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I wrote earlier this week about the heart wrenching decisions that were forced upon Judge Peter D. Lichtman due to a railroad industry subsidy / tort reform damage cap that failed to provide even adequate compensation to the hundreds of victims.

Andrew Cohen, chief legal analyst at CBS News, wrote a piece about The Real Victims of ‘Tort Reform’ for The Atlantic. For his views, Cohen was chastised as lame, dishonest, breathless, intellectually disingenuous and careless by our pro tort reform friends, Walter and Ted.

[Ed. Note: I have tried to be fair in my summary of the positions below. However, those who have read my work before know my views on tort reform. Thus, it is possible (some would say likely) that these views may cloud my description of the articles discussed. To that end, I have included multiple links to the source material and encourage you to read it for yourself and come to your own conclusion.]

Let’s examine the two points of view:

Andrew Cohen

[Read Cohen’s article here]

Cohen offered an accurate walk through of the Amtrak Reform and Accountability Act, which legislated the damage cap; detailed the circumstances of the Metrolink train crash (including the fact that the engineer had been "counseled" by supervisors for cell phone activity twice before and had sent or received 43 text messages while on duty); and commented on the agonizing choices the Court was forced to make because of the damage cap.

Cohen concluded:

What we see with the Amtrak Act and, eleven years later with the California train wreck, is an allocation of interests that heavily favors corporate interests and heavily burdens the innocent victims of negligent conduct. We can at least be clear about with one another about that, right? When it passed the Amtrak Act, Congress prospectively took away from the Chatsworth victims the right to a full day in court, with adequate damages awarded to them by a jury of their fellow citizens. The lawmakers took from these victims and survivors and gave what it had taken to the railroad industry, its executives, employees and stockholders.

I won’t fight that policy choice on the merits, at least not here or now. Instead, I’ll make the case for false pretenses. When the American people are pitched "tort reform" by their politicians, and their politicians [sic] lobbyists, I don’t believe the pitchees understand that the phrase encompasses the policy choice evidenced by the result in the Chatsworth case. Instead, I believe the American people often are duped into believing that so-called "tort reform" almostly [sic] always has to do with a greedy plaintiff, a frivolous lawsuit, an ambulance chaser on the make, and a beleaguered corporation.

Nor do I believe that most Americans understand how deeply these "tort reforms" undercut the fundamental democratic importance of the jury’s verdict. Judge Lichtman’s order is a testament to the neutering of the justice system – another policy choice which I don’t believe has ever been sufficiently explained or justified to the American people.

Walter & Ted

Walter’s entire analysis: "Ted Frank rebuts a lame Atlantic column."

Ted goes further. After some initial name calling ("intellectual dishonesty", "breathless", "intellectually disingenuous", "careless"), Ted offers his analysis of Cohen’s article.

[Read Ted’s blog post here]

Before numbering his points, Ted criticized Cohen for referring to the damage cap as having forced a "Sophie’s Choice" when Cohen’s described the Court’s decision-making in allocating the limited pool available under the damages cap. However, the term "Sophie’s Choice" was not Cohen’s, it was Judge Lichtman’s:

"Impossible decisions had to be made. What was given to one victim had to be taken from another. Essentially, a "Sophie’s Choice" had to be made on a daily basis. One "Sophie’s Choice" is enough for a lifetime, but over 120 of them defies description."

(1) Ted: Cohen uses bad logic. Ted suggests that Cohen should not smear all tort reform just because of the application of damage caps in this single incident. Ted’s argument here has some weight, but loses credibility when contrasted with Ted’s and Walter’s similar logic in calling for blanket tort reform stemming from single out-lier cases (like, as one example, the $54 million lost pants case against the DC dry cleaners).

(2) Ted: The Amtrak Act isn’t tort reform, it’s an industry subsidy. True and not true. It’s both. Like all other tort reform, the interests of a business or industry are subsidized and protected at the expense of the victims and the constitutional right to civil jury trial.

(3) Ted: One must consider the benefits of tort reform in addition to the costs. Unstated in Ted’s analysis is the benefit to who. However, Ted appears to argue for a socialistic redistribution of wealth from individual crash victims in order to prop up the railroad industry. In essence, we (the public) want cheaper or more readily available rail transportation. In order for that to happen, the railroad industry needs to make more money, so we will redistribute the burden of paying for the railroad industry to injured victims and/or the public, and if you’re injured or killed due to the railroad’s negligence and your damages exceed the cap, too bad.

Ted suggests that such policy choices must be considered and that "Cohen doesn’t trust his readers to decide for themselves." Here, I think Ted missed something in Cohen’s discussion. Cohen did acknowledge the policy considerations in his piece, but said "I won’t fight that policy choice on the merits, at least not here or now." Rather than suggest a conclusion, Cohen did leave that issue for his readers to decide.

