Tort Reform: Is "Jackpot Justice" destroying America?
Tort reform is a hot topic in state and national legislatures. The "reformers" cite horror stories while proposing our civil justice system is "out of control." As the story goes, American business is in the grips of a stranglehold from an out of control jury system--so called "jack-pot" justice--whereby the sophisticated trial lawyers dupe our poor, unsophisticated jury pools into awarding stupid gobs of money to the attorneys' not-so-injured clients. We all heard the infamous McDonald's coffee story; few though seem to know the "rest of that story". Likewise, it just isn't true that an Oklahoma jury awarded a zillion dollars to some idiot who thought a motor home cruise control was really an autopilot. While the rhetoric runs thick, in reality most of the great hue and cry seem to issue from one or two vocal sectors--sectors, with unfortunately, the ear of our legislatures--insurance company executives and doctors (as an aside, it seems to me the insurance companies are doing their own bang up job of destroying America right now without the help of the trial bar--but that's probably a different blog).
This might all be funny to me--doctor's and insurance companies fighting with lawyers over a few miserable millions or billions--except I recently quit my construction job to became a trial lawyer. I'm still not convinced the doctors and the insurance companies will eliminate, with their tampering, justice in America (nor will they, I don't think, destroy my ability to earn a living). I do think, however, the "reformers'" efforts are misguided. The facts just don't bear out the fears.
For example, the average jury award in my home state of Oklahoma (a state that hasn't implemented many of the "reforms"), is something like $35,000--that's in the few cases where the plaintiff actually wins his or her lawsuit. When we do see a big verdict it's usually against somebody or some company that has really done something heinous. I think also we can take comfort in the fact that the great majority of Oklahoma judges think our jury system works pretty darn well. Still the doctors and insurance companies complain that we (the plaintiff's bar and the jury system) destroy their livelihood; the facts don't bear this claim either. Anecdotal at the least, I can report personally that when we don't request a jury in one of our cases, the defendant nearly always does. That seems to belie the claim defendants can't get a fair shake from these "runaway" juries.
As with most hot button issues, the hypocrites abound; some of the more vocal advocates of the so-called reform apparently have no problem resorting to the "broken" system when it affects their own bottom line. For instance, the Oklahoman, our local rag, and a big proponent of tort reform, recently resorted to the tort system in an attempt to punish a Nebraska football fan prankster. Likewise, one of our ardent advocates of tort reform in the Oklahoma legislature, attorney Dan Sullivan, has taken flack for recently filing a personal injury lawsuit in Tulsa seeking punitive and other damages. As I said earlier . . . this might all be funny . . . . unfortunately the efforts of the "reformers" have prevented some really injured folks from receiving even marginal compensation. Take for instance, the case of seven-year old Jessie Geyer, who died needlessly from sepsis that at least two doctors failed to diagnose. It turns out California's $250,000 cap on "non-economic damages" made it economically infeasible for Jessie's parents to pursue a costly medical malpractice case against the negligent doctors. Unfortunately, these caps hit hardest those who can prove only non-economic damages--the young, the elderly, and others society should probably endeavor to protect.
Posted on Fri, September 26, 2008
by Paul Kouri