The Power of Numbers to Deceive

Large numbers are impressive, so people often fail to put them into perspective. That’s why advertisers and advocates love to use them to get more sales or to garner support for a cause. Examples pop up daily, especially in this age of COVID-19.

 

Every day the local and national news media blast out the latest coronavirus totals. Millions of cases and over one quarter million deaths get our attention. In fact, relative to other causes they are very big numbers. It is a serious problem, but no one reminds us that 15 million is less than five percent of the population. Furthermore, I have never heard a news organization report on the number of people who have recovered. It’s sure to also be in the millions. It seems that people come out on two extremes: they either don’t take it seriously enough or they are unnecessarily terrified of catching it and dying. Perhaps if the news gave a more honest, measured account, more people would have an appropriately moderate reaction.

 

I found another example in a health report. “The Federal Trade Commission is sending 70,142 checks and PayPal payments totaling $3,864,824 to consumers nationwide who bought Quell, a wearable device that supposedly would treat chronic pain throughout the body when placed below the knee.” The company was fined almost $4 million for misrepresenting their product! Consumers who were gullible enough to buy the product will be reimbursed. That’s about $55.10 each for a device that is advertised on sale for $99 – not exactly a money-back guarantee – but the $4 million fine seems impressive.

 

Class action lawsuits are also typical. Chipotle, accused of falsely advertising its food as GMO-free, settled for $6.5 million. After the lawyers took 30%, that left their customers with a claim of $2 per meal with a cap of $30 per household, but it “could be less than this depending on how many claims are made.” Again a big number reduced to peanuts per person.

 

Similarly Johnson & Johnson, a favorite target for lawsuits, was ordered to Pay $6.3 million in the Infant’s Tylenol Settlement. That came out to $2.15 a bottle.

 

The number of home burglaries in 2018 was 685,766, about half of total burglaries (1,230,149), and about half of those happened when people didn’t lock their doors. But when buying a home security system you will hear, “A burglary happens once every 26 seconds.”

When big numbers are spread across many people, it doesn’t add up to very much.

 

In some cases, the news media implies big numbers just in their tone. A couple of years ago they wanted us to believe that school shootings were common, but what happened to school shooting news when the presidential campaigns got into full swing? The problem didn’t go away, but the news did. 

 

According to Education Week, twenty-five incidents occurred on school grounds or during school-sponsored events resulting in five student deaths, only one under the age of 14. Any such deaths are tragic, but that’s five out of 56.4 million students. Should anyone panic over such minuscule probability?

Headlines about these extremely rare events like shark attacks are easy to ignore, but when kids are involved, it’s different. Parents are terrified at the prospect of their child being abducted. Nosey neighbors report them for letting kids walk alone and authorities respond. An elementary school in South Carolina won’t let the kids whose mother wants them to walk home, leave school without an adult. “Today, only 10% of American kids walk to school, down from about 50% in 1969.” 

Reuters tries to assure parents: “Kidnapped children make headlines, but abduction is rare….On average, fewer than 350 people under the age of 21 have been abducted by strangers in the United States per year since 2010.” Then Parents.com tells them, “Every 40 seconds in the United States, a child becomes missing or is abducted.” But they don't tell them that 0.1% are abducted by strangers, over 95% simply ran away and 99.8% are later found alive. 

 

It’s an endless battle against the media, politicians and charities selling products or ideas and raising  funds using big numbers. The best defense is perspective.

Flashback – Baby Powder

Almost exactly four years ago I wrote about the difference between how the legal system looks at the danger of baby powder vs. how science sees it. Of course, that makes no difference, as just this week I saw another class action lawsuit ad on TV. When it comes to taking money from big rich companies and giving it to poor victims (and their lawyers) juries don’t care about science. They just want to use someone else’s money to dry the tears.

But they still expect the same company to continue to make the Tylenol for their headaches while testing and producing a COVID-19 vaccine. It’s all part of some weird love/hate relationship.

From September 2016: "How Baby Powder Can Harm You?"

[Under the heading of Health, the Fox News headline read: “Research finds talc doesn't cause cancer; juries disagree.” The story tells that two juries awarded a total of $127 million dollars to two women claiming that the Johnson & Johnson baby powder gave them ovarian cancer. A second judge threw out two cases, saying there was no reliable evidence; but another 2000 women have already lined up to sue.

