Tort Reform Measures Take Hold in Several State Legislatures
By Sean Lally, Staff Writer
There is a quiet movement in the United States – one that doesn’t necessarily attract very much media attention. This movement goes by the name of tort reform, and it may appear to some as an innocuous category of legislative affairs. But behind the dry title dwells a more insidious attempt to weaken the rights of consumers around the country.
Tort reform refers to an effort – mostly backed by Republicans, Big Business and insurance companies – to tighten the procedures and rules surrounding personal injury, medical malpractice, product liability and class action lawsuits. Currently there are at least three legal reform bills being pedaled in state legislatures. There’s a measure sitting in the Senate in Wisconsin; there’s one in Kentucky (this one pertains specifically to medical malpractice); and there’s another floating around in Missouri.
In Missouri, where Governor Eric Greitens has pushed for more tort reform, Republican Senator Dan Hegeman has proposed a measure that would shorten the statute of limitations for filing a personal injury lawsuit. Whereas currently the time-limit is set at five years, under the new bill, claimants would have only three years to file a suit.
Hegeman couched the bill in historical terms: “Missouri has not amended the five-year statute since 1939.” He continued, “While five years may have made sense in an age when transportation and communication were more challenging, there is no reason today for an injured person to need so much time to file the action.”
But, as trial attorney David Klarich has pointed out, the five-year limit gives plaintiffs more time to reach a settlement. Without the longer timeframe, plaintiffs could be forced to take a smaller compensation for their injuries or clog the courts with more litigation.
Another bill (SB 20) sits in the House of Representatives in Kentucky, where legislators must consider the pros and cons of a measure that seeks to tighten rules pertaining to medical malpractice lawsuits. There are a number of provisions, many of which already exist in Delaware, but perhaps most problematic is one that would limit contingency fees to 33 percent of the plaintiff’s total award.
According to Minority Floor Leader Senator Ray S. Jones II (Democrat), “It is a fundamental right in this country to contract with a legal representative of your choosing and to be able to negotiate a fee amount.” Jones argued that such a limitation would impede the free-market economy. What’s more, without a higher fee, competent attorneys might be dissuaded from pursuing certain cases, leaving many potential plaintiffs in the lurch.
Another controversial provision would force injured parties to obtain an “affidavit of merit” from a medical review board before filing suit. Without such an affidavit, the injured party would not be permitted to file a malpractice lawsuit.
Another provision would preclude statements such as “I’m sorry” and “My condolences” from being admitted as evidence of wrongdoing. That provision is aptly named the “I’m sorry” clause.
Kentucky attorney Karl Truman reacted to the bill: "The result of laws like this is to restrict access to the courthouse by hard working men and women who do not have the resources of large insurance companies. Victims who have been hurt should not be hurt again when trying to hold a wrongdoer accountable for their bad decisions. We must put people over profits."
In Wisconsin, the State legislature just passed a bill (AB 773) that would institute major changes to tort law procedures. (As of this writing, the bill is awaiting the signature of Governor Scott Walker)
The measure could alter the discovery process and the retention of electronic data. Under the proposed measure, accused parties would not be expected to hold on to pertinent electronic information unless it could be shown that there was a “substantial need” for it.
Moreover, the bill would change the timeframe of the so-called construction statute of repose, which is utilized by builders and other contractors to evade responsibility in lawsuits pertaining to faulty construction. Under the current statute, all injuries that occur as a result of a negligently designed building must happen within ten years of the building’s construction if they are to be grounds for a lawsuit. When an injury occurs outside that window, a lawsuit may not be filed against the contractor. The bill in the Senate would narrow that window to a mere seven years, making it even harder for injured parties to pursue legal action against negligent contractors.
There are a number of other provisions, including one that would lower the interest rate on overdue insurance claims – from 12 to 7.5 percent. This would be a major boon to insurance companies and a kick in the shins for consumers who depend on those claims.
According to Wisconsin attorney Willard Techmeier of the Techmeier Law Firm, “This is another attempt by big business to lock the doors of the courthouse to our clients and then throwing the keys away.”
All of these measures would place severe limitations on people seeking compensation for injuries incurred at no fault of their own.