Porsche, track owners sued over Carrera GT crash

Lloyd, I'd like to get back to this post where you defended the McD's litigation.

Let me illustrate how thinking this way leads to a slippery slope.

A pedestrian gets hit by a Ferrari doing 120 mph on a public road. The paralysed pedestrian sues not only the driver (which is justified), but Ferrari, for making street legal cars that can do that speed, and maybe the DOT, for approving such cars. The pedestrian's lawyer brings up impressive (to a lay jury) mathematical formulas proving that the kinetic energy of a moving body increases with the square of its speed, which is an argument very close to the one you're employing about the temperature of coffee and the exposure time needed for 3rd degree burns.

On the strength of those mathematical arguments and a sympathetic jury that has neither interest in, nor the means to procure a Ferrari, a judgement is passed that limits all road cars to a maximum speed of 10 mph over the top speed limit of the country. Reflashing the ECU to remove this limit becomes illegal, so you can't even purchase a car and modify it to take it to the track. The judgement affects not only Ferraris, but every other sports car, including my WRX and my dad's Evo, both of which can exceed 120 mph very easily.

Would you be satisfied with such a judgement? I'm sure, just like me, you love fast cars, so that would hit you deeply too, wouldn't it?

The case I brought up is a hypothetical, but it's not that far off from the case that spawned this thread. Unless the widow in the Porsche case is alleging design failure of the car, she is simply suing Porsche for making a car that can go faster than the average person knows to handle. And the same can be said about Ferrari, Subaru and Mitsubishi, for that matter. Heck, that can be said about Honda too.

Please, take a moment and think about what might happen if a litigation happy client were to level their barrel at something we share a love for.

 

Not just yet.

Doctor, you want to be above the fray, yet prior to me even posting anything in response to your posts, you post to a comment by Rylex, who identifies himself in his profile as a law student, and state that “BTW, Singapore does have a legal system, and yes, we have bloodsuckers of your ilk here too.” This was your first attack on my profession. You then later go on to say that 99.99% of lawyers are bloodsuckers.

You want to prevent parties from being able to contract with each other with regard to their representation and give this right to some governmental review board. Your system of replacing the free market with government price controls sounded a bit communistic to me. Thus the communism comment. I am sorry if you interpreted my communism comment as an insult to Singapore. That was not my intent. The comment was not directed at Singapore, it was directed at you and your desire take away the free market as it applies to the retention and payment of an attorney. (Also note that in my neck of the woods calling someone a communist is somewhat of a joke. For example, many Republicans view all Democrats such as myself as communists. When I made the remark I did not consider that you, as a person of Singapore, may find this comment as offensive as if I called you a Nazi. If that is the case then I truly do apologize.)

If I got on this board and called you a bloodsucker and criticized the Singapore medical system with the same lack of knowledge that you have with regard to our legal system you would be well within your rights to wonder if I got my medical license in a box of CrackerJack. (By they way, dang it, Cracker Jack is not a cereal, but is a delicious treat of caramelized pop corn. Get your facts straight.) Face it, you have no real knowledge of either our legal system or our snack foods. You have admitted to a lack of knowledge of US law in the past when you have said “I've never been to the US, so I don't know the travel law.” post 36 http://70.85.40.84/~ferrari/forum/showthread.php?p=134922023 You have never been to the United States and don’t know the travel law, but somehow you are well versed in the workings and defects of our tort system. Initially, I tried to offer you an olive branch and agreed with you that I also found certain legal advertising distasteful, but pointed out that the US Constitution restricts the ability to regulate such commercial speech. How did you respond? “That's bullcrap and you know it. A body governing professional ethics should have the power to censure or revoke the professional accreditation of its members. Free speech has nothing to do with it.” I interpreted your response to be that I was full of crap and intentionally misleading you. This response further demonstrated that you have no idea what you are talking about. Doc, you got off light with the CrackerJack law license remark and my citation to US Supreme Court authority protecting an attorney’s right to advertise base on the First Amendment. The fact that you are willing to criticize our legal system and suggest a solution when you have no real evidence or experience to support your position demonstrates that you are willing to prejudge our system based on some preconceived notion and anecdotal data without knowing all the facts. Your prejudgment without knowledge of the facts led to my opinion that I would not want you as a juror in a personal injury case. ( Don’t be insulted by this fact, just because you wouldn’t make a good juror for a plaintiff in a personal injury case doesn’t mean that you would not be a great juror in another case, like for the prosecutor who is seeking to cane someone for chewing gum. I kid, I kid.) Plus, you seem to agree that you are not qualified as you yourself suggested in another thread that juries should be replaced by computers which you justified by the following: "I believe humans are fallible and easily swayed by emotional but spurious arguments. I wouldn't want a jury of very average IQ deciding my fate on a complex issue." Post 2, http://70.85.40.84/~ferrari/forum/showthread.php?p=134755942#post134755942 (Sorry Mr. Plaintiff, its the blue screen of death for you.)

