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P&S is arbitrary to begin with.Originally Posted by daubeart
Last edited by The Missing Link; 06-01-2012 at 03:23 PM.
caps are like zero tolerance policies in schools. like, EXACTLY the same - taking the judgment out of the hands of the person best positioned to pass judgment
Well, we know the jury made a judgment, but we have no way of knowing if it was a reasonable judgment. Lots of poor decisions by juries in civil suits, and that article does not give us any real information. Could have been a reasonable verdict or it could have been just a "poor family, let's soak the rich doctor" verdict.
Before you scoff at that, I can cite a breast implant case I once saw. Woman had lupus and other problems, claimed Dupont's implant was the cause. Dupont paraded beaucoup scientists before the jury stating that no medical study had ever shown any connection. Jury then gave around $3 mil to the woman. When the jury foreman was interviewed (on camera) he stated that they understood there was no scientific evidence linking the implant to the woman's medical problems. When asked if that's the case then why did they give $ 3 mil of Dupont's money to her, he said that "they thought the poor woman was really ill and needed the money."
Moral: don't assume that a jury of your peers is not full of total dumbassery, especially when there is someone with deep pockets on the hook.
No, it's not punishment. It's consequences.
When I jump up and yell while watching a football game and spill my Shiner on the carpet, irrevocably staining the carpet, that's consequences.
When my wife gets mad and me and withholds sweet loving that night because she's pissed that I spilled beer on the carpet, that's punishment.
As for your scenario, SOMEBODY is getting "punished" (that is, facing the consequences of losing a million dollar wage-earner). You would have it be the innocent family of the wage-earner. I would have it be the bad actor. One of those concepts is consistent with hundreds of years of western legal theory and concepts of justice and responsibility. The other is much closer to socialism -- everyone should pool their interests (that's what insurance is), and that collective should be what makes us whole, NOT the person who actually caused the conduct.
If you walked into a china shop and broke a $1,000 vase, would you say that you are being unfairly punished, as nobody should be required to pay more than $50 for breaking a vase, no matter how valuable it may be?
No. In both cases the govt. albeit different branches are interfering with the decision of a jury, one before and one after judgement. In both cases the free market mechanism of pricing is obstructed. In your opinion it's ok for the judge to do it not the leg. Just give up the idea that protecting free market determination of pricing is your objective here.
The bolded part of your post completely contradicts your assertion that your goal is to let the market decide pricing. If one concedes the judge is part of the free market, the legislature is as well.
Last edited by sawbonz; 06-01-2012 at 03:34 PM.
worst.threesome.thread.ever
Non-economic damages like pain and suffering are absolutely not arbitrary, unless you are using an arbitrary definition of the word. If the jury's answer in a jury charge for pain and suffering damages is arbitrary, then the jury's decision will be overturned at the appellate level and a new trial will ordered.
Pain and suffering damages cannot be awarded based on personal whim. Instead, the damages must be tied to the facts and circumstances of the case.
And of course, this is the logical fallacy of anecdotal evidence. Yes, we can find jury verdicts that are just plain wrong/dumbassery. It is a human system -- there is bound to be some error.
But extrapolating that to that being anything approaching a "systemic" problem with juries is logically unsupportable. Again, NOBODY hears about the tens of thousands of cases every year where juries render a defense verdict, or they find for damages and it's totally reasonable and logical. We really only hear when the verdict is odd. And even THAT doesn't necessarily speak to the system -- in cases where there is no evidence to support a crazy jury verdict, the trial judge and/or appellate court routinely overrule the jury's decision.
From those folks who see more than a random outlier of a case in the paper -- judges, lawyers from BOTH sides of the bar, etc., the uniform evaluation is that juries do a pretty damned good job of things. This comes from plaintiff's lawyers who've been poured out, and defense lawyers who've been popped. Hell, I've had ONE jury "get it wrong," and in truth, I really couldn't blame them -- the way the trial judge situated the case and steered the evidence and jury charge, I'd have been shocked if they got it RIGHT. But in the end, we got it flipped on appeal, because the obvious problems with how the judge set up the case . . . . were obvious problems, and merited reversal.
