The subject of this story is not a happy one. It details the injustice that state caps on non-economic damages in personal injury cases have wrought for women in sexual assault cases. And yet, I could not help reading it without feeling something close to what H.G. Wells meant when, after his predictions of a second World War and a blitz on London came true, he sent his friends the following terse message: "God damn you all. I told you so."
I have long been--in fact, always been--a staunch advocate against so-called "tort reform"--for two reasons. (Full disclosure, before I go any further: I am an attorney who, in the early days of my career, handled some personal injury cases, and still have friends and colleagues who do so.)
First, they take the power to decide justice out of the hands of jurors, and subject justice to an arbitrary and capricious limit hand-picked by jurors without any regard to the nature and severity of injuries suffered in a wide and individualized variety of cases. Second, they put that power in the hands of insurance companies that, knowing the upper limit of their exposure as a consequence of the caps, can simply cost-out that exposure and pass it along to their insureds--in full, I might add. Texas in the years before the passage of the Affordable Care Act, had the most restrictive "tort reform" provisions AND the highest health insurance rates.
True, some verdicts are ridiculous, and deserved to be challenged and reduced. And, even before the advent of "tort reform," the legal system had tools in place that made that possible. In addition to the right to challenge a trial decision in appellate court, the amounts of money awarded in a jury decision can be adjusted through post-trial motions. Those tools are still in place, and allow the adjustment of outrageous awards on an individualized basis. Everyone has heard about the infamous "McDonald's coffee" case, but not everyone knows exactly how it turned out. It turned out in a way that demonstrates that "tort reform" is no better than a solution in search of a problem. And the only problem it effectively solves is the need of insurance companies to make easy profits.
The Slate article is all you need to read to get a sense of how unfairly damage caps work against women. The equally ugly truth is what the article doesn't detail: the extent to which the whole "tort reform" movement is simply another illustration of how conservatives take power out of the hands of the people, in the name of "protecting" them from alleged corruption. In that sense, for example, it is a close cousin of term limits, the rules that confiscate not only your right to vote (and mine), but also your right to run for public office. No, not completely. But more than enough to undermine the needs and concerns of the voters--including those of conservative voters.
Remember how conservatives wanted to repeal the 22nd Amendment to the Constitution, so that Ronald Reagan could run for a third term as President? They're the ones responsible for the Amendment in the first place! They were afraid of "more Roosevelts." That fear led them to shoot their own interests in the foot, although it spared the nation, and Reagan's family, the spectacle of Reagan beginning his long journey into dementia while still in the Oval Office.
Term limits, like "tort reform," are not designed to serve the interests of individual Americans, or the nation as a whole. They are designed to do nothing more than punish constituencies that tend to favor Democratic candidates and causes, such as trial lawyers, and protect Republican candidates and causes, such as doctors It is simply an extension of "divide and conquer" politics, the only kind that Republicans understand how to practice. It tears the nation apart, at the expense of the interests and needs of the American people.
And we've had more than enough of "divide and conquer" politics. Let's start dismantling a corrupt way of governing the nation by consigning "tort reform" to the trashcan of history in which it belongs.
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