09242017Headline:

Clearwater, Florida

HomeFloridaClearwater

Email Scott R. Marshall Scott R. Marshall on LinkedIn Scott R. Marshall on Twitter Scott R. Marshall on Facebook Scott R. Marshall on Avvo
Scott R. Marshall
Scott R. Marshall
Attorney • (727) 299-0449

Tort Reform – Why You Should Care That The 7th Amendment Is Under Attack

8 comments

“The only thing we have to fear is fear itself.”  Franklin Delano Roosevelt

Fear: the greatest tool of manipulators. When you listen to politicians, pundits, or anyone for that matter, and they are telling you to be afraid, the first thing you should do is ask yourself: are they trying to manipulate me? Then ask yourself: what do they have to gain from my fear? Many times, and in the case of Tort Reform, the answers are simple: yes, they are trying to manipulate you, and the reason is money.

So, in the interest of full disclosure: I am a trial lawyer. I am about to tell you to beware of Tort Reform and that Tort Reform can hurt you. I am telling you to be afraid of what Tort Reformers want to do to your rights. What do I have to gain from this? I’ll tell you: on a very direct level, my income. My income is derived from helping people recover money for harms and losses they have suffered as a result of either an on-the-job injury or the negligence of others. Tort Reform will reduce my ability to do that, so I confess that Tort Reform has the potential to have a negative financial impact on my life. But, in this blog, I hope to show you how it has the potential to have an even worse impact on yours. If you are one of those people who thinks “ambulance chaser” when you think of trial lawyers, I’m going to ask you to open your mind for a moment and consider the possibility that you are being hornswoggled by people and interests who don’t care about you.

First, it is important to note the distinction between a direct benefit and an indirect benefit. When you benefit “directly” from something, you notice an immediate, tangible benefit (i.e. cash). When you benefit “indirectly” from something, the benefit is usually much more amorphous and general. For instance, when you work, you get a paycheck that is a direct benefit to you: cash in your pocket. Your situation has improved directly as a result of the paycheck. When a big company opens in your town, it creates jobs, which improves the local economy. While you may not get a job with that company, it increases the tax-base, it pumps money into the local economy which indirectly benefits everyone. Make sense?

Who will benefit directly from Tort Reform?

Not you. The Tort Reform movement seeks to reduce causes of action and put limits, or “caps”, on the amount of money damages you, as a plaintiff, can recover for the harms and losses you suffer from the negligence of another person or entity. Who pays for negligence? In our current system, the person or entity who caused the harms and losses. When you are negligent and cause a motor vehicle crash that injures someone, if Tort Reform limits the amount of money you have to pay to the person you injured, then you benefit directly from Tort Reform. In reality, you are probably never going to have to do that, so you are never going to directly benefit from Tort Reform. You most likely have auto insurance, so it is the insurance company who will benefit. If you don’t have enough insurance to cover the loss, chances are you won’t be able to pay this loss anyway, so no one will force you to. You can’t get blood from a turnip. Indeed, it is a very rare circumstance when a private person actually pays any money to an injured plaintiff. Who pays? Your insurance carrier, one of the true direct beneficiaries of tort reform.

To discover the true intended beneficiaries of Tort Reform, you need only look at who are the biggest funders of the movement. The American Tort Reform Association, founded in 1986, is the largest association in support of Tort Reform. Click here for a list of member entities who fund ATRA. See any private individuals like you on that list? No, you don’t. Why not? Because private citizens like you are not direct beneficiaries of Tort Reform, and therefore, aren’t the ones behind the movement. The direct beneficiaries of Tort Reform are: the insurance industry and the Chamber of Commerce and its corporate membership. It’s quite simple. A limitation on lawsuits reduces the amount of money insurance companies and corporations will have to pay for an injured person’s harms and losses. It goes straight to their bottom line. Cash is king. Do they tell you this? Hell no. They tell you to be afraid of how lawsuits will damage the economy, which is at best at indirect threat to you, just as a thriving economy is an indirect benefit. The direct benefit of Tort Reform, money saved, goes to them. The indirect benefit, a supposedly stronger economy, is the carrot they use to induce you to support their cause. They don’t say: lawsuits are hurting our corporate profits and our shareholders, so please support Tort Reform. They say our economy is in danger, even though it isn’t (see my blog on the myth of frivolous lawsuits), and this will affect you directly, which there is zero evidence to support. Why do they do this? To make you afraid. To make you act. To make you support Tort Reform.

Why you, as a private citizen, shouldn’t support Tort Reform.

I’ve already acknowledged that I have a personal interest in opposing Tort Reform. Here is why you should too: we are being asked to give up or limit a fundamental right. Our right to a civil trial by jury is guaranteed by the Seventh Amendment to the U.S. Constitution. In exchange for giving up this right, we are being offered what? A promise of prosperity in times to come, and saving our economy from certain disaster (even though they’ve been saying this for over 30 years and the disaster has yet to come)? Yet many Americans buy into that and support Tort Reform. They like to say they are conservatives, which, by the way, they aren’t – tort reform is not a conservative position. True Conservatives support limited government and personal responsibility. Tort Reform limits the Bill of Rights, inserts the government into private matters, and shifts personal responsibility onto taxpayers. Hardly a conservative position. Personal responsibility and limited government are cornerstones of our Constitution and long-standing principles of conservative governance. Through invasive legislation, Tort Reform seeks to free us, and corporations, from that responsibility, so that individuals and corporations alike will not have to pay for their negligence. That burden will be shifted to the injured, and ultimately to the taxpayer, leaving the injured in poverty and adding to our budget deficit.

