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Lying Is Free Speech


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#16 IMike

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Posted 08 July 2012 - 08:30 PM

Mike, I removed the post before you responded.

FJB

Frank, it was still there (on my computer, at least) when I posted it. I have now removed my response.

Mike

PS On the subject of "tort reform," there are two provisions I would eagerly support.

First, it should be against public policy for insurance to cover punitive damages. These are awarded as punishment to the wrongdoer, not to his insurance company. He should have to pay them himself, and they should be non-dischargable in bankruptcy. They should also be payable to the state treasury, subject to a "cost plus ten percent" claim by the plaintiff whose efforts established the fund. Existing legal principles support such a provision.

Second, contingent fees should be subject to judicial review and approval. Upon request, the court should set a reasonable fee for the plaintiff's attorney's services actually rendered pursuant to the well-established principles by which a reasonable fee is determined (and which includes an upward factor for the fact that, on the front end, there might not have been any fee paid at all). The surplus, if any, should be returned to the defendant (or his insuror) and not to the plaintiff, who agreed to the percentage fee. Of course, the fee set could not exceed the contract amount.

I have never heard either of these suggested.

M.

Edited by IMike, 08 July 2012 - 08:46 PM.


#17 AQuaker

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Posted 09 July 2012 - 10:41 AM

What slays me is how laws are written to benefit certain types of businesses but does not protect the people from their abuses. I always think a lawsuit should be the last recourse. But if the defendants were honest and admitted yeah, we screwed the pooch on that one, how can we compensate you within reason, I think the average person would say, all right then. Nowadays, companies knowningly screw up, try to cover it up, then lie about knowing who knew what when after they are exposed as liars. The truth is a heck of lot easier to keep up with than a lie and causes less damage. I like it when anyone comes forth with the truth regardless of the personal outcome. It's not just Congress or corporations it is in our collegiate athletics, law enforcement, medical facilities, schools, and on and on and on. Supposedly, we are intelligent creatures. Why waste our time to use our brains to make up lies in order to avoid responsibility for our actions. Until we as a society come forth and declare that yes, the truth does matter this BS will continue. And I tell you, the older I get the less patience I have for BS no matter who is delivering it.

#18 FJBoccia

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Posted 10 July 2012 - 03:20 PM

What slays me is how laws are written to benefit certain types of businesses but does not protect the people from their abuses. I always think a lawsuit should be the last recourse. But if the defendants were honest and admitted yeah, we screwed the pooch on that one, how can we compensate you within reason, I think the average person would say, all right then. Nowadays, companies knowningly screw up, try to cover it up, then lie about knowing who knew what when after they are exposed as liars. The truth is a heck of lot easier to keep up with than a lie and causes less damage. I like it when anyone comes forth with the truth regardless of the personal outcome. It's not just Congress or corporations it is in our collegiate athletics, law enforcement, medical facilities, schools, and on and on and on. Supposedly, we are intelligent creatures. Why waste our time to use our brains to make up lies in order to avoid responsibility for our actions. Until we as a society come forth and declare that yes, the truth does matter this BS will continue. And I tell you, the older I get the less patience I have for BS no matter who is delivering it.


Actually Sheila, it works both ways. Three cases I'm very familiar with:

A man in Texas bought a Holley dual-quad carburetor for his car: That's two four-barrel carburetors on a single manifold, delivering up to 10 times the fuel a normal four-barrel does. At the point of purchase, he cheerfully informed the salesman that he intended to drill out the jets --the small aperatures through which the gasoline is actually delivered into the engine-- an additional .005 inch, to get "more power". (as an aside, in a 60s or early 70s vehicle equiped with dual carbs, you could actually see the gas gauge drop as you drove). The clerk expressly warned him not to do that; he even called the store owner over to repeat the warning. On the mounting instructions that came with the carb, this warning was repeated, in print, and in bold type. But ol' Bubba knew better. He drilled the jets out, installed the carb, and then suffered severe burns when the damn thing blew up in his face, as it had to: Far too much gasoline came through the jets, infusing the fuel system with a highly volatile vapor. He sued, and won, despite the fact that EVERYONE who knew of his plans had warned him, and that he deliberately went against their advice.

Case two: A typical redneck from Southern Maryland bought a car with the then-new technology of the catalytic convertor. The word spread quickly (and erroneously) among the rednecks in all states, south and north and west, that removing the catalytic convertor increased your power and your gas mileage. In fact, it does no such thing. But they did it anyway. Removing the convertor didn't increase their power, but in many vehicles it greatly increased the temperature in the rear exhaust pipes. This idiot sat in his front yard, motor running, listening to his favorite country and western station; the extreme heat set the grass afire, and a leaking gas line (leaking because he'd dsiconnected the fuel line to remove the fuel filter, since all rednecks know that a fuel filter cuts down on your power, and failed to reconnect it properly) caught fire and his new car went up in flames, with himself in it. He sued and won. This brain took a brand new car and made it into a junk wagon within days, but he still won.

