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Date: Fri, 14 Jul 2006 12:29:20 -0400 (EDT)
To: improvetheworld &AElig umich.edu
cc: soule-dingle &AElig umich.edu, Jeffrey MacKie Mason <jmm &AElig umich.edu>
From: Daniel Reeves <dreeves &AElig umich.edu>
Subject: Re: abuse of "pain and suffering"?
Status: O

Let's discuss by email and just have poll results on the whiteboard. 
(Updating whiteboard now -- pasting responses below for the 
improvetheworld archives.  The original email is below if you missed it.)

Quick responses:
  Yes, the lawyer is a kind and decent one (in fact, a fellow cyclist, 
recommended highly by the bike club president) who has offered to deal 
with the baseline insurance claims -- hospital and bike -- for Bethany pro 
bono and who did not push in the slightest for anything in the JUSTICE 
argument (which in fact was all me).
  The "nine iron" hypothetical was purely a mental exercise to decide on 
what the right amount might be.  If the answer is "infinity" then all the 
more reason to get something rather than nothing.
  The point about future expenses (like dental) is a really good one.
  I don't know about other charges against the driver.  Maybe Bethany can 
reply about that (I know she can only type one-handed -- the hand with the 
broken thumb! -- so far though.)


Snapshot of the straw poll at 
http://ai.eecs.umich.edu/people/dreeves/wb/cycling

   THE ANTI-LITIGATION ARGUMENT:

Rob Felty - although I am not totally against litigation, I think that my 
opinion is different enough from the rest to justify putting it under 
anti-litigation.  I am opposed to suing for pain and suffering, because I 
feel that it is not possible to quantify in terms of dollars (or yootles 
for that matter -- I do think that desires can be quantified, but I think 
it is more difficult to quantify pain and suffering). I would be in favor 
of suing for lost compensation, medical expenses, etc., which certainly 
are quantifiable. From my understanding, most insurance already covers 
lost compensation to some extent in these cases, though if one earns quite 
a bit of money, it would probably not cover it. I also disagree with 
Danny's example of allowing one to get hit in the face with a nine iron. 
This is completely different, because of the intentions involved. As 
others have said, this was clearly an accident, and not done with intent.
  Other parameters to consider. I do believe that the people who profit the 
most from such cases are the lawyers. Also consider that frequently the 
monetary amount of these cases is frequently highly influenced by the 
wealth of the person being sued. And I think that many lawyers probably 
try to convince their clients to sue for as much as possible. Also 
consider the time and energy spent in suing someone. This gets down to the 
details. If one feels that $10,000 is an appropriate amount to sue for, 
and the case would be settled in two months, it seems worth the trouble. 
If one only sues for $1,000 and the case takes two years, then it does not 
seem worth it to me.
  All that being said, it is ultimately Bethany's decision, and I will 
support whatever that is, should she choose to make it publicly known. And 
I hope that she recovers fully, and I am very angry at the person who hit 
her.

   THE JUSTICE ARGUMENT:

Matt Rudary - To me, this is not even a difficult question. This situation 
is precisely the reason that these types of damages were introduced in the 
first place. As Danny's analysis indicated, Bethany's loss here is more 
than just the dollar amount on the hospital bills. Clearly, asking for an 
amount that is enough to set Bethany up for a life of luxury would be 
inappropriate. But some amount between $10k and $10M would be reasonable 
and just.

JMM - Bethany suffered a greater loss than the $$ cost of hospital etc. 
Pain, fear that may affect the way she lives her life in the future, etc. 
There is good reason to believe that this was not mere chance, a roll of 
the dice: the driver did not exercise reasonable caution, performed 
negligently, and thus is the direct and responsible cause of Bethany's 
loss.  It is reasonable to ask that the loss be compensated.  It is 
socially responsible, and efficient (because of incentives) for people to 
be the reasonably forseeable costs of their own actions.  (There is also a 
good social argument for *punitive* damages as a deterrent for other 
drivers, but usually imposing that punishment is the role of the state. 
Do you know if the county prosecutor is contemplating filing charges for 
criminal negligence or reckless endangerment or some such?)

KML - I second jeff's opinion and think matt's lower bound is too low.
   reply by Matt: I agree, I just took the numbers from Danny's e-mail.