That’s the legal side. What does science say? “Most research finds no link or a weak one between ovarian cancer and using baby powder for feminine hygiene, a practice generations of American mothers have passed on to their daughters. Most major health groups have declared talc harmless.” The rest of the article gives more information about the research and the trials. Here is another conflict between science and the legal process, but that should come as no surprise in light of jury awards given years ago for silicon breast implants when the implants were later found to be safe.

It is very easy to understand how a jury could ignore science and award millions of dollars to a woman with ovarian cancer. They do it out of sympathy, and they do it because they can. To do otherwise seems cold and heartless.  It’s not their money and the company has plenty of money. What’s a few million dollars in the grand scheme of things when it can bring comfort?

What person would stand by and see a toddler fall and skin her knee and not immediately run over to pick her up, dust her off and give her some comfort? It is the human thing to do.

There are several similarities between the one who helps the fallen toddler and the juries who award large sums. It costs them nothing. It gives comfort to the afflicted, although it does nothing to cure the cancer or heal the skinned knee. And it makes the rescuers feel good about themselves.

There are, however a few key differences. When you comfort the toddler it truly costs you nothing, and other toddlers don’t look at the one who fell and line up to also fall down to get sympathy. (Some may independently discover that falling down is an easy way to get attention, and some of them probably grow up to be trial lawyers.)

Also, when a toddler gets sympathy, the costs of that sympathy are not spread to the rest of society.  When a jury finds for the plaintiff in this case, not only does the company (or insurance company) pay, but every other company in that industry is put on notice. They are at risk of losing a large judgment for one of their products that has been on the market for years with no ill effects. They don’t spend the money now, but must keep some in reserve to protect against such a contingency.

Likewise, all insurance companies, seeing that evidence means nothing to some juries, must save for similar outcomes. The companies making personal products slowly raise their prices to adjust for this, and the insurance companies raise their rates to cover the increased risk. This sympathetic redistribution, which is really what it is, ends up costing everyone in society. 

What’s worse is that this activity adds no value. It does not add to the GDP. It does nothing to increase the standard of living for anyone except the few women who win in court (and their lawyers – Remember personal injury lawyers are not paid for justice; they are only paid for winning.)

In the end what can Johnson & Johnson do (besides spend a lot more time and money appealing each decision)? What lesson could they learn? Should they get everyone who buys baby powder to sign a hold-harmless agreement? Why are they more at fault than the “generations of American mothers” referred to in the article? They made a product considered safe for years and suddenly they are on the hook for $127 million; and if the ratios hold true and half the next 2000 win similar amounts, it could be $127 billion! It’s “jackpot justice,” and the cost of all the winning “lottery tickets” is spread among the rest of us, including the people who served on those juries!

So how can baby powder harm you? It harms you in the same way other wasteful legal actions harm you. It takes money out of deep pockets to compensate “victims,” but the costs ultimately come back to each of us, with nothing to show for it but richer lawyers, and juries who, in some misguided way, temporarily feel satisfied that they did something to help.]

Life Is Tough.

From ABC news: “Two men who believe they were switched at birth nearly 80 years ago are suing a Roman Catholic diocese in West Virginia, alleging negligence and breach of duty by the hospital where they were born.”

One of the men discovered through a DNA test that he was not related to people he thought were his family. He learned the identity of the other man and found his “real” family by searching hospital records from 1942. Together the two are suing. They claim to have “suffered a ‘lifetime of consequences’ from the switch and are seeking unspecified damages.” 

One of the men has blue eyes and says he “looks different from the family that raised him and always felt out of place.”

This falls into the category of news that is hard to distinguish from satire. Have these people really suffered over the past 78 years because they were not blood relatives of the people who raised them? Would there have been any distress had he not uncovered the facts? Does not looking like the rest of your family lead to psychological damage? Finally, what do these claims say about adopted children?

According to Wikipedia, a parent is “a caregiver of the offspring in their own species. The most common types of parents are mothers, fathers, stepparents, and grandparents.” Including stepparents extends family relationships to beyond blood relatives and to people the children may not look like.

Furthermore, since both sets of parents were ignorant of the error, there would have been no reason for them to treat the “switched” sons any differently. It’s hard to imagine what damage was done.

