WHY TORT REFORM IS WRONG AND WHY YOU SHOULD CONTACT YOUR LEGISLATORS AND TELL THEM TO VOTE AGAINST THE TORT REFORM BILLS

By: Joseph R. Neal, Jr.

I. INTRODUCTION

I am a trial lawyer and the son of a trial lawyer, and I am proud of it. My profession is a calling to help those in need. For more than a generation, my family has represented the innocent “ little guy” up against the guilty monoliths of society - David v. Goliath - working middle class citizens and their families who fight mammoth corporations and insurance companies in the pursuit of civil justice and monetary compensation for permanent injuries and wrongful death. When Goliath loses on the battlefield of justice, he plots to change the rules of the battle and to take David’s slingshot away.

II. WHAT IS TORT REFORM?

At this very moment, the powerful Goliaths in America, the U. S. Chamber of Commerce, mammoth corporations, big insurance companies, and wealthy doctors and hospitals, are spending millions of dollars on television ads falsely slandering trial lawyers for every bad thing in the American economy, from rising medical malpractice insurance premiums (false – see studies below) to a shortage in the amount of the flu vaccine. (also false – visit http://www.snopes.com/politics/business/flushot.asp).

At the same time, the Goliaths are stuffing state and federal politicians’ campaign coffers with millions of dollars of cash to buy their votes in favor special interest “tort reform” bills. The Goliaths of America have opened the bank vaults to elect political leaders to serve as “rubber stamps” for their radical anti-consumer agenda.

Tort reform is government-sponsored welfare for corporate America. It is also an outright attack on every American citizen’s 7th Amendment Constitutional right to a fair and impartial Trial by Jury. These bills, if enacted into law, will severely limit and diminish every American’s constitutional right to seek full, fair, and complete monetary justice from a jury of one’s peers in a Court of civil law because they set arbitrary and capricious limits on the value of a person’s permanent injury or the value of their life without any consideration of the evidence in the case! Tort reform is a “one size fits all” bill. However, in law, as in life, one size truly does not fit all. Every human being and every human life is different and unique.

If passed, tort reform would cap every single American citizen’s non-economic damages at a mere $250,000 - for the negligent death of an elderly grandmother, for the permanent, life- long disabling of a six year old child, for the wrongful death of a stay at home mom or dad, for the paralysis of a priest, nun, or other non-wage earner; and for permanent loss of limb, blindness, etc..

Tort reform means if a jury who hears and sees the evidence in case returns a verdict for $1,000,000 in human losses, the judge will be forced to slash the award down to $250,000. Tort reform means if a jury renders a verdict for $5,000,000 for the loss of a stay at home mom’s life, her surviving children will only get $250,000. Under tort reform, the guilty get a free pass for their wrongdoing and their profits increase at the expense of their victims’ rights. Is that justice? No, that is injustice. That is wrong.

Tort reform is not only unfair, it is also dangerous, as it will shield wealthy doctors and powerful corporations from accountability, which will lead to more injuries and death from medical negligence and dangerous products.

The Goliaths of America seek to replace David’s slingshot with, in Sen. Zell Miller’s words, “spitballs.” The American people deserve better than this. We are a nation of underdogs. And we will not be fooled. We want our slingshot.

III. INDEPENDENT STUDIES DEBUNK THE MYTHS BEHIND TORT REFORM PROPOSALS

The insurance industry’s present call for tort “reform” is based on the contention that jury awards and settlements are the cause for soaring costs of medical malpractice insurance premiums. This contention is ABSOLUTELY false.

In 2003, a 30-year national study of the civil justice system conducted by the Americans For Insurance Reform, led by Robert Hunter, Insurance Commissioner under ex-President Gerald Ford, was completed. The AIR study is based on information provided by the insurance industry and state governments. You can view this study at their website, www.insurance-reform.org.

This objective data exposes the fallacy of the tort “reform” movement as it shows there is absolutely no correlation whatsoever between jury verdicts or settlements and medical malpractice insurance premiums, which is the sole stated reason behind tort “reform.”

