The Gov is working on tort reform...what' do ya'll think of that?

[E4 No More]

So the Governor is wanting to protect businesses from what he considers excessive punitive damages. I agree that tort reform is needed, but the problem is too complicated for his simplistic solution that he proposed. After seeing the initial report I fired off the following email to the governor and my senator and representative. The very next day Haslam proposed a compromise, but it's still too simplistic.

What're your opinions??

My email:

In reference to this article: http://www.wsmv.com/news/27300050/detail.html

As your constituent who votes Republican, I want to state to you three that I am against the idea of limiting liability for businesses where negligence is involved even under the pretense of “job creation.” Who are you to say what a person’s life, (or even their way of life), is worth? Can you set a definitive dollar amount on the life of your mother, father, wife, or child? Are the office worker’s legs worth the same as an electrical line worker’s? Is the arm of a radio announcer worth the same as that of a mechanic? I say you can’t because the loss of life and limb is as subjective as it can be, and there’s no way legislators can determine that.

Let’s see how this type of thinking works. I recall an incident not too long ago in downtown Nashville where a couple was fried as the result of a bursting electric transformer at ground level, and NES was protected from damages to not exceed $100,000. Would that amount compensate you for living the rest of your life in pain and disfigurement? I dare say it wouldn’t, but if it does then step-up and set the example. And did the comfort of knowing the limit of their liability create an environment of complacency within the NES so that they didn’t feel the need to inspect or maintain that transformer as they should, or perhaps purchase enough land to maintain a safe distance from it in the event of a failure? The very nature of business is to drive profits which usually translates into doing the bare minimum in the areas that do not generate revenue, so I’d conclude that it most certainly did affect their choices.

I have to tell you, my only problem with the Republican side of politics is that they tend to act like the preamble to The Constitution of The United States reads, “We the corporations of The United State of America…”. May I remind you that your first responsibility is to protect your citizens; not businesses. This state already allows businesses to circumvent anti-discrimination laws with your “At Will” laws. This state already protects businesses from liability with workers compensation limits. This state already allows businesses to strip their employees of their most basic right of self-defense even while traveling to and from work. Businesses do not need any further protection; the citizens of this state need it. Besides, isn’t it the Republicans that repeatedly state that government can’t create jobs?

I sincerely hope that the three of you, and the legislature, think this through before proceeding with it.

[china coaster]

Make it even simpler; looser pays the court cost. We do have to get away from so much litigation. A large portion of our society depends on those with deep pockets to make up for their failures and unwise financial decisions. Another thing would be to hold judges more responsible for what they allow to go to trail. Some of these suits should be laughed out of court. It has to do with our PC culture. And last but not least don't get me on the jury if you are going to sue someone.

[E4 No More]

Make it even simpler; looser pays the court cost. We do have to get away from so much litigation. A large portion of our society depends on those with deep pockets to make up for their failures and unwise financial decisions. Another thing would be to hold judges more responsible for what they allow to go to trail. Some of these suits should be laughed out of court. It has to do with our PC culture. And last but not least don't get me on the jury if you are going to sue someone.

Sure, there are many excesses: however, as in the instance of the couple who got electrocuted just walking down the street in Nashville, would $100,000 legal cap that NES enjoys compensate you for losing your spouse and living your life in pain and disfigurement from severe burns? Just the guy's hospital bills exceeded $1,000,000 if I recall correctly.

I also question Haslam's motives considering he's a business owner.

[Jonnin]

Limitations are needed, however. Unlimited damages means that with a good lawyer and the wrong jury, a single person with a minor injury (heals and is gone inside a year or less) can put a small business under, costing jobs and more, for what should have been a small penalty. On the other hand, a serious injury (lifelong consequences) should reap a large reward. Business must be protected, in other words, from being destroyed (costing jobs and such) yet the individuals who are harmed must be compensated as well. I do not know where the happy medium between the two should be --- possibly limits but very high limits, or possibly a defination (such as I used) on severity of the injury such that business is protected from large payments over minor injurys (ambulance chasing type stuff) while individuals who are really, actually harmed are paid in full.

The AT WILL laws are also a mixed blessing. They prevent a lot of nonsense (racial quotas, unions/strikes, etc) which I do not approve of (if someone walks off the job, they can be fired & replaced on the spot, IMHO, and at the company I work for, we have had 2 minoritys (out of maybe 50 people) apply in 10 years, you cannot hire people that do not apply (we hired one of them, not that it matters, he was qualified and THAT is what mattered) ). IMHO again, a business should either post the building for no guns or not, none of this employees cannot customers can garbage, either everyone can or no one can. They may need to be tweaked a bit but the concept of working AT WILL is awesome. The "you can quit at any time, and I can fire you at any time" needs to stay as this single rule has circumvented no end of problems in my experience, for both sides (and, because of this, no one is ever fired, they are allowed to quit for a clean record by mutual agreement and we respond to reference checks with "it was a bad fit" in those cases).

