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Tort reform violates fundamental civil libertiesRick Santorum was profiled by William Petroski at the Des Moines Register.

Based on his responses, it certainly appears that Rick Santorum is more a socialist than capitalistic conservative. Santorum talks the talk about states’ rights, capitalism, responsibility and accountability, reigning in deficits, and reducing tax burdens on you and me, but like too many of thos who call themselves Republicans – including Gov. Rick Perry – fails to walk the walk when it comes to practice. Instead, Santorum, Perry, and others want to create bigger government, strip away state rights, raise the tax burden on regular people and give a government sponsored bailout to those who negligently injury and kill others. You see, Rick Santorum is "a big tort reform guy."

Many conservatives understand the importance of the 7th Amendment right to civil jury trial. Conservatives understand that the founding fathers inserted this amendment into the Bill of Rights for a reason. Conservatives understand that a civil jury trial is the ultimate check and balance against corporate and government intrusion. This is why leading conservative legal groups have begun to question the need for tort reform because of concerns about tort reform’s encroachment on fundamental civil liberties, increasing the size and burden of government, encroachment of states’ rights, and tort reform’s failure to promote accountability and personal responsibility.

Andrew Cochran, Fred Thompson, Rand Paul, Clarence Thomas, and other leading conservatives have come out against tort reform.

Carter Wrenn offers this excellent example for why conservatives should reject tort reform proposals like those championed by Santorum and Perry:

A jury may still hear a medical malpractice case but it will not be told about Senator Rucho’s cap on how much restitution it can award for disfigurement, loss of limb and so on. Instead, the jury will hear the evidence, reach its verdict, determine damages, award whatever it decides is fair restitution and go home.

But, then, something odd happens.

If the jury awards a victim (say, for the loss of his legs) over $250,000, Senator Rucho reaches out of the State Senate and into the jury box and changes its verdict and the judge cuts the restitution to $250,000.

Now Bob Rucho will tell you he’s for less government and less government power but his bill extends the power of the State Senators and Representatives into a place (the jury box) where common sense and the North Carolina Constitution says politicians ought not to be meddling.

In the end it boils down to this: Who do we trust to decide verdicts? Juries who hear evidence or politicians like Senator Rucho who take contributions from the Medical Society?

Anti-justice politicians like Santorum and Perry attack the constitution in order to promote policies to strip victims of their fundamental right "endowed by our Creator" to trial by jury. Such politicians or industry special interests deride this fundamental right as "frivolous" lawsuits, "playing the odds", and "jackpot justice".

I have never had a client or potential client who asked to be injured by someone else’s negligence. I have never met a client who would not forgo any verdict in exchange for getting back the life that was stolen from them. Lumping injured victims, their spouses, their children, and their parents together as "greedy", "frivolous", and "playing the odds" is despicable.

What’s the real effect of tort reform? Wrongdoers are not held accountable. Victims are penalized. And tax payers pay the bill.

When you grant amnesty to negligent corporations and other wrongdoers, the perverse effect is that the federal government bloats and taxpayers or forced to bailout the negligent conduct 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.

The 7th Amendment is the ultimate lynch pin for all other constitutional rights – including religious freedom, 2nd Amendment rights, life issues, contractual rights, and others. 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?

Fundamental rights, the 7th Amendment, and individual freedom and liberty will continue to 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. It is a constitutional issue.

Santorum and Gov. Perry – and others in favor of tort reform – are wrong. 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.

Read More:

[More on your 7th Amendment Rights]

(c) Copyright 2011 Brett A. Emison

Follow @BrettEmison on Twitter.


  1. Gravatar for Hell's Enforcer

    This is man who seriously suggested putting homosexuals in prisons. That would be like sentencing a heterosexual perv to living among beauty contestants.

  2. Gravatar for Michael Monheit
    Michael Monheit


    Thanks for this informative and well reserached post. Keep up the good work.


