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Ming Zhen Shakya

Selling Pain & Silence in the Golden Age of Torts

by Ming Zhen Shakya, OHY

Pain, it seems, is a valuable commodity. Physical, psychological, past pain, future pain, pain by accident, pain by design, or pain that is inflicted by stupidity or negligence. It all fetches a high price in a courtroom's marketplace.

And if we sell the pain privately by settlement and avoid the public hustle of the market, pain is even more valuable - for then we can add the price of silence to it. Nothing enhances the worth of pain the way that silence does.

Pain is the symptom, the effect of a cause, and if we can charge or threaten to charge someone who values his reputation with having caused that pain, he is quite likely to pay us for silence, whether he is totally innocent, completely guilty, or only partially responsible.

The merits of the case are often an extraneous issue. When the defendant is actually innocent, the money he pays in settlement is not intended to compensate the victim for damages - it is paid in order to avoid the high cost of litigation and the bad publicity that arises from even the charge of having caused distress.

In cases of partial responsibility, we often find an unfair distribution of the financial burden. If ten defendants are found liable for damages and nine of them are penniless but the tenth has "deep pockets" - it is the tenth who likely picks up the whole check.

When the defendant is guilty and there is a justifiable grievance - particularly one that common sense and decency - the ordinary expectations of citizenship - would mandate a public warning of danger - the act of accepting money for silence taints the victim who, like it or not, becomes a kind of conspirator in a future repetition of the painful act. Yes, it is all perfectly legal. No, it is not perfectly moral.

It is here that conscience and spiritual values enter the deliberations. Unfortunately, these values are not always discernible in the prevailing circus atmosphere of torts.

We had thought that bringing a suit against a fast food restaurant because its take-out coffee was too hot was as reckless as the courts could possibly get when that suit was permitted to go forward. But now we are challenged even beyond that legal idiocy.

Recently, (July 27) the Associated Press reported that a woman, while on vacation in Las Vegas, purchased a mechanical sex toy which she decided to carry home by packing it in her suitcase. Privacy couldn't have been an issue since we all know that in these post Nine-Eleven days luggage is often publicly searched in the ticketing section of airports. If we don't want airport security agents and onlookers to see something we've got in our suitcase, we find another way to ship it.

So, as she was changing planes in Dallas, the baggage handlers who were loading the plane noticed that a mechanical device had begun to whirr from within one of the suitcases. They summoned airport security - as we would all expect them to do. The identifying tag on the bag revealed her name and she was summoned from the plane to meet with the security agents there on the tarmac.

The agents asked her to open the suitcase for inspection. She told them what it was and expected them to take her word for it - as if they would be content with her assurances that it was nothing but an overanxious sex toy. No, they wanted her to open the bag immediately there on the tarmac. They wanted to see for themselves what it was and they wanted her to handle it. Perhaps none of them was wearing rubber gloves.

The onlookers, no doubt relieved and amused (what else could they have been) laughed. The lady was not amused and has sued Delta Airlines for having personnel and customers who laugh when something is laughable. Some people, she said, made obnoxious comments, ones that were sexually harassing. The airline had "intentionally inflicted distress and gender discrimination upon her."

The lady had been embarrassed; but if her distress was caused by having a hundred or so people on the plane temporarily link her name with unruly sex toys, one would think she would not have informed the entire nation in clear and permanent print of her identity and its now indelible association with such devices by bringing a law suit. But embarrassment is painful and pain has its price. The wonder is why the passengers didn't sue her for delaying the scheduled departure. Perhaps many of them missed connecting flights because of her foolishness. Missing a connecting flight is a whole lot worse than being embarrassed by a risk deliberately taken by carrying a sex toy in a suitcase. And worse, too, is the fear of being in an aircraft that is getting such special security attention right before takeoff.

But the suit was brought and perhaps the plaintiff is counting on a settlement so that she may say, as Liberace once did when he aroused his critics' laughter, "I cried all the way to the bank."

The process of trial-avoiding settlement is aided by the not unwarranted fear that juries may award huge sums in damages as they are asked to predict the future earnings of an individual; to make an objective assessment of something that is often purely subjective, i.e., a person's grief or pain; and to punish - not by putting the guilty defendant in jail or by fining him a sum that would be placed into the public revenues - but by making him pay additional punitive damages to the plaintiff.

Often the community loses more than than the gain of a punitive fine. I recall a case in a New England town about twenty years ago. A police car in a high speed pursuit accidentally hit and killed a pedestrian, a family man. The widow sued the police department and won a huge judgment from the sympathizing jury members who were not allowed to know that ultimately it was the people of the town who would have to pay the award since this was how the government was structured. When people's property taxes soared through their roofs to pay for the largesse that allowed the plaintiff to move to a better neighborhood, the jury learned the price of punitive sympathy.

But settlement, we are discovering, has its own risks to the public safety when the plaintiff agrees never to make public the details of his law suit. Future silence is not retroactive amnesia. Those in the immediate vicinity of the paid-off plaintiff know all about his case... and of his sudden enrichment. A whole network of persons related to the plaintiff knows all about it. And so we find clusters of complaint contagion. Suddenly everybody has a grievance that requires financial redress.

We all recall the case of a diabetic who placed his used insulin syringe in an empty can of Pepsi Cola, considering this a safe way to dispose of the needle. But someone in that diabetic's household saw the opportunity to collect "damages" and a claim was made against Pepsico for the bottling "negligence" that had caused him such emotional distress. Overnight, wherever the news reached, similar claims were made. So numerous and outrageously unfounded were these claims that it was necessary to enact product tampering laws.