The third genius was a man whose water pump quit working; deciding that a blocked water pump was the reason his car wouldn't run, he removed it and installed a piece of garden hose in its place. When the car stopped again a half-mile down the road, he popped the hood, stuck his head in and the garden hose, in no way suitable for the extreme heat and pressure of a cooling system, blew a hole and he received a jet of steam in his face, scalding him terribly. Again, he sued and won.

These examples are all from the automotive industry because that was where I worked; I'm sure others from different industries could recite similar stories. Indeed, Genius #2 was personally known to me, as a sometimes-customer. Parenthetically, although he won the case, he didn't profit from his victory for long; two or three years later he decided to beat a freight train across the tracks and failed; this time there wasn't enough left of him to sue anybody.

So, no, Sheila, the laws AREN'T written the way you think; they're simply written imprecisely, as I think even Mike would agree. In a world where technology changes so rapidly, the laws pertaining to any industry will lag behind. I'm sure you or someone else could recite just as many cases from the other point of view, and I wouldn't dispute that. My point is, that will continue to be the case as technologies evolve far more quickly than the laws. And what was true in the 60s, 70s and 80s is far more in evidence now.

FJB

#19 AQuaker

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Posted 10 July 2012 - 07:37 PM

True, true, before the internet, I use to have to read any NC statue upon request. I am not allowed in interpret NC laws, which are written in legalize jargon. However, I devised a way of phrasing the sentences, pausing here and there when an important point needed to be understood. Sometimes, I would read it three or four times, but eventually the meaning of the law became clear. Now SC for all of its faults, have laws that are clear and concise. There is little room for interpretation and no need for entertaining elocutions on my part.

#20 IMike

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Posted 11 July 2012 - 12:10 PM

Frank, that particular genie originated in (guess where?) California. It's called Products Liability, a/k/a Strict Liability or Liability Without Fault. Its logical foundation is that, given the complexity of modern machines (this developed in the 1950s), injuries are inevitable; and it is sound social policy to place liability for the damages suffered in these inevitable accidents on the manufacturer of the machine because he is the one that profits from the sale of the machine, and he is best placed to assure that the device is made as safe as possible. As it became widespread, the doctrine was generally limited to items which were sold in a defective and/or unreasonably dangerous condition, and in some cases a prominent warning of a particular danger could insulate the manufacturer from liability.

In order to maintain the object of the risk allocation of the doctrine, it was no defense that the item met or exceeded industry standards, or that it was as safe as the state of the art permitted at the time. Nor was it a defense that the defendant misused the machine for a purpose for which it was not designed, or that the injured party was negligent in using the product. Warnings, to avoid liability, had to be clear, prominent and specific.

So, how do we determine if a device is unreasonably dangerous or defective? This requires expert testimony, and many engineers and others make a decent living testifying that the thing at issue was one or the other (or both). There is, of course, expert testimony to the contrary (with more experts earning lesser fees, because they typically are employees of the manufacturer), and a good deal of medical expert testimony back and forth about the severity of the plaintiff's injuries. Then, unless the evidence is undisputed, the matter is handed off to the jury.

The Jury is made up of citizens, drawn at random from the court's jurisdiction. They listen to the evidence, and the judge instructs them on the law that is applicable to the case presented to them. They go back into a jury room and discuss the evidence . They are not supposed to consider factual matters not in evidence (which is one reason why medical professionals rarely get to sit on juries considering personal injury cases). Once all jurors are in agreement, they return to the courtroom and announce their determination. THE JURY'S RULING ON THE FACTS IS FINAL, SO LONG AS IT IS SUPPORTED BY EVIDENCE! If the loser tries to get another trial to present additional evidence, he must first satisfactorily explain why the evidence wasn't presented in the first trial -- and must show that had the jury been given this evidence, the outcome would have been different. It is not enough that you have twenty more people prepared to give the same testimony that one person gave at the trial, since the Jury already considered that evidence. If a judge considers the jury's verdict wrong, he can grant a new trial, or he can suggest that the award be adjusted either up or down as an alternative to a new trial. And while I am convinced that most jurors and juries try their best to do what they are supposed to do, there is always the sympathy factor!

One judge told of a case where the jury, after some deliberation, sent a message that they had a question for the court. After the parties and counsel were assembled, the judge brought the jury in and asked the foreman for the question.

"Your honor," the foreman said, "we want to know if there is any way we can give these plaintiffs something without finding the defendant negligent?"

"Well, yes, there is," said the judge. "But first, I take it from your question that you have found that the defendant was not negligent. Is that correct?"

"Yes, your honor." the foreman replied.

"Is that the verdict of each of you jurors?" asked the judge. "If it is, raise your hands."

All of the jurors raised their hands.

"Very well," said the judge, "judgement for the defendant, costs to be taxed to the plaintiffs. And now, Mr. Foreman, you may pass the hat on behalf of the plaintiffs among the members of the jury."