Doctor, I think we agree the world has many greedy people and greedy professionals. You may think that the contingency fee contract feeds the greed. I disagree. It allows people who can’t afford to pay an attorney by the hour to obtain some of the best representation possible. As I pointed out, I do not profit in making baseless claims. If I lose a case, I don’t get paid a fee and I lose all the money I have invested in case expenses. In a medical malpractice case, for example, the case expenses in proving up the case may cost me over $100,000.00. Cases have gotten more expensive because, in an effort to reform the system, our government has required us to meet a heavy evidentiary burden. The bottom line is that good attorneys don’t pursue bogus claims in contingency fee cases for too long or they go broke. There is a stronger argument that paying attorneys by the hour leads to more bogus tactics and obstructive conduct as such fights gin up more hours to the attorney.

In your example of suing Ferrari for making too fast a car is there a risk that a bad jury would reach a bad result. Yes there is. However, it is a remote possibility and the case would likely be reversed. It is more likely that the jurors would find for Ferrari. A pedestrian is likely to be killed at speeds far less than the maximum legal speed limit. Therefore, if the jury ruled for the pedestrian they would know they just eliminated their ability to drive even at the maximum speed limit. To hold a manufacturer liable in such cases the jury would in all likelihood have to find that by allowing the car to go so fast that this constituted a design defect which rendered the product unreasonably dangerous. The second most likely argument would be that Ferrari failed to adequately warn the consumer of the speed of the vehicle. In my opinion it would take some pretty bad facts for a plaintiff to make a recovery based on an allegation that the car was unreasonably dangerous because it can go real fast or on an allegation that the customer needed to be warned that Ferrari’s are fast.

For your information, the following is a very general description of the elements of a products liability case in Texas:

In order to find a manufacturer liable under strict liability the plaintiff must prove all of the following elements:

1. That the product is defective.
2. That the product reached the consumer without substantial change in its condition from the time it was originally sold.
3. That the defect rendered the product unreasonably dangerous.
4. That the defect caused injury to the user.

Defects are normally classified into three types:

1. Manufacturing Defects - In a manufacturing defect, the manufacturer failed to make the product in accordance with the plans and specifications set forth for the product. For example, if the step on a ladder is inadvertently made of a weaker material than the material specified by the manufacturer, and a person weighing 150 pounds falls from the ladder as a result of the step giving way under the weight of the person.

2. Design Defects - A products liability claim based upon a design defect must show that the design of the product, in some respect, rendered the product unreasonably dangerous. For example, a stove knob made according to the manufacturer's plans was defectively designed when an accidental touch by the clothing of a person standing near the stove would turn the knob and ignite the burner. In this case, the manufacturer was held strictly liable for the injuries suffered by a child who brushed against the knob while reaching for some fudge on the stove top. In Texas a claimant may establish an actionable "design defect" only if he or she proves, by a preponderance of the evidence, both of the following:

a. That there was a "safer alternative design."
b. The defect (i.e., the design actually used) was a "producing cause of the personal injury, property damage, or death for which the claimant seeks recovery."

A safer alternative design means a product designed other than the one actually used that, in reasonable probability, (1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and (2) was economically and technologically feasible at the time that the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

3. Marketing Defects - A product may have a "marketing defect" sufficient to support a strict products liability cause of action if the manufacturer or seller fails to warn of a dangerous characteristic of the product. The lack of an adequate warning may, in itself, render a product defect even though the product is not otherwise flawed. A claimant establishes a marketing defect by showing all of the following:

a. A risk of harm that is inherent in the product or may arise from the producer's intended or reasonable anticipated use.
b. Actual knowledge or foreseeability of the risk of harm by the product supplier at the time the product is marketed.
c. The absence of a warning or instruction that renders the product unreasonably dangerous to the product's ultimate user or consumer.
d. A causal link between the failure to warn or instruct and the product user's injury.

