Mississippi judge says NO to tort reform

Yesterday, a Circuit Court judge in northern Mississippi said "No" to one of the most dangerous forms of tort reform ever enacted in Mississippi. Several years ago, as a result of a special session of the Mississippi legislature, section 11-1-60 of the Mississippi Code was passed. This statute limited non-economic damage awards to $1 million dollars. A previous statute had limited the same type of awards in medical malpractice cases to $500,000. Apparently, your life is worth less if you are killed by a doctor rather than an 18 wheeler. But I digress.

The issue of whether the legislature's capping of damages unconstitutionally invades the province of the judicial branch has been pending before the Mississippi Supreme Court for some time. Thus far, the Mississippi Supreme Court has been able to avoid ruling directly on this issue, despite even having the Fifth Circuit Court of Appeals directly certify the issue of the damage caps' constitutionality to the Mississippi Supreme Court for resolution, as Federal appellate courts are allowed to do regarding questions of state law.

Tired of waiting on the Supreme Court to finally take up this issue, which was causing a significant delay in a case pending before him that had already resulted in a verdict larger than the $1 million dollar cap, Judge Charles E. Webster ruled that section 11-1-60 is unconstitutional in that it violates Article I, Sections 1 and 2 of the Mississippi Constitution, which provide that the powers of government will be separated into the three branches of executive, legislature and judicial and that no encroachment by one branch will be allowed on the powers given to any other branch.

Judge Webster correctly found that allowing the legislative branch to set the maximum recovery in a civil case would give the legislative branch the ability to effectively do away with jury trials since, in theory, the legislative branch could set the maximum recovery at only a $1. While unlikely to happen, it is this ability to encroach on the judicial branch that renders section 11-1-60 unconstitutional. This would clearly violate Article III, Section 31 that made the right to a trial by jury inviolate in Mississippi.

Judge Webster did a brave and correct act when he made this ruling. Too many judges would have kept their head down and simply waited for the Supreme Court to rule. It's too bad that there are not more judges of the caliber of Judge Webster aroun the nation willing and able to rationally and logically say "No" to tort reform. Good job, Judge Webster.

Republicans trying to limit non-economic damage claims to $250,000 max!

Republican in the U.S. House of Representatives are pushing a tort reform bill that would limit non-economic damages to $250,000, put a limit on what attorneys can charge via contingency fees and restrict punitive damages.

This bill, if passed, would run most attorneys that represent plaintiffs right out of business. The threat of actually being brought to justice in a court room is the only incentive most corporate defendants and insurance companies have to fairly evaluate and pay claims. This bill, if passed, would eliminate that incentive.

It is hard enough to make it as a trial lawyer as it is. Forget the damaging, demeaning misconceptions assigned to the term "trial lawyer". Its also hard just due to the economics of what a trial lawyer must do to succeed finanically. First, trial lawyers that work on contingency fees (i.e. most trial lawyers) only get paid if they win or settle. The only way they settle is if the insurance company or corporate defendant thinks there is a chance the trial lawyer and his injured client will receive more at trial. If the bill being pushed by House Republicans is passed, the chance that a trial lawyer could get more at trial for his client is significantly diminished. Add on top of that the limitation on what the trial lawyer can charge to financially risk his time and money on a case that may or may not pay off and you've really got a disaster for trial lawyers.

Why does that matter? Because if there are no trial lawyers, there is no one to get you justice (or even a partially fair result) if you or a loved one are injured in a car wreck or as a result of malpractice.

What's their real goal? Ask proponents of tort reform and they will spit out some boilerplate answer about eliminating frivolous lawsuits. But caps on damage awards makes no sense with that goal. Why not punish those that file frivolous lawsuits? Oh, wait, there's already a rule that does that. Not to mention that filing frivolous lawsuits (or just longshot lawsuits that have some merit) is the quickest way to go broke as a trial lawyer.

Their real goal is not to eliminate frivolous lawsuits. Its to limit the compensation that can be provided injured, deserving victims in lawsuits with merit. They don't want to stop frivolous lawsuits. They really don't want to pay for their horrendous actions, plain and simple. But the insurance companies and the corporate defendants count on the masses being ignorant and falling for their meritless rationale that they are stopping frivolous lawsuits and not peering behind the curtain to see the real motivation behind their proposed laws.

Don't be ignorant. And don't let your congressman and senators think you are ignorant either. Call them, write them, e-mail them. Let them know that you (and your vote) will not support those that try to take away your rights and the rights of everyone you hold dear! The alternative is just too costly for all or any of us to bear.

Tennessee Says Yes to Justice and NO to Tort Reform

The Senate Judiciary Committee of the Tennessee legislature voted to reject a bill that would have severely curtailed plaintiffs in Tennessee's ability to obtain punitive damages.

If SB2637 (penned by Republican Senator Brian Kelsey (House version by Republican Rep. Vance Dennis)) had passed, Tennessee would have held employers responsible for punitive damages only if (a) the reckless act was committed by someone employed in a management capacity; (b) the employer recklessly hired, retained, supervised or trained the reckless employee; or (c) the employer authorized, ratified or approved the reckless act or omission with knowledge or conscious disregard for the loss or injury.

So, plaintiffs would have received justice ... virtually never.

The Bill defined "someone employed in a management capacity" as a management-level employee with the stature and authority to set policy and exercise control, discretion, and independent judgment over a significant scope of the employer's business and where the alleged act or omission warranting punitive damages by such management-level employee was directly within the scope of such authority.

Admittedly, punitive damage awards are very rare. But the threat of punitive damages encourages more responsible behavior that ultimately protects people.

The defeat of this bill has been described as a major victory for Tennessee consumers. Way to go Tennessee!

Excellent article about the lies of tort reform

Tort reformists often misconstrue and even lie in order to scare the masses to support tort reform whose only purpose is to line the pockets of insurance companies and corporations, i.e. the 1%. This article at the pop tort.com summarizes an academic study written by Cornell Law School professor Theodore Eisenberg? Click here for the excellent summary debunking many of the myths that tort reformists spew, particularly about punitive damages, medical malpractice and products liability - www.thepoptort.com/2012/04/tackling-the-lies-of-tort-reform.html

Happy reading.

Top 40 Under 40

I am pleased to announced that I was selected this year as one of Mississippi's top 40 trial lawyers under the age of 40 by the National Trial Lawyers association. My law partner Charles Merkel III was also selected. I am both honored and glad to be reminded that I am still (slightly) under 40!

Here's a link with more info for anyone interested: 40under40.thenationaltriallawyers.org/