I wrote this up a couple of weeks ago, but never got around to posting it. I guess business is slow for the folks who sue people for a living:
Suit Seeks to Deflate Excess ‘Hot Gas’ Profit
Source: Salt Lake Tribune
Mar. 7–When the temperature of gasoline rises, the volume of the fuel expands.
And that means Utah drivers who fill up during the summer may get fewer miles out of a tank of gas than during the colder months, when the temperature of the fuel they pumped into their automobiles and pickups was lower.
The prospect that motorists may not always be getting all the energy from each gallon of gasoline that they paid for has ignited a growing controversy across the country.
“This is a serious problem, especially with truckers” whose livelihoods are tied to the cost of fuel, said C. Val Morley, an attorney in American Fork who filed the proposed class action lawsuit. “Similar lawsuits have been filed in other areas of the country.”
About 100 years ago, federal regulators determined that a gallon of gasoline would be 231 cubic inches of fuel measured when it was 60 degrees. And it is that 231 cubic inch per gallon standard that is used on gasoline pumps in Utah and across the country.
While it is true that fuel expands when the temperature rises, the impact on the volume of liquids is very low. I expect the attorneys in the class action lawsuit to learn the hard way, but here is what they will find out.
First, according to my chemical engineering handbook, the change in volume of gasoline in going from 60 to 90 degrees would be about 1%. So, if this sort of temperature rise actually happened, you would be getting about 1% less gas for the same money. BUT, gasoline tanks are buried underground. How often do you think those gas tanks reach 90 degrees? Probably never. In fact, those tanks are probably pretty close to 60 degrees year round, which means the class action lawsuit is just a waste of the court’s time.
I would also point out that this cuts both ways. The volume of gas shrinks at colder temperatures. So, if you fill up when it is less than 60 degrees, you are getting more gas for the same money. So, even if the tanks were above ground, unless the average annual temperature is above 60 degrees, there would be no net loss on the amount of gasoline you got for your money (unless you are just filling up in the summer). Furthermore, due to the many different components that go into gasoline, individual blends undoubtedly differ by more than 1% in their BTU content anyway (and this also varies with the seasons).
This is a good example of one of those nuisance lawsuits that makes everything more expensive for all of us. These are drummed up by lawyers who must find someone to sue in order to stay in business. The following is the true motive behind the lawsuit:
The Utah lawsuit contends that hot gasoline is costing American motorists a couple of billion dollars a year and drivers in this state millions annually. And it contends that money represents excess profits for the big oil companies.
And they want a piece. The truth is merely an inconvenience. All they need to do is find an ignorant jury and they have it made. I wonder if the O.J. Simpson jury is busy.
As someone who respects you a good deal, I was very sorry to see you parrot the reactionary party line re: lawyers. Your blog and the debates you have with people like Khosla serve as great examples of the value of the adversary process for determining the truth of a proposition. That’s what courts are–a forum for submitting propositions to the adversary process.
If the case is as flimsy as you say it will be dismissed on summary disposition rapidly, at no cost to the defendants (because their in-house counsel will not need to hire outside counsel).
As for lawyers “driving up the costs of everything,” I suggest that a few minutes reflection will persuade you that the costs of the civil justice system to consumers are minuscule compared to the costs that unchecked corporate power would impose.
Not every suit filed has merit. Not every suit dismissed is meritless. It’s an highly imperfect system, but it seems to be one that accords everyone their right to have a neutral forum to bring their disputes.
As you are overseas now, you might want to go visit some of the countries without a functioning civil justice system to see just how high the costs of THAT are.
As for lawyers “driving up the costs of everything,” I suggest that a few minutes reflection will persuade you that the costs of the civil justice system to consumers are minuscule compared to the costs that unchecked corporate power would impose.
Actually, I feel that one can have a civil justice system without the need for spawning an entire industry that feeds their families by drumming up one lawsuit after another. There is of course a place for litigation. In the U.S., I think we have gone well overboard with it.
I have friends in medicine, and I have heard the horror stories. They can barely afford malpractice insurance. That drives up medical costs for us all.
Do you know what the highest paying keywords for Google ads are? They all involve litigation. Lawyers begging to be called so they can sue someone. Litigation is big business. People think they can win the lottery by suing, so they sue, sue, sue.
As you are overseas now, you might want to go visit some of the countries without a functioning civil justice system to see just how high the costs of THAT are.
So, it has to be one extreme or the other?
Cheers, RR
Anonymous (if that is your real name),
If your point is that the American justice system is better than no justice sytem, then you are right. However if you can’t come to the conclusion that this lawsuit is frivilous in two seconds, then it means that your scientific knowledge is at or below what I would expect of a Jr. high student. Unfortunately, you are also probably much smater than the average juror.
