Parade Magazine had a cartoon in it last Sunday that spoke volumes. A jury foreperson is reading the verdict. She says, “We, the jury, award the injured plaintiff $10 million. Oh, and we’d also like to give a million to the nice bailiff who brought us donuts.”
Tort reform is always a hot topic in the United States. With the advent of at least some type of health care reform, the tort-reform issue is on the minds of the CEOs of major health insurers. But will tort reform ever be a reality in this country?
The American Tort Reform Association (ATRA) offers an interesting look at America’s “judicial hellholes” in its 2008/09 report. West Virginia; South Florida; Cook County, Illinois; New Jersey’s Atlantic County; Alabama’s Macon and Montgomery Counties; Los Angeles County; and Clark County, Nevada, top the list in 2008. Making the watch list is the St. Louis City and County and its neighboring Jackson County; the Rio Grande Valley and Gulf Coast, Texas; Madison County, Illinois; and Baltimore. If you conduct business in these jurisdictions, you may be familiar with your insurance carrier’s reluctance to take cases to trial. If not, here’s a few of the jurisdictional highlights.
According to the report, West Virginia law does not guarantee the right to appeal an unjust civil verdict. The report further states, “There may be no state with a closer alliance between the state attorney general and the politically connected personal injury lawyers.” In South Florida, the size of the malpractice awards, the report alleges, forces doctors to pay one of the highest malpractice rates in the nation. Cook County allegedly “embraced” class action suits and allows forum shopping where lawyers can bring suit with little or no Cook County connection. Atlantic City, the report says, has become “the nation’s medicine cabinet” and is the “destination of choice” for suing pharmaceutical companies. I could go on, but you certainly get the picture. It is an interesting read, particularly if you are considering expanding your business to those areas. Although one consumer advocacy group, Washington’s Public Citizen, finds the empirical evidence for the report’s conclusions minimal, most will agree that jury verdicts continue to climb exponentially.
Anyone who has observed a mock trial where surrogate jurors hear abbreviated trial evidence and render a verdict know that in today’s world, jurors throw millions around like Frisbees. Because of the fear of runaway verdicts, municipalities are held to impossibly high standards; pharmaceutical research lags due to liability concerns; the cost of risk for companies throughout the United States, when compared to organizations in nations that have more rational systems of law, are much higher. What is the alternative to a jury system run amok, as some allege?
Some propose professional juries, especially in criminal cases involving complex financial maneuverings. Attorney and blogger Anthony Hall cited in a 2005 blog entry the case of Richard Scrushy, owner of Healthsouth who was acquitted in 2005 despite 15 former executives and five former CEOs from his company testifying against him in a $2.7 billion “accounting scheme.” Hall believes professional jurors would eliminate these types of problems. Tort reform, limiting the number of lawsuits and the amount of damages plaintiffs can receive, is another option and one that will heat up, I believe, in the coming months.