Tort reform heats up

By Gary Perilloux

Daily Journal

Tort reform, not to be confused with a Martha Stewart cake makeover, has become a cause celebre in courthouses across Mississippi. Now, the battle over curbing lawsuit damages is headed for a legislative showdown.

The National Federation of Independent Business and its 5,000 Mississippi members want caps on punitive damages and restrictions on liability.

Standing in their path are trial lawyers, perceived as having an iron grip on much of the Legislature through heavy campaign contributions and lobbying.

The NFIB, which counts 600,000 members nationwide, sponsored a tort reform forum Tuesday morning at the Executive Inn in Tupelo. Additional stops are planned this week in Meridian and Hattiesburg.

"It's desperately needed," said Carol Crawford, a Hamilton veterinarian who attended the Tupelo forum. "(Tort reform) really hasn't been brought home. I didn't realize this was why (the tobacco lawsuit) was done in Mississippi. I'm going to redouble my efforts to be extra cautious."

"I live with it every day," said Dr. Carol Long of the Aberdeen Eye Clinic. "And my staff doesn't understand why I get so panicky about certain things."

Tort climate

The panic, according to NFIB, stems from a Mississippi legal climate that disproportionately favors plaintiffs and their lawyers, with businesses and medical professionals frequently caught in the crossfire.

Mississippi ranks fourth in the nation for the highest number of multimillion-dollar judgments delivered, said Ron Aldridge, NFIB state director, who quoted a National Law Journal article that read, "Mississippi has become a mecca for tort suits."

"That's great for economic development," Aldridge said, tongue in cheek. "People would love to come to Mississippi for that."

To illustrate his point, Aldridge said "it took 15 years for Alabama to turn their system around." And he said it wouldn't have happened without a pointed remark from Honda, which selected Lincoln, Ala., as the site of a new car factory.

"Honda said, We aren't coming to Alabama, we won't even consider Alabama, until you get some tort reform,'" Aldridge said. "You won't see another Nissan come in (to Mississippi), I don't think, unless we do something."

Tupelo attorney Claude Clayton, a longtime civil trial specialist, said there are alternatives to tort reform for changing the business climate.

"The remedy to that problem is to help elect competent, fair judges who are going to apply the law," said Clayton, who recently changed from primarily defense work to largely plaintiff representation. "Maybe (NFIB) ought to look at the system of electing judges. ... If they feel the judges that are being elected aren't following the law - or they disagree with their judicial philosophy - maybe the best way to influence the system would be to get involved in judicial elections."

NFIB said it's doing that (but so are attorneys) and lists the following goals:

Limiting awards for noneconomic and punitive damages to a multiple of several times actual economic damages in a case.

Enlisting business people and others to ask Gov. Ronnie Musgrove to appoint business-friendly justices to two vacancies on the state Supreme Court.

Limiting premises and merchant liability. For instance, the owner of a property where an incident leads to a suit would be liable for a minority of damages if the owner was not directly negligent. Likewise, a local pharmacist would not be a primary target of a suit alleging health problems associated with taking a drug.

Curbing joint and several liability. Aldridge said a February joinder ruling of the Mississippi Supreme Court is allowing out-of-state plaintiffs to join suits in Mississippi, where juries are looser with damage awards.

Disputed points

Clayton agrees the joinder rule likely went too far.

"There should be some reform and clarification in that area," he said. But Clayton believes capping punitive damages at a multiple of economic losses could have pitfalls: An award of five times a $1,000 economic loss could be too little if the plaintiff was treated with excessive cruelty.

"It seems to me that allowing a fair and objective judicial review of each case to determine if the amount of punitive damages awarded is excessive is probably the most workable view that will lead to the fairest result in the largest number of cases," he said.

Jackson attorney Shane Langston, president of the Mississippi Trial Lawyers Association, said a 1993 statute already limits liability for paying judgments to 50 percent when the defendant isn't primarily at fault, he said.

"Prior to that, if you were 1 percent negligent, you cold be forced to pay 100 percent of the damages," Langston said. "There's a good public policy reason why our joint and several liability statute does require a defendant to pay up to 50 percent. It's very difficult for a jury to determine with precision whether someone was 13 percent or 14 percent or 50 percent (at fault)."

Langston said the argument that tort reform is essential for economic development is flawed on its face.

"We had tort reform (in 1993) and Nissan did come to Mississippi," he said, adding that taxes, work force and education rank far higher with companies. "So (the NFIB) argument, their reasoning is flawed. ... For those companies that do locate in Mississippi, we've got a very fair system."

Furthermore, Langston said, tort reform would have a chilling effect on the ability of plaintiffs and defendants to reach pre-trial settlements, something that eases the burden on the court system and promotes compromise.

"It's going to almost guarantee you're going to go to the jury on all these cases," Langston said.

Aldridge said if tort reform isn't accomplished in the 2002 regular session, it will be the focus of elections next year, with state Supreme Court Justice Chuck McRae's seat a prime target.

"It really does have to come from the grass roots," Aldridge said of the tort reform agenda.

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