I have recently written on the number of examples where tort reform has not worked. Workers compensation is a failure, as workers have no right to sue their employers for negligence. Health insurance companies, operating under ERISA laws deny coverage wrongfully, and often, and have no legal recourse. In none of these examples has there been a fair treatment of those injured due to the negligence of another. Instead there has been a compromise of their rights, allegedly for the sake of society.
One frequent argument proposed for tort reform is that a less expensive and more effective method of controlling negligence is through government supervision and regulation. Nothing could be further than the truth as evidenced by the recent Los Angeles Times article on October 21, 2009 investigating Cal OSHA penalties for employer negligence. I invite your review of this article personally becasue I believe it deserves a Pulitzer for fair and in depth investigative reporting by Jessica Garrison.
An employer, Bimbo bakeries in California, had six amputations and a fractured hand at the workplace between 2003 and 2006. Cal OSHA investigated each of these violations, determined them to be caused by a serious failure to abide by safety regulations, maintain guards on equipment and operate the factory safely. Investigators levied fines anywhere from $2000-$21,000. However, the article pointed out that the Cal OSHA appeals boards waived almost all of the fines assessed and levied against this particular employer, not because they found the investigations without merit, but according to Candice Traeger, chairman of the appeals board, a backlog of cases drew a federal complaint causing the board to settle thousands of cases for pennies on the dollar.
Did the employer learned lessons through the efforts of governmental oversight? I doubt it given the first fine in July of 2003 of $21,750 was waived for an amputation; the second amputation in October 2004 generated a fine of $22,500 and was reduced to $5000 and so on. The employer effectively pawned its responsibility off on workers compensation insurance, a system you and I have to support in part through the State Compensation Insurance Fund, with tax dollars. This employer will continue to operate in callous disregard for its employees’ safety.
Recognize that each worker is only paid a limited portion of their damages: only a small portion of their lost wages, medical bills as authorized by the employer, and a permanent disability rating far less than a jury award typically provides for loss of limb. They will however have to live with the amputation, limitations, embarrassment and disfigurement for the balance of their life.
Tort reform simply does not work, and limitations on damages payable to the victim are unjustified. Instead we should be asking these companies why they are refusing to act responsibly, and how much in punitive damages should they have to pay until they do.
I can assure you that as a California personal injury attorney, if I were not precluded from bringing suit, each of you as jurors, listening to testimony arising from six different amputations would feel not only comfortable but compelled to award compensation damages to the most recent victim and punitive damages to punish the company for its conduct. You have taken that capability from attorneys and given it to Cal OSHA in the hopes that effective oversight is enforced.
As you can see, your government is only as effective as the money you give to them, and I am not clear why my taxes should be used to enforce laws that a company should be observing on their own. Make these companies pay for their own errors and they will either comply or go out of business. If the latter option is chosen, more responsible employers will populate the bakery field and responsibly save death and injury to countless victims.