An adoption website points out that there are “hundreds of thousands of adoptive families in the world who all represent wonderful families….” Chances are most of these children don’t look like their parents or siblings either, but they are members of the family. 

From another source: “Adoptive families can be transracial, international, or have members of the same family from different parts of the country.  Adoptive families look different. Adoptive families are beautiful!  They are a picture of what happens when one part of the human race decides to care for another human being.” 

To most of us, family means more than a blood relationship, but rather a source of love and support.

But these concepts are not good enough for the two and their lawyers. Like many Americans they believe life is tough, and those who suffer from the most trivial problems or minor irritations deserve sympathy and compensation whenever possible. Look at the emotional support animal industry (not to be confused with service animals).

Yes, it is an industry. There are websites that offer, for a fee, certificates and vests to meet an "epidemic" demand for support animals. Technically only mental health professionals can provide documentation.  Some sites skirt the issue by employing counselors to do a quick interview or review a questionnaire. Still the person not the animal’s behavior is evaluated, and counselors would not be qualified to do so. That places thousands of untrained, unpredictable animals in public with presumed special privileges, although the certification only allows the pet on an airplane or in housing that forbids animals. It is not blanket permission to take the animal anywhere.

The government accommodates these people with special laws without scientific evidence. Wikipedia reveals, “Researchers have not established that untrained emotional support animals provide any significant benefit to people with mental or emotional disabilities…the scientific research is limited and of low scientific quality.” 

See the parallel? This lawsuit is not an isolated incident. It’s a reflection of the times. These two elderly gentlemen claim to have suffered consequences all their lives. No one dares ask why they failed to take charge at some point over 60 years of their adult lives. We have no expectations of responsibility from victims. They suffer a wrong and seek (monetary) relief 78 years later. Like the growing number that require emotional support animals, they are comforted rather than confronted. And life goes on.

People act like victims. They need and expect to get their settlements, their furry crutches or whatever without question. Anyone critical is branded as unfeeling.

Two hundred years ago they’d all be dead. At one time life was tough, and you had to be tougher just to survive. Today life is significantly (significantly!) easier, but it’s also easier to play the victim and complain rather than to be responsible in taking on life’s challenges. Doing so is hard and might even lead to personal growth and maturity, but don't expect the government or society to take that view!

Memorial Day

On the last Monday in May we celebrate Memorial Day. It’s traditionally considered the beginning of summer, a long weekend marked by cookouts, parades and political speeches – although probably less so this year.

Like most holidays, the meaning behind the celebration has been watered down considerably. The Old Farmers Almanac puts it well: “We spend time remembering those who lost their lives and could not come home, reflecting on their service and why we have the luxury and freedom that we enjoy today.” Most if not all those political speeches will also call on spectators to remember those who made the ultimate sacrifice to defend our freedoms.

Yes, there will be much mention of freedom, but I have written many times in the past about the inexorable link between freedom and responsibility, most recently in a Flashback entry about two months ago.

Freedom is something that can be so easily frittered away. When children act irresponsibly, good parents impose restrictions, time outs or groundings. Others, though, may dismiss it as a phase they are going through. As their behavior leads to bigger problems, parents find themselves in a position of constantly having to bail their children out of trouble, because they have never learned responsibility. 

When they become adults, the government or advocates take over, often in the form of new regulations and restrictions. The problem is that, in order to keep the irresponsible from hurting themselves or others, those new regulations apply to everyone. To keep some citizens from making bad decisions, our elected leaders take away our ability to decide for ourselves. 

Because of a few irresponsible people, police have the legal right to set up sobriety checkpoints on highways waylaying everyone, without permission or a warrant.

Because of a few irresponsible people, encouraged by members of the legal profession who profit from it, try to shift the blame for their poor choices, every purchase requires warnings that add to the cost. We sign hold-harmless agreements and must carry extra insurance to guard against such reprisals.

How many states and counties have arbitrary laws about sales of liquor, fireworks, sugary soft drinks, and trans fats? If one busybody neighbor gets concerned, you can be arrested for letting your children walk a couple of blocks to the park alone.