  3. Gravatar for jc

    I totally support tort reform. Brett likes to talk about the 7th Amendment. Yet the 7th Amendment has been diluted over the years. A stock broker stole money from my brokerage, I could not go to court, I had to have it arbitrated. If my electric power goes off, I cannot sue the power company, I have to complain to the PUC. Factory worker gets his leg cut off at work and he goes to Worker's Compensation. Yet lawyers are opposed to allowing doctors to countersue them for frivolous litigation. Since 80% of cases which go to trial are won by the defendant doc, there are lots of frivolous malpractice suits out there.

    So until docs are allowed to countersue lawyers, or until medical courts are set up to adjudicate potential malpractice litigation, I think limits on hedonic damages are legitimate.

  4. Gravatar for jc

    Personally, I feel that we should discard the malpractice/Civil Justice litigation system entirely! 80% of malpractice cases which are brought to court are won by the defendant doctor. In other words, plaintiff attorneys have an 80% failure rate at trial. Patients for Fair Compensation is a group which is proposing another way. They are introducing a Georgia law which would throw out the creaky old malpractice system and replace it with an administrative system in which a medical court would render a quick and efficient judgement on the merits of the case saving the doc and patient much time and agony and allowing everyone to move on. Makes sense to me!

  5. Gravatar for Brett Emison

    So JC spends his Christmas holiday lobbying for tort reform. That’s a pretty sad commentary.

    But at least JC has made his position clear: JC wants erosion (or “dilution” as he termed it) of fundamental civil liberties established by our founders and guaranteed under the Bill of Rights in favor of more protection for negligent doctors and companies under a British/European-style civil justice system. And who pays when these injured victims no longer have access to the courts – the public through Medicare, Medicaid and assistance programs (or, perhaps, eventually under a European-style single payer healthcare system to match the European civil justice system).

    And I bet JC even calls himself a patriot. Stunning.

  6. Gravatar for jc

    Brett: We have already given up our rights to sue brokerages, industrial companies (worker's comp), and public utilities, among others. If we are going to have Obamacare, then we gotta get another malpractice system too and get away from the "blame and shame" system currently in use. Let's face it, under Obamacare, taxpayers are going to get higher insurance costs, higher taxes and less service. So they are going to be hacked off. They will want to take their anger out on doctors, who are simply the middle men. Government will not let hacked off patients sue, so lets protect the docs from the anger backlash too. Why should plaintiff attorneys be the only ones protected against Obamacare? We all gotta be patriots and sacrifice, right Brett!

  7. Gravatar for Brett Emison

    JC - a patriot does not sacrifice fundamental constitutional liberties. A patriot fights for them. That our civil liberties have been eroded does not warrant further erosion.

    Changing the subject does not work. This discussion is not about "Obamacare". I'm not here to talk about Obamacare or discuss its merits. I'm here to talk about fundamental constitutional rights under attack.

  8. Gravatar for jc

    Brett: When plaintiff attorneys have an 80% failure rate at trial. When plaintiff attorneys take 3-4 years (and sometimes 7-8 years) to resolve a malpractice case and then scarf up 55-60% of the award if they are successful, we need a new system.

    Plaintiff attorneys have shown themselves to be incapable of successfully prosecuting these cases and bringing justice to patients (or doctors, the other malpractice victims!) Just recently, multiple docs were sued for malpractice because a young patient died of cerebral vasculitis. (for which nothing could have been done.) When the dust cleared the case was thrown out of court in 90 days because the plaintiff attorney could not produce one affidavit of merit! How incompetent can a plaintiff attorney get, why in hell didn't he have the affidavit of merit in hand before he filed the lawsuit. Duh, isn't this law 101! Another plaintiff attorney filed a malpractice suit and went to trial. His expert witness testimony was so bad that he would not call the expert witness and the defense ended up reading the plaintiff's expert witness testimony into the trial testimony. Duh - -why not interview your expert witness before you file the case and get his deposition. I think some of these plaintiff attorneys need brain transplants.

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