Saturday, May 5, 2018

The Myth of the Litigious Society: A Rigged Adversary System

By Shaina Bethala 
Did you know chairs are an injury-lawsuit waiting to happen? Or even stairs? But I bet you never thought you might be fifty to sixty years old and suing a chair company because you have back pains. But as a society, why aren’t we suing the companies who cause our injuries? That question is answered in David Engel’s, The Myth of the Litigious Society. Engel put on his mythbusters hat and dispelled that nasty rumor floating around that America is a highly litigious society in a way you wouldn’t believe…he actually said America rarely sues. *gasp*  

Reading Engel’s book, not much takes the reader by surprise besides getting over the general hurdle that America isn’t as litigious as the rest of the world makes us out to sound. His theory that Americans don’t sue the parties responsible for their injuries, lumping, as it is referred to, is due to many practical reasons but are categorized into the following: “unperceived injurious experiences, naming, and blaming.” David Engel, The Myth of the Litigious Society 31 (2016). Engel recounts that many victims of injuries that are the result of other’s actions are typically unaware that the responsible party actually caused their injuries—the injuring party is not perceived to be responsible. Id. Take our chair example, over time the use of a chair with unsupportive backing may actually cause back injuries. But most people will attribute that back pain to something completely different, such as age, sleeping positions, improper posture, etc. Without recognizing the root of the problem, the injured party won’t claim relief from the true villain. Crazy enough, some do recognize their injury and still choose to lump because they either don’t connect the injury to the injurer or genuinely believe the responsible party did not cause their injuries. This is called naming. Id. This can be seen in past years when patients who were given opioids to manage their pain for minor injuries continued to require the medications because they perceived their injury to be far more devastating than it actually was. The fact of the matter is that the pain management solution given to them was addictive, and they eventually sought not to soothe their pain, but rather their addiction, without realizing the true cause. The patient will blame their addiction to opioids on the person who caused their actual injury, i.e. an automobile accident, but the true responsible party was the doctor continuously prescribing opioids. Lastly, the injured party will blame their injuries on another party’s wrongful actions. Id. Take the case of Thipha, who was injured alongside her husband in a motorcycle accident when an oncoming car drove into their lane in Thailand. Resting on her Buddhist beliefs, she didn’t blame the oncoming driver as much as she did herself and her husband. She took into account these various factors: (1) an evil ghost was awaiting by the side of the road obscuring their view; (2) her husband’s accumulated bad karma; (3) premonitions signaling an upcoming accident; and (4) her and her husband’s lack of mindfulness that contributed to the responsible party’s negligence. In this account, Thipha does not hold the true party responsible but finds that she and her husband caused their own injuries. Thipha lumped her injuries because she believed her and her husband's actions were the actual cause. Id. at 93-94. Besides discussing the formula of lumping, Engel revealed a serious problem affecting our judicial system.  

The most striking reason Engel articulated for lumping is society’s hierarchical differential. Engel posited the question “Why is it that injurers have the capacity to shape contemporary tort law?” and to be frank, I had no idea where that question was heading because I never knew injurers had such an ability. Id. at 101.  He went on to state that the answer derives from the status quo—the haves and the have nots. Essentially the “haves” are often wealthy, repeat injurers who can afford extensive litigation costs and well-qualified attorneys. The one-time “have nots” take on the repeat offender only to have the responsible party create a long, drawn out proceeding, “anticipating the future disputes in ways that one-shotters cannot, in order to strategize in advance for favorable rules.” Id. at 102. Such a disadvantage continues the lumping plague. Engel goes on to explain that it is those injurers that control the social and legal sphere. As the haves are most often the defendants, they portray the injury the plaintiffs complain of as inevitable, guiltless, and likely caused by the plaintiff’s own conduct. This predominance of lack of responsibility has unfortunately caused their perspectives to prevail, resulting in the injured’s conduct named as the causation. I find this abominable. The justice system as a large component of our society should be neutral. Regardless of social and economic factors, the system must always rule in favor of justice. Although wealth is neither a suspect or quasi-suspect classification meaning it is afforded the lowest ebb of protections against discrimination, legislators should work to even the playing field. Beyond the obstacles that face a small fish in the litigation procedure of having to prove that a big fish has caused their injuries, the added impediment of a civil dispute resolution system unfairly favoring one side tremendously impacts the lumping phenomenon. As more people continue to feel restricted in bringing their injury claims to court, the more that repeat offenders will continue to not take precautions and prevent injuries.   

Tort reform is extremely difficult to come by in America. The American Dream consists of large companies that create hundreds of jobs, significantly contribute to the economy, and unfortunately control public policy tort reform. The civil court system heavily guards that American Dream, making large wealthy defendants almost untouchable against a single, middle class injured plaintiff. Engel profoundly states:  

Injurers often represent powerful sources of cultural production, so their views about injury causation are pervasive in society and are likely to shape perceptions, even those of the victims themselves. When injury victims view causation in the same terms as their injurers, it is far more likely they will lump than claim. 

Id. at 104. On the rise of small individual plaintiffs bringing suit against Goliath, already evidenced by small ‘mom and pop shops’ prevailing against large businesses in civil disputes, reform can happen for tort victims. Tort reform is slow, and unfortunately in our society, backing for the lowly injury victim is scant. America thinks it runs on the backs of the wealthy, but we are only as powerful as our middle and lower classes. Legislators must work to create an even-footing for safeguarding the rights and needs of those less-equipped but in substantial need against wealthy opponents. Injury victims can sue for a number of torts such as negligence or strict products liability on the culpability spectrum. However, not all tort injurers can be strictly liable; there must be a more flexible approach. As time progresses tort reform has focused on limiting tort liability as opposed to exposing liability and promoting tort injury litigation. As wealthy defendants keep paying damages to make their injured victims’ whole, their legal responsibility is fulfilled; but as for the victim their pain and suffering could continue forever of which no amount of money could give relief.  Therefore, the safeguarding is needed in court. Tactics and strategies implemented by counsel are an arbitrary device by either party to gain an upper-hand. Additionally, beyond the federal rules of civil procedure, tougher restrictions on such tactics would be unpersuasive. Not exactly a change within tort reform, but the mentality and social stigma surrounding tort injury is what must be revolutionized. Strong beliefs of frivolous lawsuits, the poor self-inflicting their own injuries, limiting tort liability, and continuous payouts without any deterrence all propel injury victims to keep silent with no actual reform for victims. I would not say that change will vastly increase the number of lawsuits but will give injury-victims a fair way to seek compensation for their pain and suffering while holding the injuring party accountable. Without such reform, Americans will continue to seek personal compensation from insurance and worker’s compensation, or possibly choose to suffer alone without realizing their harm. Public policy requires that we as a society take preventative measures against tort injury, specifically holding those parties responsible for such injuries. As Engel supported with research, lumping is a prevailing issue in injury torts, and as I have laid out, our notions towards such torts must first be altered in order for tort reform to be the vehicle towards bridging the gap between the haves and have nots.  

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