Facts, Opinions and the Judicial Way

Mention the words "tort reform" or "frivolous lawsuits," and another phrase -- the McDonald's spilled coffee case -- is almost certain to follow. That infamous lawsuit is so ingrained in the national consciousness that it has become synonymous with the popular notion of everything that's wrong with the American civil justice system.

Small wonder that Clark Brewster, a prominent Tulsa plaintiff's attorney, derisively refers to it as "the gold standard" for many of those who believe major reform is needed in that arena.

Sensational as that case might appear to be -- an Albuquerque, N.M., grandmother named Stella Liebeck was awarded $2.7 million in punitive damages by a jury in 1994 after she scalded herself with hot coffee she obtained at a McDonald's drive-through window -- its resolution made it less of a lightning rod.

Lost in the hubbub over the case was the fact that a judge later reduced those punitive damages to $480,000 before the two sides agreed on a settlement of less than $600,000, though the exact figure was never revealed.

The near-universal nature of the case -- is there anybody out there who hasn't spilled a drink they picked up from a drive-through window? -- is among the reasons it continues to resonate with the public, despite the fact few people have a grasp of its specifics.

"It happened 20 years ago, and people are still talking about it like it was yesterday," said Tony Laizure, a Tulsa personal injury attorney. "But when I try a case, I always ask my prospective jurors, 'Has anybody ever heard of a case in Oklahoma like that?' Never in my 20 years of trying cases has anyone come up with one."

Those who want to see changes brought to the civil justice system in America believe there are far too many meritless lawsuits -- frivolous, to use the term that seems to have become popularized -- being filed against businesses and that it takes too much money to fight them, driving up costs for everyone in goods and services, and especially in insurance premiums.

Those who oppose such changes argue the current system works exactly as it is designed to, striking a balance between the rights of plaintiffs and defendants, and that the number of frivolous lawsuits is greatly overstated.

In Oklahoma, the issue has taken on increased relevance with the Republican takeover of the Legislature in recent years, leading to the passage of House Bill 1603 in 2009, the so-called Comprehensive Lawsuit Reform Act, which was authored by Rep. Dan Sullivan, R-Tulsa. Among other things, the measure caps pain-and-suffering damages at $400,000, except in extraordinary cases; restricts "court shopping" for class-action lawsuits; contains a provision for the review of attorney fees in class-action lawsuits; and requires an expert to certify that a professional negligence case has merit before it can proceed, a requirement that will be waived for indigent plaintiffs.

The measure also calls for the creation of a state indemnity fund to cover damages in excess of $400,000, though it has not been decided how that fund will be subsidized.

Whether the legislation eliminates abuses or imbalances in the legal system that have made the cost of doing business unpalatable to some or whether it unfairly restricts the ability of an aggrieved party to seek civil justice is still a matter of considerable debate almost a year after its passage.

The bill is hailed as meaningful, common-sense reform by most Republican legislators, chambers of commerce, business leaders, insurance companies and members of the medical community who often try to paint the opposition as ambulance-chasing, personal-injury attorneys out to make a quick buck, regardless of the merits of their claim. Plaintiff's lawyers and most Democratic lawmakers tend to view it as a ham-fisted approach to fixing a problem that doesn't even exist, often representing the other side as pawns of massive corporations who don't want to be held responsible for their own negligence or malfeasance.

"I talk to a lot of people who own small companies and businesses," said state Rep. Mike Ritze, R-Broken Arrow, explaining his support of the bill. "We've lost two major employers in Broken Arrow just because of liability costs, so some kind of liability reform for small business was definitely needed."

Laizure -- a former president of the Oklahoma Trial Lawyers Association, which is now the Oklahoma Association for Justice -- takes a much more dim view of HB 1603.

"There's nothing good in it for my clients," he said. "I defy anybody -- (Republican legislative leaders) Dan Sullivan, Glenn Coffee -- who advocates this type of legislation to point out something in that bill that's good for anybody who's been killed, injured or maimed by the misconduct of somebody else."

Others have a more direct view of the law's impact.

