Tuesday, August 7, 2012

Max Kennerly debates tort reformer Ted Frank

Over at Litigation and Trial, Max Kennerly describes his on-going debate with tort reform advocate Ted Frank (here).   I have always said that the goal of tort reform proposals is not to eliminate frivolous lawsuits but to regulate the valid ones; in other words, to make it more difficult (or impossible) for plaintiffs to bring valid claims or to reduce what they can recover if they can bring the claims.  Using Frank's own replies to Kennerly's questions, Kennerly argues Frank's arguments can be reduced to the same principle:  injured plaintiffs should always lose. Here is Ted Frank's reply to Kennerly.


Anonymous said...

Shame on you for your dishonesty. Why won't reform opponents ever address the actual arguments I make instead of inventing straw men? I have nine years of writings on the subject, and I defy you to find anywhere where I've said "injured plaintiffs should always lose"--especially since the vast majority of my clients over eighteen years of legal practice have been injured plaintiffs.


Max Kennerly said...

Nonsense, Frank. It's right there in my post: you think pre-emption should be expanded, that courts shouldn't "second guess" doctors, and that juries can't be trusted with pain & suffering or with punitive damages. Just taking those three of your policy proposals at face value knocks out all drug & medical device litigation, the vast majority of malpractice (you seem to think recklessness should create liability, but not negligence) litigation, and would dramatically reduce the compensation available to the most seriously injured plaintiffs.

"Vast majority of my clients have been injured" is irrelevant (what does that change about your plaintiffs-always-lose proposals?) and is, as best anyone can tell, pure malarkey. You find class actions that you think shouldn't exist in the first place and then lodge objections on behalf of claimants with the weakest claims, sometimes resulting in an improved settlement, sometimes not, so you can call yourself a "consumer advocate."

Stop playing games. You want to dramatically restrict the rights of consumers and injured persons. Just be honest about it and stop pretending you're standing up for the little guy.

Anonymous said...

Preemption doesn't mean injured plaintiffs always lose.

A medical judgment rule doesn't mean injured plaintiffs always lose any more than a business judgment rule means that injured plaintiffs always lose.

I won $2.5M for class members in Classmates.com. The trial lawyers were happy to settle for $47,000 because they were getting paid.

I won another $2.5M for class members in In re Apple Securities.

And again, I refernyou to the NVIDIA case, where I was arguing for injured plaintiffs and Milberg was arguing for defendant liability and Milberg put its profits over its own clients.

So stop lying about me. If you want to argue against preemption, argue against preemption. The fact that you have to misrepresent what preemption means and lie about me shows that you don't have any good arguments against a sound public policy that would save lives and jobs, albeit at the expense of trial lawyers that prefer putting profits over people.