You also make the point that the case will cost nothing to the defendant if it is dismissed rapidly, as it will be handled by in-house counsel. That’s funny, I didn’t know that corporate attorneys worked for free. If we had a system where the loser pays for bringing a frivilous lawsuit such as this one, then I would agree. On the other hand, if we had such a system, then the lawyers bring this suit would have actually measured the temperature of the fuel at different times of the year, done a few simple calculations and found that average temperature is most likely LESS than 60F.
Um, hate to bust your talking points, but state and federal courts DO permit sanctions for frivolous actions.
You no doubt have friends in medicine who moan about malpractice insurance. And there is a huge malpractice problem in America … it’s called malpractice, and a system of self-regulation by doctors where the good-old-boys rally around each other and patient be damned. There are good books written about the phony “malpractice crisis,” if you’re interested you can find them.
And, yes, a functioning civil justice system requires that people be able to bring complaints that push the boundaries of acceptability–like suing churches for molestation committed by priests and covered up by the church, like suing tobacco companies for lying about the health risks of their products and marketing them as safe and nonaddictive long past the time when their own research showed that to be a lie. Practically every cause of action that we now take for granted — like the med mal case Rick Santorum brought and won against his doctor (before deciding that trial lawyers were demons) was pathbreaking and scandalous in its day.
The “tort reform” argument seems to be that defendants, when presented with a serious, well-grounded complaint by a person damaged by their conduct, always act responsibly and ethically and that an immediate denial means that the suit must be frivolous (because, after all, the defendant denied liability).
If we’ve gone “overboard” with litigation in this country, then we need to make corporations fire their lawyers, because business v business suits are both the fastest growing and biggest segment of civil suits today in virtually every court. Nor do I hear tort reformers calling for sanctions against RIAA for suing people who don’t own and don’t know how to work computers over piracy. No, it seems that the only suits anyone is interested in limiting are the smallest part of the deal, the ones where individuals sue corporations.
But tort reformers never quite get around to proposing any reforms that would limit the ability of corporations to sue—why is that, do you supposed?
As for whether the subject suit is frivolous, that’s (a) not the point, and (b) not my job. Not the point because, in the same way that free speech requires that we hear things that are stupid, an open system of justice requires that people be allowed to bring the claims they feel have merit, and we rely on the many procedural barriers to frivolous suits to screen them out. Not my job because it’s the job of the trier of fact to determine whether there is a tort and whether there were damages. Someone reading a one-sided description of a suit in a blog is not necessarily well-equipped to make a judgment on the merits; luckily, should the case reach trial (and it’s overwhelmingly likely that it will not), then the arguments that RR stated should carry the day.
At which point the sanctions will kick in. In fact, in most states, we ARE increasingly adopting a modified version of the “loser pays” rules: the cases are evaluated by a disinterested panel, and the value of the case is assessed (often at $0.00). The plaintiff at that point proceeds at his/her own risk–if he/she rejects the evaluated value and demands further proceedings, then he/she is liable for other sides’ costs from that point on if the defendant prevails–where prevails means anything from getting the case tossed out to losing but not losing by more than 10% worse than the evaluated amount.
And the rules permit offers of judgment that have the same effect: defendants can offer an amount — say, $1 — and if the plaintiff rejects that and then doesn’t prevail, the plaintiff is responsible for all the defendants costs from the moment when the offer of judgment was made.
So any truly frivolous suit is easy to both defeat and to make expensive for the other side.
As an aside, please explain why plaintiffs lawyers, who get NOTHING if the case has no value, are supposedly out beating the bushes and bringing all these frivolous cases. Yes, they get a nice payday once in a great while, but only on good cases, not on frivolous ones.
The argument that lawyers create lawsuits and that they are just playing the lottery when they bring suits is about as good as claiming that oil companies just drill a lot of holes and hope to get lucky now and then. In both instances the profitability of the enterprise–the ability to keep doing it next week and next year–depends on AVOIDING dry holes and frivolous lawsuits. Lawyers not only have to invest in the costs of developing the case (hiring investigators, experts, court fees, etc.) but they also invest the one thing that lawyers can’t make more of, their time. An oil company can hire more rigs and more exploration folks–a lawyer only handle so many cases before even the best ones go south. Again, a real limit on lawyers’ desire or even ability to pursue these so-called frivolous cases.
But that’s ok, I’m pretty sure I’m wasting my breath, because you view lawyers the same way that most people view oil companies, so the facts aren’t going to get in the way of the demonizing.
You no doubt have friends in medicine who moan about malpractice insurance. And there is a huge malpractice problem in America … it’s called malpractice, and a system of self-regulation by doctors where the good-old-boys rally around each other and patient be damned.