"They've put a lot of attorneys out of business, I know that," Tulsa defense attorney Jon Starr said.

Sullivan did not return calls from UTW seeking comment on his legislation.

While the measure represents only a small part of the larger issue of legal reform, it does illustrate the entrenched nature of the arguments on both sides.

Most trial lawyers, in fact, bristle at the mention of the words "tort reform," arguing that it is nothing of the sort. But not everyone takes such a black-and-white approach.

"If you find anybody who's ever been sued in a civil case, chances are better than 50 percent that they think it's a bad decision," said Tulsa defense attorney Doug Dodd, a former television news director and anchor who now specializes in First Amendment issues. "But they don't get to make that decision. And I would say that 90 percent of all plaintiffs think they have a righteous case or have been told they have a righteous case.

"What you have is battling views of the same facts."

Suing for Fun and Profit

Enter the words "frivolous lawsuits" into a Google search, and you'll be rewarded with no shortage of hits. Page after page of links are provided to instances in which lawsuits have been filed that -- on the surface, anyway -- appear to defy belief.

A few examples:

A Portland, Ore., man who sued Nike founder Phil Knight and Michael Jordan for $832 million in 2006 over an emotional pain and suffering claim because he said he was often mistaken for the basketball star.

A man sued NBC-TV for $2.5 million in 2005 because he claimed an episode of the program Fear Factor in which contestants ate rats made him dizzy and led him to run into a doorway.

A Washington, D.C., judge who sued a local dry cleaner for $65 million in 2007 for losing a prized pair of his pants.

A California man sued the city of San Diego and Jack Murphy Stadium in 1995 for $5.4 million because of its unisex bathroom policy for a concert at the stadium. The man claimed he was too embarrassed to share a restroom with women and said he had to "hold it" for four or five hours.

A Wyndanch, N.Y., woman who sued Radio Shack for unspecified damages in 2004 for misspelling the name of her town as "Crimedanch" on her cell phone bill.

Other individuals -- perhaps best characterized as "serial lawsuit filers" -- seem to prefer quantity over quality. A good example is James C. Couri, profiled in a Feb. 5 New York Times piece that revealed he had filed more than 60 lawsuits in New York. By his own count, according to the Times, Couri has filed 105 throughout the past 40 years.

Those are the kinds of examples that motivate tort reformers and help enlist public support for their cause. But there are many other cases often cited for their outrage factor that are greatly exaggerated or simply made up, examples of the unreliability of so much Web-based information.

Still others, upon closer examination, reveal that the plaintiff actually suffered injury and might have had good reason for pursuing a legal remedy, bizarre as the circumstances might sound. Those instances also provide ammunition for those who argue the number of meritless cases is actually very small, despite the way they might appear to the casual observer.

Additionally, those on both sides can produce a dizzying amount of information to support their arguments -- statistics, studies and anecdotal episodes compiled by government agencies, think tanks, professional organizations and public policy groups -- that contradict the other side's claims. Making sense of that competing data can be daunting, if not downright impossible.

State Sen. Charlie Laster, D-Shawnee, said he was seeking some reliable information of his own when, with the help of the legislative staff, he initiated a survey in late 2005 of the state's district court judges. The purpose of the survey was to determine what those judges actually thought about the litigation that made its way to their courtroom.

"We heard so much rhetoric from tort reformers about 'We've got to stop all these frivolous lawsuits' and 'Our legal system is choked with frivolous lawsuits,' " Laster said. "So I decided to try to get some real information from people who should know."

Laster -- who has practiced law for 30 years in Shawnee, mostly representing small businesses and rejecting personal-injury cases, he said -- compiled a survey consisting largely of multiple-choice questions; although a few were opened ended, he said. It was sent to judges in all 77 counties, and the respondents were allowed to remain anonymous.

The results, released in early 2006, showed 90 percent of those who responded did not believe the state was suffering from a litigation crisis that required changes to the judicial system.

Another 95 percent said they considered 10 percent or fewer of jury awards during the previous 24 months to be disproportionately high. And 69 percent said they considered less than 5 percent of the cases brought to their courtroom to be frivolous.

