeable.

Even so, even if I was a waiter and I accidentaly throw it over you because I trip, why should I be fiscally punished for something that's a simple accident? I don't think that all damages should be reimbursed because some damages are so accidental they are just supposed to be borne by the person who was out of luck.



They're related. Both the claims as well as the amounts are going too far. It's not only the number of claims but the height of them that causes serious additional social costs through more expensive insurance and lengthy lawsuits.



Bringing ludicrous claims is a bad thing. And my point is that nobody is responsible when shit happens. When shit happens, damages are accidental and cannot be awarded in favour of one party due to some tenuous causal claim.

If I slip and throw coffee on you I should be sueing the floor cleaner, who should sue the detergent manufacturer for making slippery soap... or maybe we can just stop and say: "damn, this happens some times, I'm terribly sorry. Let me get you a towel. Can I reimburse the costs for the dry cleaning?" And let that be the end of it. It's a matter of rational and fair behaviour. Claiming thousands of EUR or USD isn't rational or fair but greedy.



Is scalding hot coffee "non-obvious"? I think it's been hot for over 100s of years. I also doubt the woman ordered coffee for the first time as it is an acquired taste. So she most likely had a personal familiarity with the product. The analogy doesn't work in my opinion.

But the law has also grown up differently in the US than the UK and again differently than in Continental Europe. I doubt that we can claim that any of these systems are inherently defective but the US is the only country that has a publicly recognised "liability litigation crisis". Something has gone wrong there and its not about eliminating emotional damages per se for me but there certainly should be a change in sensibility with regard to the award of emotional (and punitive) damages.



Not a very accurate way of putting it I agree. It's more to do with the height of the claims that might be a a consequence of a such a mentality. It's not about what's fair or reasonable to compensate someone's damages but about punishing the other (loser).

Here are some more nice examples:

The Roy L. Pearson case. 54 million USD claim against dry cleaners who lost a pair of pants. WTF? A woman sueing an outdoor mall for being attacked by a squirrel. WTF? A journalist who climbed on a garbage truck to take pictures and fell off when it moved, suing for 50 million USD. WTF? A drug-user who sues the hospital for "allowing" a visitor to smuggle drugs to her. Really? WTF?

These are all cases that are being handled by the Courts. Admittedly, in the first there is at least a clear case of damages attributable to the dry cleaners but the amount is ludicrous. The other ones should not even be handled.

In the meantime, companies pursue aggressive legal strategies to simply scare away the competition or make a buck (think of Monster Cable). Patent trolls prefer to sue in the US because the damages are much greater there than in Europe. Let's face it, in the US, sueing is a profitable business.

And people know it. They react by placing thousands of warnings everywhere to avoid litigation.

http://www.gtlaw.com/portalresource/halkowarning[/quote]

I think one of the problems here is that you want to conflate a variety of separate ideas into the same problem.

1) There are statutory causes of action. Some parallel the common law, some are new inventions.

2) There are statutory entitlements to categories of damages. Some statutory causes of action include types of fees not traditionally recoverable, i.e. attorney's fees.

3) There are classes of damages, one of which is compensatory damages.

4) Compensatory damages, one aspect of which is pain and suffering.

Let's take each of your litigation examples in turn -

McDonald's case - Traditional negligence claim. If McDonald's was found negligent, the plaintiff was entitled to compensatory damages including pain and suffering. You seem to have a problem with McDonald's being found negligent. You also seem to have a problem with punitive damages being awarded against McDonalds.

Punitive damages are a class of damages reserved for special types of negligence claims. In such cases, you often find egregious conduct that does not rise to the level of an intentional tort, but is repugnant none-the-less and needs to be punished as such. McDonalds manufactured a product in an atypical fashion in order to save a fairly small sum of money. The average consumer would not have been aware of the additional danger that they exposed themselves to by consuming the McDonalds product as compared to other cups of coffee.

You think that McDonald's endangering its customers is "shit happening." A jury disagreed. Not only did the jury disagree, but they found that McDonald's endangering its customers for the sake of a few dollars was egregious conduct and needed to be specially punished.

Now we can sit here in retrospect, knowing nothing of the case or the evidence presented to the jury, and condemn the jury verdict. If this is your idea of productive time, feel free. The fact is, you do not have sufficient resources to either defend or condemn what the jury did. All you can do is react to what limited information was presented to you via media.


The Pearson Case - Invoked as a typical example of crazy litigation in the US. The defendants in the case withdrew their motion for attorney's fees. I wont go through Pearson's cause of action or the basis for his demands. Suffice it to say, he dug his own grave. If you think the entire system needs to be changed to respond to this one case, there is not much to discuss. Saying that you are having an over reaction would be too kind.

Importantly, Pearson lost at every level. He was not awarded what he demanded.

The squirrel and outdoor mall - A Chicago case that was dismissed with prejudice on the complaint. It never even went to trial.
http://www.onpointnews.com/docs/squirrel2.pdf


Reporter and garbage truck - Can't find it easily. If you give me a reference, I will check it out.


Drug user case - Can't find it. Please provide a reference.