Regretably, most jurys are not so straightforward when the sympathy factor comes into play. And I suspect that the effort to prevent such injuries on the part of manufacturers is partly to blame. "Everybody Knows" that people play CYA with these warnings, and that they don't really indicate a danger. While I was at Fort Polk, I had a constant problem with flying insects at my trailer -- so I went to the commissary and bought a bottle of insecticide. It had one of those finger-pump sprayers on it, and I used it liberally. And it WORKED! I would spray a wasp as it flew by, and ten minutes later I would find a dead wasp! It did the same for flies, too! I loved it. One day, just for the halibut, I sat down and read the warning label. It was pretty much standard -- do not use this within 500 feet of any living thing, etc. -- but I then stumbled upon three little words which got my undivided attention! There, printed on the bottle, was the statement, "Atropine is antidotal".

[For those not familiar with the term, the Army trains (or used to, and I suspect still does train) its personnel on the use of Atropine to counteract the effects of nerve gas. We were cautioned, however, not to use it unless we had been attacked by a nerve agent, because without the nerve agent to balance its effects, the atoprine would kill you!]

I continued to use the insecticide, but I was much more miserly with it after that.

Mike

Edited by IMike, 11 July 2012 - 12:13 PM.


#21 FJBoccia

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Posted 14 July 2012 - 08:56 PM

Frank, that particular genie originated in (guess where?) California. It's called Products Liability, a/k/a Strict Liability or Liability Without Fault. Its logical foundation is that, given the complexity of modern machines (this developed in the 1950s), injuries are inevitable; and it is sound social policy to place liability for the damages suffered in these inevitable accidents on the manufacturer of the machine because he is the one that profits from the sale of the machine, and he is best placed to assure that the device is made as safe as possible. As it became widespread, the doctrine was generally limited to items which were sold in a defective and/or unreasonably dangerous condition, and in some cases a prominent warning of a particular danger could insulate the manufacturer from liability.


Sorry I missed this when it came out; as Ive often noted, the site swallows posts now and again.

Obviously, we're looking at it from two viewpoints: The legal and the technical, but our time frames agree. I was about to add in my previous post that until the 40s and 50s, modifications to manufactured goods were not only normal but often necesssary. We take precision tolerances and sound metalurgy in our more expensive products for granted today, but it wasn't always so. I dare say that most people in their 40s or younger have never given a thought to their vehicle's drum brakes or carburetors, mainly because they probably don't have any, but also because the imprecision of the brake systems in the first half of the last century has long since disappeared. If you told a young person today that even into the 1950s, your brakes, all four of them, had to be manually adjusted every few weeks they'd scarecly believe you. Carburetors had to be cleaned and adjusted constantly, because the lead-based gasoline fouled the jets and chambers continuously, and that also meant cleaning and then replacing the spark plugs, points, rotor and cap. And so on and on. And does anyone on this site beside you and me remember the manual choke?

This wasn't confined to automotive technology: Lawn mowers, tractors, refrigerators, well pumps... you name it.
The point is, people of that era were expected and required to do much of their own work, and modifying equipment was an everyday occurence. The legal definition you refer to above came about precisely because, by the mid-50s, manufacturing and technology both had improived to the point where modifications could actually end up causing more harm than good --as in the extreme example of the early catalytic covertors of the 70s.

The imprecision I see in the law stems from the idea of making a product "safe". How does one go about making an inherintly dangerous product to that standard? The idea that a handgun, for instance, should be made "safe" is ludicrous. It's not designed for safety, but for lethality. What can I possibly do to it, other than install the standard locks and safeties, to render it harmless? It isn't intended to be harmless.

Similarly, a carburetor is a dangerous piece of equipment. By design, it takes oxygen and gasoline and mixes them together in their most combustible form: A heated vapor, subjected (intentionally) to an electrical spark. How can I possibly make that "safe"? Ultimately, this proved so unsatisfactory that most people have never seen a carburetor in their lives, unless they're close to our age. It's been replaced by the fuel injectors. To be sure, the primary objective of the engineers in this case was fuel efficiency and not safety, but you see my point, I think. You simply can't make a "safe" carburetor, when you consider what it does. Now you'll say that carburetors only rarely caught fire, and that's true, but only because the tolerances and designs were improved throughout the mid-century until, IF LEFT ALONE and operated in normal fashion, they performed perfectly. But people, like Texas Ted there, couldn't leave thing alone; their generation and those before them KNEW more about automobiles than any pointy-headed, school-learned fancy pants engineer.

We often specualted, and received hints that we were right, that modern automotive design intentionally makes the more sensitive parts and equipment in the engine well so hidden under a spaghetti-like mass of cables, wires, boxes and tubing that it takes a DIY hours to even reach them, thus ensuring that he'll leave them alone. Screwing with a radiator hoae is bad enough: Can you imagine what a good ol' boy shade-tree mechanic could do to the ABS computer?

I suppose we have the equivalent today on the internet; most of us leave our computers pretty much as we purchased them, but there are those who WILL make changes, to hardware, software and systems. The next few years ought to be fun, as the technology changes (at an astonishing rate, by the way)so that neither the laws nor the users can keep up.

FJB




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