"Overwhelmingly, it showed there was not a problem with frivolous lawsuits," Laster said. "There was no significant problem with frivolous lawsuits, no runaway juries, no court system choked by lawsuits. None of the rhetoric was true."

Many Republican lawmakers disagree strongly. Their repeated attempts at passing tort reform in Oklahoma were unsuccessful until the GOP finally got enough legislators elected to take over both houses of the Legislature last year. HB 1603 was passed and signed by Gov. Brad Henry, a Democrat, and the success of the measure was hailed by its supporters as a major step forward for the state's civil justice system.

"My top priority when first elected to the state Senate 11 years ago was to enact real and meaningful lawsuit reform in Oklahoma," state Senate President Pro Tem Glenn Coffee, R-Oklahoma City, said last fall. "The activists in the trial bar fought this reform tooth and nail, and some of them still can't accept the new reality."

Coffee mocked opponents of the bill, contending their sky-is-falling claims would prove unfounded.

"In fact, the skies will open, and Oklahoma will open for business when HB 1603 goes into effect," he said.

Laster responds with some mockery of his own.

"Insurance premiums will plummet, and the world will be a better place," he said sarcastically, characterizing the claims of supporters. "It can't have much impact because you can't take away a person's right to a trial by jury."

Nevertheless, supporters of the measure -- including Ritze, a physician and surgeon -- anticipate it will go a long way toward making Oklahoma a friendlier place for health care professionals to do business, thus encouraging them to practice here.

Healthy Law

Ritze said the cost of medical malpractice insurance in Oklahoma is prohibitive for many doctors, which, in turn, means higher health care costs for everyone. He said that even as an experienced physician who has delivered more than 2,000 babies, the threat of a malpractice lawsuit is something he cannot ignore.

"I always have it in the back of my mind," he said.

Ritze believes the courts have done physicians a disservice over time by wrongly interpreting what malpractice is.

"Its true definition is gross negligence," he said. "But the courts have redefined it as a mistake or error of judgment."

The current legal atmosphere is enough to alienate even longtime, successful doctors, he said. Nationally, he said, 25 percent of physicians age 55 and older are giving up their practice each year.

"I had lunch the other day with a neurosurgeon who is 49 years old," Ritze said. "He's working on getting his MBA and plans on quitting his practice as soon as he graduates. And he has a quality neurosurgeon practice."

Ritze said situations like that are contributing to a shortage of doctors across the state, particularly in rural Oklahoma. But he said even urban areas like Tulsa are not immune to the need for more health-care professionals, noting that Tulsa has no pediatric neurosurgeons currently practicing. The only ones in the state, he said, are in Oklahoma City, but they're not alone in this.

"OB-GYNs are just drying up here because of malpractice lawsuits," he said. "The cost of insurance and the threat of lawsuits is just incredible."

Ritze cites Texas, which has passed a number of tort reform bills since 1995, as an example of a state that has transformed its health care atmosphere.

"If we turned to what Texas has done in the last (several) years, it would be incredible," he said. "They've lowered the cost of health care overnight by 30 percent. They're overloaded with doctors, it's become such a friendly state for physicians."

Ritze said the issue extends into the arena of economic development because quality health care is something big corporations look for when they consider expanding into a new state.

"When you can't attract physicians to fill the need, employers have to look elsewhere," he said. "That's why Texas is such a hot bed. The business climate down there is unbelievable."

Starr -- who was the Oklahoma representative for the past two years to the Defense Research Institute, an international organization of attorneys defending the interests of businesses and individuals in civil litigation -- said he fears HB 1603 has given many Oklahoma physicians a false level of confidence, perhaps leading them to under-insure themselves and leaving them more -- not less -- exposed to the threat of a malpractice suit.

He said he expects the legislation has cut down on the level of litigation to some extent. But whether HB 1603 is doing any good depends on your perspective.

"I don't know," he said. "I think it's been effective for businesses and people the chamber represents and medical professionals. But for people who have been injured by somebody? No, I think it's limited their access to the courts."

