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» Monday, April 10, 2006

Sadly, lying would not be protected by tort reform

So, naturally, the industry is warning of dire consequences to face the state if we don't shape up and make it impossible for those who are injured to have any day in court at all. Yahoo News moved a piece whose lede said:

Although the difficulty of achieving tort reform can be seen in the recent defeat of HB 3120 in Oklahoma, there are positive signs that meaningful reforms are having an impact across the country, according to the Property Casualty Insurers Association of America (PCI).

When I clicked on the link, Yahoo warned me:

This link is not authorized by Yahoo!

If you would like to continue to this link's intended destination at your own risk, click here.

I did, because I just had to see what the "impact" these "meaningful … tort reforms" were having "across the country." Tort reform is the corporate term for "gutting liability lawsuits," making it difficult or impossible for people who are injured by a product or business (in any way from physical injury from a defective product to long-term sickness from industrial pollution) to have any way to fight back. They really wanted Oklahoma HB 3120 to pass:

Oklahoma HB 3120 would have limited fees for attorneys and capped noneconomic damages to $300,000. It also set a 10-year statute of limitations for product liability lawsuits. The Oklahoma bill sought to duplicate Florida's success and eliminate joint and several liability. HB 3120 also addressed obesity litigation, class action filings, asbestos litigation, and punitive damages.

It's the multi-pronged approach to taking out your critics:

  1. Drastically limit attorney fees so that no law firm can afford the kind of 10-year quest it took to get justice in complex cases, like the one where PG&E poisoned an entire town dramatized in the movie Eric Brockovich.

  2. Cap "non-economic" damages at some reasonably low level, like $300,000, so that if you lose both your legs in an industrial accident, they're not worth more than $150,000 each unless you can prove to a judge that you would have used them to make more money than that over the rest of your life - that is, that you couldn't make that much money in any job without your legs.

  3. Limit liability to ten years (they prefer much less) so that if you're slowly poisoned by a bad food additive or a chemical plant, you have just a few years to realize it and prove it before you run out of time (and, of course, even if you succeed, your life-crippling illness is worth no more than $300,000, if you can find an attorney to take the case at all).

  4. Eliminating "joint and several liability" so that only one company must be proven responsible for any problem. For example, Proctor & Gamble makes Olestra, the fat substitute that has such interesting side effects. Frito-Lay makes chips with Olestra and tries not disclose that except in the ingredients list. Suppose that P&G knew of a possible side effect of Olestra that could be fatal in rare cases (and let me make clear that I am making this up - no such side-effect is known), and Frito-Lay was told about it and decided the risk was manageable.

    Under "tort reform," if your child ate these chips and died, you couldn't sue both companies for joint and several liability. You'd have to prove that either P&G knowingly poisoned your child (which you can't do, because P&G didn't make the chips), or prove that Frito-Lay knowingly poisoned your child (also difficult since Frito-Lay didn't make the Olestra). It's basically a free pass for conspiracy as long as it doesn't meet a criminal burden in a jurisdiction where a DA will prosecute.

You can see where the rest goes - "obesity lawsuits" are an attempt to prevent juries from even considering if food providers hid unhealthy ingredients in their products or portrayed them as "part of a healthy diet" when that wasn't true and they knew it. "Asbestos litigation" has cost chemical companies millions of dollars as they have to pay for the healthcare costs of workers who now have painful bleeding lungs because they breathed the stuff for years without being told what it was doing to them. "Punitive damages" are the only way to punish a company, so naturally they want those gone.

Several states have fallen for this claptrap, and the GOP-led Oklahoma House of Representatives wants to lead the way in gutting consumer and worker protections here, as well, but it failed this year. Nonetheless, this article said there have been "meaningful results" in other states that implemented them, so I had to read and find out what they are:

"As many legislative sessions reach their midpoint, there have been gains on the tort reform front despite the turn of events in Oklahoma," said David Golden, director of commercial lines for PCI. "The Oklahoma bill was the most comprehensive tort reform effort of the 2006 legislative session. Its defeat is disappointing, but legislators in Florida, Utah, Washington and West Virginia all made incremental moves toward balanced civil justice systems this year."

"Tort reform is important because it can help to spur economic development," said Golden. "The 2006 State Liability Systems Ranking Study conducted for the U.S. Chamber of Commerce shows that continuing legal reforms are the key to improving state business climates. The reforms may very well translate into additional jobs for states like Mississippi, Texas, Missouri, Ohio and Georgia, which all passed significant reforms in the last few years. This is in stark contrast to Oklahoma's ranking in the survey, which has dropped each of the last two years. The repeated failure to implement reform could also have a negative economic consequence for Oklahoma as it competes with neighboring states such as Texas and Missouri, whose improved civil justice climates are attractive to businesses looking to expand."

According to the survey the five best state liability systems are Delaware, Nebraska, Virginia, Iowa and Connecticut. The five worst state liability systems are Hawaii, Alabama, Mississippi (but improved two places this year), Louisiana and West Virginia, which assumes the title of worst state liability system in the country. The study ranked Oklahoma 33rd in the nation.

In other words, there are no results. It "may very well translate" into losing jobs to states that passed tort reform. We were told that unless we passed right-to-work, we'd lose jobs to other states too, and we'd gain them if we passed it. Guess what? We haven't gained any of those "high-paying non-union" jobs the chambers promised, and the GM plant has folded up shop and left town.

The only "result" at all is that Oklahoma's place in the corporate world's own "ranking" of states' obsequiousness to corporate interests has dropped because - wait for it - we refused to do exactly what the corporate world wanted! There's no lawsuit "epidemic" in Oklahoma, there's no out-of-control consumer culture "punishing" companies for being in business, and there's no raft of companies leaving the state because they're getting sued out of existence.

There's no evidence for any of those things, just like there's no evidence that making sure workers and consumers can't have their day in court improves a state's economy. But if they made up the first part, why not make up the second part? After all, it might be your legs or lungs, but it's their money!

# - Posted to The Sooner State on 4/10/06; 1:09:13 PM - Discuss -

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