It is telling that the tort reform crowd has NEVER sponsored or done any objective study of all jury verdicts . . . . because they wouldn't like what it tells us (that there is no systemic problem).
And again, for every person who cites the McDonald's case, or the breast implant litigation as an example that "juries cannot be trusted" -- I presume that you oppose capital punishment, right? I mean, if juries "make lots of poor decisions," such that we shouldn't trust them with deciding who gets/pays money, then surely we can't trust them with the decision of who lives and dies . . . right?
I think you are confusing P&S with actual damages.
It is arbitrary by all of dictionary.com's definitions:
1. subject to individual will or judgment without restriction; contingent solely upon one's discretion.
2. decided by a judge or arbiter rather than by a law or statute.
3. having unlimited power; uncontrolled or unrestricted by law.
4. capricious; unreasonable; unsupported.
5. Mathematics . undetermined; not assigned a specific value.
Last edited by The Missing Link; 06-01-2012 at 03:39 PM.
The trier of fact and law sets the compensation in a dispute -- just like the company sets executive compensation. If legislature passed a law that said executives were barred from accepting more than $250,000 per year in compensation, it would be offensive to all capitalists. That's exactly what is happening here. The legislature is saying that in no circumstance can someone be compensated more than an arbitrary cap.
If lawsuits are to have any merit, they must be allowed to stand on their own facts and damages. A case shouldn't be decided before the events ever take place.
False. Your logic fails.The bolded part of your post completely contradicts your assertion that your goal is to let the market decide pricing. If one concedes the judge is part of the free market, the legislature is as well.
ALL brisket is worth no more than $9 per pound.
THIS Bill Miller brisket is worth no more than $9 a pound.
The first is not a transaction-based valuation. It imposes a valuation on the market as a whole.
The second IS a transaction-based valuation. It finds a value for a particular transaction based upon the specific market dynamics of that transaction.
Nobody is saying that involvement of government-actors renders it a non-market based decision. Hell, jurors are effectively an arm of the state when they make a damages award. And if the legislature sat down at the courthouse and listened to the evidence in each case and then decreed what that case was worth, it would at least be a transaction-based decision.
That's BC's entire point.
That's not true. The law is that you cannot be compensated in addiiton to damages more than $250,000 (or twice the damages).
You make an excellent argument against carrying any medmal insurance at all, and there were docs in Texas prior to prop12 who "went bare" because at that time your policy limits were your defacto cap on damages.
Care to address my earlier alternate hypothetical where brokeass redneck is the tortfeasor?
Pain and suffering is an actual damage. It's a non-economic damage... but it is most definitely "actual." If any decision of the jury is arbitrary, it may be overturned.
What on earth are you talking about? Damages are the only thing you can compensate in a case.
But it's ALWAYS arbitrary. Even if it is a REASONABLE amount, it is still an ARBITRARY amount.
Last edited by The Missing Link; 06-01-2012 at 03:48 PM.
in addition to actual damages
All awarded damages are actual. If they aren't actual, they don't exist.
All due respect, but unless the buyers are putting down money for the brisket, the market is not deciding. In your analogy the first case is the legislature deciding no brisket is worth that. In your second instance the judge is telling the jury they can't pay that much for bill miller's even though they want to. Neither is unrestricted free market pricing. You might argue the latter is acceptable interference but it is interference nonetheless
Btw I am for all kinds of restrictions on free markets. I think unhindered free markets tend towards monopolies.
I think caps are needed. They are currently too low
And I think that in some cases, that (or carrying a policy with low limits) was a rational decision. It's all a decision about how to allocate your economic risk.
This one?Care to address my earlier alternate hypothetical where brokeass redneck is the tortfeasor?The damages is the exact same. The jury form will look exactly the same: Question 1, who is responsible, and by how much? ANSWER: Defendant (doctor or redneck), 100%. Question 2, what sum of money, if paid now in cash, would fairly and reasonably compensate plaintiff for his damages, if any, resulting from the death of (his wife and kids)? ANSWER: $ (whatever amount the jury finds).I'll take your hypothetical one step further. Instead of a doctor with a big medmal policy killing your daughter through negligence it is an unemployed redneck blind drunk who hits your wife's car and kills her and your daughter. Has any less damage been done to you emotionally, financially, etc? Should we have a fund set up to reimburse victims of careless folks without deep pockets? Should such a fund include "pain and suffering?". Who should decide in that case what amt is
In the doctor scenario, or if it's a trucking company with assets/insurance that negligently hits my family, I can COLLECT on my judgment. If it's a broke-ass redneck, I probably can't collect. The issue is not with the judgment -- it's the same in any case. It's the ability to collect.