California Proposition 65 - http://www.oehha.org/prop65/law/P65law72003.html

The sign requirement is a statutory invention that turns out to be poorly conceived. You don't like it? Have California vote it away. This cause of action and the class of plaintiffs entitled to sue to enforce the law was a legislative creation and reflects in no way upon the judicial process or the expansion of common law claims. Changing the law is the appropriate remedy, not frustrating traditionally injured plaintiffs by limiting their ability to sue.


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So far it seems that outrageous examples provided and identifiable have been shown to have resulted in proper results, to have been handled extrajudicially, or to be non-judicial problems. Outside of shock value, it is unclear what these examples provide to the conversation in terms of showing that pain and suffering is an unwarranted class of damages.

The legal system regularly deals with claims that have no legal or factual basis and dismisses them. What more efficient method can you imagine than a motion to dismiss the complaint coupled with a motion for sanctions and/or a suit for malicious prosecution/suit?

You also collapse accident with negligence. If in fact something is just an accident, the costs don't change. If you were non-negligent, you don't have to pay. The issue as to where accident ends and duty/negligence begins is sometimes a legal question and can be decided out of hand by a judge and sometimes requires a factual analysis.

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One thing I am a bit surprised by is that no one has mentioned defendants purchasing insurance. Most tort reform is the baby of two categories of people - those who do bad things and have assets and those who insure those who do bad things.

If someone is totally removed from the impact of their actions, what cause do they have not to do them? The major party that gets nailed with pain and suffering damages is the insurance company. Any secondary benefit of negligence law is negated by the presence of insurance companies. Because making the insurance companies bear the cost of negligence does not have the secondary benefits of making the negligent party bear the costs of their negligence, the insurance companies stand in a unique position to argue away the equity of making the defendant pay.

If someone wanted to argue (as is often the case) that where someone is engaged in a public good or public necessity (such as driving or providing medical care), but the cost of insurance had become prohibitively expensive as a result of a specific type of damages such that people started either not carrying insurance or refraining from the activity, then I can imagine reasonable arguments for limiting damages for the benefit of society. I think there are other solutions to such a problem, but that is for a different response.

---

“If a person truly believes that God is good and that everything God does is good, that person can’t be sad. Sadness is actually a sign of atheism.” The Baal Shem Tov

I must be the biggest atheist of them all.

Hanover wrote:
I think Plaintiff's attorneys will be in for a rude awakening, despite their more liberal leanings, should public healthcare one day pass in the US. Medical payment recovery in lawsuits often comprise a large part of the award, and I can't see how juries will continue to award medical reimbursement if they know the provider has already been paid by Uncle Sam. I know that in Canada, where they have public healthcare, you cannot ask a jury for medical reimbursement for what the Canandian government has paid (and who is the equivalent to Uncle Sam in Canada?)..

ciceronianus wrote:
My dear Benkei, I'm not certain the Netherlands is quite the legal paradise you apparently believe it to be. You have focused on civil law, I know, but your system of criminal justice sounds terrifying. Apparently, no juries since Napoleon (not the most lenient fellow) was forced out, "judges" appointed by the government, generally no trials involving witnesses or testimony, decisions generally based on written reports of law enforcement? I'll take our criminal justice system any day. Alas for an American who gets into trouble in Holland (or Italy, for that matter).

But, of course, our system has its problems as well. However, I think the examples you refer to are well-publicized aberrations, insignficant when compared to the number of cases being processed each day. Crazy Roy Pearson lost his position as an administrative law judge as a result of his weird conduct, and frivilous suits are dismissed and sanctions imposed with some regularity by the courts of the jurisdiction with which I am familiar, not to mention the sanctions imposed for such actions by the agency regulating lawyers. Jurors are generally normal, sensible people, and not quite the gibbering, drooling members of the "common herd" some make them out to be.

We get along alright, and I'm sure the Netherlands does as well, though I would consider the possibility that it may be more in spite of, and not because of, the combination of the Roman law, German law and the Napoleonic Code it apparently operates under.

Benkei wrote:




No jury. Judges are appointed for life, which is intended to ensure impartiality. Where you get "no trials involving witnesses or testimony" is beyond me though. I am quite sure there are a lot of cases, particularly where it concerns traffic law, that are handled on the basis of written reports but those are in fact considered administrative cases in the Netherlands (only for certain types of misdemeanours).

Benkei wrote:
Of course, they are aberration and if I would live in the USA I would be far better able to give a better argument than from here. I think the main point for you to pause at for a moment would be the fact that there is talk of a "liability litigation crisis" in the US itself. That's not coming from me. The second is that similar cases are treated wildly different in the UK than in the US.



Thirdly, I pay three times as much for liability insurance if I were to take holidays in the US than most other countries. And when it comes to premiums, insurance companies don't lie.



Finally, this development was already recognised in the 70s and yet it only got worse (or more pronounced with more extreme aberrations, I don't know, but activists AGAINST ludicrous lawsuits are more numerous now than in the 70s).

Benkei wrote:
Well, just Roman and Napoleon will do actually - you have half of that heritage as well: Codex Justinianus. Despite the tort system our approach to liability is quite similar for instance.