Tort Reform and Constitutional Protections: Picking and Choosing

Tort “reform” just keeps rearing its ugly head.  One of the troubling parts of tort “reform” – and there are many – is that such “reform” often comes from freedom-loving, constitution-loving politicians.

For example, in Missouri, the Senate Majority Leader, Ron Richard (R-Joplin), is pushing tort “reform” as part of next year’s legislative session.  According to the Missourinet.com report, Sen. Richard is pushing for additional tort “reform” measures – even after the legislature overrode gubernatorial vetoes of three tort “reform” measures last session – despite constitutionality concerns.

The confusing part is Sen. Richard’s professed support for the constitution.

I have always been an unwaivering advocate of our Second Amendment rights….  As I have stated previously, I took an oath to protect and uphold the U.S. and Missouri constitutions.

– Sen. Ron Richard

Sen. Richard has publicly supported a new bill supporting the 2nd Amendment of the Constitution, which acknowledges that the “General Assembly of the state of Missouri is firmly resolved to support and defend the United States Constitution against every aggression, either foreign or domestic, and is duty bound to oppose every infraction of those principles which constitute the basis of the Union of the States because only a faithful observance of those principles can secure the nation’s existence and the public happiness“.  (emphasis supplied).  The bill goes further and looks, specifically, to the courts to enforce and preserve the 2nd Amendment: “It shall be the duty of the courts and law enforcement… to protect these rights from the infringements defined [above].” (emphasis supplied).

I take Sen. Richard at his word and believe him when he says he supports the constitution.  But then why has Sen. Richard attacked the 7th Amendment right to jury trial, which is protected “inviolate” under the Missouri constitution?

I thought the legislature was “firmly resolved to support and defend the constitution”.  I thought the legislature was “duty bound to oppose every infraction“.

Support and protect the 2nd Amendment, but not the 7th?  So now we pick and choose which parts of the constitution we follow?  We pick and choose which parts of the constitution we support?  We pick and choose which parts of the constitution to defend and protect?

Are you for the constitution or are you not?

If you’re going to support the 2nd Amendment… or the 1st Amendment… or any other amendment, you must support the 7th Amendment right to jury trial.

The 7th Amendment to the U.S. Constitution provides that “In suits at common law… the right of trial by jury shall be preserved….”  The Missouri constitution goes further, providing that “the right to trial by jury as heretofore enjoyed shall remain inviolate….”  Mo. Const. Art. 1, sec. 22(a).

As Tea Party Nation founder, Judson Phillips and Tea Party advocate Andrew Cochran have said, “Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution.”

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove.  Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

– Andrew Cochran, “Capping Gun Rights & Jury Trials Equally Wrong“

Cochran also wrote that “Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through ‘tort reform.'”

I’ve asked this question before: Do you have a right to free speech if you’re limited only to certain words? Similarly, do you have the right to bear arms if those arms are limited only to certain government-approved weapons?

If you answered “no” to either question, then how could you possibly support arbitrary caps imposed by the government in litigation regardless of what the evidence actually shows? It is impossible to legitimately reconcile those opposing viewpoints.

The right to 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, West Virginia Supreme Court

The sad fact is that not only is this kind of selective enforcement of constitutional principles illogical and indefensible, it’s completely unnecessary.

Just weeks ago, Modern Healthcare published a report showing that tort “reform” damages caps don’t work – states with laws capping non-economic damages in medical malpractice cases are seeing faster growth in jury awards than the national average.  Sure, the report goes on to “blame” plaintiff’s lawyers for then focusing on economic damages.

“[Plaintiff’s lawyers] are very adept now at framing their case to make it all about economic damages, which are not capped,” [Steve] Chang said.

***

“They factor in the baby’s life expectancy, and what that child will need for that many years: Wheelchairs, around-the-clock-nurses, special beds and equipment. And that’s how they get to those claim amounts,” said Lois Mahoney, owner of New England Medical Legal Consultants.

– Joe Carlson, “States with med-mal award caps see faster growth in awards than national average, study finds“

Many other tort “reform” myths have been debunked as well.

Wheelchairs for injured babies… that’s what tort “reform” advocates have been reduced to complaining about?  Should injured or brain damaged babies not received the medical care they will need over their lifetime?  If the defendant doctors, companies, or product manufacturers aren’t responsible for the necessary care for such children, then taxpayers will be.

The Founders understood that we, as a society, must take responsibility when we wrong someone.  If we are not accountable for our actions, then society – read “taxpayers” – will pay for the wrongdoer’s transgressions and provide care for the victims.  When tort “reform” bails out irresponsible individuals and corporations, taxpayers end up with the bill.  Why should taxpayers be forced not only give up a fundamental right, but also bail out negligent people or irresponsible corporations?

Tort “reform” doesn’t prevent frivolous lawsuits (remember, “reforms” like damage caps don’t even take effect until after the jury has found liability and awarded damages).  What tort “reforms” do is close the courthouse doors for countless victims and undermine fundamental constitutional protections.

We must preserve and protect each fundamental right if we are to protect any of them. Constitutional rights should not be attacked, demeaned, or trivialized for the political gain of an isolated lobbying group. Constitutional rights are the cornerstone of our society and, as Missouri’s founders explicitly said, should remain inviolate.

First and Second Amendment advocates who want to strip us of the right to a civil jury trial should remember that a jury of peers is the Founding Fathers’ way of protecting those other cherished rights. Or, as Judson Phillips of Tea Party Nation puts it, we need to use the Seventh Amendment to save the Second Amendment.

– Andrew Cochran, “Capping Gun Rights & Jury Rights Equally Wrong“

The right to trial by jury – whether under the Missouri Constitution or the 7th Amendment of the United States Constitution – is the ultimate lynch pin for all other constitutional rights. Freedom of speech, freedom to keep and bear arms, freedom to contract, freedom of religion — all are ultimately protected by the freedom – inviolate in Missouri – to have your case heard in a trial by jury.

[More on Your 7th Amendment Rights]

Read More:

• Senate leader wants tort reform with Medicaid legislation [Mike Lear at MissourNet.com]
• States with med-mal award caps see faster growth in awards than national average, study finds [Joe Carlson at Modern Healthcare]
• Defending the 2nd Amendment
• We Need the 7th Amendment to Save the 2nd Amendment [Andrew Cochran at 7th Amendment Advocate]
• Missouri Chamber of Commerce Demeans Constitution In Support of Damage Caps

© Copyright 2013 Brett A. Emison

Follow @BrettEmison on Twitter.