[enfield]

The pain & suffering and punitive damages have to be capped for the same reason that public employee unions need to be outlawed. The lawyers and plaintiffs are getting rich off of my money, not the money of some corporate fat cat.

[dats82]

Generally the tort reform that I am most interested in is associated with medicine. In this case, I absolutely believe there should be a cap imposed. I had an orthopedic surgeon explain it to me one day in the context of a carpal tunnel repair. I am sure many of you all have had this procedure, and one of the complications of the procedure is damage to the median nerve which would most likely manifest the same as the symptoms experienced prior to the procedure. The doc I was talking to said his profit off that procedure is about $250-350 depending on the payer. However, if this procedure does not go well, the liability is somewhere around $500,000. What this means is that if you do not want to live with the symptoms and choose to get it fixed, it is only worth about $300 for you to pay someone to fixed it, but if things go wrong, all of a sudden, the same symptoms are worth a half of mill. This does not compute for me.

In the case of malpractice, the burden of proof is not beyond a reasonable doubt, it is more likely than not. To people who are uneducated in the subject, it is very easy to show a more likely than not scenario. Tort reform in medicine will have more of an impact on decreasing the expense of medicine than any other policy you could put in place.

Sorry if this is too long and off the subject, but maybe it will at least give you something to think about associated with tort reform.

Edited March 30, 2011 by dats82

[RobertNashville]

Actually, we don't need "tort reform". This is a battle cry for many Republicans/Conservatives but the overwhelming number of lawsuits are NOT the outlandish ones that people always throw out there as examples of an out-of-control system.

When a person or a company is truly negligent; they deserve to pay a price for that negligence. Civil lawsuits have two primary categories of damage; compensatory and punitive...compensatory damage are only what you can establish was the victim's "cost" in dollars. But, it's VERY possible to have little $$$ cost to be made whole on but have sever "damage" that you can't just add up the bills and put a $ cost on...those are the "punitive" damages...if you limit them to just a small amount you can easily wind up with someone who has been very severely harmed but winds up with almost no $ award because the actual damage you can easily put a price tag on are little or nothing.

I guess what I'm trying to say is that whatever "problem" with the current civil tort system is NOT a fault of the system; it's actually a fault of those of us who think that "someone" owes us "something" whenever anything "bad" happens to us - passing "tort reform", then, will only affect the symptom; not the actual problem while concurrently harming those who our tort system is supposed to help.

[E4 No More]

The pain & suffering and punitive damages have to be capped for the same reason that public employee unions need to be outlawed. The lawyers and plaintiffs are getting rich off of my money, not the money of some corporate fat cat.

So you believe they should be capped, but you propose no answer as to how?

I agree that someone shouldn't make $5,000,000 off of a cup of McDonald's coffee dumped in their lap: however, a person shouldn't be neared burned to death while their wife is burned to death and not even have their hospital bills paid. THAT is BS!!

[E4 No More]

Actually, we don't need "tort reform". This is a battle cry for many Republicans/Conservatives but the overwhelming number of lawsuits are NOT the outlandish ones that people always throw out there as examples of an out-of-control system.

When a person or a company is truly negligent; they deserve to pay a price for that negligence. Civil lawsuits have two primary categories of damage; compensatory and punitive...compensatory damage are only what you can establish was the victim's "cost" in dollars. But, it's VERY possible to have little $$$ cost to be made whole on but have sever "damage" that you can't just add up the bills and put a $ cost on...those are the "punitive" damages...if you limit them to just a small amount you can easily wind up with someone who has been very severely harmed but winds up with almost no $ award because the actual damage you can easily put a price tag on are little or nothing.

I guess what I'm trying to say is that whatever "problem" with the current civil tort system is NOT a fault of the system; it's actually a fault of those of us who think that "someone" owes us "something" whenever anything "bad" happens to us - passing "tort reform", then, will only affect the symptom; not the actual problem while concurrently harming those who our tort system is supposed to help.

Agreed.

[E4 No More]

Generally the tort reform that I am most interested in is associated with medicine. In this case, I absolutely believe there should be a cap imposed. I had an orthopedic surgeon explain it to me one day in the context of a carpal tunnel repair. I am sure many of you all have had this procedure, and one of the complications of the procedure is damage to the median nerve which would most likely manifest the same as the symptoms experienced prior to the procedure. The doc I was talking to said his profit off that procedure is about $250-350 depending on the payer. However, if this procedure does not go well, the liability is somewhere around $500,000. What this means is that if you do not want to live with the symptoms and choose to get it fixed, it is only worth about $300 for you to pay someone to fixed it, but if things go wrong, all of a sudden, the same symptoms are worth a half of mill. This does not compute for me.

