Trial Lawyers are overlooking a huge windfall by not going after software failures, many of which spectacularly described in the media. A recent decision in California (where else?) appears to give trial lawyers easy pickings.

Dr Kevin Pho recently highlighted a ruling in Conte vs. Wyeth et al, in which drug companies can be held responsible for generic side effects, making a pass-through easier to attack. The basis for this has some interesting potential implications for software projects that don’t measure up.

At first glance, putting software liability in the same class as medical malpractice may seem a bit of a stretch: Software failures don’t kill anyone. But their contributions to secondary damages can easily be demonstrated.

Burden of proof has been generally reduced in the plaintiff’s favor, amply revealed in the Liebeck vs. McDonald’s case over hot coffee, which also demonstrated that plaintiff stupidity is not a hindrance.

Software failures in varying degrees are documented in myriad polls by various trade magazines, which taken together doesn’t paint a very pretty picture of technical management. Many of these failures are internal projects, so while one department suing another department might not make much sense, a stockholder action might. Sadly, neither Bill Lerach nor Mel Weiss, both bold stalwarts of stockholder rights, are on any tort lawyer’s A-list anymore.

Software can be the cause of huge financial losses, such as that which brought down Long Term Capital Management, with all that automated buying and selling and shorting and hedging and arbitrage spreads, using big iron and really complicated mathematical models. The recent ‘subprime’ financial meltdown can surely be explained by software that did all that automated valuations, title insurance predictions, servicing bottlenecks and comp selections, although the fact that many of the subprime honchos were lawyers, and really smart ones at that, could mitigate exposure.

At the other end is the COBOL problem that California State Controller John Chiang had recently, in which the taxpayers were, in effect, financing a one-year float. However, governments, however incompetent as they are, protect themselves by various claims of sovereignty and cannot be sued through ordinary means. It also helps that government is largely made up of lawyers, particularly the legislatures.

While software failures may not directly cause death, the collateral damages can induce extreme anxiety and physiological stresses that can lead to myriad other health problems, and the Conte vs. Wyeth decision provides a clear basis and foundation for connecting those dots to culpable malpractice.

Tags: malpractice, software, software failures, trial lawyers

This entry was posted on Tuesday, November 11th, 2008 at 13:57 and is filed under Software That Works. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.