By Allen P. Wilkinson and Reza Torkzadeh

Tort law is all about a person’s right to be fairly and fully compensated for his or her injuries—or the death of a loved one—caused by the wrongful conduct of another person. When a person negligently or intentionally injures or kills another person, if the parties can’t agree to settle the case between themselves out of court, the injured victim or the victim’s survivors has the right to have the case heard in an open trial in a court of law before a fair and impartial jury of 12 unbiased members of the community.

Unfortunately, this right is under vigorous attack by health and automobile insurance companies, doctors and other health care professionals, and other special interest groups who claim that the jury system has gotten out of hand. These groups clamor for limitations on who can sue and the amount of money they can recover for certain types of damages, all in the name of “tort reform.”

They have spent hundreds of millions of dollars trying to convince legislators and the public that “trial lawyers”— those who represent the injured victim or the family of a deceased person—are to blame for this “litigation crisis” and that without these limitations, chaos will surely follow. (The attacks on plaintiffs’ lawyers resulted in the disparagement of the term “trial lawyer,” leading to name changes in plaintiffs’ attorneys’ groups. For instance, the Association of Trial Lawyers of America changed its name to the American Association for Justice, while the California Trial Lawyers Association became the Consumer Attorneys of California.)

The main targets of the tort reformers’ ire are frivolous lawsuits and non-economic damages, things such as pain, suffering, loss of comfort and society, loss of enjoyment of life, inconvenience, and disfigurement. As a result of the lobbying efforts of insurance companies, the medical profession, and others, the California Legislature enacted the Medical Insurance Compensation Reform Act of 1975 (MICRA), which brought about a number of changes to medical malpractice lawsuits making it harder for the innocent patient to sue a doctor who made a mistake and recover the full extent of his or her damages. The health care professionals managed to get favorable bills enacted by claiming that their insurance malpractice premiums were outrageous, and if nothing was done to rein them in, they threatened to “go bare” (practice without being insured for errors), retire, or move to a more doctor-friendly state.

The most drastic provision of MICRA limits “non-economic” damages to $250,000. When MICRA took effect in 1975, $250,000 was a fairly substantial amount of money, but even then it was insufficient to adequately compensate the most seriously injured person. However, there is no provision in MICRA to tie in the $250,000 amount to the Consumer Price Index or any other inflation rate, so today the most an injured patient can recover for pain and suffering and other non-economic damages is still only $250,000. In 2010 dollars, $250,000 is worth only about $62,500 in 1975 dollars. To equal the purchasing power of $250,000 in 1975, you would need around $1,007,000 in 2010.

Tort reform advocates decry the number of unethical and greedy personal injury lawyers who file frivolous lawsuits and manage to obtain exorbitant awards from “runaway juries” who want to “stick it to the man.” The reality is contrary to the tort reformers’ hyperbole. An extensive study from Harvard’s School of Public Health revealed that frivolous cases are rare, and those that do get brought usually don’t result in any payment to the plaintiff. The truth is that because of the time and expenses spent on pursuing a case, trial lawyers simply cannot afford to pursue frivolous cases.

The medical profession argues that the high awards and settlements involved in malpractice cases are a prime reason for the high cost of health care. According to research of the nonpartisan Congressional Budget Office, however, a package of reform that includes a $250,000 cap on damages for pain and suffering and a $500,000 cap on punitive damages would reduce total national health care spending by only about 0.5 percent.

Health care professionals also contend that part of the high cost of medical treatment is that doctors are practicing “defensive” medicine, ordering tests and doing procedures that they do not feel are truly necessary but do so to protect themselves from a malpractice suit. According to the Congressional Budget Office, “so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients.”

