The Real Victims of 'Tort Reform'

By Andrew Cohen

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.

And then the judge turned his attention to the assessment of the damages caused by the accident. He wrote:

This Court is powerless to express any words concerning the 24 souls that lost their lives that day. Each one of the victims was remarkable. Many families were left without any providers, not to mention the loss of a mom or dad. There were a number of famlies that lost their sons and daughters as well. The average age of the children who died was 19 years old.... Several of the passengers that died left behind special needs children at home with an already stretched budget and caregiver.

The plaintiffs' attorneys had estimated that the total damage awards would be in the range of $320,000,000 to $350,000,000, or roughly half again more than the proactive limitation imposed in 1997 by the Amtrak Reform Act. Judge Peter Lichman agreed. But just to make sure he sent out 'tentative awards" to each family to gauge how each would react to getting less than they might have gotten at trial. The result was that the judge concluded the reasonable award should have been $264,000,000. Less than what the families had asked for. Less than what the facts established. More than what Congress would allow. Here's what the judge said next about splitting the difference: 

This final stage boiled down to judicial triage. Triage is a medical term and not a legal doctrine. The origin is French and it means to sort or select. In today's parlance it means to ration medical care when resources are limited. This Court was forced to do precisely what the first responders did on the day of the accident. It had to categorize the injuries and victims and make the awards on the basis of what the future would hold for many of the families and victims.

And then he wound up for the kicker: "Hence, impossible decisions had to be made. What was given to one victim had to be taken from another. Essentially a Sophie's Choice had to be made on a daily basis. One Sophie's Choice is enough for a lifetime, but over 120 of them defies description. This Court is not stranger to difficult cases or difficult decisions but that does not make the situation any less challenging." One can only imagine what Judge Lichman really wanted to write. Again, I urge you to read the whole of the judge's opinion. Here's another link to it.

THE AFTERMATH

Having conspired to create the legal framework which generated this unjust result, politicians who are interested in this matter now have resorted to begging the French company, Veolia, to pay the extra $64 million which Judge Lichtman says would make the victims as whole as they reasonably can be in the circumstances. Rep. Elton Gallegly (R-Calif.), of Simi Valley where the accident occured, said last week in a statement: "Now that Judge Lichtman has made his ruling, I once again call upon Veolia to do the right thing and fairly compensate the victims. The company was grossly negligent." Of course, before Rep. Gallegly was against tort reform he was for it, like the vast majority of his Republican colleagues on Capitol Hill.

It wasn't just Rep. Gallegly who changed his view of "tort reform" when he saw its destructive effects up close and personal. The whole California Congresssional delegration has called upon Veolia to step up. No dice, said the company. "It is clear that no words and no amount of money can undo that tragic day," a Veolia spokesman bluntly told The New York Daily News last week. (Memo to Congress: If you hadn't protected the railway industry in the first place in 1997, if you had instead trusted American juries and judges, you wouldn't have to resort to begging French companies to do the right thing).

Rep. Gallegly and others also are trying to change the $200 million limit contained in the Amtrak Reform Act. First, there was an effort to increase the limit to $500 million. That stalled last year. Now, a more modest request, to up the pot to $275 million, also has stalled in Congress. Here's one reason why. According to OpenSecrets.org, members of the House Transporation and Infrastructure Committee alone received just under $52 milliion during the 2010 election cycle from corporate political action committees, including $6 million from the transporation industry. Quite a good investment when you consider such lobbying saved just one transporation company at least $64 million and probably more.

The argument against "tort reform"— the giving back to judges and juries the power to dispense justice—is a great populist argument in an age where there seems to be so much populist rage. And some Tea Party members, indeed, have been reluctant to vote for a federal malpractice damages cap. But not out of any expressed concern for the 7th Amendment's right to trial by jury. And certainly not because the caps are unjust to individual plaintiffs. Instead, the Tea Partiers argue that a federal malpractice limitation law would encroach too heavily upon 10th Amendment rights "reserved to the states." In other words, the Tea Party, great populist bastion that it is, doesn't mind if states dramatically limit the power of judges and juries to dispense justice—it just doesn't want the feds doing it as well.

THE TRACK AHEAD 
 

I understand that one of the jobs of a lawmaker is to make policy choices which favor one group over another. That''s the whole point of democracy. So I'm not naive enough to suggest that there shouldn't be on Capitol Hill a perpetual allocation of rights and responsibilities between and among competing interests. Certainly the history of our nation is awash with examples where a small group of people are asked to make life-changing sacrifices for the good of the whole. And I'm not just talking about our brave soldiers and their families.

What we see with the Amtrak Act and, eleven years later with the California train wreck, is an allocation of interests that heavily favors corporate interests and heavily burdens the innocent victims of negligent conduct. We can at least be clear with one another about that, right? When it passed the Amtrak Act, Congress prospectively took from the Chatsworth victims the right to a full day in court, with adequate damages awarded to them by a jury of their fellow citizens. The lawmakers took from these victims and survivors and gave what it had taken to the railway industry, its executives, employees and stockholders.

I won't fight that policy choice on the merits, at least not here or now. Instead, I'll make the case for false pretenses. When the American people are pitched "tort reform" by their politicians, and their politicians lobbyists, I don't believe the pitchees understand that the phrase encompasses the policy choice evidenced by the result in the Chatsworth case. Instead, I believe the American people often are duped into believing that so-called "tort reform" almostly always has to do with a greedy plaintiff, a frivolous lawsuit, an ambulance chaser on the make, and a beleaguered corporation.

Nor do I believe that most Americans understand how deeply these "tort reforms" undercut the fundamental democratic importance of the jury's verdict. Judge Lichtman's order is a testament to the neutering of the justice system—another policy choice which I don't believe has ever been sufficiently explained or justified to the American people. So here's what to do. 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, to live in their world for just a few hours, before talking again about why it makes sense to continue to give to the rich at the expense of the poor.

This article available online at:

http://www.theatlantic.com/national/archive/2011/07/the-real-victims-of-tort-reform/242030/