The Real Victims of 'Tort Reform'

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A judge is forced to make a "Sophie's choice" when divvying up damages after a horrendous passenger train crash

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When Congress passed the Amtrak Reform and Accountability Act in 1997 to save and secure passenger rail service in America, the lawmakers issued a series of solemn "findings" in connection with the legislation. One such finding noted that "additional flexibility is needed to allow Amtrak to operate in a businesslike manner in order to manage costs and maximize revenues." Another declared that "Amtrak should ensure that new management flexibility produces cost savings without compromising safety."

Nice words. What they really meant, among other things, was that Amtrak and the rest of the railroad industry had successfully lobbied our elected officials to include in "accountability" legislation a statutory-mandated limitation on damage awards in major railway negligence cases. The Amtrak Reform Act indeed imposes such a cap, limiting the ability of American judges and juries to perform their traditional roles in determing award amounts in civil cases where liability has been proven. The relevant portion of the law reads as follows:

The aggregate allowable awards to all rail passengers, against all defendants, for all claims, including claims for punitive damages, arising from a single accident or incident, shall not exceed $200,000,000.

For saving Amtrak, the American people (who own Amtrak, remember) were given the gift of so-called "tort reform." 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.

THE CRASH

Two hundred million dollars may seem like a lot of money arising out of "a single accident." Unless the accident is a catastrophic one, in which case it's not nearly enough. On September 12, 2008, such 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.

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

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.

Earlier this year, a state judge in California was given the uneviable task of dividing up the money to the hundreds of people impacted by the deadly crash. Superior Court Judge Peter D. Lichtman held a three-month long hearing, taking testimony on the extent of the damages from the victims and their doctors. By all accounts, the exercise was brutally emotional for all concerned. And then, just last Wednesday, 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 Lichtman decision identifies and illustrates the sort of raw pain caused in California in 2011 as a result of the votes of federal lawmakers in Washington in 1997; the sort of pain which also is at the heart of the stories contained in the good new HBO documentary "Hot Coffee," which is now airing and which I reviewed here last week.

THE RULING

I urge anyone reading this to read Judge Lichtman's ruling in full. It is one of the most interesting and important legal opinions of the year because in it you see 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 sound of the crash was defeaning only to be replaced by complete, total and eerie silence. Almost all of the passengers that remained conscious through the ordeal and even those that were briefly rendered unconscious speak of this silence as being surreal. Many of the passengers thought that they had simply passed away and were experiencing death since the silence coupled with debris floating in the air along with the sun reflecting through the debris provided a sensation of another dimension. This silence was short lived, however, and was quickly followed by cries for help, screams of pain, cursing, wailing, moaning, howling, and sobbing.

The judge wrote about the way the victims and survivors reacted in those first few moments.

To this Court, the conduct of the passengers was unquestionable reflexive and instinctive. The first thoughts were to call their loved ones and make sure that they would not be worried, once news got out. Notwithstanding serious physical harm and horrific pain, these acts were completely selfless and admirable. Nothing else seemed to matter other than making sure the family was to be informed and told not to worry.
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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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