For years, California automobile insurance companies have been trying to get legislation passed limiting the amount of non-economic damages suffered by the victims of an automobile collision. Although they have not yet succeeded in this goal, they have managed to get several laws passed that limit an innocent victim’s right to sue the guilty party for certain types of damages. For example, Civil Code Section 3333.4(a)(1) provides that if a person was convicted of being legally intoxicated or under the influence of drugs while driving a motor vehicle and gets into an accident caused solely by the other driver’s carelessness, and was in no way, shape, or form at fault for the accident himself, nevertheless he or she cannot recover [any] monetary damages for non-economic damages, even though the intoxicated driver had done absolutely nothing wrong to cause the accident.

Similarly, Civil Code Sections 3333.4(a)(2) and (3) prohibit the driver of a vehicle and its owner from obtaining any non-economic damages if he or she did not have the minimum amount of automobile insurance coverage at the time of the accident, even though he or she did not cause or contribute to the accident. However, under Civil Code Section 3333.4(c), if an uninsured driver was injured by a driver who was convicted of driving under the influence of alcohol or drugs, the injured uninsured driver or owner [can] recover non-economic losses. The reverse is not true, however. An intoxicated driver who is injured in an automobile accident caused by an uninsured driver is [not] permitted to recover any non-economic damages, even though he was clearly in the right and did not cause or contribute to the accident.

In the United States, under a legal procedure that has generally worked well since the founding of our country, an impartial jury of one’s peers has been entrusted with making the determination of how much is a fair and adequate award to the injured victim. The jury, after hearing all the testimony of witnesses - weighing all of the evidence, and deliberating among themselves, - decides what is a fair and adequate award in a particular case for [all] of the victim’s injuries, past, present, and future, non-economic as well as pecuniary.  The innocent victim of another person’s carelessness should receive the total amount awarded by the jury.

Rather than addressing the symptoms of the tort system (e.g., high verdicts), the focus should be on the causes. The real genesis of juries awarding high sums in medical malpractice begins with careless or incompetent doctors who commit malpractice on a patient. Without the doctor’s error or omission, medical malpractice claims would dry up or at least diminish significantly and malpractice insurance premiums would (or rather should) go down substantially. Similarly, if automobile drivers would pay attention to their driving, obey laws, be on the lookout, and only when rested and alert, the number of automobile accidents would fall greatly.

Tort reform affects the most seriously injured victims, those most in need of—and deserving of—full compensation.  For instance, a two-year-old boy who was taken to his HMO after a hiking accident resulted in severe brain damage and loss of his sense of sight. In an action against the hospital for malpractice, although the jury awarded the child $7.1 million in non-economic damages, the judge ordered the amount lowered to $250,000, the maximum allowed under MICRA. This is a staggering reduction of $6,850,000, which was awarded by a jury who heard the full case.

The decision as to how much money the innocent victim should receive for the full amount of his or her injuries and damages, non-economic as well as economic, should remain in the hands of the jury and not be subject to any arbitrary monetary limitations that benefit only wrongdoers and their insurance companies and deny the injured victim or his or her heirs full and fair compensation.

The authors co-wrote “Accidents Happen: A Consumer’s Guide to California’s Personal Injury & Wrongful Death System,” which is due for release in June 2010.

Allen P. Wilkinson was admitted to the California State Bar in November 1979 and immediately went to work for Melvin Belli for 10 years.  He now lives in Laguna Woods where he concentrates on legal writing and consulting.

Reza Torkzadeh is a partner at Slaughter & Slaughter, where his practice is dedicated to representing individuals and their families in serious personal injury and wrongful death cases.   He was named on the 2010 Super Lawyers Rising Stars List.

While the fine is minimal compared to the loss of a single life, it is clear that Toyota and other manufacturers of products that don’t properly test their products, continue to choose their pocketbooks over safety.

This is not the first time that the civil justice system has held companies accountable for their actions. One of the most popular instances of a dangerous product was the Ford Pinto in the 1960′s. Litigation against one of the largest corporations at the time, Ford was held accountable for selling and manufacturing a car that they knew was not safe for the roads.

Corporations cannot and must not use our families as their crash test dummies. Cars, pharmaceuticals, machines, equipment and any other product must be safe for those who are going to use it. Proper testing must be done before any product is sold.