This has become only more pronounced during the pandemic. Many governors impose arbitrary restrictions, in some cases enforced by threats of police involvement or other penalties. Even those who choose to make prudent decisions on their own are caught up in the hysteria. Some citizens feel obligated to shout at, threaten or report neighbors.

In one case, a salon owner in Texas “was ordered to spend a week in jail after she continued to operate her business despite restrictions put in place.” She was not free to operate her business, despite having brave employees and customers willing to participate.

Michigan residents were forbidden from buying seeds and garden supplies. It’s springtime! At least one mayor threatened to shut off utilities to maverick businesses. Meanwhile those who have been terrorized by the news media’s black-and-white portrayal of the situation, support the virtual house arrest, cower behind closed doors, fearful of dying themselves and accusing those who want to go back to work of being selfish and callous about the lives of others.

How long will some of the coronavirus restrictions stay in place? Will governors and mayors assume a new sense of marshal law-like powers to be called upon in any future situations that can be defined as emergencies? Will the how-many-deaths-is-it-worth crowd dominate, as we  permanently lose more freedom while politicians continue to vow to “fight for your rights” by passing more regulations?

The last line of the first verse of our National Anthem asked the question, “… does that star-spangled banner yet wave o’er the land of the free and the home of the brave?” Francis Scott Key was asking whether the flag was still there. It is, but a better question would be: how much longer  can it honestly be considered "the land of the free and the home of the brave"? The founders chose liberty over safety, and that is presumably what all those people fought and died for. Today we seem to passively accept the opposite.

Responsibility - It’s Never My Fault

The tragic news originally came out on July 8. Yahoo reported it with the headline: “Young girl falls to death from cruise ship ‘after being accidentally dropped by grandfather.’” Everyone was shocked and saddened. A little 18-month-old girl from Indiana fell “about 150ft after slipping through her grandfather’s arms as he held her by an open window, according to local media reports.” The family was vacationing on a cruise ship. The incident happened while the ship was docked at San Juan, Puerto Rico.

This sad story might have ended there. But at the time I predicted that lawyers were probably tripping over each other trying to get to the family to convince them that it was not their fault; the cruise line was probably to blame. The family is understandably suffering, and shifting the blame and collecting some compensation would provide some level of closure and relief. The child will not have died in vain if they can use this lesson to make cruise ships safer.

The case would move into the American legal system where they can achieve some sense of relief at no cost to them. Attorneys will take thirty to forty percent of the award or settlement amount, charging nothing if they don’t win. The cruise line need not be shown to be totally at fault; only a small amount of blame will make them legally liable for damages.

Originally, the reports held that the grandfather was holding the toddler on a ledge next to an open window when she wriggled free, he lost his grip and she fell. By the next day the story is changing. They were in an area designed for kids with a wall of windows, which passengers can open. Their attorney says, “She fell because an open glass pane should have been closed securely” and describes the open window as a “hidden hole” in that wall of windows. The grandfather unknowingly placed the child on “the wood railing before the wall of windows, believing Chloe will bang on the glass just like she does at her brother's hockey games, ‘and the next thing he knows, she's gone.’”

The following day an Australian news outlet reports that the family “denied reports the little girl’s grandfather lost his grip on her.” Judging from the pictures accompanying that story, the wall of windows consists of upper and lower panels, each about three feet high with only the upper ones able to be opened. Despite the fact that it is highly unlikely that an 18-month-old could get out of such a window unassisted and that it is strange that a grandfather would be unable to distinguish between an open window and a pane of glass, they insist on placing “significant blame” on the cruise ship. (Are we to believe children commonly plummet out of these hidden holes?)  

In the later reports, see how quickly the baby has a name with cute pictures posted along with pictures of grief stricken parents. This benefits the news media by further sensationalizing the story and benefits the lawyers in the same way.

What will happen next is clear, and this headline tells it all: “Lawsuit likely to be filed by end of month in toddler's cruise ship death.” Would many companies take the risk that a jury, looking at those cute pictures and seeing such pain in the faces of the parents, would decide that the grandfather was careless and there was no reasonable action the cruise line could have taken? No, they will use the “did they do everything possible” argument, a condition no one could live up to. I predict a settlement for an undisclosed amount: happy lawyers, parents somewhat comforted and jurors feeling good about being able to bring about some level of comfort.