When people know there is money to be made by pain, they can begin to hurt awfully bad.

But what if there is a genuine complaint? When the victim accepts money for silence, no broad public knowledge is gained - there is no official record of the damage. If a manufacturer sells a defective bicycle and I buy it and get injured - and then accept money for my silence - the next person who buys that model bicycle becomes a victim - who may or may not realize that it was the manufacturer's fault. If he is killed in an accident and the mangled bicycle is carted away, no one will suspect the manufacturer. I certainly won't say anything. And if anyone who knows about my experience questions my morality, calling my acceptance of money for silence "a bribe" - which it is - I, too, can quote Liberace.

So there we have the downside of lawsuit settlement. News will get out and those who are privileged to hear about the award will be prone to discover they have been similarly damaged. And those who don't hear about the case are potentially in line to be the next victims. We can say, "Well, let the bike manufacturer take corrective measures." But this solution does not always apply. Sometimes the damage is not caused by manufactured products but by personnel, human beings who err. Employers can oversee their employees to the point of harassment - with internal affairs watchdogs that viciously bite; but human nature being an ever-changing entity, no employer can prevent the actionable conduct of his employees. New employees, new kinds of offenses, and changing public mores become an actuarial conundrum.

The larger issues of crime, punishment, claim and settlement involve persons who occupy positions of trust: teachers and priests and medical care givers.

Let's suppose that a private nursing care facility has an attendant who is negligent or cruel in his care of a patient. The patient's relatives retain a lawyer and sue. The case is settled, silence is purchased. Of course the facility wants to rid itself of the attendant - and the farther they can get him away from the locale of the abuse, the better. More often than not they'll give the fellow a good reference just to get him out of town. No criminal record or even mention of the incident will follow him. Protected by silence the guilty person moves on to another facility . Everybody's happy - except his next victim.

In the case of clerical abuse, such as the recent problems in Boston, we find a structurally similar but infinitely more complicated situation.

For years, Church officials, who could recognize the slightest nuance of sin, allowed themselves to be totally blind to felony. As if they could purchase their own Plenary Indulgences they settled claims of child abuse and then, in an unwonted trust in science, sought to rehabilitate the guilty priest.

Only recently has the Church realized that it never should have started to pull on the settlement thread that is proving so troublesome in its unraveling.

We can see the shoddy way such trouble proceeds: a priest, Father X, abuses a child who either keeps silent or tells his understandably incredulous parents. They do not go to the police, they go to a lawyer or to the priest's superior. If a bum in the park had sexually molested their child, they would have gone directly to the police or else would have bypassed jurisprudence entirely and taken such punitive action as they deemed appropriate - and no jury would have convicted them.

A priest, however, is not an ordinary citizen. He has counseled and given psychological support to hundreds of parishioners. By the power of his office he has conveyed divine forgiveness for countless transgressions. He has set a spiritual example and upon the belief in his integrity rests his parishioners' determination to lead better lives. His reputation cannot be damaged without collaterally damaging those who depend upon his goodness - and also upon his priestly vow of silence, a contingency of their confessions. No one wants to see a rogue ex-priest standing at the brass rail of any corner bar.

And children are not ordinary citizens, either. As we sadly learned in the 1980s 'preschool child abuse' miscarriages of justice, unscrupulous or incompetent psychologists or any person in authority can place lurid suggestions in a child's mind, suggestions that he will repeat as fact, suggestions that chum the waters, creating a legal and journalistic feeding frenzy. After the McMartin School fiasco, overnight, exactly as in the claims against Pepsico, copycat charges of child abuse were levied against dozens of innocent citizens. Witches and warlocks and puppy-eaters lurked in every town's PTA..

The heirs to all that investigative incompetence and prosecutorial bungling are those children today who have truly been abused but whose complaints are skeptically regarded. The child who is not believed or who keeps silent about the crime provides for the victimization of others and is himself, doubly victimized.

Anyone can understand why ecclesiastical authorities desired quiet settlements - but no one can comprehend their naive assumptions that purchased silence meant absolute silence - that there would not be claim-contagion, or that they could put such faith in a psychologist's repeated assurance of cure or in a guilty priest's repeated promise not to sin again.

Tort reform is finally becoming a long-overdue reality. Caps on jury awards are being legislated in medical and pharmaceutical liability suits now that huge judgments have drastically inflated insurance premiums and made medications prohibitively expensive. Jury awards are factored into the price consumers must pay for everything.

The Church, too, has revised its response. In the future, if a priest is accused of a criminal act, he has to stand trial in criminal court. This refusal to engage in covert settlements needs to be adopted by all institutions that employ persons in positions of trust.

Buddhists of every denomination are vowed to the Five Precepts, at least three of which usually enter into legal actions. We cannot lie or exaggerate damage done to us or claim benefits to which we are not entitled. And we have to consider the harm we may do to others if we allowed ourselves to be bribed into silence.

Ambition to succeed financially and to profit from our labor or ideas are not obstacles in our Path. Greed is. Greed is that diseased desire that leads us away from the goal of enlightenment.

It has been said that the days of the Klondike and Comstock are over and that the only place left to strike it rich is the gold mine of torts.

But this is not the Right Livelihood that the Buddha had in mind. 


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Last modified: July 11, 2004
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