And the risk of being negligently harmed by an underfunded/broke defendant is a RISK. I can insure against that risk (see my uninsured motorist addendum on my auto policy; see my large life insurance policy to make sure my family is taken care of no matter what, etc.), or I can choose to bear that risk. Risk goes both ways. If I have no other insurance, etc., then I am probably never compensated for the damages caused by the drunk redneck's actions. He is still legally RESPONSIBLE for them, and if next week he cashes in the winning lotto ticket, I will take my judgment that adjudicated him as the responsible party and I will COLLECT on my judgment.
But the quesiton of responsibility/court judgment and final collection on that judgment are two separate questions.
The person who does the damage is and should be legally responsible for that damage, period.
Enforcing that responsibility via collecting damages from that person is a function not of any adjudication, but of simple availability of resources. Can't get blood from a turnip, etc.
If I were a plaintiff's lawyer, and someone came to me with the doctor case vs. the drunk redneck case, I would probably advise them to pursue the doctor case, because in the end, they could probably collect. And I would probably advise them not to pursue the drunk redneck case because the only real value they'd get out of it is the symbolic value of holding him legally responsible. That may be worth something, but in this society, the simple truth is that we really only measure the value of things in $$$, and by that measure, a claim against him has no value.
I don't believe that SOCIETY owes anyone a pool of money to make them whole. I actually believe just the opposite -- the responsible person owes them. If he can't pay the debt, it doesn't change the fact that he owes them. Lots of people owe debts that they can't pay, or at least can't pay today . . . but they're still debts.
Last edited by Brisketexan; 06-01-2012 at 04:04 PM.
the dr was at fault
Well of course it's not unrestricted free-market pricing -- it's not taking place in the market. It's taking place in a venue that attempts to reconstruct the free-market. The minute that it goes to court, it is necessarily not entirely free-market. And, because it is now taking place in a supervised venue using the machinery of the state, the state necessarily has an interest in preventing emotional/irrational outliers from using its machinery. But that's ALL that it's there for -- it won't keep jurors from finding that brisket is worth $14 a pound, or even $20 a pound . . . but if they get so hyped up that they decide it's worth $200 a pound, the judge will probably step in and say "I understand your emotions, but the evidence at hand indicates that no reasonable person could decide it's worth more than $20 a pound (or whatever dollar amount the evidence indicates)." Hell, it's kind of like the automatic triggers we have on our stock exchanges -- folks are free to buy and sell at the prices they please, but if the exchange senses something WAY out of whack, it automatically suspends trading. And I think most would agree that the exchanges are pretty free-market.In your second instance the judge is telling the jury they can't pay that much for bill miller's even though they want to. Neither is unrestricted free market pricing.
You are indeed the missing link. If it is based on the specific facts of the case, it is not arbitrary.
Last edited by daubeart; 06-01-2012 at 04:07 PM.
In terms of justice though only one of these cases will even see a courtroom and ever be assigned that debt. I see this as an indictment of the whole system.
Ask sushi if he thinks the exchanges are free market.
My whole point here is bc always tries to make these arguments about preserving free market pricing. If you allow judges to interfere on the back end you are ok with interference. No ifs ands or buts. Now we can agree we are for limits on the free market and argue over which ones are acceptable. The citizens of this state have decided legislative interference is acceptable, and the courts have thus far not disagreed
Last edited by sawbonz; 06-01-2012 at 04:17 PM.
Well, presuming that we don't want to be socialist, I don't see it as an indictment of the system. I see it as a simple fact of life in a money-driven economy. You can't collect from broke-ass mofos. Contract debt, tort debt, doesn't matter. If he doesn't have any money, there's no point in going after him.In terms of justice though only one of these cases will even see a courtroom and ever be assigned that debt. I see this as an indictment of the whole system.
