I am a trial lawyer. I know our tort system well. I cannot stand frivolous claims, nor can I stand frivolous defenses. They have no place in our Civil Justice System. I also have no patience for disingenuousness. The assault on our tort system, particularly the attempt by the insurance industry and the U.S. Chamber of Commerce to place a limit (or cap) on non-economic damages (for things like pain and suffering, mental anguish, the loss of an ability to lead a normal life, loss of consortium), is a deceptive attempt to sway the public.
Here is why a “cap” on damages is absurd and why it will absolutely not address the alleged problem it is supposed to address:
Frivolous lawsuits NEVER make it to trial. Read my blog about Pink Elephants here to learn why they can never make it to trial. By definition, it is impossible. If a jury never sees a frivolous lawsuit, then a jury will NEVER render a verdict on a “frivolous” claim. That means, by definition, that no jury verdict, EVER, is the result of a frivolous lawsuit. If that is the case, how will a cap on damages affect frivolous lawsuits? Answer: they won’t. They will only limit the very real, and worst, claims for damages out there. That’s right. A cap on damages will only affect the people who have actually lost the most.
Here is how a “cap” on damages could affect you and would affect others:
You are in an accident. A driver in a big, brand new SUV was texting and driving, ran a red light and t-boned you at 50 m.p.h. You are badly injured. You are paralyzed. You can never have sex again. You can never play baseball with your son or daughter. Instead of being an active participant in life, you are sidelined. You make the best of it, but as a quadriplegic, the life you knew has been taken from you, and it has been taken from your family.
How much have you lost? Currently, you have the right to recover your loss from the person or entity that harmed you in an amount that the jury (who is made up of people like you) thinks compensates you for that loss. First, please understand that a jury verdict is not an “award.” It is compensation for something that has been taken from you. It is meant to be a replacement for that loss. I’ve never had a client that wouldn’t rather give up all the money just to be put back to where they were before the accident.
Let’s discuss what you would do with the “replacement” money. If you are a quadriplegic, everything is more expensive. You want to travel? It’s more expensive. You want to drive somewhere? Your car (now a specially equipped van) is more expensive. The home you own, or were planning on buying, now will require expensive modifications to accommodate you. Maybe the money will allow you to travel with your family or find some other way to spend your life to find the happiness and enjoyment that was taken from you. Whatever it is that will help you adjust to your new life, it will most likely cost money.
Proponents of Tort Reform, who want to place a cap on these damages, want to tell you that your loss, no matter how great, is worth no more than $250,000. That’s right. No matter how much your life has been affected, your pain & suffering, mental anguish, loss of ability to lead a normal life, loss of consortium….it’s all worth no more than $250,000.
Lost your spouse? $250,000Lost your child? $250,000Lost your legs? $250,000Lost your mobility? $250,000Lost your ability to speak? $250,000Lost your ability to have sex? $250,000Spending the rest of your life with a Colostomy Bag? $250,000
So, when you are told that a cap on damages is needed to prevent lawsuit abuse, or frivolous lawsuits, please believe me when I tell you: it won’t. There are already procedural rules in place to prevent that. It will only serve to limit the recovery of people who really need it the most, and prevent them from ever recovering some semblance of the life that was taken from them. If you still feel that caps on damages are reasonable, then I have failed in conveying my message. The American Way is not the way of tort reform. It is the way of personal responsibility. If you believe in personal responsibility and you believe in the Bill of Rights, then you can’t also believe in a cap on damages, which would limit personal responsibility, limit your 7th Amendment rights, and punish only those who have lost the most through no fault of their own. If you support such caps, you’ve been hornswoggled by a powerful lobby into helping them, not you.
Fighting for injured workers and their families since 1997. Scott R Marshall has dedicated his career to helping injured people in their battle with big insurance, by leveling the playing field between families and corporations. The greatest balancing factor in the fight against inequality and oppression is the Rule of Law.