The problem with malpractice is that all doctors get sued sooner or later. Are they all guilty of malpractice? I have had some pretty extensive conversations with some of them. If a patient dies in their care, they can just about count on getting sued for malpractice. Sometimes people die of causes other than malpractice. You know, and I know, that a fair amount of malpractice lawsuits don’t actually involve malpractice, and that this is a driver in higher medical costs for us all.
In fact, in most states, we ARE increasingly adopting a modified version of the “loser pays” rules
I think such a system would do wonders for the reputations of lawyers. If the loser pays all costs, then I think it would reign in frivolous lawsuits.
As an aside, please explain why plaintiffs lawyers, who get NOTHING if the case has no value, are supposedly out beating the bushes and bringing all these frivolous cases.
My opinion is that the key is not whether the lawsuit itself is frivolous, but whether a technically inept jury can be convinced that it has merit. Would you agree that lawyers often try to disqualify technical types from a jury? Would you agree that even if this hot-gas lawsuit has absolutely no merit, that a lawyer is still going to step up and take it if he thinks he can convince (confuse) a jury?
But that’s ok, I’m pretty sure I’m wasting my breath, because you view lawyers the same way that most people view oil companies, so the facts aren’t going to get in the way of the demonizing.
Believe me, that observation did not escape me, but you have the opportunity here to set the record straight as you see it. That is also what I do. However, you are wrong to suggest that facts won’t “get in my way.” I do actually pay attention to facts, and change my opinion when I think the facts warrant it. You have no restrictions at all here on voicing your side of the matter, so if the facts support you then your views shall win the day.
My view is that litigation is very big business, and because of this we have spawned too many lawyers for legitimate lawsuits to justify. I believe that is why we have the system that we do in which lawyers are willing to pay big advertising dollars for Google keywords that involve litigation. That was quite an eye-opener for me.
Cheers, RR
RE: malpractice
it’s like the old advertising joke: The CEO says that he knows that half of his ad dollars are wasted, so the young executive says “Well, let’s cut the budget by half and stop running the ads that don’t work,” to which the president replies “Yes, but which half are those?”
I don’t think any fair person argues that all med-mal suits turn out to be well grounded; yet many are, and the rub is knowing which ones they are. There’s a procedure for sorting that out–there’s a long discovery process, and then there’s a trial.
Those easily-confused juries you mention somehow manage to find for the defendant doctors more than 80% of the time. Is your argument that their confusion only goes one way? They are perceptive and wise 80% of the time, but easily confused the rest? Or is any jury that finds for a plaintiff obviously confused? (Defendants win, overall, about 2/3 of the few–2 or 3% –of civil trials that reach trial.)
The Harvard Med School studies on iatrogenic (doctor-caused) death and illness conservatively put the number at 100,000 or so annually. And quality of care initiatives by some of the biggest health care buyers (companies like GM, IBM, etc.) have been startlingly successful at reducing the most common causes of medical errors (handwritten Rx, poor communications during shift changes, etc.) in the handful of hospitals where the project is in place.
If a quality assurance/best practices initiative focused on nothing but preventing easily prevented errors can have such a powerful positive effect, does it not suggest to you that there are a lot of negligence going on? Else the project would have no impact.
As for med-mal driving health care costs, that’s simply not the case. The tort system is, at most, about 1% of the costs of health care — obviously a huge number given the staggering size our inefficient profit-driven health care system — but a trivial piece of the puzzle as far as costs go.
They are a highly VISIBLE health care costs, thanks to tireless efforts of insurance companies and doctors to portray med mal suits as a scourge, even as study after study shows that the price of med mal insurance has more to do with the insurance companies’ stock market results than anything that happens on the litigation side.
re: loser pays (British rule)
You are absolutely right–the increasingly prevalent tendency to make plaintiffs pay defendants’ costs does have a tendency to drive out “frivolous” suits, but only by the poor.
And it especially drives out perfectly justified, meritorious suits by the poor. A frivolous suit is, by definition, without merit, and so it is dismissed long before it reaches a jury. Any corporate lawyer would far rather face 100 or 100,000 frivolous suits than 10 solid ones, even from a strict bookkeeping perspective, because solid suits require a serious defense. That means costs go up, for both sides.
Which means that what the British rule does, while helping get rid of the trash that is already being weeded out by summary disposition proceedings, is make it impossible for the poor or middle class person to bring even the most meritorious case if it is at all complex. The risk is simply too great.
re: juries
I would agree that lawyers FOR BOTH SIDES try to use challenges to get the jury they think will find for them. Sometimes plaintiffs want a technically inept jury, sometimes defendants do. There’s no generalization you can make to cover it. Where causation is complicated, defendants are typically want to lose the brightest jurors, because a juror who can’t understand how A caused B votes finds no negligence by definition. Sometimes when the hardest issue is understanding complex damages (like in the Texaco $10B verdict case), the lawyers don’t know whether the “brightest” are good jurors for them or the other side.