I further see it as utterly illogical and counter-intuitive to respond that "and therefore, because we can't collect from broke-ass mofos at all, we should cap damages awards against anyone who DOES have the means to make good on their debts." If I have more money, I have more to lose. Whether that be the house full of Picassos that some broke mofo burns down (I lost if I didn't insure it), or if it's money I have to pay because I accidentally burned down my neighbor's house, which is full of Renoirs (I probably gotta sell/give him some of my Picassos to make him whole). If we have money, we typically insure that risk -- we insure against the risk of loss that's someone else's fault (my homeowners and contents policy), and we insure agaisnt the risk of loss that is our own negligent fault (my homeowners policy, malpractice policy, etc.). OR, we choose to bear that risk on our own -- with no insurance, I lose the value of my Picassos with no recourse, or if I burn down my neighbor's house, I lose some of my assets to make him whole.
Personal responsibility. It's the embodiment of our overall system. And of course, some folks never make good on their debt/responsibility. We can't conjure up $$$ where none exists. That's an inherent limitation of our system and our economy.
Well, in assessing compensation for a wrong, what WOULD be an unencumbered free market? Hint -- there is none. Even the jury is a machine of the state, and operates within laws. There is no anarcho-capitalist means of assessing compensation. So, in the real world, what mechanism is at the "greatest free market possible" end of the spectrum? That would be the jury trial. Is the ability of a judge to reduce a damages award a limitation on that freedom? Of course. But it doesn't logically follow that "therefore, if you are okay with ANY limitation on the free-market, you are okay with a centrally-planned economy." That is completely logically fallacious, and you know it. There IS something between anarcho-capitalism and a centrally-planned economy. And our point is that allowing the market to function on a transaction-based approach as opposed to on a centrally-planned approach is MUCH more consistent with a capitalist market economy (which these same legislatures champion every chance they get).
The below blog is by a friend of mine. The photo you see at the top is a picture of a three day-old infant -- in a casket. She was killed due to clear negligence of the doctor. However, no lawyer would take the case because babies have no economic value and the expenses on medical malpractice cases are enormous. It had nothing to do with the liability -- the doctor was absolutely negligent. But med-mal lawyers told me it would cost them several hundred thousand in expenses alone to take an infant case to trial. The risk was too great. She had a family member take the case, and thankfully she was able to get a confidential settlement in the matter. But without that family connection, there would be no ability for her to recover.
This goes to prove that the central tenet of "tort reform" is wrong. This is not about curbing frivolous lawsuits. Instead, it discourages meritorious lawsuits.
http://rylanslate.blogspot.com/
Last edited by daubeart; 06-01-2012 at 04:28 PM.
Do you consider arbitration to be arbitrary?
Last edited by The Missing Link; 06-01-2012 at 04:28 PM.
It's not interference because it is the same entity. You can't interfere with yourself. The judge decides the law in the case and the jury decides the facts of the case. They are the same entity -- the trier of fact. There can be no interference where they are both the same entity. It's like when the accounting division overrides payroll at your company. There was no interference because it was the same damn company.
I'm don't think free-market applies. The amount is not being negotiated by the two parties and it isn't like the "buyer" or the "seller" can refuse - a third party is stepping in to arbitrarily decide how much is awarded.
Last edited by The Missing Link; 06-01-2012 at 04:32 PM.
Had to do some work and missed a very civil thread. Good work people.Very well stated.
Indeed.
Now that I am reading your posts from some distance it seems that you are somewhat wound around the axle with the false dichotomy of government involvement vs. "free market". That's not what this thread is about and not what the objection to caps is.
Assessing damage is cost allocation, it's not that the courts are impeding the market, it's that the court IS the marketplace.
Only because they can't agree, and the value has already been exchanged, without the consent or participation of the damaged party.
The court is not the marketplace. The court is an arm of the government. There is no false dichotomy.
You have to have a reasonable expectation of the cost of tortfeasence. You concede that concept by allowing a judge to alter jury awards he or she sees as unreasonable. That is not materially any different than the lege limiting awards on the front end.
You want to believe that it is not materially different, but pretty much every post above you shows that the exact opposite is the case.