The American Association for Justice has provided an interesting image that depicts “What Cars Would Be Like Without a Civil Justice System.”

Automobile Safety has evolved over the past 50 years. The highlighted areas are an important indicator of where we would be without it:

• Gas Tanks
• Door Latches
• Electronic Stability Control
• Air Bags
• Illusory Park
• Tires Side Impact Protection
• Seats
• Seat Belts
• Power Windows
• Roof Crush

Where would be without any of these? Read more about product liability law here.

Since 2000, there are have been several major recalls of millions of tires. For  instance, in the early 2000s, there were massive recalls of more than 15 million tires of several types of Bridgestone and Firestone tires (Bridgestone owns Firestone), especially those put on the Ford Explorer SUV, which resulted in a number of crashes, especially rollovers, killing and seriously injuring hundreds of motorists. For example, Firestone’s Wilderness AT tire lacked proper adhesion between the steel belts and the surrounding rubber. Firestone failed to use gum edge strips, nylon overlays or caps, or other safeguards to reduce the possibility of tread separation.
Causes of traffic injuries and deaths due to faulty tires include:

Tread separationTire failureTire blowoutTire or rim explosion

Domestic and foreign manufacturers alike have made and marketed defective tires that have resulted in crashes, personal injuries, and wrongful deaths. However, tires made overseas (such as in China) may not be as safe as those made in the United States. Tires are not designed to last forever, even though you may drive only a few thousand of miles each year. Rubber degrades over time, and mechanics recommend that you put on new tires every five or six years even though there may be plenty of tread left on the tire.

When a tire is made, the base part of the tire is built first and then through various chemical and heating processes, steel belts are imbedded in the tire, and finally the tread is applied. Steel-belted radial tires are especially prone to tread separation. When the tread separates the driver may lose control of the vehicle, even when the tire does not lose pressure. Tread separation is usually due to some problem in the manufacturing process. The tire may be designed defectively or constructive carelessly. The manufacturer may use rubber that is too old and dry, miss warning signs during final inspection, use petroleum solvent before vulcanization, and cure moisture into the tire. Although tread separation usually occurs with a tire several years old being driven at a fairly fast speed, there have also been cases of brand new tires separating while being driven at slower speeds, such as 15 or 20 mph. Of course, the faster you are driving when you experience a tire failure due to tread separation or blowout, the more likely the chances that you will be seriously hurt or even killed.

When a radial tire loses its tread, the body (“carcass”) of the tire usually quickly experiences a blowout. The sudden loss of pressure in the tire makes it difficult for the driver to maintain control over the vehicle, and the vehicle may turn sideways. The sideways motion of the vehicle causes the bead of the tire to separate from the rim, causing the metal rim to dig into the asphalt or concrete surface of the roadway and pitch the car into a roll.
A report from the National Highway Safety Administration revealed that tread separations reduced the ability of drivers to control their vehicles, especially when the tire failure occurs on a rear tire at a high speed. The report also found that there is a much higher likelihood for death, injury, and crashes when the tread separation occurs on a SUV than on a pickup truck.

Underinflation of the tires can be a contributing factor in tread separation. Therefore, it is up to the car’s owner to see that the air pressure in the tires meets the manufacturer’s standards, which are normally found on the doorjamb of the driver’s door. Underinflation can occur by air escaping through the rubber, or leaks at interfaces of the tire with the wheel and valve stem.

You can avoid some tire failures by simply visually inspecting your tires once a month. Things to look for include cracking or cuts in the sidewalls; uneven treat wear; excessively worn tread; bulges or blisters; and excessive vibration while driving. An inexpensive tire-gauge can be purchased at your local auto store, and used every month to ensure that your pressure is within the manufacturer’s recommendation. Be sure to measure tire pressure when the tires are cold. Tires are considered cold if they have not been driven in the preceding three hours.

