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Ryan R. Bradley
Ryan R. Bradley
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Tort Reform Part Three: The Current Landscape

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Ryan Bradley of Koester & Bradley, LLPOver the last two posts to the Central Illinois Legal Examiner we have discussed the facts underlying so-called “Tort Reform” and the players in the debate.  In this third and final installment, we will look at the current Tort Reform landscape and point you to some of the best articles and resources to stay informed and not fall victim to “fake news.”  One of the best places to start to when developing a knowledge base about tort reform is the Legal Examiner website.  Simply search for “tort reform” and you will find a large collection of great articles from the authors in the Legal Examiner network.

In the Hopes of arming you with factual discussion points regarding tort reform, please consider the following myths and responses:

There are too many “frivolous” lawsuits. This is simply impossible given that in Illinois, as well as other states, require each action to be certified by a doctor.
Lawsuits will make my premiums go up. There is no evidence of the correlation of insurance premiums and lawsuits.  Premiums are a construct of insurance companies and will steadily rise over time because that is how insurance companies make money.  And they make A LOT of it.
Medical Malpractice Lawsuits clog the Court System. The majority of cases in the court system, particularly those that go to trial, have nothing to do with malpractice or injuries.  Moat cases are business-related.
Trial Lawyers “get rich” from “runaway jury verdicts.” Since 1992, payouts in tort cases have decreased.  Furthermore, since trial lawyers finance all their own cases, most plaintiff’s lawyers are very selective about their cases knowing that a loss is always possible.
Doctors are suffering due to Tort Reform. Doctors are suffering from the national fail health insurance situation and are put in a less profitable situation by insurance companies seeking massive profits.  Don’t believe me, ask a doctor.

 

With news stories concerning Tort Reform changing as much as President Trump changes his team of advisors, it is important to stay abreast of the present lay of the land.  Here are some good places to start:

Illinois Trial Lawyer Association (ITLA) vs Illinois Lawsuit Abuse Watch (I-LAW): The Illinois Trial Lawyers Association fights hyperbole with Facts. I-LAW is claiming that Illinois is a “judicial hellhole” where there are no lawsuit reforms and personal injury lawyers have free reign to bring whichever lawsuit they wish to the Illinois court system. I-LAW claims that lawsuits in Illinois that do not make it to court are settled by judges who are friendly with the personal injury lawyers and may make decisions in their favor. I-LAW is also claiming that this “judicial hellhole” is deterring future businesses from coming to Illinois in fear of lawsuits. ITLA responds with stating there is already a well-functioning system for weeding out lawsuits that lack merit before they reach court and ITLA says there has been a 43% drop in civil cases from 2010 to 2015. And 60% of cases in Illinois are businesses suing other businesses. ITLA continues to state that I-LAW is using false information as a scare tactic.

https://www.riverbender.com/articles/details/illinois-trial-lawyer-association-disagrees-with-countys-designation-as-judicial-hellhole-22129.cfm

The Infamous Limit on non-economic damages: JD Supra.  In just a few brief paragraphs, this article outlines the main tenants of the most recent push for Federal Tort Reform which would cap non-economic damages at $250,000.00 and reduce attorney’s fees.  The main problem with this theory is that, in many situations, $250,000.00 is insufficient to compensate those injured by medical negligence.  This also steals from the juries the right to award civil monetary compensation which is the only means by which an individual can recover under the American Justice System.  The victims of serious medical injuries are the ones who will pay for a cap in the worst way since it is these injuries, usually permanent including death, that will be limited the most.  Finally, by limiting the amount of money that attorneys can make by representing injured clients, the business motivation of representing victims of medical negligence with shift and victims will find themselves negotiating directly with Hospitals and Insurance Companies directly which will not result in any sort of fairness.

http://www.jdsupra.com/legalnews/tort-reform-by-any-other-name-81110/

The road ahead in the tort reform debate is far from over.  No matter what happens on the legislative front at the Federal level, individual states have a significant amount of runway to pass their own laws.  While in states such as Illinois, caps on damages stemming from medical malpractice and other types of tort cases have been held unconstitutional by the Supreme Court, others such as Texas have caps, and the accompanying lack of recourse for the injured.

Caps on damages are not the only barrier to justice in the present tumultuous political setting.  A recent Federal Supreme Court decision hampers the pursuit of justice through collective “mass tort” actions.  Essentially, trial attorneys from across the country have been consolidating cases from many injured plaintiffs in logistically convenient locations to use economies of scale and cut down on the stress on judicial resources.  Large companies do not like this practice since it allows more lawsuits to be filed more efficiently and these companies, like the behemoth Johnson & Johnson, want to make it as difficult as possible for plaintiffs to hold them accountable for dangerous products.

Johnson & Johnson and U.S. Supreme Court ruling: The Supreme Court came out with a ruling stating that state courts cannot hear “claims against companies that are not based in the state when the alleged injuries did not occur there.” J&J is a New Jersey based company that was being sued in other states, this ruling by the Supreme Court has led to cases being thrown out in St. Louis.  While not technically a pure tort reform issue, this ruing threatens to change the way that so-called “Mass Tort” cases are decided.  Basically, mass tort cases are when a single case consolidates numerous claims, sometimes from across the country, in one court to resolve the underlying issues in a more streamlined manner.  This can happen both on the Federal and State Level and have been very useful to cut down on judicial waste.  By making this process harder, large corporations that commit torts by way of defective design and the like can make it more difficult for victims of their negligence to find recourse.  Taken together with the proposed Federal Tort Reform changes and the ones in place in various states such as Texas, and the pathway to accountability for victims of negligence and malpractice will seriously constrict.

http://www.foxbusiness.com/markets/2017/06/21/u-s-supreme-court-ruling-threatens-massive-talc-litigation-against-j-j.html

 At Koester & Bradley, we are constantly monitoring tort reform as are the other members of the Injury Board community.  Feel free to check out our website that details the myths associated with medical malpractice.

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