When a product supplier has a duty to warn, the supplier may escape liability only if the supplier gives a warning that is "adequate." The duty to warn requires the manufacturer to warn with a degree of intensity that would cause a reasonable person to exercise caution commensurate with the potential danger. A warning is considered adequate if it is in a form that reasonably could be expected to catch the attention of a reasonably prudent person in the circumstances of its use. The content of the warning must be comprehensible to the average user, it must convey, to a reasonably prudent person, a fair indication of the nature and extent of the danger involved. Mere directions for use do not necessarily satisfy the duty to warn.

In marketing defect cases, there is a presumption that if an adequate warning is given, the product user will read and heed the warning. The presumption may be rebutted by evidence that the user was blind, illiterate, intoxicated, irresponsible, or lax in judgment, or by some other showing that the improper use would have occurred in any case.

 

OK then, the kid gloves are off again. And this time, I'm not going to be too bothered about donning them again.

Counsellor, I find it interesting and more than a little telling that you choose to quote my reply to Ryalex but not the comment that precipitated it. This is what Ryalex said to deserve my comeback :

Another baseless attack on my system, imputing that legal representation does not happen in my country. Get your facts right, I did not cast the first stone at him.

Wonderful. You take one small aspect out of context and you call it Communism.

Let me return the favor :

(Observation: Inference)

- Ridiculous tort lawsuits : America is a classist anarchy with class envy that seeks to punish the rich corporations to reward the poor.

- Violent crime in America : America is a lawless land with incompetent and corrupt officials

- High prevalence of STDs and alternative sexual behaviours : America is a sleazy, immoral country.

...and I can go on. BTW, I believe in NONE of those inferences, they are merely an illustration of how utterly stupid and unjustified your own inference was.

Your apology is not accepted. You are being insincere by saying that you did not consider my feelings. You DID consider my feelings and you chose to throw a barb at them. Nothing wrong with that, this flame war has been a two way street. I think we'd best not get ahead of ourselves by apologising, since you don't want the armistice.

And if you really were not aware of the history of the region and the problems we've had with communism, you're woefully ignorant of world history.

Go right ahead, criticise if you have a valid bone to pick. Be prepared for my defence and counter-attack.

We get a lot of American snack foods here, but CrackerJack is not good enough to find its way to our shores. Since you expect me to be intimately familiar with your local snack foods, please tell me what "g*r*n* p*s*n*" (a local snack) is without bothering to google for it. I've removed alternative letters for a bit of fun and to keep you honest - I would at least have been able to identify "Crackerjack" had you done the same.

Oh yes, knowledge of snack foods is all-important.

WTF?! Are you saying I was wrong to be honest about the limits of my knowledge?

What does one have to do with the other? I daresay I know a little more about tort law than I do about the specifics of travel law! In any case, I do not remember the context in which I made the comment and I am unable to access that post since it must've been moved to P & R, a subscribed area.

That was an olive branch? Come off it. Your combative attitude hasn't changed a bit. And that's despite my obvious olive branch in the last two posts.

Here's a quote from the American Medical Association (AMA)'s medical ethical guidelines on physician advertising :

Now I may be waaaay off the mark, but that strikes me as being perfectly analogous to the caution against lawyers advertising their successful claims and damages awarded (which is what I've been against all along). BTW, I am pretty sure the AMA can censure any physician found flouting its guidelines, "commercial free speech" notwithstanding. If a similar caution doesn't exist to rein in lawyers, that's a defect in the system.

I got off light, now did I? Then you got off light with my bloodsucker remark.

In any case, I read that judgement. While the judgement says that prohibiting all advertising is a violation of the First Amendment Rights of the lawyer, it also includes a caveat that "states had the right to impose regulations, in fact, they had an obligation to do so in order to protect the consumer".

Now, none of that contradicts my POV. I was never against *all* advertising by attorneys, only against the disgusting flaunting of past awards and wins to seduce more clients! Which WOULD, in all likelihood be found to be in contravention of current ethical and regulatory guidelines.

Prejudge your system?? I merely made a few suggestions to which Ryalex and you reacted so rabidly.

After my non-pejoratively expressed suggestions, what did Ryalex do? Accused Singapore of preventing legal access to its citizens. What did you do? Accuse Singapore of being Communist. Basically, both of you were quite willing to talk through your arses to score debating points.

If anyone is guilty of "prejudging" with no experience, counsellor, it aint me!

Yes, I know that you'd like a pliant and vapid jury of very average intellect that you can manipulate to your heart's content.

I never said *I* wasn't qualified. I am certainly not of "very average IQ".

You have yet to address my suggested solutions for an affordable civil litigation policy, or clarify the role of pro bono representation. I consider those to have great bearing on what we're discussing.