Also, underinflation of a tire means that the sidewall flexes more, making it more difficult to control the vehicle. A sidewall that flexes too much can also cause heat to build up excessively, which can shorten a tire’s life and possibly lead to a tread separation or blowout. Another incentive to and advantage of keeping your tire pressure at the manufacturer’s recommendations is that you will get optimal fuel mileage if you fill your tires to the manufacturer’s specifications.

Because a tire is a product, the law of strict products liability applies to cases involving injuries or deaths caused by a tire failure. It is not necessary to prove any specific act of carelessness (“negligence”) on the part of the manufacturer, distributor, or retailer. You need prove only that the tire was defective and that defect caused or contributed to your injuries or your loved one’s death.

The recall includes the following Toyota Models:

• 2007-10 Toyota Camry
• 2005-10 Toyota Avalon
• 2004-09 Prius
• 2005-10 Toyota Tacoma
• 2007-10 Toyota Tundra
• 2007-10 Lexus ES350
• 2006-10 Lexus IS250/350.

In August of this year, a fatal accident involving a California Highway Patrol officer and his family prompted an immediate investigation into the possibilities of a defective gas pedal in Toyota cars.  This particular crash involved a 2009 Lexus ES350 where the accelerator was stuck.  The car couldn’t be stopped and reached speed of 120mph just before striking an embankment, rolling over and bursting into flames.

Defective Products and Product Liability

The basic laws of product liability and consumer safety include the protection of the public from a manufacturer or supplier that produces a product that can injure someone.  While the theory’s of product liability and dangerous product protection can involve determining the type of defect and proving it; a strict liability for dangerous product manufacturing and supplying may also apply. Such strict liability may apply to a commercial supplier or manufacturer if the defect makes the product unreasonably dangerous.  To learn more about product liability, visit our dangerous product information center.

The collateral source rule states: “If an injured person receives compensation for injuries from an independent source (such as an insurance company) other than the person who actually injured her, then that money should not be deducted from the damages the person would otherwise collect from the defendant.”  A plaintiff is “entitled to recover compensation for the full amount of the harm inflicted upon her, notwithstanding the discount where defendant has nothing to do with procuring the discount.”  Arambula v. Wells 85 Cal. Rptr. 2d 584 – Cal: Court of Appeal, 4th Dist., Div. 3 1999.

Here is the summary of the holding in Howell v. Hamilton Meats & Provisions, Inc.:

“In this personal injury action, plaintiff Rebecca Howell’s private health care insurance policy provided indemnity coverage for medical expenses she incurred for treatment of injuries she sustained in a vehicle accident caused by the negligent driving of an employee of defendant Hamilton Meats & Provisions, Inc. (Hamilton). Howell appeals an order granting Hamilton’s posttrial motion to reduce by $130,286.90 the jury’s special verdict award for her past injury-related medical expenses from $189,978.63, which was the full amount of her medical bills, to $59,691.73, the amount her medical providers Scripps Memorial Hospital Encinitas (Scripps) and CORE Orthopedic Medical Center (CORE) accepted as payment in full from Howell’s health care insurer, PacifiCare PPO (PacifiCare). Howell contends the order should be reversed because (1) the reduction of the jury’s award for her past medical expenses violates the collateral source rule, which (as we shall discuss more fully, post) generally bars at trial in a personal injury case evidence of compensation the plaintiff has received for her injuries from a source wholly independent of the defendant tortfeasor; and (2) Hamilton’s motion was “procedurally improper and lacked sufficient evidence to support the claimed reduction.”

We hold that in a personal injury case in which the plaintiff has private health care insurance, the negotiated rate differential is a benefit within the meaning of the collateral source rule, and thus the plaintiff may recover the amount of that differential as part of her recovery of economic damages for the past medical expenses she incurred for care and treatment of her injuries. Applying this holding to the instant case, we conclude the court erred by granting Hamilton’s postverdict motion to reduce the jury’s special verdict award for the injury-related medical expenses Howell incurred. Accordingly, we reverse the order.”

Visit the personal injury practice area page for a list of the types of personal injury cases that I handle.