Other independent studies have shown the same thing, that is, lawsuits and jury verdicts are not increasing insurance premiums. Weiss Ratings, Inc., the nation’s leading independent provider of ratings and analyses of financial services companies, mutual funds, and stocks, published a study in June 2003 that confirms the same thing the AIR study found. You can see this repot at www.weissratings.com.

Other studies have shown that in EVERY state that has enacted tort reform, there has been absolutely NO decrease in medical-malpractice insurance premiums. In fact, the states that have passed tort reform - Florida, Michigan, Texas, and West Virginia - have the HIGHEST medical malpractice insurance premiums in the country. Furthermore, statistics show that premiums for internal medicine doctors and general surgeons are HIGHER in states that have passed tort reform than in states that have protected patient’s rights! (Source – Medical Liability Monitor Oct. 2002).

IV. ANALYSIS

The truth of the matter is, lawsuits have little, if any, to do with the outrageous rise in medical malpractice insurance premiums. The real culprit is the insurance industry itself, which made reckless and risky pricing strategies to gain market share during the stock market boom and now seeks to recoup its losses in a downward spiraling economy by price-gouging the doctors it insures.

The insurance industry, in its insatiable greed, wishes to pocket the billions of dollars in insurance premiums that are paid by doctors and then to avoid providing the financial protection they promised doctors in exchange for receiving those premiums. In the corporate greed era of Enron, Worldcom, Tyco, and Adelphia, corporate ethics takes a backseat to corporate profit.

For more than two hundred years, every American has had the right to have their case heard and the value of their injures and life decided by a jury of one’s peers, not by special interest groups. Tort reform will take this right away. A jury of one’s peers is composed of neighbors, strangers, rich, poor, black, white, Asian, Hispanic, Indian, Hindu, Muslim, Catholic, Protestant, Baptist – citizens from all walks of life, representing the very fabric of our Nation, the greatest civilization on Earth.

For more than two hundred years, the independence of the Judicial branch of American government from partisan politics is what has traditionally made the Courts the only place where Truth and Justice prevail untarnished by special interests. The civil justice system is designed to ensure that the costs of injuries are paid by those who caused them, not to allow the guilty to shift the cost of their wrongdoing to innocent victims and taxpayers. America's civil justice system is a powerful tool for deterring corporate misbehavior and holding other wrongdoers accountable for harming workers, families, and consumers.

In the civil justice system, the verdict of each case is decided not by wealthy power brokers with their own special agendas, but rather by ordinary citizens who have no dog in the fight. There is no substitute for the collective wisdom and life experience of 12 unbiased, disinterested citizens in setting value on injuries. Citizens have as much a constitutional right to serve and vote on a jury as they do on a political election.

A jury of one’s peers has no interest in the outcome of the case, has no hidden agenda, and has nothing to gain from the case other than the pride of doing a civic duty and resolving a dispute peacefully that would otherwise have been resolved by blood in the streets.

I have tried nearly 200 jury trials in my career. As a trial lawyer, I am fighting for the David’s of American society in the civil justice system nearly every day of my life. In my experience, juries never award money frivolously, rather they take their duty to reach a unanimous verdict seriously, and when they do award a significant monetary verdict, it is only when the Plaintiff’s injuries are life threatening and when the Defendant’s behavior is egregious.

The huge verdicts that the insurance industry uses as poster children for tort reform represent but a miniscule portion of the total number of verdicts, and are NOT representative of typical jury verdicts. Under existing law, as in the past, Judges have the authority to reduce verdicts that are excessive. A recent example is the $28 billion punitive damages award against Phillip Morris, which was reduced by the trial judge down to $28 million in December of 2002. This is a classic case of the saying “if it ain’t broke, don’t fix it.” There is no problem with the jury verdict system that cannot be corrected by fair-minded judges under existing law. Our legal system simply does not need tort reform to reduce jury verdicts. The rule of remitittur already exists.

