Tort Reform: An Attack On Consumer & Constitutional Rights

Mike Kelly — Fri, 01 May 2009 09:00:00 GMT

South Carolina Senator Larry Martin recently introduced Bill S.350, which seeks to provide limits on the award of non-economic and punitive damages in personal injury actions. The bill seeks to limit non-economic damages (pain, suffering, and loss of enjoyment of life) to $350,000 in all personal injury actions, regardless of the separate causes of action on which the claim is based. A total cap of $1,050,000, regardless of the number of defendants, would also be implemented. To “cap” it all off, punitive awards would be limited to three times the actual award or $250,000, whichever is greater.

This reform goes too far too fast, especially considering that South Carolina passed tort reform only 5 years ago. While the State of South Carolina needs to encourage business, there has to be a balance. This bill reduces corporate responsibility and erodes the duty to take reasonable care to avoid doing harm to others.

The Truth about the Constitutionality of Tort Reform

Tort Reform raises serious and fundamental challenges to the role of the jury in the administration of justice and protecting American freedoms. Tort Reform continues to chip away at our Amendment VII constitutional rights. Such reform essentially guts the Seventh Amendment, which reads: “In suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved.” These proposed arbitrary caps on damages allow corporations to plan and budget for their own irresponsibility more effectively.

The use of lawsuits to compel improvements in product safety has historical underpinnings as a fundamental concept dating back to centuries-old common law, and the U.S. civil justice system. Industries need incentives to improve their practices and the safety of their products. It has been an American tradition that a primary source of that incentive comes from the imminent possibility of litigation.

Tort reform advocates seek to limit the rights and protections our Constitution provides to those who are injured from defective products, toxic chemicals, medical malpractice, etc. As a result, the independence of our nation’s individualized system of justice and democracy is directly challenged. The American jury system epitomizes our democracy by allowing common citizens to decide winners and losers. Common citizens, unlike legislators and judges, are typically not influenced by big business.

Thomas Jefferson, principal author of the Declaration of Independence, and third President of our country, had this to say about our constitutional right to a jury trial: “But there are certain principles in which all agree, and which all cherish as vitally essential to the protection of the life, liberty, property, and safety of the citizen:…Trial by jury, the best of all safeguards for the person, the property, and the fame of every individual…” – Thomas Jefferson. Jefferson went on to declare that “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Justice John Marshall proclaimed in Marbury v. Madison that: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”

Tort reform limits redress and favors perpetrators of harm – a class with disproportionately high transient political power – over victims of harm. Furthermore, tort reform has demonstrable disproportionately harmful effects on women, children, and the elderly. See Lucinda M. Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, Emory Law Journal, Fall 2004.

Do not let tort reformists, big business and corporations attack our fundamental rights by misleading accounts of jury trials and its propaganda war on individual rights. Bill S.350 will further eliminate corporate accountability and appears to put a price on South Carolina consumer safety.

Originally posted at InjuryBoard by Mike Kelly

Doctors: Lawsuits are a "vital deterrent".

Raymond Mullman Jr — Mon, 18 Aug 2008 16:15:47 GMT

CNBC has an interesting story about how doctors believe lawsuits serve as a "vital deterrent" to protect consumers from unsafe drugs. Lawsuits protect consumers if drug companies do not disclose risks to the U.S. Food and Drug Administration before it approves medicines for use, the editors of the New England Journal of Medicine said in a friend-of-the-court brief to the Supreme Court. The FDA "is in no position" to guarantee drug safety, the brief said.

Although the FDA is considered by many "the gold standard" in drug evaluation, the journal editors urged the justices to be skeptical.

"The FDA alone simply lacks the ability to serve as the sole guarantor of drug safety," the doctors said in a brief filed Thursday. Without the discoveries dredged up by plaintiffs' lawyers through liability litigation, "the FDA would be stripped of an essential source of information that the agency has consistently relied on when making its regulatory decisions, and the American public would be deprived of a vital deterrent against pharmaceutical company misconduct."

The medical editors joined 47 state attorneys general and two former FDA commissioners, David Kestrel and Donald Kennedy, in supporting Levine's position. Kestrel served in the administrations of former President Bill Clinton, a Democrat, and Republican President George H.W. Bush. Kennedy served in Democratic President Jimmy Carter's administration.

The case is being closely watched because the Supreme Court ruled this year that manufacturers of FDA-approved medical devices were shielded from litigation in state courts.

However, David Vladeck, a lawyer representing Kessler and Kennedy, said the statute that applies to medical devices is different from the law that governs medications.

"The law in the (devices) case had a pre-emption provision," said Vladeck. "Congress has never put a pre-emption provision in the Food and Drug Act."

The Bush administration is supporting Wyeth's position.

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It is ridiculous that drug manufacturers get immunity for dangerous medications when they refuse to disclose all the test results or when they knew of damgerous side effects but did not disclose it to the FDA. The FDA rubber stamps most medications and does not do a thorough job of making sure medications are safe for use.

Originally posted at InjuryBoard by Raymond Mullman Jr

South Carolina Personal Injury Blog - Tort Reform

Tort Reform: An Attack On Consumer & Constitutional Rights

Doctors: Lawsuits are a "vital deterrent".