It’s happened so many times before. People die of lung cancer after a lifetime of smoking; relatives sue. People get sick from improperly using pesticides; relatives sue. Bartenders don’t take responsibility for their customers. The list goes on, facts don’t matter, no one is responsible and we are no longer surprised.

Ridiculous Damages

The verdict is in, literally. Baby powder can kill you, legally. Of course legally is very often different from scientifically.

 A short time ago a jury in Missouri awarded 22 women $4.69 billion in a class action lawsuit “that alleged the company's talc-based baby powder products contained asbestos and caused them to develop ovarian cancer.” The CDC recognizes asbestos as a carcinogen that has been linked to lung cancer, asbestosis and mesothelioma (but not necessarily ovarian cancer).

Of course Johnson & Johnson intends to challenge the verdict and any payout is still years away.

The story itself brings up several points to consider. First, legal liability is not necessarily indicative of any danger nor is it a determination of actual responsibility.

Take the case of breast implants from years ago. This report from PBS gives a chronology of silicone breast implant usage, legal action and scientific evidence, showing how often courtroom evidence and laboratory evidence conflict. Sometimes women were awarded millions in damages, while others had their cases dismissed as new studies were published. Sometimes judges and juries paid attention to the science and at other times they followed their own feelings. This timeline ends at 1999 and does not include the final 2006 FDA approval after the big controversy during the 80s and 90s.

The situation is pretty much the same with baby powder, except there is less guessing about the science. The FDA statement in the article seems clear enough: “After careful review and consideration of the information provided in the Citizen Petitions submitted in 1998 and 2008, and the review of additional scientific information, the FDA concluded in 2014 that it did not find conclusive evidence of a causal association between talc use in the perineal area and ovarian cancer.” The National Cancer Institute seems equally certain: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.” But those are only scientific and medical opinions and often carry little weight in the courtroom.

Like those tobacco lawsuits and settlements, people tend to rejoice at the idea that big business has to pay. This may be a desire for revenge for some apparent slight, or it may be driven by envy of anyone richer; but the companies rarely suffer from these punitive damages nor do they typically make major organizational changes. The idea of punitive damages has flaws that juries rarely grasp. Can you name a single tobacco company that went out of business or a single executive who lost his job as a result? Economic understanding tells us that any money paid out ultimately comes from their customers, be they smokers or users of Tylenol.

Finally, is there any consideration of the appropriateness of the award, or are juries just enthralled by some sense of power to enforce justice?

An award of $4.69 billion split 22 ways is a little over $213 million each. Subtract the lawyers’ cut of say, 35%, and each woman (or group of survivors) is left with a paltry $140 million. (That’s why it’s sometimes called “jackpot justice.”) That amount of money is not going to make anyone healthier or happier. (The stress of having that much money is clear from stories of lottery winners.)

These lawsuits don’t fix problems. They just make certain lawyers richer and redistribute wealth in a very minor way. The more news like this is met with a sense of delight rather than disapproval, the more America creeps in the wrong direction.

Economic Connections

Last time I checked into a hotel or motel, it was quite simple. I parked temporarily in front, walked in and told the desk clerk my name and handed over my credit card. In short order I got my credit card back along with my room key and was politely given directions to the room along with other information, such as breakfast or pool hours. I parked my car or drove it to the most convenient doorway. It was easy and pleasant.

The last time I boarded an airplane was a different story. If someone dropped me off, parking was limited and patrolled – and don’t leave the car unattended. I had to show an ID to get my boarding pass and check luggage, which was presumably inspected after the airline took control. I then took my carry-on bag to the security area where everyone lined up, showed an ID again, showed a boarding pass, took off shoes, emptied pockets, separated electronic devices, walked through a scanner, and sometimes had to be rescanned or even searched. I then picked up my belongings, refilled my pockets, put on my belt and shoes and walked to the gate.

It used to be much simpler. Relatives could even meet you at the gate when you arrived, but not any more. Now there is security everywhere, and for good reason. We don’t want terrorists or crazy people to be able to use the airports or airplanes for murder.

This came to mind when I read about  MGM "suing" the victims and survivors of the shooting massacre in Las Vegas where a lone gunman used the MGM-owned Mandalay Bay Resort and Casino as his base of operations to slaughter 58 concertgoers and wound many others. 