That, in a nutshell, was the very basis of the old woman's claim against McD that you are so wholeheartedly supporting. "Unreasonably dangerous" superhot coffee, CHECK. "Safer alternative design" - less hot coffee, CHECK.

It is *also* the basis for the hypothetical anti-Ferrari suit I was alluding to. "Unreasonably dangerous" - why make a street car that can go so fast, CHECK. "Safer alternative design" - put a speed limiter on or compel buyers to get instruction, CHECK.

That counter argument about even "legal" speeds having the potential to kill, certainly a valid point. The analogous point in the coffee case would be that even "ordinarily" hot coffee has the potential to scald. Yet you saw fit to split hairs, citing *time* for burns of a specified severity to appear. The putative lawyer in the Ferrari case could equally easily defend his stance by citing association between pre-collision speeds and probability of mortality or incapacitating morbidity. What's sauce for the goose...

 

Doctor, call me unethical, offer no apology, and then after leaving that out there you want an armistice. That is bad enough, but then you go over the edge. Call me an unethical bloodsucker, attempt to deprive the American poor of quality legal representation, but don’t you ever say that CrackerJack is not good enough. Them’s fighting words.

I think I understand why you don’t trust the jury system and want to keep people from being able to negotiate to obtain competent counsel. It’s because you would be eaten up by a good lawyer. The slightest little prod and you get so defensive it is ridiculous. I can’t even make a joke about CrackerJack and you get all defensive about not knowing about this caramelized delight. And in your view, since you don’t know about it, it is obviously something not worth knowing about. Of course you don’t know about CrackerJack, you’re not from around here. Why would you. That’s fine, just shut up about what you don’t know anything about. Like our system of justice. If you want to enlighten us with your views on justice in Singapore and how happy you are in your little model police state as you have done in the past with the post below then have at it. Just don’t call us unethical because we don’t want to model our country’s judicial and political system after your cozy little country.

You’re cluelessness and defensiveness in response to my posts reminds me of a doctor that one of my friends represented once. The doctor was not from around here. I believe he was from India and probably very intelligent and well trained, but he was clueless about American culture and the perceptions of the jury. He had operated on the plaintiff and left a sponge in the plaintiff. The sponge’s tag didn’t show up well on x-rays following the procedure and the defense attorney had the jury sympathetic to the case of the doctor as they assumed that the sponge was a very a small item which when covered with blood was easily missed. All was well until the doctor was on the stand being cross-examined by plaintiff’s counsel. Thinking he knew more than his own attorney about how to try a case and in an effort to prove some point he was trying to make, during the cross-examination, the doctor, to the surprise of his attorney, went off on a tangent, got off the stand and went to his bag in the back of the courtroom to show the plaintiff attorney and the jury a sponge like the one that he left in the patient. Up until that point the jury was under the impression that a surgical sponge was a small sponge like one would see at our local grocery store. What the doctor pulled out of his bag was a real surgical sponge which looked more like a large towel. The juror’s eyes went wide open when they saw this. The doctor lost the case and the judge later told his counsel that he was doing pretty well until that doctor pulled that horse blanket out of his bag. Come to think of it, that doctor probably doesn’t like plaintiff’s lawyers too much either.

The moral of the story is that a person can be very intelligent and still be ignorant about certain things. A famous American humorist Will Rogers once said “You know everybody is ignorant, only on different subjects.” Doctor, I would submit that you have found your subject.

If you want to start calling people bloodsuckers and unethical, I suggest you go back to trolling your Subaru boards. People here don’t put up with it and are ready to fight back. Don’t lob a shell over at me, call me unethical and then request an armistice without apologizing first.

 

Now we all know the sort of thing unethical bloodsuckers consider worth fighting for.

Maybe by a good lawyer. But not by you.

And obviously, you couldn't appreciate the obvious sarcasm in my reply to your posts.

Now, now, counsellor, aren't you beating this dead horse a little too enthusiastically? It's just a snack - oh, I'm sorry, "a delicious caramelized treat". Is this how you win all your sordid cases - drag out one little inference to incongruous lengths?

Fair enough. Now you shut the f*** up about Singapore and its political system, since you're completely ignorant about it. Why wouldn't you be?

I didn't call your country unethical, I didn't even call *all* your lawyers unethical. But, having witnessed the manner in which you score debating points, I've formed the conclusion that *you*, personally, represent some of those unethical traits I find disgusting in lawyers.

Riiiight. And you have *yet* to address any of the salient points in my last two posts. Skirt around the issues you don't want to confront, eh, counsellor?