(4) Ted: Cohen misrepresented the facts. The facts of the engineer’s conduct are not in dispute. There appears to be a dispute as to Veolia’s (the engineer’s employer) knowledge of the engineer’s habit of texting while driving the train and general lack of safety oversight. Republican Congressman Elton Gallegly has charged that Veolia "had a culture of ignoring risk" and rule violations leading up to the train crash. Veolia, of course, disputes this. Cohen endorses one view of the facts. Ted endorses the other.

(5) Ted: The Amtrak Act damage cap is sufficient. Ted comments that the cap provided an average of $4 million for each fatality and $1 million for each and "[w]hy on earth would that not be sufficient?" Here, Ted ignores the plain answer given in the words of Judge Lichtman: "There is not enough money to compensate the victims for future medical care…."

Ted also suggests that train crash victims of the European passenger rail system "are not collecting millions in compensation." Ted does not offer a citation or show his work for this assertion, but assuming he is correct, Ted ignores that western European countries provide socialized universal health care and other social benefits for its citizens so that if they are not compensated by the wrongdoer, they are not forced into a situation where "there is not enough money to compensate the victims for future medical care."

And here lies the rub. Conservative principles of free-market capitalism and accountability fundamentally oppose the redistributive princples of tort reform. Conservatives (which Ted professes himself to be) are for personal and corporate responsibility. Conservatives are for market principles in which the true costs are weighed against the true benefits. Conservatives are against the socialistic transfer of wealth from the many to the few. However, Ted finds himself behind the non-conservative line for each of these fundamental issues in his support of tort reform.

If the wrongdoer is not responsible, who is? If markets and industries do not have to account for the true costs of their products, who does? If victims are not compensated by the wrongdoer, who compensates them? When tort reform legislation arbitrarily caps damages to protect wrongdoers, families are financially devastated and taxpayers are left holding the bill. Medicare, Medicaid and assistance programs will be left covering those for which "there is not enough money to compensate the victims for future medical care."

(6) Ted: Blame the lawyers. Ted suggests the "real reason" $200 million is not enough is because of the so-called "trial-lawyer cartel." Veolia has the money to fully compensate the train crash victims, but refuses to do so. Yet, that is not the "real" problem. Congress arbitrarily limited the damages available to these hundreds of victims, potentially forcing them into poverty and welfare, but that is not the "real" problem. The Amtrak Act limited the right of these victims to exercise their 7th Amendment right to determination of damages by a jury while redistributing the wealth of tax payers to an industry that has had "strong annual growth" over the last 5 years and for which "the distant future… looks good", but that is not the "real" problem.

No. According to Ted, the problem is lawyers. Oh no, not the lawyers that defend companies and drag out litigation for years even in the face of clear liability. No, Ted blames lawyers who don’t get paid by the hour. Lawyers who must risk their own capital to finance and prepare a case for trial. Lawyers who do not get paid one cent unless there is a recovery. Lawyers who push for early trial dates and expeditied scheduling orders because their clients are hurting and need medical care or other relief. "Yes," says Ted. "Here is your ‘real’ problem. Blame those lawyers."

No matter which side you’re on, we must admit that tort reform has consequences. Many of us are fortunate enough to not be affected by tragedies like that which occurred at Chatsworth. But we must consider and understand the (intended / unintended) consequences for those who are.

There are differing points of view on the utility of such "reforms". You know my opinion. I have linked to and encourage you to read the source material. You can decide for yourself the side on which you stand.

[Read Judge Lichtman’s opinion]

[More on your 7th Amendment rights]

(c) Copyright Brett A. Emison


  1. Gravatar for Brett Emison

    Ted - I had a feeling you'd say that - as I said above, I hope my readers will read all of the source material and decide for themselves.

    Thanks for reading and staying in touch.

  2. Gravatar for Cilla Mitchell

    Heck you think that is bad? You need to check out this video about just how Tort Reform is working out in Texas, or not.

    Actually, if nobody wants to see the video, I can put it in a nutshell. Even if there wasn't Tort Reform which prevented me from getting representation, (which is why I was forced to make the video), I couldn't sue anyone for malpractice because there was not practice to mal.

    The link to the video is:

    Or, just Google Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 - April 26 2008.

    In my opinion, when the common man is denied retribution for a wrong because the laws on the books prevent him from getting it, then nobody should be surprised if the end result turns into violence. Again, this is in my opinion.

    Thank you for your time,

    Cilla Mitchell

    A Texas nurse and vet

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