Suing these innocent people sounds heartless, but the word is not being used in the familiar sense. There will be no trial, no testimony, no demand for payment. MGM filed for a declaratory judgment, where a judge decides whether they can be held liable for damages. “Here, MGM is asking a federal court to pre-emptively determine whether a particular federal law prohibits a lawsuit by the victims against MGM, instead forcing them to sue only the vendor that provided security.” As people line up to sue someone, MGM wants a judge to move them out of the line of fire.

Of course there are lawyers already jumping into the fray looking for victims to represent and for deep pockets to exploit. In addition, because people either don’t understand the intent of the lawsuit and jump to the conclusion of heartless behavior or believe that the victims deserve as much compensation as possible regardless of real fault, boycotts are being encouraged.

Now I have no interest at all in MGM, but I can predict the ramifications of such a battle. Lawyers will argue that the hotel, and by extension MGM, did not do everything possible to avoid the situation – that’s the usual argument, “everything possible.” Everyone else in the hospitality industry will be put on notice. Their insurance will increase, and they will begin to take steps to do everything possible – which, by the way, is impossible when you can’t predict what threat(s) to anticipate.

As a result, all travelers will be affected in at least a couple of ways. First, things will cost more. Economic understanding tells us that when costs like insurance and precautions go up across an entire industry, there is no competitive incentive to absorb the costs. They are easily passed on to all customers.

Second, could checking into a motel become more like taking the plane, with some combination of heavily monitored parking, baggage inspections, metal detectors, photo IDs, take off your shoes and empty your pockets – with the same for all visitors and meeting attendees? 

The second outcome is not guaranteed, but it is possible. This lawsuit by the owner of a Vegas hotel may seem unfair and distant, but our world is connected in many unexpected ways.

Another Look at Lawsuits

In the past I have objected to unusually high judgments or settlements from legal action as behavioral failures in economic understanding and responsibility.

A plaintiff experiences a relatively minor injury, often because he was not paying attention or taking adequate care.  Examples abound:  “A man police call a Good Samaritan may face a lawsuit after injuring the alleged robber he thwarted;” a $200,000 settlement for bites from bedbugs in a hotel; $95 million to an employee for being “groped, teased, talked dirty to, and poked by her manager;” or a California man at a fast food restaurant who won $1.5 million because he heard the manager mumble what he thought was a discriminatory comment when he asked for a second napkin.  Certainly some of these people deserved some compensation, but the outcomes are often far out of proportion to the injury, real or imagined.

In these cases the lawyers move in to convince the injured party that someone else must be forced to pay.  Legal representation is done on a contingency fee – if you don’t win, you don’t pay.  It’s free money.  The injured party, weak in the dimension of responsibility, agrees.

After the trial, the jury, weak in the dimension of economic understanding, doesn’t consider that the outcome of the lawsuit reflects not only on this case but also on future cases and future actions of many parties.  It portends similar actions from similar juries, which causes all insurance companies, not just the one involved, to assume higher risk.  Their customers, all of us, cover this higher risk by paying higher premiums.  Likewise any other companies in the same industry as the one being sued must think about changing practices, which adds cost to their operations, cost that again turn into higher prices for customers.  One obvious cost is printing or stenciling those ridiculous warning labels I’ve written about before.  The outcome has a cumulative effect, plus money is transferred from one party to another (with the lawyers taking their cut) with no overall benefit to society – nothing is produced, improved or made more efficient.

But when I saw the story about the Alabama man who “was awarded $7.5 million in a lawsuit against Walmart after he tripped while buying a watermelon,” I had a different idea.  Back in 2015, the 59-year-old man apparently caught his foot on a pallet where the watermelons were on display and broke his hip.  Now a broken hip is painful and makes life more difficult for a time, but the store reports that the same display continues to be used.  It’s hard to imagine that the store was at fault if other customers have negotiated the watermelon pallets for the last two years without further problems.

But with Wal-Mart’s reputation as promoted by the media, it’s easy to portray them as evil in this case too.  This is a further case of poor economic understanding.  As this source (among others, including Forbes) reminds us:  “Ideologues who rant against Wal-Mart do not understand economics. In a market economy, success goes to those businesses that best and most efficiently serve consumer needs.”