Dave - I'd definitely ask for something, though not millions of dollars, 
or even hundreds of k. At an absolute bare minimum, compensation for lost 
wages from time off work, and compensation for time in general spent at 
the hospital etc. More reasonably it should also include some additional 
for pain and suffering. Maybe it's not reasonable to say that there's a 
price where you'd actually agree to being hit by a truck, but maybe 
there's a point where post-facto the unhappiness of having had to go 
through it all is balanced by "but hey, check out the sweet giant screen 
plasma television I bought to watch movies while I was recouping" or some 
such. Or "check out my sweet new hybrid car".
  The ideal solution would be to come to some rational agreement to such 
with the driver and settle everything out of court without involving 
lawyers and letting everything get thus inflated. But since the money is 
likely coming from the driver's insurance rather than his pocket, this may 
not be possible. You'd probably have to convince the insurance company 
that if they don't come to a reasonable settlement out of court then they 
will be facing a huge lawsuit, even if in reality it's not worth going 
through. Unless, of course, the corporate machine of the insurance world 
tried to deny you anything reasonable because they could, in which case my 
instinct changes to wanting to not let them get away with that, since via 
intimidation of random folks they probably usually do.

CK - I would think that above and beyond medical bills, missed pay for 
work, bike replacement costs, and costs for her caretakers' travel 
expenses and missed work there should be some other compensation for her 
loss.  When I was visiting, I saw that the man who hit her had sent her 
flowers with a note that basically said "Sorry for the inconvenience". I 
believe it was a sincere gesture, with the wrong choice of words. While he 
is an older man, that does not give him the right to less strict penalty 
for his actions.  We all know he didn't hit Bethany on purpose and so that 
makes it difficult to rationalize punishing him, however, I think it is 
important that we teach a lesson to all drivers about operating their 
vehicles around bicycles.  In his case, I believe he should have his 
license taken away.  Someone THAT oblivious to what is going on should not 
be on the road - innocent grandpa or not.  I do feel for him, as he may 
not have a lot of money or health insuarance himself because of our 
country's disrespect for the health of the elderly who are not well-off, 
but nonetheless, this should not be taken lightly. My impression is that 
this will not be stopping Bethany from going out again, allbeit with extra 
caution, but it is impossible that this experience would not affect her 
psychologically in some way.
  No matter how brave she is (and she is very), this qualifies as a 
traumatic experience that would not have happened if it weren't for a 
negligent driver.  Therefore, I vote for justice.  I have NO idea how to 
place an amount of money on this, as I don't know the extent of the 
medical bills, etc., but I would imagine they are over 10k themselves.  I 
suppose that is what a lawyer is for. One more point: while I agree that 
our country has gotten out of hand about lawsuits, this is QUITE different 
from someone falling on the freshly mopped floors of Meijer and it is 
clear that Bethany is not out to make money due to her misfortune.  She 
deserves justice, however.

Monica - I agree with Dave, but Insurance companies plan on people suing 
them.  They hire entire teams of lawyers just for this.  There could be 
future complications and surgeries after the statute of limitations runs 
out; there could be scars, or more permanent damages.  Along with lost 
wages, there should be compensation for the other things Bethany would be 
doing in lieu of recovering, and all possible future problems need to be 
accounted for in an initial law suit. Also, there is nothing Bethany did 
to instigate this.  Its very different from suing the surgeon who messed 
up breast implants.  Somebody broke the law (running a stop sign), and 
severely hurt an otherwise healthy person.  I guess it comes down to what 
price can you put on enjoyment of life? Paying for you to have an extra 
luxury in the future is the way insurance companies say they are sorry.
  If this accident had been the other way around: If Bethany had been 
recklessly driving a truck and hit a grandfather on a bicycle (or in a 
wheelchair), his injuries would probably have been more severe, or he 
would have died.  This could have resulted in a vehicular manslaughter 
charge, loss of license, and insurance would have paid his family for 
their emotional loss (far more than the price of the bike and hospital 
bills).

