Smaller Torts Make for Savory Politics

Smaller Torts Make for Savory Politics
BY QUIN HILLYER
AUGUST 04 2011








NEW ORLEANS: The American Legislative Exchange Council (ALEC), meeting here this week for its annual meeting and policy summit, is justly known as a clearinghouse through which state legislators across the nation exchange helpful information about the successes and failures of various policy initiatives. Perhaps in no other area is there such constructive ferment as in the area of lawsuit reform, examined by a sub-conference held by ALEC’s Civil Justice Task Force. [Note: I was a speaker, without compensation, at the sub-conference.]

Ever since former Democratic National Committee Chairman Howard Dean spilled the beans in a 2009 town hall meeting about how his party at the national level kowtows to the plaintiffs’ bar, reformers have been on the offensive. In the past year alone, at least 22 different states have enacted tort reforms of one form or another – although, as Mississippi Gov. Haley Barbour and others have noted, voters who hear the word “tort reform” might think you’re talking about French pastries. Barbour is right to suggest it’s best to talk about “ending lawsuit abuse.”

In only four of those states – Oklahoma, Wisconsin, South Carolina and Tennessee – did those reforms include the most high-profile of lawsuit-rule improvements, namely limits on non-economic damages. As Texas has shown, such laws really do work like a charm, but they are far from the only effective approach. For instance, one of the fastest-spreading ideas is that of what ALEC calls a “Trespasser Responsibility Act,” which immunizes landowners from responsibility for injuries suffered by trespassers except in exceptional cases of wanton or willful landowner conduct. Common sense alone insists that a property owner should not be held liable when an illegal trespasser suffers an accident. Texas, Oklahoma, North Carolina, and both North and South Dakota have enacted such reforms in 2011.

Alabama and Tennessee have enacted “venue reform” to protect against “forum shopping,” a practice through which plaintiffs’ lawyers file suit in friendly jurisdictions no matter how tenuously connected they are to the location of the alleged injury or the alleged misfeasor. Oklahoma and Pennsylvania passed reform of “joint and several liability” laws, so that a defendant’s liability for any damage awards is at least loosely limited to that defendant’s actual percentage of “fault” in the injury. In other words, plaintiffs will no longer be able to raid the “deep pockets” of a wealthy defendant whose contribution to the alleged harm was only minuscule.

Then there is the growing movement to combine lawsuit reform with simple notions of government openness. A so-called Private Attorney Retention Sunshine Act would require that if a state attorney general hires outside counsel on a contingency fee basis, the hiring be done only through transparent, competitive bidding, with legislative oversight and full reporting of all results, and perhaps with a cap on the effective hourly fee earned by such attorneys. Arizona, Indiana and Missouri all passed laws to this effect.

Among a host of other steps to end lawsuit abuse, one other deserves particular mention. In line with the Supreme Court’s important 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, which insisted that federal judges are responsible for ensuring that only real science and recognized experts are used for medical and other technical evidentiary purposes, states are increasingly doing the same within their own courts. Four more states – Wisconsin, Florida, Alabama and North Carolina – have enacted laws in the last year aimed at curbing junk science.

Again, this survey includes only those states that have made reforms in the past years. In many other states, wise laws like these already have been on the books for years.

There are several reasons why efforts to curb lawsuit abuse are spreading like wildfire. First, more and more people are realizing that a reputation for abusive lawsuits can act like a wet blanket on a state’s economy, chasing existing businesses (or doctors) away while making new investors wary to enter. Second, when used as part of a broader narrative about economic development, jobs, law and order, and simple fairness, tort reforms have proved to be electoral winners. In the past decade or so, reformers at the state level have won far more election battles than they have lost.

In short, voters may not know what at a tort is, but the effort to get torts right is nevertheless a politically tasty dish.