Damage caps in the headlines

Amtrak crash damages capped – We’ve heard this one before

2015 July

A few months ago I told you about the term “Preaching to the Choir.” In case you missed it, that’s when you try and convince people who are already convinced.

Déjà vu is another term you’ve probably heard but may not know the exact meaning. Don’t be embarrassed, I wasn’t sure what it meant either. Allow me to help. The words are French for “already seen” but the popular meaning is “the sensation that something you are experiencing has happened before.”

As a plaintiff trial lawyer, one of the banes of your existence is caps on damages. You all know they are mostly associated with the onerous MICRA law. But there are many other examples of legislation that prevents people who have been harmed through the negligence of others from being treated fairly by the party that caused the harm.

One of those examples has been in the headlines recently and here’s where déjà vu comes into the discussion.

On May 12 we learned about the AMTRAK train traveling through Philadelphia that went off the tracks at a high rate of speed, leaving eight passengers dead and more than 200 injured. As we saw from the images on TV and the Internet, it was a horrible accident. It also could have been prevented, according to preliminary reports from the National Transportation Safety Board.

A few days after the crash the public learned what many trial lawyers already knew: the amount of money that victims of the crash could receive for injuries they suffered is limited because of federal law that caps total rail-accident damages for one incident at $200 million. The law went into effect in 1997 when Congress set the limit on all rail accidents as part of a compromise to bail out struggling AMTRAK and other railroads.

As trial lawyers know so well, laws limiting damage caps rarely include adjustments for inflation. The $200 million cap on railroad accident damages would be much higher in today’s dollars.

Joanne Doroshow, executive director of New York Law School’s Center for Justice & Democracy explained that “It’s an arbitrary cap imposed regardless of the number of victims or how horrific the accident. In a mass casualty situation like this, clearly it is way too low. Medical injuries alone could exceed $200 million.”

Because the law limits total damages for all claims that are the result of an accident, it will be up to a judge to ultimately decide how the money is allocated among the injured victims and the families of those who were killed.

Déjà vu again

Get ready, here comes déjà vu−again. This is exactly what happened in Southern California in 2008 when a Metrolink commuter train collided with a freight train, killing 25 people and injuring more than 100. L.A. Superior Court Judge Peter Lichtman, after hearing three months of testimony, likened his decision of determining compensation for victims to “Sophie’s Choice.”

Judge Lichtman, now retired from LASC and a neutral for JAMS, wrote then that he was “forced to conduct judicial triage, categorizing injuries among more than 120 victims and making awards on the basis of what the future would hold for many of them and their families.”

Paul Kiesel was one of several CAALA members who represented victims from the Metrolink crash. He said that “$200 million can be just a drop in the bucket to compensate people who are the victims of passenger-rail collisions in America.”

Kiesel and Doroshow aren’t the only ones who feel that the $200 million cap is grossly unfair to the victims of a horrible train crash. So does the Senate’s top Democrat on transportation issues.

One week after the AMTRAK crash Senate Commerce Committee ranking member Bill Nelson (D-Fla.) introduced legislation to lift the cap.

Here’s what he said when he proposed the legislation: “We can’t allow anyone to suffer additionally due to an outdated cap based on mid-1990 dollars.” Read that quote carefully, it’s not an example of déjà vu.

This is the first time in my memory that a senior U.S. Senator has spoken so eloquently about the need to raise caps on damages for injured victims. Sen. Nelson may be referring specifically to the law capping damages in train accidents, but his words can be applied to MICRA or any other law that limits damages for injured victims.

Unfortunately, Sen. Nelson’s bill may be difficult to enact in light of the current toxic atmosphere in Congress. Right after the Philadelphia crash, House Republicans proposed to gut AMTRAK’s budget, including money for safety measures that might have prevented the crash. Some congressional Democrats aren’t much better; they are worried that raising the cap could place a burden on the stressed budgets of railroads.

Putting corporate profits over protecting people, sounds like déjà vu all over again.