Tuesday, August 9, 2011

Tort Reform: Or "How We've All Been Had"

I guess I should start with defining a "tort."  A tort is a wrong committed by a business or person that results in personal and/or economic injury to another person.

Think: exploding Ford Pintos; dangerous drugs like Levaquin; age discrimination; medical malpractice.  These things really do happen, and the lives of real people are truly lost, or dramatically altered for the worse.

Over that past 25 years, our Country has been convinced to embrace the idea of "Tort Reform."  What is that?  It is when a law is put in place to limit (read: reduce) the verdicts of juries who have sat through trials, considered all of the evidence, and rendered verdicts in favor of injured individuals.

Why has "Tort Reform" taken place?  Why has it been permitted?  To remedy an evil such as jury verdicts?  To say that would be to condemn our civil justice system, and to condemn yourself or your neighbors who have rendered such verdicts.

No, the answer is: "Tort Reform" is the product of laws enacted by politicians to protect their most important constituents.  You and me? No.

Big Business. 

But, you ask, how does "Tort Reform" help Big Business?  Why is Big Business more important than the popular vote?  Why do politicians care about helping Big Business?

The Answer:  Campaign Funding

Simply stated, politicians are elected by popular vote, which is in large part the result of a successful advertising campaign.  Where do politicians get the money for their campaigns?  Big Business.  When politicians get in office, they often want to stay on good terms with those that helped them get elected (and who may help them get re-elected).  Therefore, they will in many cases capitulate to the desires of their funding sources by passing "pro-business" laws - or at least will seek to avoid angering them by passing "anti-business" laws.

How does this manifest itself in the employment law world? Obviously, in many, many ways. We recently wrote, for example, about the extremely limited scope of the much ballyhooed whistle blower law, Sarbanes-Oxley.  We see it in the "caps" (i.e. recovery limits) established in employment laws such as Title VII  These caps are used to eradicate verdicts by juries in favor of victims of illegal employment actions. 

Who benefits from the caps?  The businesses that are sued. They not only save money, but are not truly incentivized to change their ways.  Who suffers?  Our jury system (why should the verdict of a jury that heard all of the evidence be stripped by a law passed years before without regard for the case that the jury heard and decided?).  And, the public at large.  After all, it is government programs paid for by our tax dollars that help the unemployed.

However, the most critical way in the past 25 years that the "Tort Reform" phenomenon has impacted on the civil rights of American Citizens is in the area personal injury law.

In my view, every person in America should watch the HBO Special "Hot Coffee," which explains how corporations have stripped American Citizens of important constitutionally protected rights via propaganda, "Tort Reform," influencing elections of judges (who will vote in favor of their agenda) via campaign funding, etc.

I am not a conspiracy theorist, nor am I condemning politicians or big business - my goal is to simply state some facts. The biggest crime, to me, is ignorance. Ignoring or not recognizing the reality of how our political system works makes all of us individual citizens vulnerable. I am reminded of a vignette in Hot Coffee:

A man from Texas with little education was badly injured by a product defect. He had major injuries, so that he needed future medical care and would be unable to return to work.  He won a large verdict.  However, due to Tort Reform that capped the amount of damages a plaintiff such as he could recover, the jury's verdict was dramatically reduced "by operation of law." He was shocked, dismayed, bewildered, afraid, angry.

Someone asked him if he was aware of what Tort Reform was.

He said, "Yes, I voted for it, but what does that have to do with me?"

He was told that it was because of that Tort Reform law that his recovery was so limited.

"That can't be," he said. "That law is for all of the people that file frivolous lawsuits. Not for people like me. My case isn't frivolous."

"No," came the reply, "you were told it was for frivolous lawsuits to get your vote, but as far as the law is concerned, all product liability lawsuits are frivolous."

Now, because the jury's verdict was reduced by "Tort Reform" caps, to the great benefit of the company that caused his personal injury, he cannot afford essential medical care.  So, who pays for it?  You and I - it is our tax dollars that fund medicare and related public health programs.

So, let's get this straight via a hypothetical:

Individual is catastrophically injured due to exploding Ford Pinto. 

Evidence shows that Ford knew for years that Pinto design was defective and dangerous, but refused to recall for economic reasons.

A 3 week trial results in $10 Million verdict by jury for future health care, pain, suffering, loss of income, etc.

Verdict of jury is lowered by 75% due to "Tort Reform" cap.

Ford, a multi-billion company that purposefully allowed the Pinto to stay on the market in order to save dollars, knowing that the cost would be human lives, saves $7.5 Million thanks to cap.

Taxpayers have to pay $7.5 Million for care of individual over next 20 years via government programs designed to assist those with serious disabling health conditions.

Ford saves $7.5 Million even though it caused injury.  Society pays $7.5 Million because we were convinced that "Tort Reform" was a great idea to stop the frivolous lawsuits and money grubbing personal injury lawyers.

Sound about right to you?

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