Eugene - as an economist-wannabe, I would certainly agree with Danny, 
Chris, Jeff, and others, thereby putting me in the "justice" bracket. 
However, I feel that several things need to be taken into consideration 
here also. First of all, do we really believe that punitive measures stop 
reckless drivers? In theory, they certainly should if drivers are 
rational. But then again, I suspect that anyone (or at least most people) 
who hits a pedestrian is probably going to go through some emotional 
trauma as a result. At least I am sure I would.  Not to say, of course, 
that they shouldn't be held responsible for their actions, but to suggest 
that perhaps the problem isn't fundamentally about incentives (unless 
punishments are extremely severe).  Second, we often hear about the 
"jerks" who take advantage of the legal system. I'd like to suggest that 
perhaps many of them go through the same cognitive process as us right 
now, reaching perhaps the same conclusions. And since it's very difficult 
as an outsider to tell whether they are merely rationalizing their actions 
or genuinely pursuing the same agenda as us, perhaps we should be careful 
judging other lawsuits.  Finally, the question of what is just in a given 
situation is a patently difficult one. After all, justice is frequently 
another name for revenge.  Having said all this, I certainly believe that 
pain, suffering, and lost wages require compensation. The real question 
is, how much...


> You've checked with a lawyer to see what options you have in Michigan?
>
> Anyway, with injuries of this sort I think there's a reasonable potential
> for long-term problems, particularly dental.  I think it would be
> appropriate to try to obtain some amount of money as a buffer for that, plus
> for Bethany's opportunity costs.
>
> If she finds this morally ambiguous, she can always put the money away, only
> using it for injury related costs and bestow it on some worthwhile charity
> later in life when it's clear she'll no longer bear any costs associated
> with the accident.
>
> -Brian
>
> On 7/14/06, Daniel Reeves <dreeves &AElig umich.edu> wrote:
>> 
>> Here are two points of view on whether Bethany should ask for more than
>> just reimbursement for the hospital bill plus cost of her bike.  Please
>> chime in with your opinion!  It could be very influential.
>> 
>> The ANTI-LITIGATION argument:
>>    No, this represents the worst of what's wrong with this country.  Don't
>> use elaborate rationalizations for being a greedy opportunist cashing in
>> on misfortune.  This kind of lawsuit is an absolutely massive drain on
>> society, both in wasted money and in missed opportunities / paranoia
>> ("sorry, we can't do that for liability reasons").  Don't be a part of it!
>> 
>> The JUSTICE argument:
>>    Asking for much more than the actual hospital and bike costs is the
>> morally right thing to do.  Agreed that abuse of the legal system (or the
>> brokenness of the system itself) is a huge and despicable problem.  It
>> would be wrong, for example, to go for punitive damages.  But asking the
>> driver to redress your pain and suffering and lost productivity (if not
>> done disingenuously) is absolutely legitimate.  As we know from yootles,
>> these have a measurable price. If the driver (bear with the absurd
>> hypotheticalness of this) asked you if he could smash up your face with a
>> nine iron for 10 million dollars, you'd say yes (assume of course ex post
>> analysis, ie, knowing the surgery would succeed, etc).  If he offered 10
>> thousand, you'd say no. (Adjust the spread if I'm presuming wrong.)
>> Somewhere in between is the fair and just amount he should give you.
>>    The difference between this and greedy opportunists is a fundamental
>> one.  The difference between "you ran a stop sign and smashed my face in
>> with your truck" and "I slipped in your grocery store" is as clear as day.
>> There are a lot of selfish assholes abusing the concept of liability but
>> that doesn't mean you have to err on the other extreme, refusing to hold
>> someone fully liable for life-and-death negligence.
>> 
>> 
>> Straw Poll here:
>>    http://ai.eecs.umich.edu/people/dreeves/wb/cycling
>> 
>> --
>> http://ai.eecs.umich.edu/people/dreeves  - -  search://"Daniel Reeves"
>>
>>   If God dwells inside us, like some people say, I sure hope he
>>   likes enchiladas, because that's what He's getting!
>>     -- Jack Handey
>> 
>

-- 
http://ai.eecs.umich.edu/people/dreeves  - -  search://"Daniel Reeves"

    Last night I lay in bed looking up at the
    stars in the sky and I thought to myself,
    "Where is the ceiling?!"