Kristin Loiacono of the American Trial Lawyers Association has recently investigated the tort reform movement and its bogus claims and notes:

“The Republican leadership in both houses of Congress is wedded to big-business interests such as the U. S. Chamber of Commerce whose top priority is to put greedy corporations and incompetent doctors above the law. These legislative leaders are committed to a pro-business, anti-consumer agenda. President Bush makes no secret of his disdain for lawyers and his goal of limiting legitimate lawsuits by injured Americans.

T he U. S. Chamber of Commerce recently unveiled its multimillion-dollar advertising campaign targeting plaintiff attorneys and the civil justice system in general. These ads, which have aired in several states, claim that U.S. consumers pay a hidden "lawsuit-abuse tax" on every item they purchase. This propaganda campaign is the latest example of the extreme lengths to which the Chamber goes in seeking to influence public opinion and legislation at the state and federal level.

Reckless behavior—creating off-the-books partnerships, improperly reporting revenue to the IRS, tampering with evidence, and misleading investors—exhibited by corporations such as Adelphia, Arthur Andersen, Enron, Tyco, WorldCom, and Xerox ultimately costs state and municipal workers more than $6 billion in losses to their pensions and fund portfolios, according to American Family Voices, a consumer advocacy group. And that’s not a fabricated hidden tax, that’s a reality.

The Chamber says that "excessive" litigation adds 2 percent to the price of goods and services. However, the Consumer Federation of America (CFA) found that from 1987 to 1996, the cost of products liability insurance for manufacturers averaged only 24 cents for each $100 of product sales. That's less than one-quarter of 1 percent.”

One thing the Goliaths pushing tort reform bills do not talk about is the cost to innocent taxpayers and victims of the proposed laws. Victims who get denied fair compensation for their life-long injuries will be forced onto Medicaid and Medicare programs. You guessed it. The taxpayers will foot the bill for a corporation or doctor’s wrongdoing. That is not fair. That is not American. That is not sound public policy. That is taxation without representation. We must stand up and demand our representatives represent us and protect the government treasury from the corporate raiders.

The vast majority of medical malpractice complaints do not result in litigation, much less an insurance claim. Negligence occurs in hospitals and doctors offices everyday that is not egregious or harmful enough to warrant a patient filing a claim or a lawsuit on. Furthermore, doctors already have special rights in the State of Georgia that make it harder to sue them than virtually any other business or person. For an injured patient to receive a money verdict in Georgia, the community of physicians and the community of citizens must agree that a harmful act of medical negligence injured the patient. Statistics, however, show that over 80% of medical negligence lawsuits result in a verdict in favor of the doctor, not the patient. This translates to “keeping money in the pocket” for the insurance industry in 80% of the cases they insure.

Not only do tort reform proponents want to take away every American’s constitutional right to seek redress for wrongs in the Courts, they also want to do away with lawyers’ contingency fees. Legislation outlawing contingency fees will prevent middle class and working poor citizens from going to court to seek compensation for their injures, for these citizens do not have enough disposable income to pay lawyers by the hour and will have no access to the Courts. This will result in only the rich and powerful getting justice in America. With tort reform, the American motto of “justice for all" truly is in danger of becoming "justice for some."

“Tort reform” is anti-free market and anti-American. “Tort reform” is an attack on the American system of checks and balances, where even the powerless are seen as equals with the powerful in the eyes of the law.

VI. A CALL TO ACTION

It is time for the American people to stand up and defend David’s right to keep his slingshot. It is our solemn duty as free men and women to preserve inviolate our constitutional right to Trial By Jury, which has for years been known as the last bastion of freedom and the only bulwark against tyranny.

I urge you to TAKE ACTION before it is too late and write, email, fax, and call your State and Federal Representatives, Senators, and Congressperson and urge them to vote “NO!” to “tort-reform.” Demand that they vote to protect your constitutional right as an American citizen to seek redress for your grievances in the Courts of our country.

Click on the links below to get contact information for your political leaders. Let your voice be heard. Do not delay. DO IT NOW.

PROTECT YOUR RIGHTS TO FULL JUSTICE FROM A JURY-
CALL YOUR U. S. SENATORS TODAY AND URGE THEM TO VOTE NO AGAINST THE DRACONIAN TORT REFORM BILL !!!

Back to top