This is a highly irrelevant illustration you probably chose only for its derisory value toward me and other doctors. But here's the thing - this doctor was completely in the wrong. Leaving a foreign body in a body cavity is completely unacceptable in this day and age, given what we know about postoperative infection. Such a thing would not happen with a competent surgical support staff doing swab and instrument counts, but given that it did, the honorable thing to have done would've been to come clean immediately and offer to remove the sponge with another surgery at no cost to the patient. This has been done before. It hasn't always averted successful litigation, but it would be the right thing to do. Which is a concept you seem to be having trouble with.

In fact, if the doctor had "gotten away with it", I would consider the case to have been unfairly decided. You seem to be happy with a lawyer who deludes a lay jury into thinking the whole thing's no big deal by letting them form a misguided impression of the problem, *just* to win the case for his client. That's why I call your ilk unethical and "bloodsuckers". Do you see now?

I think the moral of the story is the different moral and ethical standards to which we hold each other, you and I.

And I would submit you have found yours - basic human decency.

"Trolling", ROFL. I am more respected on the Subaru boards now than you will ever be on the F-car boards. I am a moderator on one of them, FYI.

In any case, an objective observer would be hard put to classify *either* of our posts in this thread as trolling, seeing as they're long, coherent, and generally well argued. So this new cheap debating pot shot of yours just won't work.

Fine, I won't ever try to mollify you, make peace offerings of any sort, or defuse any thread in which we're at each others' throats. And I am ready to fight back and tear your metaphorical throat out.

 

Turbofat, at least we agree on one thing. You are right about the doctor screwing up by leaving the sponge in and not admitting his error. It happens every day. Then the doctor’s insurance company hires well funded defense attorneys who obtain experts to support the proposition that the doctor acted well within the standard of care and if there is no other way to avoid responsibility then they will claim it was the nurse’s fault for failing to do a proper sponge count. And your solution is to eliminate contingency fees so the plaintiff is economically unable to pay for the services of a good attorney to uncover the truth.

We have an adversary system in our country. That means that lawyers defend the guilty as well as protect the innocent. They are not allowed to offer false evidence, but it is true that they will try to offer only that evidence that will benefit their client. You may consider that unethical. That is your opinion. But people much wiser than you and I developed this system over the ages. That is why they call them trials. It is the process of testing, trying, or putting to the proof. However, its success depends upon both sides legal representation being evenly matched and there being a fair playing field which is not biased toward one side or the other. It is this balance that you are trying to tilt in the favor of your defendant doctor friends by removing the plaintiff’s access to an attorney.

What is amazing about our current feud is your failure to grasp the most basic concept I have been trying to get across. If you don’t know anything about someone, then don’t go on the internet and accuse them of being an unethical bloodsucker. Instead of backing down in the face of your lack of foundation for your proposition, you try to make up silly excuses such as that Rylex and I are trying to demean your country. I didn’t interpret Rylex’s comment to be an affront to your country and my comments were directed at you for your communist idea of price control or were your quotes concerning Singapore which reflected your unique view on justice and politics. I believe that your refusal to apologize for your comments against Rylex and me is based on the same character flaw that drives your hatred of trial lawyers. You don’t like to be proven wrong. This is demonstrated by your refusal to accept your mistake on the application of the First Amendment to the regulation of attorney representation. (By the way there is a difference between regulating deceptive advertising and lawyers publishing their actual trial results in advertising. It was the later which you deplored and it is the later which is protected) I think you correctly recognize that trial lawyers are the one group that can sue you and your doctor friends for their mistakes, take you in front of a jury and prove your mistakes. This is the real reason you have such an animosity against trial lawyers like myself.

You also criticize me for not addressing you multifarious opinions on all the problems with our system. The reason for this is that you have only a cursory knowledge of our system and seem to have a rather closed mind to these issues. Early on in our debate I attempted to address the issues you raised, but I soon came to the conclusion that you were the type that would argue with Neil Armstrong about what it is like to walk on the moon.

This comment demonstrates that you are guided more by proving you are right than seeking the truth. But, I do not doubt you will try to dispute whatever I say regardless of your lack of knowledge of the subject matter. I have been a member of this board almost since its inception and have never felt the need to put someone on ignore. But doctor, you are worth ignoring. Nevertheless, if you in the future you feel the need go for my throat, don’t forget to bring your ladder.

Goodbye

 

And goodbye to you too. You're going on my ignore list as well. And I won't be needing that ladder since in moral stature, you reach somewhere round the level of my balls.