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A Step in the Right Direction

WASHINGTON, August, 25, 2012 - For over 20 years, Missouri  juries, like too many other juries in the United States, were not necessarily  the last word in providing justice to civil litigants who took their claims to  court.  Damages caps have now been removed in Missouri, and those injured  due to the neglect of others will now be responsible in full, as a jury  determines.

Deborah Watts, a Missouri mom, filed a medical malpractice lawsuit, alleging  her son Naython was born with disabling brain injuries because Lester Cox  Medical Centers and its associated doctors provided negligent health care  services.  A jury returned a verdict in her favor and awarded her $1.45  million in non-economic damages and $3.371 million for future medical  expenses.

The trial court, because of existing Missouri law, was required to reduce the  non-economic damages award to $350,000.00. Thus, translated, despite a jury  awarding Ms. Watts $1.45 million dollars, an arbitrary law forced the trial  judge to reduce that amount and enter the verdict to a significantly smaller  amount, $350,000.00.

Non-economic damages compensate for harms and losses that cannot be measured  by a dollar-for-dollar analysis. Concepts of disruption of life, physical pain,  mental or psychological suffering, embarrassment, distress, and the value for  loss of life, all of which are not medical bills or lost income, are routinely  the target of tort reform campaigns.

Punitive damages are also often referred to in these conversations as "non-economic," as these damages may be available and awarded to victims, not to  compensate, but to punish the wrongdoer.

By way of example, suppose you are involved in an automobile collision and  you hurt your neck and back. After two months of medical care, you have a bill  of $4,000.00. You also find you lost two weeks of pay, or $2,500.00. You now  have $6,500.00 in total economic damages.  If you go to court, then win  $10,000.00, the "additional" $3,500.00 in this example would represent "pain and  suffering" and would be considered non-economic damages.

So congratulations to the Missouri Supreme Court for overturning a 20 year  old Missouri law as unconstitutional, and for allowing a child severely injured  at birth and suffering disabling brain damage to receive compensation for his  injuries based on facts found by the jury.

Happily, there are currently "cap" challenges in Kansas, Mississippi, Florida  and Indiana.  Hopefully these states' high courts will see the Missouri  message and restore the rights of the citizens in their states, allowing them to  have their day in court if and when tragedy strikes.

The victory in Missouri was hard fought, ending in a 4-3 decision. Missouri's  State Attorney General represented the negligent health care providers in this  case.  The "friend of the court" briefs were staggering in number and were  presented by a veritable Who's Who in the Missouri and other  national tort reform legions:

The Missouri Chamber of Commerce; the American Tort Reform Association;  Property Casualty Insurers Association of America; Physician Insurers  Association of America; National Chamber Litigation Center Inc.; American  Insurance Association; National Association of Mutual Insurance Companies;  Missouri Hospital Association; Missouri Organization of Defense Lawyers;  Washington University, Saint Louis University, and The University of Missouri;  American Congress of Obstetricians and Gynecologists; Missouri College of  emergency Physicians; Missouri Association of Rural Health Clinics; the American  Medical Association, and eight other national and state specialty medical  associations.

Missouri's high court recognized that one of a jury's primary functions is to  determine a plaintiff's damages:

...Once the right to a trial by jury attaches, as it does in this case,  the plaintiff has the full benefit of that right free from the reach of hostile  legislation. Section 538.210 imposes a cap on the jury's award of non-economic  damages that operates wholly independent of the facts of the case. As such,  section 538.210 directly curtails the jury's determination of damages and, as a  result, necessarily infringes on the right to trial by jury...

The term "tort reform" caught on and became the rallying cry of those seeking  to avoid responsibility for harms they cause others, and it became the buzz  phrase representing ideas and laws designed to change the way our civil justice  system works.

Limiting jury verdict awards has always been one of several checklist items  in the tort reform movement.   Tort reform isn't one single idea or  law.  Rather, most tort reform laws or proposals share the following  goals:

  • To make it more difficult for injured people to file a lawsuit
  • To make it more difficult for injured people to obtain a jury trial
  • To place limits on the amount of money injury people can receive if they  prevail in court

It is interesting to sit back and observe the public's perception of lawsuits  in our country.  Most people agree with the propositions:

  • there are too many lawsuits
  • too many lawsuits are frivolous
  • greedy lawyers and their clients are clogging up our courts' dockets
  • we must prevent runaway verdicts

Sadly, none of those assertions are true, and all or most of them are  believed because of the extraordinary money thrown at tort reform efforts over  the last several decades by the insurance industry, by the tobacco industry, by  the pharmaceutical industry, and by others, all of whom wanting to help those  industries and others pay less, or pay nothing, for the harms they cause.

We Americans love the little guy.  Erin Brockovich stands out as perhaps  the best known.  We hate "big tobacco" and applaud when the tobacco  industry gets hit for millions by former smokers or their families who sue for  cancer conditions caused by tobacco products.

Yet, most Americans support tort reform without realizing they are cutting  off their own rights.

Beyond the up-front efforts of tort reformers, the insidious agenda is to  keep the misdeeds of corporate America out of your view.  If a jury verdict  can be limited to $250,000.00 or $350,000.00, there is no incentive for a  plaintiff to go forward with a lengthy and expensive trial when the wrongdoer  offers that capped limit.  Moreover, often the offer to settle for that  limit is accompanied by a requirement of confidentiality.  The translation  here can be seen by an example:  a company makes a defective product, it  maims you for life, you can only recover $250,000.00 if you sue, the company  offers you that money to avoid the lawsuit and requires you keep quiet about the  entire matter.  The company can afford to pay the claim, because then it  can keep peddling the defective product, which nets them profits of many  multiples of dollars beyond the paid claim amount.  Because of the  confidentiality provisions of these cases, you never hear about what happened,  what products are not safe, or what practices can harm you.  The cases you  do hear about are clearly just the tip of the iceberg.

The effect of tort reform allows corporations to keep their laundry dirty and  to allow their financial well being to thrive to your detriment, that of your  family, and to all consumers.

In the upcoming elections, in making your decision about who will get your  vote, consider, among other things, how important your right to trial by an  unburdened jury is, which candidate is on the side of protecting that right, and  which is aligned with corporate interests.  Heaven forbid you or your  family member needs to rely on a jury's verdict in a state where tort reformers  have successfully lobbied and had caps placed on how much you will get.

Source: A Step in the Right Direction | Washington Times Communities

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