My latest idea is that most juries don’t even get to economic considerations due to the concept of survivor guilt.  The rough definition from Wikipedia is “a mental condition that occurs when a person believes they have done something wrong by surviving a traumatic event when others did not.”  In this case, the traumatic event is life itself.  They see a person with a broken hip or other injury, physical or psychological, and think of how lucky they are for two reasons - first, lucky not to be in his shoes and second, lucky to be in a position to help out (with someone else’s money) to assuage their own guilt.  Economic understanding never enters the conversation.

The more I think about this idea of survivor guilt, the more it explains many of the other seemingly non-critical-thinking behaviors in our society.  Someone else is always worse off and needs defending or bailing out.  And it’s especially easy to support a cause when other people’s money, efforts or rights are sacrificed.

Beware the Dangers of Grocery Shopping

This AP story comes from Cleveland.  “A woman injured when she was struck by a motorized shopping cart in a suburban Cleveland grocery store has been awarded $1.2 million by a jury.”  Another customer lost control of a motorized cart and struck the 71-year-old woman.  The lawsuit says she was “tossed” 4 feet and sustained head and neck injuries.

Her lawyer agued that the store “failed to show customers how to properly use the store's motorized carts.”  The caring, but misinformed jury probably found in her favor for a couple of poor reasons.  First, they did not think it was unreasonable for the grocery store to hold a short driver-education class for every time someone used their motorized carts.  Second, they figured the store has lots of money and no one is really hurt by handing over $1.2 million to her and her lawyer. 

This reflects the failure in economic understanding and responsibility prevalent in our society.

Another factor is that by law in the US a person or organization found with any small fraction of fault can be assessed full damages, which turns the focus toward persons or organizations with the ability to pay rather than determining the size of their contribution to the problem.  The system in the US is also structured so that anyone can sue anyone else without spending a penny.  Lawyers take on the risk of losing the case in return for a large percentage of any winnings.  What it may cost other parties to defend themselves against possibly spurious accusations is usually of no concern.  Many of these cases are settled without going to trial merely because the cost of the settlement is less than the cost of the long legal battle.

The outcome of this case may be that all grocery stores are less inclined to provide motorized carts.  Another option might be to post a sign at the doorway warning everyone that they enter at their own risk – requiring every shopper to sign a hold-harmless agreement before shopping would be a stretch, but the way things are heading, not completely crazy.

How else does this behavior of juries and these societal assumptions, impact the public in general?  Look at almost any other transaction you enter into.

My heath savings account website agreement has a section on Limitation of Liability. “We are not liable to you for any act or failure to act that is reasonable under the circumstances or that is consistent with any applicable laws, rules, or regulations, or with general commercial practices of banks. “

My credit card has a “Disclaimer of Warranty and Limitation of Liability.”  It begins:  “The information, products and services on this Web site are provided on an "AS IS," and "AS AVAILABLE" basis. [The company] does not warrant the information or services provided herein or your use of this Web site generally, either expressly or impliedly, for any particular purpose and expressly disclaims any implied warranties, including but not limited to” – and it goes on for another 714 words, some in bold and some in ALL CAPS.

Every phone app or new download onto the computer comes with a similar agreement, pages and pages of legal sentences about use and liability.  When you join a gym or sign up for yoga, you sign a hold-harmless agreement.  Even when your child goes on a field trip for school a typical permission slip may read:  “I agree to instruct my child to obey all rules, regulations and instructions given by the teacher and/or authorized school personnel.  I further agree that no teacher or authorized personnel shall be held responsible or liable for injuries or other mishaps caused by my child’s deliberate disobedience of rules, regulations or instructions.”

These are so easy to ignore and just sign the form or check the box.  But remember, each of these paragraphs is there to protect us from each other.   Whether we are a teacher, a homeowner with an icy sidewalk, a manager of a restaurant, a youth sports coach or whatever; even when we are doing the best job possible and being as careful as we can, we are exposed to legal problems.  This is the direction America is going.

Notice that they did not hold the driver of the motorized cart responsible; it was the store’s fault – deep pockets.  Imagine if the shopper who was struck was instead a college football player or the same lady was hit by a privately owned motorized wheelchair in the parking lot.  Would the jury have been so sympathetic – similar circumstances or different players would likely have yielded a different outcome.