In the case of malpractice, the burden of proof is not beyond a reasonable doubt, it is more likely than not. To people who are uneducated in the subject, it is very easy to show a more likely than not scenario. Tort reform in medicine will have more of an impact on decreasing the expense of medicine than any other policy you could put in place.

Sorry if this is too long and off the subject, but maybe it will at least give you something to think about associated with tort reform.

I agree that medical malpractice is where most of the abuse is found. A woman smokes and drinks through her pregnancy and turns around to score a big lawsuit against the OB/Gyn because her child comes out deformed? That's crap!

But then again, there are cases where doctors need to be driven out of business for the crap that they pull.

[Northface]

A few years ago, a friend was involved in a minor (no injures) traffic accident and the car was repaired. One week less that one year later, he is served with a $32,000 law suit. His insurance settles immediately out of court. His agent implied that the attorney knew the amount just below the return-on-investment where the insurance would not go to court, and pocketed a quick 5 figures for a few hours work.

What if the law changed so the attorney is not allowed to collect any money from the punitive damages? Seems that would discourage "You don't pay a dime if we don't win" frivolous lawsuits.

[E4 No More]

A few years ago, a friend was involved in a minor (no injures) traffic accident and the car was repaired. One week less that one year later, he is served with a $32,000 law suit. His insurance settles immediately out of court. His agent implied that the attorney knew the amount just below the return-on-investment where the insurance would not go to court, and pocketed a quick 5 figures for a few hours work.

What if the law changed so the attorney is not allowed to collect any money from the punitive damages? Seems that would discourage "You don't pay a dime if we don't win" frivolous lawsuits.

So lawsuits would only be for the rich?

Lawyers are just like anyone else. They chase money. What I would like to see is us go back to not allowing lawyers to advertise. It seems like we became a litigious society after lawyers were allowed to advertise.

[1gewehr]

You guys are confusing 'punitive' damages with 'actual' damages.

Actual damages are the costs associated with the negligence that would not have occurred otherwise. In the case of the couple who got electrocuted, ALL medical, rehab, lost wages, and funeral costs are 'actual damages incurred as a result of the power companies negligence. The 'punitive damages' are an additional penalty to discourage the company from causing the same problem again. It is supposed to be a punishment for being careless about people's safety, not a lottery win for the people injured.

As such, I have no problem with limiting punitive damages to some percentage of actual damages. Taking the example of the couple in Nashville, if the husband has medical expenses of $1mil, funeral expenses of $25k, lost wages of $75k for him and $1mil for her, then punitive of 100% would equal $2.1million. The problem comes in where the legal expenses are a percentage of the amount the court awards. That is absurd. No other business works like that. Legal fees should be based on hours billed at an agreed-upon hourly rate where the loser pays court costs and legal fees. That would take a lot of the guesswork out of these kinds of cases and ensure that a hot cup of coffee would not be like winning Powerball.

[E4 No More]

You guys are confusing 'punitive' damages with 'actual' damages.

Actual damages are the costs associated with the negligence that would not have occurred otherwise. In the case of the couple who got electrocuted, ALL medical, rehab, lost wages, and funeral costs are 'actual damages incurred as a result of the power companies negligence. The 'punitive damages' are an additional penalty to discourage the company from causing the same problem again. It is supposed to be a punishment for being careless about people's safety, not a lottery win for the people injured.

As such, I have no problem with limiting punitive damages to some percentage of actual damages. Taking the example of the couple in Nashville, if the husband has medical expenses of $1mil, funeral expenses of $25k, lost wages of $75k for him and $1mil for her, then punitive of 100% would equal $2.1million. The problem comes in where the legal expenses are a percentage of the amount the court awards. That is absurd. No other business works like that. Legal fees should be based on hours billed at an agreed-upon hourly rate where the loser pays court costs and legal fees. That would take a lot of the guesswork out of these kinds of cases and ensure that a hot cup of coffee would not be like winning Powerball.

Agreed: however, then you'd see a lot of padding going on there.

I understand actual vs punitive damages as well, so there's no confusion there for me. I also know about being the victim of a frivolous lawsuit - having been sued as a police officer even though it was proven to be a total lie by bystanders. The insurance company paid that clown and his lawyer $10,000 anyways.

