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A JOURNAL OF FREE VOICES We will serve no group or party but will hew hard to the truth as we find it and the right as we see it. We are dedicated to the whole truth, to human values abolie all interests, to the rights of human-kind as the foundation of democracy: we will take orders from none but our own conscience, and never will we overlook or misrepresent the truth to serve the interests of the powerful or cater to the ignoble in the human spirit. Writers are responsible for their own work, but not for anything they have not themselves written, and in publishing them we do not necessarily imply that we agree with them, because this is a journal offree voices. SINCE 1954 Founding Editor: Ronnie Dugger Editor: Louis Dubose Associate Editor: James Cullen Production: Peter Szymczak Copy Editor: Roxanne Bogucka Editorial Interns: Todd Basch, Mike Daecher, Kendyl Hanks. Contributing Writers: Bill Adler, Barbara Belejack, Betty Brink, Warren Burnett, Brett Campbell, Peter Cassidy, Jo Clifton, Carol Countryman, Terry FitzPatrick, James Harrington, Bill Helmer, Jim Hightower, Ellen Hosmer, Molly Ivins, Steven Kellman, Michael King, Deborah Lutterbeck, Torn McClellan, Bryce Milligan, Debbie Nathan, James McCarty Yeager. Editorial Advisory Board: David Anderson, Austin; Frances Barton, Austin; Elroy Bode, El Paso; Chandler Davidson, Houston; Dave Denison, Cambridge, Mass; Bob Eckhardt, Austin; Sissy Farenthold, Houston; Ruperto Garcia, Austin; John Kenneth Galbraith, Cambridge, Mass.; Lawrence Goodwyn, Durham, N.C.; George Hendrick, Urbana, Ill.; Molly Ivins, Austin; Larry L. King, Washington, D.C.; Maury Maverick, Jr., San Antonio; Willie Morris, Jackson, Miss.; Kaye Northcott, Fort Worth; James Presley, Texarkana; Schwartz. Galveston; Fred Schmidt, Fredericksburg. Poetry Consultant: Thomas B. Whitbread Contributing Photographers: Bill Albrecht, Vic Hinterlang, Alan Pogue. Contributing Artists: Michael Alexander, Eric Avery, Tom Ballenger, Richard Bartholomew, Jeff Danziger, Beth Epstein, Valerie Fowler, Dan Hubig, Pat Johnson, Kevin Kreneck, Michael Krone, Carlos Lowry, Gary Oliver, Ben Sargent, Dan Thibodeau, Gail Woods, Matt Wuerker. Business Manager: Cliff Olofson Subscription Manager: Stefan Wanstrom Development Consultant: Frances Barton SUBSCRIPTIONS: One year S32, two years S59. three years 584. Full-time students S18 per year. Back issues $3 prepaid. Airmail. foreign, group, and bulk rates on request. Microfilm editions available from University MicroAny current subscriber who finds the price a burden should say so at renewal time; no one need forgo reading the Observer simply because of the cost. INDEXES: The Texas Observer is indexed in Access: The Supplementary Index to Periudicnfs: Texas hider and, for the years 1954 through 1981,T he Texas Observer Index. copyrighted, 0 1995. is published biweekly except for a three-week interval 477-0746. E-mail: [email protected] Second-class postage paid at Austin. Texas. POSTMASTER: Send address changes to THE TEXAS OBSERVER, 307 West 7th Street, Austin, Texas 78701. FOR MONTHS WE HEARD big business interests complain about the frivolous lawsuits that were bleeding their corporations with irresponsible verdicts that raised the cost of doing business in Texas. New Governor George W. Bush called for tort “reforms” that would level the playing field and ensure a stable business environment. After the state’s trial lawyers lost four key Senate races in November, leaving a solid two-thirds of the Senate in favor of gutting the civil justice system and Bush ready to sign whatever they sent him, the industry-dominated tort “reform” groups were talking about how they didn’t even need to compromise. Then, on February 3, some of those abusive plaintiffs finally had their day in the Senate Chamber. The plaintiffs included breast implant victims such as Gail Armstrong, a Dallas nurse who suffers from auto-immune disease and neurological problems she blames on silicon implants she had 20 years ago. Now she is watching her two children develop the same symptoms while the Legislature talks about limiting the punishment a jury can assess against manufacturers who knew for 30 years that the implants were toxic. There was Rhonda Wilburn of Spring, whose husband suffered brain damage when a 20-pound stainless-steel part flew out of the lathe he was operating and struck him in the head. He has gone through 16 surgeries, was in a coma for six months, racked up $2 million in medical bills and could face millions more, all because the corporation that manufactured the lathe decided not to install a $100 safety device on the $200,000 piece of machinery. The threat of punitive damages caused the company to offer what her attorney called a “reasonable settlement” on the eve of trial. Even some businesspeople spoke out in favor of lawsuits and lawyers. J.B. Young of FYI Inc., a cellular telephone agent for GTE Mobilnet in Houston, told of the breach of promise complaint he pursued against the corporation. He was told his company would never get the case to court, he said, and FYI Inc. spent $300,000 in legal expenses before he found a lawyer willing to take the case on contingency. “Without the possibility of punitive damages, we probably couldn’t have gotten the law firm and we would have never gotten to court,” he said. A jury awarded FYI Inc. $6 million, although the case is under appeal. A day earlier, Bush had said “a tort pack age is the best economic development pack age we could have and a tort package is good for people who have got injuries in Texas.” By all accounts the testimony from the injury victims forced the tort “reform” forces to reopen negotiations with lobbyists for the trial lawyers. Consumers’ advocates were neither invited nor allowed into the negotiations. But the Senate on February 15 unanimously passed SB 25, which restricts punitive damages to two times economic damages plus up to $750,000 in noneconomic damages. It makes it harder to prove punitive damages and practically impossible to collect from third parties for criminal acts committed as a result of their negligence. But the original bill was worse. Reggie James, a lobbyist for Consumers Union, welcomed the mitigating changes but said the bill still removes much of the threat of punitive damages to reckless or arrogant corporations. “It’s a bad state of affairs when I have to say I’m glad I’m getting run over by a truck because someone took half of the bricks out of the truck,” he said. Next up is the gutting of the Deceptive Trade Practices Act by SB 26. Senator Teel Bivins, the Amarillo Republican sponsor, would allow lawsuits under the DTPA only if the deception caused economic damages. The bill also would exempt cities and counties as well as professionals from being sued under the act and it would make unsuccessful claimants pay the other side’s attorney’s fees and costs. Other bills would limit damages under the whistleblower act, malpractice of doctors and the doctrine of joint and several liability. James said the proposed DTPA changes may have more impact than the other tort reforms. Small mom-and-pop claims need the threat of multiple damages included in the DTPA to make it worthwhile for a lawyer to take the case. “If you look at where consumers are most vulnerable, it’s in the lowincome neighborhoods,” James said. “You’re getting ripped off by all the businesses in your community and there’s nothing to stop it…. So we’re going to encourage the House and the Senate to start looking at areas where the public needs some help.” Ironically, as consumer advocate Tom Smith said, limits on punitive damages may allow manufacturers to figure potential liability for unsafe designs into the cost of doing business. Ford did this 20 years ago with the Pinto, before a trial lawyer, working on contingency, got hold of that memo. J.C. EDITORIAL Half a Load of Tort Deform 2 FEBRUARY 24, 1995