Law and Disorder

Your November 2005 article [“ Hurt? Injured? Need a Lawyer? Too Bad! ”], ostensibly on tort reform, was disappointing in its limited and biased coverage of the litigation reforms of the past decade, the grassroots movement that generated those reforms, and the improvements in Texas law and society that the reforms have produced. Those reforms have been passed in successive sessions of the Texas Legislature with overwhelming bipartisan majorities because legislators believed sincerely, and correctly, that they were acting in the best interest of the people of Texas.

The civil justice reform movement in Texas is broadly based. Texans for Lawsuit Reform has 13,700 supporters in cities and towns throughout Texas, representing 1,200 trades, professions, and businesses. TLR is one organization in a tort reform coalition of scores of organizations and associations that represent every aspect of Texas society. The tort reform movement arose in response to a civil justice system of the eighties and early nineties that was firmly in the grasp of a small group of personal-injury plaintiff’s lawyers who had extraordinary influence in the Legislature, the Supreme Court, and the local courts. As a consequence, most defendants in Texas feared they could not get a fair trial. The problems were so pervasive that only a persistent effort of more than a decade has restored significant fairness and balance to the law governing our civil justice system.

In the last legislative session, Texas enacted historic asbestos-silica litigation reform in Senate Bill 15, which passed the Senate 30—0 and the House by voice vote without dissent. TLR led the legislative advocacy for that bill, and our lead counsel conducted two weeks of discussions with the plaintiffs’ bar in the Senate’s conference rooms. SB 15 will halt the abusive practice of lawyers’ filing claims for unimpaired asbestos and silica claimants, a practice that has bankrupted more than seventy U.S. companies and cost tens of thousands of American jobs. This abuse has been documented by a Texas federal judge, Janis Jack, who conducted hearings on hundreds of silica claims (sponsored by some of the same law firms and attempting to replicate the abuse of claims on behalf of unimpaired persons that created a crisis in asbestos litigation). Judge Jack examined the “diagnoses” in those cases and concluded, “These diagnoses were driven by neither health nor justice; they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors, and screening companies were all willing participants.” SB 15 ends these abuses without limiting the rights of truly harmed Texans to their day in court and will relieve large and small Texas businesses from abusive asbestos and silica lawsuits.

TLR has advocated higher pay for judges and jurors, including this year’s long-overdue judicial pay increase, which will allow Texas to better attract and retain a well-qualified judiciary. Legislators also increased juror pay so that jury service will be less of a burden on working Texans. Because we believe the jury system is essential to our justice system, it is important that juries be selected and compensated fairly.

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The Omnibus Civil Justice Reform Act of 2003 (House Bill 4) enacted the most comprehensive civil justice reform in American history. The bill passed with votes of 28—3 in the Senate and 110—34 in the House. Just a few of the provisions in HB 4 are: (1) Juries are empowered to hear evidence and to assign a percentage of fault to each potentially responsible person according to that evidence. (2) A statewide multidistrict litigation system is established to eliminate abuses in mass tort litigation and to enhance efficiency and predictability. (3) Class action abuses have been comprehensively reformed, including requiring lawyers who obtain discount coupons for their clients to receive their legal fees in coupons as well. (4) Appeal bonds are regulated to preserve the rights to appeal an unjust judgment. (5) Juries can consider evidence of seat belt usage at the time of an accident. (6) Volunteers of charitable organizations, volunteer firefighters, and teachers are given protection from abusive lawsuits.

HB 4 also reforms medical liability lawsuits—based on a California statute that has proven successful for thirty years. The health care community, through the Texas Alliance for Patient Access, led the medical liability reform effort, which we supported. Texas faced the imminent collapse of its medical underwriting system after thirteen of seventeen malpractice insurers stopped writing new policies in Texas in the 36 months before the passage of HB 4.

Doctors all along the border had walked off their jobs in protest of unfounded, destructive litigation, and injured persons were suffering because health care professionals were becoming increasingly scarce in parts of the state. In contrast, because of the HB 4 reforms, the American Medical Association recently removed Texas from its “crisis state” list, the first state to have been removed from that list.

There is a key legal point within the medical liability reform law that is important for your readers to understand. Your article dwells on HB 4’s limit on noneconomic damages (such as mental anguish) but fails to adequately explain the broad scope and availability of economic damages, including past and future medical expenses, physical rehabilitation, long-term nursing care, medication, necessary medical equipment, lost income, and lost future earning capacity resulting from injury, plus interest.

Even plaintiffs such as mothers who are not employed at the time of their injury can recover lost future earning power, because this element is measured by lost capacity to earn money rather than loss based on current earnings. Moreover, in the case of a child with serious and permanent injuries (such as blindness), courts have presumed that a disabled child will suffer diminished earning capacity for life. Impaired earning capacity and other forms of economic damages often run into the hundreds of thousands, or even millions, of dollars. In the case of a seriously disabled child, a lifetime of substantial lost income could provide evidence of millions of dollars in economic damages, as supported by Texas case law.

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