Thursday, August 07, 2008

On tainted peppers

DagoodS emails me regarding tainted peppers. In his own words:

The analogy I most often use, when explaining a personal injury lawsuit to a potential new client, is that of a three-legged stool. The stool is only as strong as the weakest leg. If one leg is made of a one-inch steel rod, another made of 3-inch wood, and the third is made of a hollow plastic straw—the stool is only as good as that straw. It will collapse if weight in excess of the strength of the straw is placed upon it. No matter how strong the steel or wood is.

The three legs are: liability (what the defendant did wrong), damages (how the plaintiff was hurt) and collectability (can we obtain money?) Without all three, there is no lawsuit. Or, our suit is only as strong as the weakest element in these three. Since all three were touched upon in this blog and the comments, I thought I would expound upon it:

Liability The first question presented would be this: What did Wal-Mart do wrong? As The Barefoot Bum correctly states – how do we know whether Wal-Mart is or is not "cavalier" about food-products? What is the policy (if any) regarding removal of possibly tainted food?

This usually hinges on timing. How soon after the possible harm is discovered is a remedy implemented? For example, if the USDA discovered the possible salmonella on peppers at 5:06 a.m., and Mr. Grubbs bought the peppers at 5:08 a.m.—most jurors would agree this was far too short a period of time for Wal-Mart to have done anything. But what about later that afternoon? Or the next day? Or two weeks later? At some point jurors say, "What a minute; by this point in time you should have done something."

Note that the timing depends on too many different factors to cover it all. A gaping hole in the middle of the lobby would be less time than a dripping pipe in a hidden closet.

Does Wal-Mart let each store make individual determinations, or is there a corporate mandate? And if you think finding this out, absent a lawsuit, is easy—think again. Even within a lawsuit it is common to be denied, by large corporation, such information if not explicitly requested. We may ask for their "policy" and they fail to give us their "action plan" since we asked for "policy" not "action plan." (Yes, such wordsmithing is common amongst lawyers.)

I don't know if Wal-Mart did anything wrong. I don't know enough about the case. It is very possible Mr. Grubbs' attorney may not know. Yet. But what I do know is that Wal-Mart is not going to volunteer what procedures it has in place absent the force of the judiciary by possible contempt of court by failing to respond to a subpoena.

Damages Jim Freeman, you are quite correct. If all Mr. Grubbs received as a "case of the trots" for one hour, then damages would likely be minimal. I doubt many lawyers would even take the case, since jurors (while sympathetic) will not very likely award much money for one hour of diarrhea.

Sometimes people miss this. All our system can award is money. We can't order Wal-Mart to give Mr. Grubbs access to its time machine to go back and not get the peppers. We can't order Wal-Mart to give a pill to make the diarrhea go away. We can only compensate dollars and cents. Cash.

What is a broken arm worth? $10,000? What if it is an 8-year-old? 85-year-old? A MLB pitcher? There is "no set amount"—no book we can turn to and plug in all the factors of the plaintiff and out pops a number. Sure, it would be great to hear a verdict, "We give the plaintiff his/her arm back as if it was never broken." But we can't. We can only hear, "You get $____."

What is food poisoning worth? Having suffered a week's worth, I might be inclined to award some money. Others, who have never even had the flu, may not. Catch as catch can with the jury.

Collectability Is the defendant collectable? The largest controlling fact in this is insurance. We will just as gladly sue Wal-Mart as we would a Mom-and-Pop convenience store if they have insurance. In fact, mom-and-pop stores are sued day after day, in court after court in state after state. And no media outlet ever makes mention of it. I would not be surprised if there are other food poisoning cases already pending.

The ONLY reason we may think poor Wal-Mart is being singled out as it is a large corporation [that was said tongue-in-cheek] is that the media finds it newsworthy and reports the Wal-Marts (and McDonald's and General Motors) as being sued. What news is it "Local Piggly-Wiggly sued for Leaving Wet Spot On Floor!"?

Yet such suits are being filed all the time. With the public never knowing about it. Sadly, the only cases in the news are the fellows suing Publishing Companies for the word "homosexual" in the Bible and therefore this is all most Americans think are happening in our court systems. Sigh.

Consumer Reports is a strong advocate for product liability cases. They recognize the greatest protection for the consumer is the possibility of a corporation losing profit. Money. The Bottom line. Many safety devices are implemented, NOT out of a corporation's concern for the purchaser of their products—but rather to prevent losing money in the judicial system.

Finally, as to the contingency agreement. I cannot speak for all states, but in Michigan the option to pay us hourly is ALWAYS available. We CANNOT force a client to take it on a contingency. But if we do it hourly, the person will have to pay, up front, the hourly rate as we work on the file. Many people simply cannot afford us.

Think about it. If the client thought we could settle the case with one hour's worth of work, they would pay us $300 and reap the millions of dollars these insurance companies are begging to give out. Ha. Ha. Ha. More likely we would charge and charge and charge, and eventually they would be forced to quit the case due to lack of funds.

Don't forget the media only reports the big verdicts. We hear, "Plaintiff won $30 Million dollars" and everyone can figure out what 1/3 of that is. But what about the 100's of 1000's of cases that settle for $1500? Or $3000? Or nothing at all? The lawyers being hired and winning millions of dollars of attorney fees on contingency cases have served their time. (Otherwise they wouldn't be hired on such cases.) They have had dozens of cases of hearing "-0-" on the same third. Can you figure out what 1/3 of zero is? They can.

Don't get me wrong—personal injury lawyers can make good money. But they do it on a $20,000 case. A $25,000 case. A couple of $50,000 cases. They aren't sitting around, doing nothing, and millions of dollars float down because of exuberant jurors.

Would I take Mr. Grubb's case? Most likely not. The damages portion would concern me. While jurors may be inclined to provide some money, the time and dollars spent fighting Wal-Mart (who I have fought before) would not warrant the effort.

You may not realize it, but the hope (and that is ALL it is—a hope) Wal-mart will be less cavalier regarding food products in the future is that Mr. Grubbs' lawyer is more risky than I.

DagoodS is a practicing lawyer and the proprietor of the most excellent blog, Thoughts from a Sandwich.

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