Since my last piece on tort reform, an infographic called “We The Plaintiffs” made the rounds on the internet, and it’s loaded with lots of terrifying information about the state of our legal system. It’s also a major distortion.
It mentions a lot of cases that were certainly ridiculous, but then it also mentions that most of these cases were thrown out of court before they even got to the trial stage. As always, the solution to all of these frivolous lawsuits that never made it anywhere near a jury is to make it much, much harder for people to access the courts. Well, some people, anyway.
Let’s take a look at two separate court cases, both involving young women. One involves a teenager named Ashley Zauflik who lost her leg when a school bus jumped the curb and hit her as she was walking out of school.
The second case involves four girls named Sasha (AKA “Bunny Boo”,) Yasmin (AKA “Pretty Princess”,) Cloe (AKA “Angel”,) and Jade (AKA “Cool Cat”). They like shopping, makeup, wearing expensive designer clothes, and looking fabulous.
Of these two court cases, which one do you think received every conceivable consideration during its lengthy journey through the legal system and which one was treated like a small claims court squabble between two angry neighbors over the size of a backyard fence?
Sorry to disappoint, but the courts were all about Bunny Boo. The girl with the missing leg, not so much.
Bunny Boo, et al., are a line of dolls that are sold under the name “Bratz.” They have been marketed and sold to little girls since 2001 by a company called MGA. They make spectacular amounts of money. There are the dolls, but there are also DVDs, live-action movies, and all the miniature outfits and accessories that get scooped up by millions. Each of these dolls has their own separate lines of clothes, shoes, purses, jewelry, cars, exercise equipment, etc. Think of it as “My Little Kardashian.”
Imagine the Barbie Doll, and then multiply it by 89, because that’s how many different Bratz characters have been thought up since this line of dolls got started.
The makers of the Barbie Doll did that exact same arithmetic and filed a lawsuit for $500 million in 2004. Bratz were developed by a former Mattel employee named Carter Bryant, so the folks at Mattel felt that the idea belonged to them, and so did the absolute volcano of cash that erupted from putting this idea into practice.
Mr. Bryant maintained that while he certainly was an employee of Mattel when he came up with the idea of Bratz, that particular light bulb lit up when he was off Mattel’s clock, and he had the right to bring these ideas to anyone he saw fit.
“Amen!” said MGA, and “Hallelujah!” said the law firms representing both MGA and Mattel, because with that sort of money at stake, this court case was going to take a lot of billable hours. To top it off, MGA then filed a billion-dollar lawsuit against Mattel, claiming that some of their new Barbie dolls had a few suspiciously Bratz-like features.
For the next seven years, these cases made their way through the California legal system, with MGA’s attorneys asking “Whence Bunny Boo?” and Mattel’s attorneys countering with “Wherefore Sparklin’ Sheep?” In July of 2008, a jury decided that Mattel’s claim was valid and awarded them $100 million, and in December of that year, Judge Stephen G. Larson gave them custody of the entire Bratz franchise. In December of 2009, that decision was overturned on appeal, and in July of 2010, the Ninth Circuit Court of Appeals reverted ownership of the Bratz back to MGA. It was pretty bad for Mattel, and it got even worse when the suit that MGA filed against them for allegedly stealing ideas didn’t go their way in August of 2011. The judgment was $310 million, with $137 million of that going to legal fees for MGA’s attorneys. Mattel had to pay for their lawyers too, which I imagine cost quite a bit. Law firms of that sort don’t exactly do the “If you don’t win, you don’t pay” thing.
Well, glad that’s over, right? Sorry, no. MGA’s insurance company took them to court in order to get a cut of the judgment, plus they had to deal with their original law firm coming after them for unpaid legal fees, plus there was this guy named Bernard Belair who sued both Mattel and MGA because he thinks they stole his ideas and…just…I mean…this isn’t ever going to go away, is it?
