Analysis: Louisianans call for end to tort overload

Lawsuit reform typically generates public attention when an unusually large personal injury judgment or settlement, or an unpopular court ruling hits the front pages. Then things quiet down until the next big case comes along.

Frequently called tort reform, it does not refer to one specific kind of lawsuit. A tort is a series of laws designed to manage the way civil courts operate, particularly when dealing with physical, economic or personal injury. Tort law, for example, basically defines what a legal or accepted injury is, based on being the result of alleged intent or negligence.

Federal and state representatives each occasionally address tort reform to satisfy calls from their constituents. Various bills also tend to get held up in committee and, to date, have not seen passage in any serious form.

To the majority of Louisiana citizens, tort reform is not dead. It is a measure they strongly support and want elected representatives to seriously address.

According to a survey conducted by Southern Media and Opinion Research and commissioned by Louisiana Lawsuit Abuse Watch and the Coalition for Common Sense, 83 percent of state voters questioned believe lawsuit reform is needed.

“Voters want state lawmakers to make fighting lawsuit abuse a top priority,” CCS spokeswoman Blythe Lamonica said as she suggested that cases without merit bog down the courts and discourage businesses from setting up shop in the Bayou State.

“Nearly eight out of 10 voters surveyed believe lawsuit reform will attract and keep business,” Lamonica said.

“Louisiana’s litigation lottery stalls economic recovery,” LLAW Executive Director Melissa Landry said.

Landry, along with other critics of current litigious operations, contends that civil courts have been overtaken by greedy petitioners and trial lawyers looking for a big payday, and that the average business owner seldom gets a fair shake in court.

Together, Landry and Lamonica offered survey results, which included that:

• 85 percent believe that advertising by personal injury lawyers encourages lawsuits

• 79 percent believe that lawsuits increase the price of consumer goods and services

• 78 percent believe lawyers take advantage of disasters to file frivolous lawsuits

• 76 percent believe lawsuit reform will attract and keep business

• 75 percent said they would be less likely to vote for a candidate that received campaign contributions from personal injury lawyers

According to Justa.com, a total 1,000 personal injury cases were filed in Louisiana between March 4 and Sept. 26. Some of those cases were work-related injuries, some were filed by consumers in public settings or businesses, and others were simply cases of formality where one insurance company goes through the process of getting another insurance company to pay-up on a ruling.

Terrebonne Parish Clerk of Court Robert Boudreaux said getting an exact number on personal injury cases is difficult in part because of a need for comparative consistency between the nature of all cases and because of the groupings that take place when cases are filed for record keeping.

“There was a tort reform movement some years ago and we are still sorting through a lot of those issues,” Louisiana Supreme Court Justice John Weimer said. “Whoever is sued believes they are involved in a frivolous lawsuit.”

One significant element in the discussion of tort reform involves award caps. Center of Constitutional Litigation President Robert Peck argued in the National Law Journal during September that implementing strict caps on awards not only reduces compensation for proven injury, but in fact could be in violation of the Seventh Amendment, which guarantees the right to a trial by jury.

In the past decade several trial lawyers have argued that large awards only seem extravagant on paper. In some cases, they contend by example, one must take into consideration the medical and living expenses of caring for a severely injured child who becomes completely disabled and requires constant medical attention for the remainder of his life, even if he lives to be 100.

In such famed instances as spilled hot coffee cases, legal insiders offer a reminder that most of those awards are significantly reduced either on appeal or by a judge before a check is ever cut.

On the other hand, as in selecting business sites based on tax rates, many companies do look at the number of workplace lawsuits that occur in a given region when trying to decide where to locate a factory, store or office center.

A Harvard School of Public Health study found that 40 percent of medical malpractice lawsuits filed in the U.S. have been deemed to be without merit. Still, juries are often eager to offer generous awards which add more than $125 billion annually to health care costs. Many medical professionals have left communities or states because of the number of medical-related lawsuits that take place and the expense of carrying medical malpractice insurance.

Weimer said he could not comment on medical malpractice caps because of pending litigation.

Opponents of tort reform claim it is unfair to limit what damages should be paid, and in turn leave the injured party helpless.

Supporters contend that their argument is based on the system having gotten out of control, and not withholding compensation from those that truly deserve it.

“It’s time to make Louisiana competitive again,” Landry said. “[We can] create jobs by moving the legal system back toward the mainstream.”