Overlawyered has a blog post today about the reports of a high school pitcher suing his school district because he wore out his arm throwing 140 pitches in a single game. Here is the gist of the story from the Seattle Times: Seven years ago, Plaintiff was pitching against a rival school. He had no plans to take himself out of the game. In the eighth inning his mother, assuming you believe her story, told coach, "He's at 117 pitches. He's done." (How many mothers out there are keeping exact pitch counts?) You know the rest of the story. The Plaintiff hurts his arm. He thinks he was the next coming of Roger Clemens... better make that Greg Maddux... and files suit claiming the coach should have pulled him out of the game.
Overlawyered and the Maryland Lawyer Blog agree that the possibility of a lawsuit causes people to act differently than they otherwise would. Where we disagree is whether, on balance, this is a good thing for society. For example, football coaches now know that depriving kids of water during practice is a bad thing and their doing so may expose the school to liability. In this area I think coaches already have proper incentive to do the right thing and this will only serve to exaggerate the risk of a "pitch count" lawsuit. Even if this is what I believe is the first lawsuit of its kind in this country. Obviously every baseball coach around the country is going to be talking about this and many are going to become worried about pitch counts.
Awareness of valid lawsuits properly encourages people (including doctors) to proceed with caution and to consider the risks that may cause harm. Frivolous lawsuits like this one have the opposite effect and are going to have some coaches - a small minority but still some - overreacting and limiting kids to ridiculously low pitch counts. But just as free speech requires us to tolerate hate speech, the search for justice requires us to tolerate some level of frivolous lawsuits. Whatever inertia this country has towards tort reform, it comes in no small measure from mainstream media and Internet reports (many of which are simply false) of ridiculous lawsuits.
I’m digressing from this story now, but one of the problems personal injury lawyers have in fighting back against the tort reform movement is their refusal to appreciate valid arguments made by reform advocates. For example, as a student of economics, no one will ever convince me that medical malpractice damage caps don’t decrease doctor’s insurance premiums. So why on earth do we keep arguing this?
I also think we have to concede that there is a “tort tax” and that litigation in pure economic terms is counterproductive. So is social security on many levels but the system stays because it brings about a greater good. According to the Consumer Product Safety Commission, every year about 4,500 deaths and 13.7 million injuries occur as a result of defective products in 15 different categories. Not included in these classifications are motor vehicles, drugs, medical devices, and toxic substances. It seems like the “wild west” with respect to consumer safety even with the risk of lawsuits. What would these numbers be like without tort litigation? The reality is tort litigation costs money but saves lives.
Of course, there is another argument against limiting plaintiffs’ tort recoveries. If you are injured as a result of the negligence of someone else, who should pay for those injuries, the innocent victim or the person responsible? Litigation provides some measure of justice. The problem with using the justice argument to fend off tort reform is that no one sees themselves as the tort victim until they are the tort victim. People who strongly support efforts to reduce jury awards rarely hesitate to file a claim or a lawsuit when they are seriously injured as a result of someone else’s negligence. I’ve represented many of these people. Are they greedy hypocrites? I don’t think so. I think they see the world differently when they step into shoes they never expected to be in and were statistically unlikely to wear: the serious injury victim. It changes the way they think and they no longer care about the “tort tax” but about fairness and justice and the lives saved by personal injury lawyers who help in the battle of keeping corporations focused on what almost everyone agrees should be their first priority: consumer safety.