It’s hard to get past the silly names and the spectacle of grown men fighting like the dickens over dolls made for little girls, but this case (and all of the subsequent sub-cases that it spawned) actually caused a lot of people in a lot of legal circles to sit up and take notice. It drifts into quite a few different territories, like employment contracts, copyrights, intellectual property, and trade secrets. It’s a good bet that they will eventually start teaching this series of cases in law schools all over the country.
Ashley Zauflik’s case wasn’t nearly that interesting, at least in a legal sense. It was a run-of-the-mill injury and liability case, the sort that doesn’t raise any eyebrows, mainly because a case like hers doesn’t tickle any legal fancies, like Mattel v. MGA or Vice v. Versa.
In January of 2007, Ms. Zauflik was walking out of her high school in Fairless Hills, Pennsylvania, when a school bus jumped a curb and plowed into a row of students. Out of all the kids who got hit, her injuries were the worst, and she had to have her leg removed. The NTSB later examined the bus and didn’t find anything to be mechanically wrong with it. They determined that the bus driver hit the gas instead of the brakes and panicked. Even the school district admitted that the driver messed up, and that the district was liable for the accident. A jury agreed, and awarded Ms. Zauflik $14 million. Well, glad that’s over, right?
Again, no. Here’s the thing about the state of Pennsylvania: There’s a cap on the amount of money that injury victims can receive if the party that’s responsible for the injury happens to be the state of Pennsylvania, which is remarkably convenient for the state of Pennsylvania if you don’t mind me saying so.
We aren’t talking about just non-economic damages (which I’ve been over,) but damages overall. If a municipal, county or state employee in Pennsylvania does something dumb or negligent and gets you hurt, there is a pre-determined limit to the amount of money that you can get by way of compensation, and that amount is $500,000.
If the guy driving a SEPTA bus is texting while driving and you end up in a wheelchair for the rest of your life, you get $500,000. If a civil engineer in Allentown screws up on designing a roads project and your wife’s car goes into a sinkhole and she dies, $500,000. If a Harrisburg police officer accidentally shoots you, $500,000. These are all hypothetical situations, but here’s a real one: A teenager named Ashley Zauflik was walking out of school one day when a school bus came along and took off her leg.
$500,000 is about .016% of the $3 billion Pennsylvania made selling lottery tickets the year Ms. Zauflik was injured, and about .09% of the net profit from tolls on the Turnpike in 2005, and about 5% of the amount of money that they made by letting Sbarro sell pizza at Turnpike rest areas that same year. The school district even had a liability insurance policy worth $11 million for just such an occasion, but the state’s laws prevented them from handing it over. At least nobody will get away with winning a “frivolous lawsuit” against the Keystone State, huh? Thank God.
I’m not saying that frivolous lawsuits don’t happen, but when you look at all the tort reform websites, there’s a lot about injury cases taking up courts’ valuable time and docket space, but nothing about how it took seven years to determine exactly where Carter Bryant was sitting when he came up with the idea of Katia (AKA, “Flirty Turtle.”) There’s a lot about greedy trial lawyers soaking honest businessmen, but nothing about the $137 million that MGA’s lawyers took home. There’s a lot about how we need more restrictions and more limitations on the ability of people to sue corporations, but nothing about limitations on corporations suing each other or corporations suing me
I couldn’t find anything about the American Tort Reform Association rushing to the defense of Jamie Thomas Rasset, who got sued by the RIAA in 2007 for $1.5 million for illegally downloading 26 songs. The Bratz lawsuit is perfectly acceptable, and it’s ok to sue for $1.5 million over a bootleg copy of “My Humps,” but a case like Ashley Zauflik’s is considered a parasitical drain on the legal system that needs to be tamed, watered down and controlled. Is it that all lawsuits are frivolous and overblown, or just the ones filed by people who don’t have “Inc.” after their names?
Tort reformers are very selective in how they want these restrictions to be applied. They want to utilize the court system as much and as often as they want for their purposes, but they don’t want you to have the opportunity to do the same thing, and they are using legislation and ballot initiatives to make that happen. It’s Bunny Boo v. The People, and in too many states, Bunny Boo’s lawyers are kicking the crap out of ours.