As for the couple is concerned, the reports I saw was that the NES was capped at $100,000 period by law. That's why it was "news worthy" because the couples' damages far exceeded the cap. I even recall the state contemplating raising the cap after the fact in this case to cover the actual damages. I could be wrong; it was several years ago.

[macville]

I see nothing happening until lawyers stop getting a % of a settlement/award. I see time and time again where insurance companies settle for thousands of dollars when there should have been no payout because it was an unjust lawsuit. Basically, like that case above, the know exactly how much to sue for because it will be settled instead of fought because it's cheaper to settle than to fight it. So how do we stop it so lawyers are willing to sue because they know it's an auto settle? Maybe we should take one of Obama's ideas about not letting the rich make so much and just cap lawyer fee's on cases? How about $1k a case?

[enfield]

. . . . Maybe we should take one of Obama's ideas about not letting the rich make so much and just cap lawyer fee's on cases? How about $1k a case?

Oh Lord!

[VolunteerGuns]

Oh Lord!

Yep....

[midtennchip]

Well, I've seen almost every argument known to man made against lawyers and "out of control" lawsuits in this thread. However, what I haven't seen is anyone actually cite Tennessee cases where a Plaintiff has received an outrageous sum of money. I do almost NO personal injury work. However, the few I have done prove to me that there is no reason for tort reform in Tennessee for the following reasons:

1. Despite the sentiments of many people, there is a cap on punitive damages across the country. Under State Farm v. Campbell, 538 U.S. 408 (2003), the punitive damages have to have some reasonable relationship to the injuries of the Plaintiff. There is no standard percentage, but under State Farm, the SCOTUS basically said anything over 9 times the actual damages is unconstitutional.

2. Tennessee juries are historically more conservative than the vast majority of other states. We just do not see big punitive damages in Tennessee and we don't even see that much in the way of "pain & suffering," which are actual damages (not punitive). For example, in California, it is almost automatic that "pain & suffering" damages are paid at approximately 3 times the amount of actual medical expenses. In Tennessee, we usually don't even see 1.5 times actual medical expenses and insurance companies rarely settle for more than that unless they know they will lose at trial.

2. Most plaintiff cases HAVE to be taken on a contingency fee basis (ie: a percentage of the recovery). The vast majority of plaintiffs would never be able to hire an attorney if the attorney had to be paid on an hourly basis. A good attorney is going to run at least $200 to $250 an hour, and many are significantly more than that. A small case and a large case take similar amounts of work. So, a case with only $15,000 of medical bills would likely not be worth filing if someone paid hourly, but someone with a $100,000 case might be worth it. What that means is that, if you got injured, you'd simply be stuck with whatever the insurance company offered. Just find yourself in that position one time and see if you think the insurance company is being fair with you.

3. The tort reform bill currently proposed has little to do with capping punitive damages. Rather, it really is focused on capping "non-economic" damages. That's pain & suffering, loss of enjoyment of life, DISABILITY, DISFIGUREMENT, etc. So, let's say you have an injury with $100,000 in medical expenses. You have a 50% disability to your body. Under this bill, you could get SOME (see below) of your medical bills and the actual loss of income, but damages for anything else would be capped. If you are 25 years old and 100% disability for the rest of your life, is $750,000 enough?

4. The tort reform bill is going after "collateral source rule." Basically, under the Tennessee bill, the medical expenses that a jury could actually consider would be limited to the Plaintiff's "out of pocket" expenses. So, if you got hit in an accident, had $100,0000 worth of medical bills, but your health insurance paid all but $5,000 of the expenses, your lawsuit could only ask for $5,000. If "non-economic" damages are capped at a percentage of actual medical expenses, you would get much of anything, even though the Defendant caused $100,000 of damage. On top of that, your health insurance company gets stiffed. BTW: If someone did not have health insurance, that person would get more from a lawsuit than the person who did buy health insurance (is that fair?).

5. Since 2008, medical malpractice lawsuits (which everyone seems to think are wrong) have actually decreased in number by 44% and account for only 3% of all civil lawsuits in Tennessee. Malpractice insurance premiums have decreased by an average of 23%. So, there isn't any real evidence that we have a problem in Tennessee.

In my personal opinion, the current tort reform bill will do LITTLE, if anything, to fix any problems in Tennessee. We do not have runaway juries. We do not have many (if any) frivolous lawsuits. In fact, the Defendant CAN recover defense costs if the case is deemed frivolous.

[Guest HvyMtl]

See above. (Well put, Mr. Cain.)

Basically put, I see a fellow who is using his political office as a means to benefit his family corporation... I hope I am wrong, but the conflict of interest seems too obvious here.

Listen to Senator Fred Thompson. He is dead set against Haslam's plan...