If you fail to see the distinction between the lege deciding on the front end that ALL awards over $250k are unreasonable, without any consideration of specific facts or circumstances, vs. the jury, judge, or both deciding what amount is reasonable in any given case based on the specific facts of that case . . . . well, we can explain it to you, but we can't understand it for you.
I can only try to do so by analogy, I guess:
ALL pay for any job is capped at $250k (reasoning -- it's just immoral and unreasonable to ever pay anyone more than that).
As opposed to: employees should be paid based on the value that they bring to the enterprise (reasoning -- the value of any specific employee is tied to the specific job he does under specific circumstances).
ALL eggs shall cost no more than 10 cents an egg (reasoning -- eggs are an important food, and they shouldn't cost too much).
As opposed to: eggs should cost the market price in a specific location, based on supply and demand. In a farm town, they may be a nickel an egg. In Nome, AK, where they are scarce in the winter, they may be a dollar an egg. Supply and demand -- what a willing buyer will pay a willing seller -- governs.
Blanket, front-end price caps are a hideous economic mechanism. They are about as divorced from reality as you can get.
Last edited by Brisketexan; 06-01-2012 at 04:55 PM.
It's a world of difference. The legislature's action has no relationship to the facts or damages of the case. The judge's decision is based on the facts and damages of the case. Without facts and damages, there is no lawsuit. It couldn't be any more "material." If facts and damages don't matter, then why even have lawsuits? We should just have an actuarial table that tells us how much we get.
Last edited by daubeart; 06-01-2012 at 04:53 PM.
They aren't limited them on the front end. They are setting them in advance.
And respectfully, the dichotomy is false. The court provides both mechanism and venue for price discovery, cost allocation, exchange of value and settlement.
That's a marketplace.
I love how you have a problem with my conclusion that the lege can be involved in setting prices given judges are, yet you have no problem going all the way from tort caps to a centrally planned economy and expect people to go down your slippery slope, no questions asked. Bravo
So why dont we just lay it all out before the judge and let him decide? Better yet a panel made up of legal and medical professionals, rather than 12 citizens with no training in law or medicine whose ultimate decision may not matter anyway?
Naah -- just see BC's explanation above. It's much more eloquent and direct.
But don't tell him I said so, he'll just let it go to his head.
They are only setting them if you presume the jury will award the max every time
Respectfully not when the judge can change that price after the jury has set it
Last edited by sawbonz; 06-01-2012 at 05:11 PM.
Someone is lying. Wrongful death cases are capped separately. The current cap is around $2mil.
We could leave it up to the judge to decide. It's called a bench trial and can be a wonderfully efficient thing. Medical professionals are heavily involved in any malpractice case. Plaintiffs even have an expert report completed before ever filing a lawsuit. (And they cost a fortune). Experts battle in front of the jury and explain the issues to them.
One problem with a panel of medical and legal professionals is that it would cost an absolute fortune. This is a dispute like any other. And there is a constitutional right to a jury trial in a civil lawsuit.
I guess we are going to have to agree to disagree. I will concede it is much more concise than anything you might offer
I think it has been shown to be much cheaper to the system overall and would be better for those like your friend.
That's what people said about arbitration... until it got just as expensive as litigation.
A sign in a little antique shop I saw in New England:
One lawyer in a small town will starve....two can make a pretty nice living
Many of the defendants that I represent who originally entered into an arbitration agreement certainly think so.
As I understand -- and lemme disclose that I haven't done any medmal work in years, so don't deal with the statutes on a regular basis -- the cap in wrongful death cases per CPRC 74.303 is on "all damages, including punitive damages," but excluding actual medical expenses prior to death. That is, if a doc kills someone, and after surgery, there are medical expenses of $100k trying to keep them alive, those expenses are outside the overall cap. But the overall cap DOES include all other damages, both economic and non-economic. However, if the deceased is a child, then you have no economic damages, and you are only going to recover non-economic damages . . . . which are capped at $250k in 74.301 (which contains the non-economic damages cap provisions).
The $250K cap does not apply at all to wrongful death cases (or medical battery, criminal negligence...etc.).
Last edited by The Missing Link; 06-01-2012 at 05:21 PM.
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