Ritze insisted the law is not designed to take away anyone's rights, but Laizure doesn't see it that way.

"The whole bill is designed to restrict the ability of people who are injured to get their day in court," he said.

He also takes issue with Ritze's claim that the passage of HB 1603 will usher in a business boom in Oklahoma.

"It's one restriction after another under the guise of economic development or cost control," Laizure said. "But I always ask people, if they totally eliminated lawsuits today, you think your car insurance would go down? Do you think somebody's going to come to Oklahoma and start a business?"

Starr sees HB 1603 as a mixed bag, a law that features a handful of positive changes and a few bad ones. He believes the caps on damages should have been accompanied by a requirement that physicians carry a minimum level of malpractice insurance.

"The doctors got something without giving up anything," he said. "Most good doctors already carry a million or two in malpractice insurance. For some reason, we require a minimum level of insurance for people to operate cars, but we don't for doctors."

Brewster, also a former president of the Oklahoma Trial Lawyers Association, believes if Republicans and insurance companies want to reduce the number of malpractice lawsuits, they need to turn their attention to the physicians who are being sued.

"Then do something about the doctors that are killing people," he said. "Don't say, 'We need to have a free ride on this.' In the medical malpractice area, it's the same guys we see time and time again ... Go to the heart of the problem. Don't go and try to create a safe haven."

Damage caps don't do anything but encourage plaintiffs to take a case to trial, he said, because they lead insurance companies to bargain in bad faith.

"Right now, 90 to 95 percent of all civil cases are resolved through mediation," he said. "If you tie a plaintiff's hands with limits, they'll roll the dice."

Brewster is particularly incensed by the provision of HB 1603 that calls for the creation of an indemnity fund to cover verdicts in excess of $400,000. He views that as a move that essentially puts taxpayers on the hook for the wrongdoing of a private party.

"That's how driven they are by lobbyists," he said of the bill's supporters. "That's outrageous. I don't see anybody lobbying for drunk truck drivers. But tort reform would apply to them, too. You know, in the truck driving business, if we get a truck driver who kills somebody, they get rid of that guy. He's not suitable. In the medical malpractice field, these guys just get smarter about how to cover it up or get with risk management to someway avoid responsibility."

Getting Better

Few observers would dispute that some personal injury lawsuits have led to results that made life better, or at least safer, for large numbers of Americans. In the automotive world alone, Dodd cites the development of seat belts, airbags and energy-absorbing bumpers as positive changes that were brought about by a need to make cars less dangerous.

"It sounds like I'm preaching for the plaintiff's bar, and I'm not," Dodd said. "If you're making cars, I would say there's no doubt it's more expensive to make them. But I think there's always an impact from litigation that hopefully makes us get better, that just makes us more careful."

Brewster added other items to that list, including the improved safety of implants in breast augmentation surgery and the elimination of dangerous toys for children. He also claims the most mundane of personal-injury lawsuits, the much-maligned slip-and-fall case -- widely regarded as being symptomatic of how some plaintiffs and their attorneys abuse the system -- has played a beneficial role in public health.

"Everybody hates slip-and-fall cases," Brewster said. "Jurors roll their eyes at them. But that's why we have good parking lots."

If you don't believe him, Brewster said, try visiting China and take note of the differences in how that country's parking lots are designed compared to American lots.

"They have all kinds of dangers because they were built without people being held accountable," he said. "When a design engineer and an architect build something (in the United States), they do it with safety in mind because they know they'll be held accountable. That threat of being held accountable is necessary for a democracy to work."

When that threat is reduced or eliminated, Brewster said, the system falls out of balance. He takes particular exception to tort reform supporters who don't believe juries can be trusted to do the right thing in civil cases.

Brewster routinely illustrates his point by citing a couple of statements by George W. Bush when he was governor of Texas in the 1990s. In 1997, a Texas death row inmate named Terry Washington was in the final stages of his appeal and was seeking clemency from Bush. Because Washington was mentally retarded and had been beaten regularly as a child, the case drew a good deal of national, even international, attention with death penalty advocates and foes alike weighing in.

