Fred Thompson had a face-to-face lobbying session with Gov. Bill Haslam on the issue of tort reform recently, a subject the former U.S. senator says is something he’s felt strongly about for a long time.
It’s also one that’s a central plank of Haslam’s 2011 legislative package. And the governor’s proposal includes a cap on the amount of money juries can award plaintiffs in civil cases.
“There are some things in (Haslam’s tort reform initiative) that I do not think are wise provisions,” Thompson told TNReport Wednesday. “Caps would be one of them.”
Thompson said his meeting several days ago with Haslam was basically a “courtesy call,” and included Haslam’s legal counsel, Herbert Slatery. Thompson said he probably won’t be meeting with the governor again, but he expects to be having conversations with Slatery.
Tennesseans may find it difficult to keep up with Thompson, who has had a remarkably varied career. When asked Wednesday for an update on his workload, Thompson said he does some legal consulting, makes speeches, is a spokesman for AAG Mortgage and does an occasional movie or television show.
He appeared in the 2010 film about the famous triple-crown winning thoroughbred, Secretariat, and has a couple of other yet-to-be-released screen appearances “in the can,” one of which is about the last days of Hank Williams Sr., which Thompson said will probably be on a cable channel. He will perform on an episode of the television program “The Good Wife,” which is shooting next month.
He is also writing, with a book currently in the works that will focus on the “first principles of our country kind of thing.” He recently ended his radio talk show and said that, while enjoyable, he found the experience “very confining” while trying to be involved in other projects.
“I’ve got my fingers in a lot of different pies,” he said.
Once described in a New York Times article as a “glowering, hulking” six-foot-six-inch-tall Republican whom Hollywood directors dial up when they “need someone who can personify governmental power,” Thompson was also recently cast by the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association pdf) in the role of not-so-secret lobbying weapon in their fight against GOP-led tort reform efforts.
“I’ve been known for some time as someone who was not a fan of a lot of the so-called reforms that people have pushed, and I voted that way in the Senate,” he said. “I’ve got to think that’s one of the reasons they called on me.”
Whether the trial lawyers’ decision to go with Thompson pays off remains to be seen. He will be playing opposite the state’s most powerful Republican, Gov. Haslam, who is making the case that changes in how damages are granted in lawsuits will help Tennessee attract jobs.
Following his meeting with Thompson, Haslam nonetheless emphasized tort reform — including the provisions Thompson finds particularly objectionable — in his first legislative package unveiled earlier this month. It includes a $750,000 cap on non-economic damages and a cap on punitive damages of two times compensatory damages or $500,000, whichever is greater.
Said Thompson of Haslam’s proposal, “We ought to be very careful, in our attempts to be fair to business and our attempts to be fair to doctors, that we’re also fair to innocent people.
“If we’re not careful, we’ll fix a problem that doesn’t exist,” he added.
Thompson said his interest in the issue goes back to the 1990s, and he uses the case of 5-year-old Amanda Travis, who went to a Nashville clinic for a tonsillectomy, to explain some of his motivations on the issue. The girl, according to the TAJ, was given the wrong dosage of medicine and IV fluids, suffered a lack of oxygen and died, then medical records were said to be altered in an attempt to cover up the errors. The case resulted in a settlement.
Thompson’s views on the overall beneficial social value of trial lawyers and the dangers of limiting large jury awards are not exactly commonplace among conservatives.
But Thompson maintains that if one wants to stake out a true less-government-is-better position on the issue, stripping discretion away from juries made up of regular, private-sector working folks in favor of handing over even more front-loaded regulatory power to vast government bureaucracies makes little sense.
Thompson wrote in a recent newspaper op-ed that he believes “a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.”
For their part, national advocates of tort reform — like Ted Frank, an adjunct fellow with the conservative Manhattan Institute — say that’s all well and good from the perspective of ivory-tower idealism, but the reality isn’t so tidy.
“That’s a favorite line of the trial lawyers,” said Frank. “But we have just had two years of a Democratic Congress and a Democratic president, and they increased the number of ways to sue and they increased regulation.”
Frank, who was invited this week to Nashville by the Tennessee Center for Policy Research to speak about tort reform, argues that there need not be a “trade-off between increased litigation and increased government regulation.” Mississippi and Texas are both good examples of states that got rid of “abusive litigation,” but didn’t in the process increase the size or power of government, said Frank, who also edits the legal information and opinion website PointofLaw.com and is founder of the Center for Class Action Fairness.
Frank added that “we agree with Sen. Thompson that there is a role for the civil justice system to privately resolve things.”
“But that doesn’t mean we can’t cut the abusive litigation that is making us less safe, that is costing us jobs, costing us money, costing us doctors,” he continued. “There’s no reason not to adopt commonsense civil justice reforms that make court decisions more accurate and reduce unfairness in the system.”
For advocates of tort reform like Frank and, indeed, Gov. Haslam, the single most tangible outcome they see from reigning in “abusive litigation” is an improved and more predictable legal environment for business development and job creation.
TCPR asserts that tort reform of the sort proposed by Haslam would bump job creation by 120,000 over the next four years, a rate of 577 jobs per week — a prediction that has prompted the free-market group to launch a new website, www.focus577.org, touting the results of their study of the issue.
To Thompson, however, tort reform and job creation don’t have all that much to do with one another. “You know, there is no way to prove it, and there may be no way to disprove it, to be perfectly honest with you,” Thompson said.
As for Haslam’s push for tort reform as part of his pledge to “make Tennessee the number-one location in the Southeast for high-quality jobs,” Thompson notes that Tennessee is already regarded as “one of the most business-friendly states in the nation.”
And even if a link between job-creation and tort reform can be legitimately argued, said Thompson, what is the price?
“Suppose you created five new jobs, but you had an egregious situation over here where somebody, because of recklessness and negligence, cost a child their eyesight,” he said. “And you put caps on that and said, ‘Oh, no, you can’t get what people used to get for that. It’s not worth as much anymore.’ That’s the trade-off we’re talking about. Even if you could prove jobs, how many jobs is it worth to treat somebody unfair?”
“There’s not any system that can’t stand improving, but there’s not any system that can’t be harmed either. We just need to apply a little common sense to it.”
He furthermore rejects the comparison of Tennessee in 2011 with pre-2004 Mississippi, which he said had been widely regarded as “a legal hellhole for a long time.”
“I think stepping into this issue, taking this issue away from the jury, because Mississippi has — or for whatever reason somebody has — is to me not a wise thing to do. We ought to be congratulating ourselves that we don’t need to do some of these things that others have done,” Thomson said.
Thompson said he does believe there are some good things in the Haslam bill, the “Tennessee Civil Justice Act of 2011,” which will be carried by Rep. Gerald McCormick of Chattanooga, the majority leader in the House, and Sen. Mark Norris of Collierville, majority leader in the Senate.
He called the bill “a decent starting point for discussion.”
“There’s probably a hundred little pieces to all this,” he said. “In the ideal situation, part of what I’m trying to encourage — maybe the main function I have — is to try to get a discussion on those pieces and what works, and how it works, and what makes sense and what doesn’t make sense, and so at the end of the day people look at it and say, ‘I hear you, I understand what you’re saying, but I also see the other side and on balance I’m going to go with the other side.'”