future earnings are proved to be $1 million, the limit on punitive damages would be $2.75 million. If the policeman’s future earnings total $300,000 his family will be limited to $1.35 million. The law also places a greater burden of proof on plaintiffs, requiring them to establish that a defendant engaged in fraud or malice. The “clear and convincing” standard in the new law is a higher hurdle for plaintiffs to clear than the “preponderance of evidence” standard established by the old law. For plaintffs, it could have been worse; the language in the original draft of the bill required plaintiffs to establish a finding beyond a reasonable doubt. Weekly also promoted other major changes to the civil justice system: Limits on damages under the Deceptive Trade Practices Act. \(At present, there more than three times the actual economic damages if the defendant acted knowingly and allowed damages for mental anguish if the defendant acted with intent. It exempted most professionals; written contracts worth more than $100,000, not involving a residence, in which the plaintiff was represented by a lawyer; and personal injury, death or mental anguish lawsuits. The bill also authorizes either party to compel mediation if the consumer rejects a defendant’s offer to settle. Narrowing joint-and-several liability. Current Texas law provides that a defendant can be held responsible for damages caused by another party’s wrongful conduct if a defendant is responsible for a minimum of 10 or 20 percent of an injured party’s damages. Sibley’s bill generally increases the threshold to 51 percent before a defendant becomes responsible for the full amount. In some actions involving hazardous or harmful substances, the threshold of responsibility is 15 percent. Restrictions on where a lawsuit may be filed. Weekly wanted cases to be filed where the injury occurred. The current system allows cases to be filed in jurisdictions where plaintiffs reside or anywhere where a defendant does business. The enacted bill provides that a lawsuit generally must be filed in the county of the business’ principal office. In cases with multiple plaintiffs, each must independently establish venue or meet other criteria. Other bills that were enacted to strengthen governmental immunity from lawsuits; place stricter requirements on plaintiffs who seek to file medical malpractice lawsuits; provide for stiffer penalties for “frivolous lawsuits,” although business-oriented defense lawyers were concerned that they might be subjected to sanctions for abuse of the legal process in defending against lawsuits. Another bill reforms the judicial campaign finances by providing incentives for voluntary limits on individual contributions. Among the bills that died were measures that would restrict the use of expert witnesses, or what critics call “junk science;” and limits on contingent-fee agreements that allow personal injury claimants to hire lawyers without putting money up front, in exchange for a share of the expected award. In an interview, Weekly said that he became interested in reforming tort law because the community organizations he works with feared lawsuits. He explains that the River Oaks Baptist School, in which he has been active, banned carpools for fear of being sued. His own experience with lawsuits is limited, he said. “Where I have spent my time over the last 24 years is the real estate brokerage business. I have not had one, single lawsuit.” However, his brother’s homebuilding business, David Weekly Homes, in which Richard Weekly is a partner, was sued over plumbing it installed in approximately 450 homes it built. Weekly homes was sued, according to Richard Weekly, “in excess of the values of the homes because their pipes leaked. So, we went into every single house in which we had installed this type of piping and we replaced every, single pipe with pure copper at no cost to the homeowner. Zero. And we still had to pay on some of the lawsuits to get rid of the people who were trying to make capital on this deal.” Weekly’s views might also be informed by his family’s long-range business interests. In 1992, the Houston Chronicle reported that Weekly Homes planned a public offering of its stock. The value of the offering was reported to be about $74 million. According to the Chronicle, Weekly planned to sell 489,474 shares of stock at between $17 and $19 per shareapproximately $8.3 and $9.3 million in total. “He has built a substantial fortune and he’s a very energetic guy,” explains Hugh Rice Kelly, general counsel for Houston Lighting & Power. Kelly, a former partner at Baker & Botts and former editor of the UT Law School’s law review, drafted the tort reform group’s legislative proposal. \(“I did Weekly’s wife, the former Margaret Neuhaus, has her own ties to the state’s business community. Her father was chairman of the Underwood Neuhaus banking firm. U NLIKE LOBBYISTS for some business-oriented groups, such as the Texas Civil Justice League, Weekly has been slow to compromise on his goals, and that has rubbed some legislators raw. “He’s ticked some members off,” one House member said. “He just wouldn’t compromise on his views and tried to dictate how the legislation should read.” Weekly responds that he is a representative of “what’s good for the future of Texas. I represent thousands of small Texas businesses. They haven’t authorized me to compromise.” Weekly’s resolve is obvious when he discusses a Wall Street Journal article that reported that Texas’ civil justice system “isn’t a big factor for out-of-state companies deciding whether to place operations here.” In the story, Journal reporter Mike Allen reported that Texas had led the nation in new jobs over the last three years. Weekly bristles when asked about the story. “I gave him the names of ten people to call, and he didn’t call them. If he had, he would have written a different story.” Allen responds that he did talk to the people Weekly suggested. “There’s a concern in the Texas business community. That’s true, but it hasn’t stopped companies from being interested in Texas.” Some Capitol observers speculate that Weekly might be considering running for some office. “Oh, God. I can’t think of anything worse,” Weekly replies, explaining that he values his privacy. That privacy may be sacrificed as Weekly continues to lead his crusade. This is, after all, only the first year of a five-year plan. Asked during the session to identify future reforms, Weekly said, “We’ll just have to wait and see what happens” in this session. State Representative Steve Wolens, a Democrat from Dallas, predicts that the tort reformers will push no-fault auto insurance in the next session of the Legislature. That would eliminate personal injury awards resulting from automobile accidents in favor of a system of guaranteed payments for medical expenses and lost income. And as long as George W. Bush is governor, any tort reform bill that crosses his desk is likely to be signed. Before he began his gubernatorial campaign, Bush served on the Board of Advisors of the Texas Public Policy Foundation, a tort-reform think tank. Weekly is not the only high-dollar newcomer to the tort reform team. James R. Lemminger, a San Antonio doctor, has formed the Texas Public Policy Foundation, “an independent state public policy think tank that would educate the public on issues like lawsuit abuse.” Like Weekly and Bush, Lemminger is not against all lawsuits, just the “abusive, frivolous” ones. Texas Monthly has listed Lemminger as one of the 100 richest Texans. And Kinetic Concepts, Inc., a company headed by Lemminger, benefited handsomely from the state Deceptive Trade Practices Act when in September of 1994, his company settled a patent infringement suit for $84.75 million. The litigation, which involved two specialized hospital beds, was settled largely because the court might have awarded treble damages. 26 JUNE 16, 1995
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