Brewster recalled that when Bush revealed his decision, he indicated that while he had not had time to read the entire file on the case, he had reviewed it and reached the conclusion that he could not overturn the original jury verdict. Bush argued that 12 good people had heard the evidence and reached a verdict and issued a sentence, and he would not second guess their decision.

But in 1995, Brewster said, the governor had indicated his strong support for a measure advancing through the Texas Legislature that would place a cap on the amount of punitive damages a jury could award in a civil case against an individual or a business if they were found to have committed wrongdoing. Brewster said Bush complained about the problem of runaway juries and indicated the need for legislation to reel them in.

Bush emphasized the need for the legislation in his 1999 autobiography "A Charge to Keep."

"Liberal court decisions had resulted in an unfair legal system, tilted in favor of personal injury trial lawyers, unfortunately making Texas a great place for people to sue one another," he wrote. "I wanted Texas to be a great place to do business, an entrepreneurial heaven, where dreamers and doers felt comfortable risking capital and creating jobs, not a haven for frivolous lawsuits."

Brewster believes Bush's stands on those two issues couldn't be more contradictory.

"If jurors can put somebody to death, can they not hold companies accountable?" he said.

He loves to challenge the beliefs of Republican legislators who decry government intrusion on the rights of private citizens but who support laws that limit what juries can award in civil cases.

"How can you just arbitrarily, before cases are even filed, say that we're going to limit this?" he said. "You can't. It will change the whole dynamic of how our system works. And I can tell you, I think confidently, there's not a founding father who signed the Constitution that would have said it's a good idea to take the power of the jury away -- none. It is anti-American. And these guys who advocate this say we need less government. And that we ought to be people who are independent in our thinking and our voting, in our function in everyday life.

"How can they say they want to interfere in the decision making of a jury if they really believe that?" he asked. "What has happened here is they've been bought off through their own lust for public office and continuing their own political careers."

The Outlook

While it most likely will take years, if not decades, to measure the full impact of HB 1603, the prospects for more tort reform legislation emerging from the Oklahoma Legislature this year appear dim. Ritze said lawmakers face many other challenges -- namely a severe budget crisis -- that will dominate their attention this session.

But even if the opportunity were there to enact more far-reaching legislation, trial lawyers aren't the only ones who question its effectiveness.

"As a defense lawyer, what troubles me about tort reform is that it's always held up as a panacea that will solve all our ills," Dodd said. "But you have to have a legal system that allows for a legal remedy. So the question becomes where do you draw the line?"

As Republican lawmakers have become more aggressive in their efforts to eliminate perceived abuses in the system, they have drawn increased activism from the judicial side, Starr said, who also wonders about the wisdom of pursuing such legislative remedies.

"That's a tough question," he said. "Where's the balance? As the Legislature takes action, I think we've seen our Supreme Court go overboard the other way trying to balance it out."

Laizure takes a cynical view of the issue, expressing his belief that tort reform is merely a campaign rallying cry.

"I do," he said. "That relates to power, and power relates to the political process. It's an issue that one of the political parties has campaigned on for the last 20 or 30 years, and it's a way for them to raise money and get their candidates elected."

Ritze responds by pointing out that the trial lawyers lobby underwrites the campaigns of many Democrats and expects them to protect the group's interests, which he described as a sacred cow.

Laster approaches the issue from another perspective, arguing that Republicans should be much more concerned about the costs of defending a civil lawsuit. He favors legislation that forces cases to go to trial more quickly, a move he said would help drive down expenses.

He cites one of Murphy's Laws as an example of what happens with too much litigation: "Work expands to fit the time allotted."

In other words, the lack of a speedy trial gives attorneys on both sides the opportunity to pad their hours, contributing to the extreme cost of a defense, he said.

"If they would attack the costs of defending cases instead of (their current agenda), they'd be attacking the correct problem," Laster said.

That issue is a very real one for many of his clients, Dodd said, acknowledging he's been involved in many cases where the defendant has settled with a plaintiff mainly because it was less expensive to do so than fight it out in a courtroom.

