by Guy O. Kornblum
Tort Reform - this term is a popular "sound bite" in Washington and in many state houses. President Bush listed "Tort Reform" as one of his primary themes of his election campaign, and he has made it a primary objective of his current legislative programs. It is unfortunate that he blames the "trial lawyers" for the ills of our legal system. He alleges that "we" have created an environment which allows essentially anyone to "sue and collect" in the same motion. He could not be more wrong.
Our legal system does not suffer from the ills that he touts. Now, I am one of "the trial lawyers." I have been one for nearly 40 years, and my back stiffens when I listen to him lash out at us. If he only knew how many of my colleagues have endured long, legal battles on behalf of a seriously injured claimant, or paid countless dollars of their money to gain the "adequate award" for a family that has suffered a devastating injury to one of its members, or sustained an action against an insurance company that has used its economic clout to bury an insured by denying benefits rightfully due. President Bush's "tort reform" program claims that it is in the public interest, will eliminate "garbage" lawsuits by what he implicitly claims are unethical lawyers, and will save the public money. This is his spin. I see it differently.
While some reform may be in order, the question is whether his plan is the right one for us. The real questions are, who is benefiting from the Bush Program and whose rights will be sacrificed? As in many cases with our President, the answer is in the details, which, as they say, is where the devil lives. Let's examine what is going on and see if the broad spectrum Bush proposals are really the best for us all.
First of all these proposed reforms target several areas:
- It prevents "small claims" from being subject to class actions even though these can result in huge "secret" profits for large businesses;
- Puts caps and limits on medical malpractice cases so that it basically is unaffordable for a victim to bring claims against wrongdoing doctors and hospitals except in the most egregious cases; the victim of malpractice in cases not involving death or serious injury have no practical remedy for their injuries;
- Places barriers and hurdles on those bringing products liability cases so that businesses have little to fear in putting defective products on the market before proper testing or in the face of information suggesting these products are not safe;
- Reduces and even eliminates the threat of punitive damages to businesses that act in a reprehensible way so as to expose the public to serious injury simply to increase their profits or gain an advantage on their competitors unfairly while at the same time defrauding the public or exposing us to unsafe products.
President Bush is not alone in this reform. California has been active in tort reform over the years. In 1975, our Legislature passed the Medical Injury Compensation Reform Act ("MICRA"), which severely limited medical malpractice claims. It was passed in response to what was described as a medical malpractice "crisis" - i.e. the insurance companies were using the alleged large number of medical malpractice claims as an excuse to raise insurance rates for their doctor insureds. The doctors were screaming, claiming that these premiums were forcing them out of business. Something had to be done to curb these "runaway" awards resulting from claims of victims of medical malpractice. Bear in mind, these claims had resulted in lawsuits, and juries had, after listening to the evidence and hearing the judge's instructions on the law, found the doctor (or hospitals, or both) had committed medical negligence and awarded the plaintiff/victim a large sum of money to compensate for this wrong. OK?
The tort system (compensating civil wrongs) was working as it should. And the insurance companies were making excuses to charge the doctors large premiums for protection against lawsuits by those who claimed the doctor or hospital had not met the standard of care for providing the medical services that had been undertaken. One of the serious defects in MICRA was to limit, in 1975, the amount of any award for pain and suffering to $250,000 per claimant. The limit has never been changed. Consider what $250,000 is worth today S $50,000, maybe $60,000 at best. Guess what? President Bush's tort reform wants to adopt the same limit of $250,000 on "non-economic" damages in 2005. Talk about going backwards!
In other words, the Bush tort reform proposal is adopting amounts that might have been relevant in 1975, but not 30 years later! Since then, California has passed some tort reform legislation. Most recently, this past election, a reform measure put limits on lawsuits alleging "unfair business practice" which could be filed by a member of the public to stop an unfair business practice whether or not that person was injured by it. That allowed a member of the public to act as a "private attorney general" to challenge these practices. Now, the only ones who can bring such a claim are those who are injured who may or may not have the time, money and resources - and energy - to attack such practices. Rather than allow the courts to scrutinize the business practice being challenged, the courts now look to who the Plaintiff is who is bringing the lawsuit.
That is the wrong end of the inquiry! At the federal level, on February 18, President Bush signed into law the "Class Action Fairness Act" after it passed through Congress the previous day. This bill, which discourages class action lawsuits, is far from fair. It is, instead, another way for Republicans to align themselves with special interests at the expense of American consumers and the justice system. Class actions have been allowed to permit groups of plaintiffs who have been similarly harmed by defective products or drugs, or unlawful business practices, or corporate abuses to ban together to bring a single lawsuit to redress the wrongs. Often, the individual losses are not sufficient enough to justify the time and expense of separate lawsuits. The fees on one case may make it economically impractical for a lawyer to represent a single client.
The "class action" permits a joinder of plaintiffs to accomplish the goal of seeking redress for the wrongs while sharing the expense. Corporate America hates these cases because they have the potential for exposing their wrongdoing. They are another arrow in the quiver of the public to attack corporate wrongs. President Bush's legislation was designed to severely limit these cases by restricting who can file them, when they can be filed and where they can be brought, forcing victims to divide up rather than join together.
The Bush bill passed, but before it did, our Congresswoman Nancy Pelosi had some things to say about its provisions: Make no mistake: the class action bill before us today is an extreme bill. It is not a compromise bill, as some have claimed. It is an extreme bill that is an injustice to consumers, and a windfall for irresponsible corporations. Consumers will be hit hard by this bill. It lumps together individual personal injury cases such as those involving Vioxx, which are not class actions under current procedures, and forces them into the federal courts. Doing so will greatly increase the likelihood that such cases will never be heard. When Americans are injured or even killed by Vioxx or Celebrex or discriminated against by Wal-Mart, they may never get their day in court. Those cases that do go forward will take significantly longer because the federal courts are overburdened and unequipped for this caseload.
That is why the bill is opposed 4 by federal judges, including the Judicial Conference of the United States. This bill also runs counter to the principles of federalism that my colleagues on the other side of the aisle claim to support. It throws thousands of state cases into federal courts that are not equipped to adjudicate state laws. In concluding her remarks during the debate, Rep. Pelosi stated that she supports "sensible approaches that weed out frivolous lawsuits, but not meritorious claims. . . . [C]ertain kinds of cases must always have their day in court. Physical injury cases, civil rights cases, wage and hour cases, state Attorneys General cases, and others must be heard if we are to remain a nation that strives for 'justice for all.'" It is time to quit legislating away the rights of citizens and allowing the court system to work its way through the process allowing cases to be heard on their individual merits rather than cataloging them and placing unnecessary and artificial barriers to their pursuit. The case by case approach has worked for centuries; there is no reason for that process not to continue. Let the judges and juries do their work. That is the way our Legal System has worked best. It should continue to do so.
