Guest Post: Tort Reform

Is this a Symptom or a Cause?

by

Ronald G. Pittenger

            As I begin to write, this is the number one story at AOL/Huffington Post News:  Mary Bach, Consumer Activist, Wins Lawsuit Against Walmart -- Over 2 Cents (http://www.huffingtonpost.com/2011/09/30/mary-bach-2-cents-walmart-lawsuit_n_989509.html).  Being a retired retail manager, I was intrigued and read the article.  Then I laughed.  Then I cried.

            The facts appear simple:  Bach bought sausages with a shelf tag of 98 cents and the register charged her $1.00.  She called the clerk’s attention to the error and the clerk immediately refunded her the two cents.

            Six days later, she returned and bought more of the sausages and was again charged $1.00.  This time, she REFUSED the refund of the two cents and filed suit in Small Claims Court.  Ultimately, she won her suit and was awarded $100.00 “damages” (even though she wasn’t damaged) and “about $80.00 in court costs.”  The article winds up saying this was the fifth suit she’d won against “this store.”

            Being a curious fellow, I followed the links within the story to coverage at the Pittsburgh Tribune (http://www.pittsburghlive.com/x/pittsburghtrib/news/westmoreland/s_759401.html).  Ms Bach has a 17-year history as a “consumer advocate” and has won many such suits.  It was questioned at trial if she even intended to consume the sausages herself—a question she dodged neatly, saying her husband and a relative liked them.  It was also testified to that the manufacturer of the sausages had just changed the package size and price while retaining the SAME UPC and barcode—which meant the store couldn’t “correct” the already-correct price (though probably they could have, and SHOULD have changed the price sign on the shelf to $1.00—no customer will complain about being charged too little).  And, she testified “she was aware” of the same problem in other vicinity stores (including two other Walmarts).  There is no mention of whether or not she’s suing them, too.

            Ms Bach won $180 for the effort of going shopping and paying attention to each item.  Common sense and the law both encourage this behavior.  It seems the law and common sense part company when it comes to remedies.

            No consumer gains any advantage when something like this occurs.  Walmart’s costs have to be many multiples higher than the $180 Bach won.  The store manager (and other employees?) had to accompany Walmart’s lawyer to court, wait for the hearing, testify and be cross-examined, wait for the hearing to end, and possibly return to work.  It likely took at least half of a day.  Inexpensive lawyers are getting $200 or more hourly for court time.  I doubt Walmart uses inexpensive lawyers.  I’d be surprised if their total costs were much less than $2500.

            Who do you suppose will ultimately end up paying for this adventure?  Bach’s fellow consumers, of course.  A few extra items will go up a cent or two each which will both pay for the fun and create new opportunities for mistakes to be sued for.  The cycle goes on.

            Why was this issue even in a court (of any size, small, medium, or large)?  Because the state allows individuals to file these suits instead of having the regulations enforced by the people ALREADY charged with—and paid for—enforcement: the Bureau of Weights, Measures, and Standards (Pennsylvania may call it something else, but I guarantee they have one, it’s the same folks who put those stickers on gas pumps).  I doubt the legislature envisioned anyone making a profit by suing retailers, but unintended consequences happen all the time.  By the way, if your boss required of you the kind of perfection required of stores by pricing laws, how long do you suppose you’d hold your job?

            In essence, this isn’t much different from a slip and fall except there is no particular injury that has to be shown by the “victim.”  If allowed by law, a smart judge would have awarded Bach her specific, itemized costs and triple damages (six cents), or at most a dollar.  That would allow her the moral victory and recovery of her direct expenses, but not provide any incentive for anyone to run out and copy her actions.  (Actually, if I’d been the judge I’d have thrown her case out when I heard she’d refused the refund.)  Instead, it’s “Release the hounds!”  As this stands, it is both a symptom of a poorly constructed system and a possible cause of future cases.

Tort reform, anyone?  Yes, please; I’d like mine well done.