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Brett Emison
Brett Emison
Attorney • (800) 397-4910

Tort Reform, Liberty & Presidential Politics

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There’s been much written on the current Republican presidential primary favorite, Rick Perry, and his stance on limiting the the public’s rights against corporations. The Wall Street Journal asked is Rick Perry Trial Lawyer Enemy No. 1? Politico wrote that trial lawyers prep for war on Rick Perry.

Should civil justice and 7th Amendment rights be a Republican vs. Democrat issue? Or even a trial lawyer vs. US Chamber of Commerce issue? Civil Justice rights were an enumerated greivance identified by our Founders as justification for the Declaration of Independence. Shouldn’t this fundamental right unite us as citizens rather than divide us as partisans?

Perry has consistently attacked the constitutional right to trial for the last decade promoting and enacting policies to strip victims of the right to trial and right to recover damages. Perry continually refers to the 7th Amendment right to trial as "frivolous lawsuit" and plaintiffs "playing the odds and hoping for a jackpot jury."

I’ve not yet met a client (or even a potential client) who asked to be injured by someone else’s negligence. I’ve not yet met a client or potential client who would not forgo any award amount to have back the life that was stolen from them. Lumping plaintiffs together as "greedy", "frivolous" and "playing the oddes hoping for a jackpot jury" is despicable.

[T]he Texas tort reform wars "show where [Perry’s] loyalty lies: with the big corporations and the insurance companies."

"He has done everything in his power to make sure that an individual who is wronged by a big corporation or an insurance company can’t go to court, can’t afford to go to court."

- Politico

What’s the real effect of tort reform on Texans? When wrongdoers are not held accountable, victims and tax payers pay the price.

Rick Perry essentially granted amnesty to doctors to attract more doctors to the state. But what kind of doctors would such amnesty attract? If Texas granted amnesty to illegal immigrants or to convicted felons, what kind of citizens would those policies attract? News accounts suggest "bad" doctors are flocking to Texas.

Dr. Konasiewicz had been sued nine times for medical malpractice in Minnesota and publicly reprimanded by the Minnesota Board of Medical Practice. [HT: Mark Bello – Exposing the Perils of Texas Tort Reform] As Bello wrote, "Rather than face the music in Minnesota, Konasiewicz fled to Texas where lax oversight and an unjustly reformed legal system allowed him to practice medicine."

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial.

Malpractice victims’ damages may be primarily noneconomic with permanent disfigurement, maiming, and even death caused by a medical professional’s negligence. The capital facts of human suffering are hidden from our view. An unknown number of medical negligence victims can no longer use the court system because the cap and the fact that lawyers are no longer willing to risk huge litigation expenses for a low net return for their clients and themselves. The cap deprives the injured their right to full compensation for their injuries. But, in the most serious cases, it also deprives the injured person’s loved ones – their caretakers – ALL of their damages.

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The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

- Judge Wilson, WV Supreme Court

The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it’s not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

Tort "reforms" also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff’s actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.

For a concrete example, one need look only at the recent MetroLink catastrophe in California. Judge Lichtman, forced to distributed inadequate funds limited by federal tort reform wrote that "[t]here is not enough money to compensate the victims for future medical care…." Judge Lichtman acknowledged that "[i]mpossible choices had to be made. What was given to one victim had to be taken from another."

Ignoring the suffering of the victims for a moment, a more narcissistic view reveals that the burden of liability and responsibility was effectively shifted from the negligent driver and companies to the tax payers through Medicare, Medicaid and assistance programs.

"It is abundantly clear that the victims, and ultimately the federal, state and local governments, will be left to pay for their damages that have gone uncompensated by those responsible for this tragedy."

- via the Insurance Journal

We’ve had enough government sponsored bailouts. We don’t need to use tax payer dollars bailing and immunizing negligent conduct.

Fundamental rights, the 7th Amendment, and individual freedom and liberty will, indeed, be part of the race for the presidency. However, this is not a Democrat vs. Republican issue or even a trial lawyer vs. US Chamber issue.

Freedom, Liberty and Civil Justice are issue our founders fought and died for. They are issues that should unite us as citizens rather than divide us as partisans. Join those on both sides of the political aisle in standing up for our Constitution and for preserving Civil Justice rights and accountability.

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[More on your 7th Amendment rights]

(c) Copyright 2011 Brett A. Emison