ustxtxb_obs_1986_05_16_50_00012-00000_000.pdf

Congressman John Bryant got his MANDATE before the election. they generally take 33 to 40 percent of the award; if they lose, they usually take nothing for the time spent on the case and are generally not reimbursed for expenses \(specific arrangements depend on the contract between the plaintiff and courts, irrespective of ability to pay an attorney for his or her time. Tort reformers propose to limit contingency fees, either across the board \(25 percent percentages decrease as the award amount increases. Contingency fees can and have been abused and clearly need to be set at reasonable levels some consumer groups, for example, suggest a 33 percent flat fee. Any serious reduction of contingency fees, however, or the elimination of the system altogether would be disastrous. Plaintiff attorneys who are paid too little would be at a tremendous disadvantage vis-a-vis defense attorneys, who earn on an hourly basis, come hell or high water. Most important, elimination of contingency fees would mean that the plaintiff would have to bear all the litigation costs upfront, a sure-fire way to keep a lot of people from exercising their basic rights. Caps on Awards. This proposal would limit the amount victims could recover through litigation a proposal some state courts have found unconstitutional. The specific amounts proposed million. Thus, if a defective product turns a healthy young person into a quadriplegic, that pain might only be worth $100,000. It removes some incentive from protecting people from the possibility of tragic accident if potential defendants can calculate their liability ceilings and budget accordingly. While penalizing the most severely injured plaintiffs, this proposal ignores the fact that many protections already exist in present law to stem excessive awards, including review of awards by trial judges and two levels of appeal courts. Limit or Eliminate Punitive Damages. This proposal would limit or eliminate the amount juries could award to victims in punitive damages payments which are assessed in cases of gross and extreme negligence or would only allow punitive damages to be paid once for a wrong which affects numerous people \(the Dalkon shield, for punitive damages is already much tougher than for simple tort action and currently is one of the strongest deterrents of negligent acts. A bill introduced in 1985 would have prohibited punitive damages in cases where government fines have been assessed. For example, if OSHA had fined the Tyler asbestos manufacturer any amount for injuries caused to their workers, they would have been immune from claims for punitive damages in all individual actions. Structured Periodic Payments. This would allow payments to be paid out over a long period and would permit the insurer to continue to earn income from the unpaid portion of the award during the payout period. Some proposals would stop payments in the event of the death of the plaintiff, with the remaining payments staying in the insurance company’s hands. Structured awards could limit flexibility in the use of funds, and, even if an annuity is insufficient to cover costs, its existence could remove the victim from eligibility for any public assistance program. This represents a dramatic shift of resources from plaintiffs who have proven their cases to the insurance companies of defendants. IN THIS COUNTRY, we have a multi-tiered system to provide people with a safe environment, safe working conditions, and compensation for injuries suffered through the fault of others. In many areas, however, the regulatory system does not protect people as it should. As a result, farm workers are regularly poisoned in the fields; enormous catastrophic errors, like asbestos, the Dalkon shield, the Ford Pinto, thalidomide, toxic waste dumps, slip through the bureaucracy. Undue pressure is exerted on the last element, the last resort of the system the tort system. If people were adequately protected by state and federal agencies and if corporations acted responsibly, injuries would decrease and the tort system would not have to be used as it is used today. In the past few years, however, we have seen a weakening of the federal regulatory structure. In Texas \(never a leader in protective cutbacks in the near future for fiscal or political reasons. The civil justice system has become the scapegoat of the very groups which have caused it to become so overloaded. There are clearly problems with the tort system. Dismantling it, however, would simply wipe out the remedy of last resort available to people in this country who have been failed by the regulatory system. The changes described above will severely limit the access of people to their day in court and will decrease public accountability regarding the responsibility of those with the power to injure. A number of states have already buckled to industry pressure and have passed “tort reforms,” including Washington, Indiana, Minnesota, Utah, Maryland, Missouri, Iowa, Kansas, and South Dakota. The Oklahoma Press Association is leading the charge in that state, making balanced press coverage a difficult proposition. Some states are fighting back in constructive ways. West Virginia, for example, recently passed strong measures to restrict arbitrary cancellations of malpractice policies and to strengthen the accountability of the industry. After the industry retaliated by cancelling the state’s medical malpractice insurance, Republican Governor Arch Moore, Jr., responded: “If they’re not going to write malpractice insurance, they’re not going to write any other insurance in West Virginia.” On May 1, he announced plans to call a special session “to put the State of West Virginia in the liability insurance business.” In Texas, the legislature will formally consider tort reform when it convenes next January. While the Texas Civil Justice League and the insurance industry amass millions of dollars to buy themselves a new civil justice system, a small army of citizen groups, small businesses, professional organizations, and some public officials have initiated their own campaign to protect an aspect of our system of civil rights that we had come to take for granted. CO 12 MAY 16, 1986