If we lived in a country with universal health care and a social disability benefit that covered all in an amount commensurate with their current wages, this right may not be so important (see my blog on the trade off between tort systems and social welfare systems). But when you do not have disability coverage and you rely on health insurance through your employment or have to pay for premiums each month, an injury that knocks you out of work for an extended period can and will be financially devastating. When it does devastate you, you end up in bankruptcy and on Medicaid or Medicare, in which case, taxpayers are picking up the tab for your loss. I’ve seen this happen to good, hard-working, Salt-of-the-Earth Americans. Some of the toughest people I know are clients that have come close to losing everything, but, with the help of our tort system and a good lawyer, have been able to put their lives back together. Take that tort system away and you leave them with nothing. That could mean you.

Nevertheless, Tort Reformers like to sound tough and blame greedy lawyers (as I’m sure someone will comment about below). They continue to repeat so-called conservative pundits who talk about runaway juries and frivolous lawsuits as if they were the plague. The diatribe usually continues until they are injured and actually need to exercise their right to a civil trial by jury and realize just how stressful and difficult our civil justice system is for victims of negligence. I can promise you, it ain’t easy. What they don’t realize is that they are asking for a system where they will be told, “Sorry, you lost your legs when that truck ran you over, but after Tort Reform, you are no longer entitled to money damages for that loss. Suck it up Buttercup!”

The bottom line is this: without our tort system, Americans can be left in a state of financial devastation, through the fault of another. It can happen to anyone, at anytime. If you have supported Tort Reform in the past, and you find yourself injured or disabled as a result of someone else’s negligence, you’ll be singing a different tune quickly.

For my part, if Tort Reform were to eliminate my job, I would move on and find another way to earn a living. I’ll still be a lawyer and there are plenty of other areas of the law in which I can practice. The people who would suffer most are those who are injured through the negligence of another and now have limited or no recourse.

So, after thinking this through on your own, I hope that you will see that the people who will suffer most from Tort Reform are the people of this great nation. People like you. And if that doesn’t worry you, it should.

8 Comments

Have an opinion about this post? Please consider leaving a comment or subscribing to the feed to have future articles delivered to your feed reader.

  1. up arrow

    Thanks for this excellent explanation of what is going on with “tort reform” or “tort deform” as it is sometimes called. For those who want to read the historical trail of the U.S. Chamber of Commerce, the insurance industry and the corporations whose profits increase when they can avoid paying for injuries that they cause and the lives they ruin, “The Attack on Trial Lawyers and Tort Law” – A Commonweal Institute Report,
    David C. Johnson, October 1, 2003 – https://www.cttriallawyers.org/f/public/CommonwealReport2003.pdf

  2. up arrow

    Well said, Scott. Stand up to cronyism and the K Street lobbyists!

  3. Bob Shepherd says:
    up arrow

    Amen! My colleagues and I provide medical illustrations for litigation all over the country. North Carolina may be the poster child state for successful tort reform. Caps of $250K on med mal cases and juries who have fallen for the insurance company propaganda has resulted in the following:
    1)insurance companies running medical facilities like mills to maximize insurance company profitability on each patient.
    2)highest insurance company profitability rates in history
    3)worsened medical care
    4)bright and talented students going into career fields other than medicine because insurance companies control the purse strings
    5) no reduction in med mal insurance (despite tort reform claims that medical malpractice before tort reform was why medical malpractice for doctors was so high and contributing to higher cost for health care).
    6) no reduction in health care insurance (contrary to tort reform claims that tort reform would lead to lower health care costs.

    I have experienced the effects of tort reform not only on a professional level but also on a personal level. I have had two uncles in North Carolina who are victims of tort reform. One uncle, shortly after retirement, was the victim of obvious and blatant medical malpractice. However, because of tort reform and because my uncle was retired (no recoverable lost wages), No attorney would take case because of tort reform induced caps and the effective manipulation of the jury pool by tort reform propaganda.

    Similarly, another uncle suffers from reflex sympathetic dystrophy (RSD) a.k.a. chronic regional pain syndrome (CRPS) because of a negligent interscalene block. These injuries are typically associated with pain more severe than child birth. However, for the same reasons as stated above, my uncle is unable to recover for his pain and suffering, the loss of use of his arm, nor the pain and suffering of his family.

    Tort reform in North Carolina has basically resulted in a situation where a person is worth nothing if they didn’t earn a significant amount of money before they were injured as a result of a health care provider’s negligence, and are unable to earn that income afterward. They have no opportunity for justice. Their suffering and losses, their families suffering and losses, their friends suffering and losses are all of no value. THIS IS THE TRUTH ASSOCIATED WITH TORT REFORM!

    • up arrow

      Wow Bob. I am so sorry to hear of your personal experience. Thank you for sharing. It highlights the exact concerns I raise in my blog. Unfortunately, most people don’t really understand how bad it can be until it actually happens to them, and by then, it’s too late. Getting this message out is incredibly important. The Chamber, the insurance industry and other lobbyists are so powerful and have such deep pockets that the public only hears one side of it. It’s tragic. North Carolina is a perfect example of just how bad it can get. It is already very difficult to prove a claim for medical malpractice, with most jurisdictions having a condition precedent to filing a lawsuit which requires an expert affidavit from medical doctor declaring that malpractice was in fact committed. Now, even with such an affidavit, the recovery is so limited, the victims of malpractice are left with little or no recourse. Thanks again for your comment.

  4. up arrow

    Well said, Scott. Would you mind if I shared this article with my network and connections? – Colin