Tort reform took center stage in a conference call debate Monday night hosted by Ken Marrero, who operates the political blog Blue Collar Muse, and it came with a twist.
The debate, using talkshoe.com, showed once again that not all conservatives are on the same side of the tort-reform issue.
John Harris, a Nashville attorney who is executive director of the Tennessee Firearms Association, confidently took the position that tort reform is not needed in the state.
That puts Harris in the company of the well-known conservative Fred Thompson, the actor and former United States senator who has officially sided with the trial lawyers in the tort-reform debate in the Legislature.
Harris debated Justin Owen, executive director of the Tennessee Center for Policy Research, which has not only taken a position in favor of reform but has presented a study projecting that tort reform can lead to 30,000 jobs a year in a state that desperately needs more employment.
Owen, a graduate of the Cecil C. Humphreys School of Law at the University of Memphis, said the notion that plaintiffs are the ones getting all the rewards is false. Harris said the right to have judgments in civil cases gets back to the principles espoused in the earliest days of the nation.
The debate came against the backdrop of the tort reform proposals advocated by Gov. Bill Haslam — proposals Owen and his organization support as well.
Harris said he has handled only two cases in the last 10 years like those being debated on Capitol Hill, but he gave strong arguments to make his case.
Owen gave his opinion with the addition of a warning, noting that most neighboring states around Tennessee are addressing tort reform.
“Every other state has, or is in the process of, reforming their civil justice system by implementing similar types of tort reform, the exception being Kentucky. So if we don’t do anything, we’re really going to be an island in a sea of reform states,” Owen said.
Owen’s group recently hosted a forum on tort reform at Vanderbilt University.
Harris said he strongly disagrees that the tort system as it currently exists requires an overhaul. Or even a tweaking.
“The concept that we have a fundamental right, a right to a jury trial, not only in a criminal case but in civil cases, is framed in the writings of our Founding Fathers and is one of the most important rights that we have,” Harris said.
“My concern is when I hear talk about tort reform it is driven by economics, primarily of, I believe, the insurance industry, where the desire is to reduce and manage expenses related to insurance products, at the loss of impairment of one of our constitutionally based rights.”
The state is currently in deep discussion of tort reform, prompted by Haslam’s legislative agenda. The governor has proposed that caps be imposed on non-economic damages in civil cases at $750,000. Further, in catastrophic cases, such as paralysis or amputations, Haslam says caps on non-economic damages should be $1 million.
Haslam appears to be in line with a House version of the bill, but the Senate leadership has said it favors the $750,000 cap in all cases. Haslam has called for caps on punitive damages that are two times the amount of compensatory damages, or $500,000, whichever is greater.
The case for tort reform is based on the premise that there should be more predictability in the system, because juries can award wildly divergent amounts of money.
“What happens when you hear this phrase ‘create predictability and balance’ is what you’re hearing are code words for insurance companies to say, ‘We want to have clear actuarial data on what our potential losses may be in any particular case,’” Harris said.
Owen said he wanted to be clear that he does not advocate for limiting access to the courts and that victims should have the right to be made whole in such cases. But he pointed out that legislatures have installed statutes of limitations and created consumer protections as examples that legislating caps is not out of the realm of the power of a legislative body.
“So I don’t think it’s anything new that the Legislature has role in this,” Owen said.
Owen said only 2.7 percent of tort cases actually went before a jury last year in Tennessee. He said the rest were either heard by a judge or, the vast majority, were settled out of court. He said plaintiffs receive an average of 42 percent of the total amount spent in the system. The majority of the costs, he said, are eaten up by the court system, including compensating attorneys.
“I don’t believe that it can be argued that any system that drives a mere 42 percent to injured plaintiffs is fair and just,” Owen said.
On the issue of third-party liability — like when a seller is held responsible for a product the seller did not make — Harris pointed out that in Tennessee there is a system where the burden is on the plaintiff to establish a tangible degree of negligence on a party’s behalf. He said the courts can impose sanctions in such cases and can even award defendants in those circumstances.
“It’s not something for the Legislature, which frankly is not skilled in the mechanisms of how the judicial system functions and operates, to go meddling in something they don’t understand,” Harris said.
Harris acknowledged that some lawyers are out there who will seek states with laws that work to their advantage, which is one of the complaints among advocates of tort reform.
“Sure, they are,” Harris said. “Part of it is a profession. Part of it is a business. They’re going to pursue activity that generates the most revenue.
“If you were injured, isn’t that what you would want?”