"Oh, sure," Dodd said. "I would say of the cases that I've had that settled, a large majority of them had a really good defense and would have been worth taking to trial and winning. But what you get out of a settlement is the case going away with certainty. You know what you're buying, and that is for the case to go away. You can pay a lot more in a case you're going to lose."

The publishers of this newspaper are among those who have faced such dilemmas. After 20 years of operation without even a threat of litigation, UTW was sued three times between Aug. 7, 2008, and March 5, 2009, including an example that is featured in a sidebar to this article on pg. 19.

The second case is perhaps the most well known, when UTW was sued by the Tulsa World over a column by then-contributor Michael Bates in January 2009 concerning the World's circulation figures. Urban Tulsa quickly was dropped from the suit after issuing a retraction of some of the claims made by Bates in the column, while the author himself later reached his own settlement with the World.

A third lawsuit was filed against UTW one day and withdrawn the next, a legal maneuver that allows the statute of limitations to be extended by one year. Critics of the current system argue that eliminating that kind of technique would be a good start in reforming the legal system.

They also maintain that many plaintiffs pursue meritless lawsuits just to squeeze a settlement out of a business -- or its insurer -- because that is the safest and least expensive thing to do. But Laizure said there are adequate provisions in place to keep the filing of meritless cases to a minimum.

"I'm not going to sit here and tell you there's never been a frivolous lawsuit filed in Oklahoma," Laizure said. "But the overwhelming majority of cases, when they're filed, have merit. And the ones that aren't are disposed of long before they ever get to a jury trial. We have mechanisms in place, and have had mechanisms in place for a long time, that, when properly enforced, deter lawyers from filing frivolous lawsuits."

Judges are free to issue a summary judgment dismissing a lawsuit when they are convinced a plaintiff's claim has no basis, and lawyers who bring such suits can face financial and professional sanctions in particularly egregious cases. That's a remedy Laizure would like to see pursued more often by those concerned about bad lawsuits.

"If you had four, five or six cases where somebody got sanctioned $40,000 or $50,000, that stuff -- to the extent that it does exist -- would dry up in a hurry," he said.

As for excessive jury verdicts, Brewster points out that all such awards are subject to review and appeal, and frequently are reduced, as in the McDonald's case.

For those who make their living in the courtroom, grappling with such issues every day, there seems to be little consensus on how to make the system better. Dodd acknowledged the reluctance of many judges to exercise the summary judgment option.

"I guess the problem is, you don't know when it's filed whether it has merit," he said. "So you have to go through discovery and depose witnesses. Most of the time, you don't know at an early stage (whether a lawsuit has merit). It's too early for a judge to make a determination."

Starr said that he regards only about one out of every 50 lawsuits he sees as truly frivolous. The rest, he said, involve legitimate disputes that need to be worked out.

"The problems I see I don't know how to eliminate," he said.

The provisions of HB 1603 have changed many of the rules by which the members of the state's civil bar operate, but certain elements of that legislation are virtually certain to face legal challenges, as Starr alluded to earlier.

Laizure and Brewster are confident many of the law's provisions won't stand up under such scrutiny, with Brewster pointing to a Feb. 4 Illinois Supreme Court decision striking down certain provisions of a tort reform bill that had been adopted in that state.

"It's an interesting climate to try to practice law in," Starr said, acknowledging the uncertainty of the situation. But that can't affect his approach, he said.

"You deal with what the law is at the present time," he said.

Simply put, there's an inherent gamble every time you take a case to court -- but that's not necessarily a bad thing, Starr said.

"Juries do weird things," he said. "I've had them return verdicts in favor of my clients, and I was surprised they did it."

Dodd said he sees a lot of lawsuits filed against his clients he doesn't like, but he said he could count on the fingers of one hand the number he would classify as absolutely frivolous. His recipe for improving the system relies more on changing attitudes than changing the law.

"Maybe if I was the king of the world and could make any kind of change, I would make people understand you're never going to like everything that happens to you," Dodd said. "But there's just not a legal remedy for every perceived injury."