Although, spending a lot of time talking about the evil silver-tongued lawyers picking the jury is like talking about the mountains of money in the oil company offices–it’s the stereotype that is hammered in over and over again, but it doesn’t have much to do with the real world. Very few cases ever get to a jury. Defendants do every bit as much jury shaping as plaintiffs, and defendants enjoy a particular advantage in that setting because plaintiffs bear the burden of proof. A draw goes to the defense, not the plaintiff.
re: litigation as big business
Yes, and do you suddenly have a problem with big business? In a capitalist system where lawyers compete for the best cases (because lawyers who take bad cases starve), there’s a premium on finding those cases, so that bids up the price of techniques like buying key words.
A lot of people find lawyers and especially lawyer advertising distasteful. A lot of people find oil companies and oil company image advertising distasteful. But both sets of folks operate in competitive markets that operate in a Darwinian fashion–the more successful ones have more money to invest in making themselves even more successful, whether by doing more complicated exploration to find the best, most lucrative oil plays or doing more to attract the best, most lucrative cases. Like oil fields, they don’t announce themselves on your answering machine every morning–you have to hunt for them high and low.
Some find this unseemly– they want a world where they are free to drive their single occupancy internal combustion cars as much as they want for $0.78 cents a gallon with no emissions, but no oil companies should be allowed to drill anywhere and they’ll be damned if they should be so inconvenienced as to ever change their habits to conform to geological and ecological reality.
Similarly, many people find the who civil arena to be a nasty business and wish it would simply go away–they want to live in a world where the lawyers are all Judge Parker practicing down the street from Marcus Welby, MD, and no one ever files a class action against a corporation in which they own stock — until they have been injured or cheated …
Those easily-confused juries you mention somehow manage to find for the defendant doctors more than 80% of the time.
So what you are saying is that 4 out of 5 doctors probably shouldn’t have been sued. Which is my point about lawyers driving up health care costs.
Last post on this. I am an engineer, not a lawyer.
Cheers, RR
4 out of 5 med mal suits shouldn’t have been filed only in the sense that all dry holes shouldn’t have been drilled for oil. Hindsight’s 20-20, eh?
Cheers.
anonymous,
Your posts are very thoughtful and long. But this is what puzzles me, you are obviously a smart person capable of logical thought. Why can’t you offer a simple judgement on the case at hand. There is no opinion involved, there is no need to determine who did what, there should be no facts in dispute. The ONLY facts that matter in this case are what is the thermal expansion of gasoline and what is the temperature of the fuel coming out of the pump.
So tell us what you think, I won’t tell anyone a the American Trial Lawyers Association. Just say it, “this case has no merit”. Give it a try, it might be a liberating experience.
Also, after reading your long posts, I find that my eyes have suffered significant strain and my neck is very sore and who knows what the long term effects might be…
Seriously, your points are well taken and it was a good discussion, but the fact that this case is being talked about “in many states” tells me that there is problem.
Wang, you seem to think I would care what ATLA says. (Although I am an attorney, I am an energy attorney; I have never sued anyone or defended a suit professionally, and the only time I have been a party to a suit I was being sued in small claims court.)
I would be glad to concede that, on the basis of no research and applying only the description of the allegations presented in this blog article, the suit seems flimsy. I will concede that if you will concede that many of the suits deemed most notorious by the tort reform crowd turn out, when Paul Harvey’s “rest of the story” is known, to be complete fictions, almost-complete fictions, or grossly distorted depictions of the cases and their allegations.
Before moving to this phases of my career, I worked for an appellate court for several years, and I learned there that the reality of the cases and the arguments presented had only the slightest connection to the case as described in the popular press.
Sorry about your maladies from my overly long posts. Assumption of the risk, though …
What I find of particular amusement on the hot gas issue is that the potential ‘harm’ to consumers from this kind of marginal change in volumetric delivery pales in comparison to the mileage penalty imposed when using ethanol blends. Even ethanol advocates agree that an E10 blend will decrease mileage (or increase fuel costs) by 3%, but nobody seems to be complaining much about that.
Since most ethanol blending is done by government mandate, there would be no point in objecting to that fact alone anyway.
And I think most pumps that dispense ethanol blends are marked to indicate that. I think that, in some states, failure to mark the pump to indicate that the mixture being sold contains 10% ethanol would provide (at least) grounds for a complaint to the Consumer Protection section in the AG’s office (or Bureau of Weights and Measures or equivalent).
An issue that would likely arise if ethanol ever became cheaper than gas would be refiners trying to sell “watered down” product–i.e., product with more than 10% ethanol, marked as 10%. (Wonder if there are any folks trying to pass off pure unleaded as 90/10 today?)