Why Legislatures Must Stop Industry-Written Tort Reform Measures

Why Legislatures Must Stop Industry-Written Tort Reform Measures

  If a corporation’s negligence has injured you, you need an experienced personal injury lawyer as your advocate. An attorney will evaluate all potential claims, thoroughly investigate the case, build the evidence, and substantiate the damages. Making a personal injury claim against a corporation can prove a daunting experience, because many corporations have teams of lawyers on their side whose job is to protect their client and preserve their profits. Corporate lawyers know all of the strategies in the defense arsenal, including delay. They may do everything possible to actively obstruct plaintiffs in the effort to wear them down and exhaust their resources. Furthermore, if this fact alone doesn’t show the uphill battle of making claims against a corporation, industry-written tort reform laws have made it even more difficult for plaintiffs to get the justice they deserve. The ongoing push for tort reform means defendants have continued to successfully secure new litigation tools. Using the best lobbying power money can buy, many states have enshrined industry-written and sponsored protections into law. These measures invariably diminish corporate liability and limit damages for future plaintiffs. Tort reform has made it easier for drug companies, insurance companies, manufacturers, and others to reduce their legal responsibilities when their negligence causes injuries to someone else. It is now more difficult than ever for an injured victim to recover their real and expected economic and noneconomic damages. Many industries wield local, national, and even international influence using a complex network of organizations, lobbyists, and legislators. Organizations and lobbyists act as industry and legislative go-betweens. They connect corporations with the legislators who most align with industry interests. Every time a statehouse adopts model tort reform legislation, corporations get another win, while ordinary citizens and their rights lose out.

What Is Tort Reform?

Tort is a legal term that means “a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.” Tort “reform” is about limiting and reducing the potential damages a future personal injury victim would have recovered under prior law. Tort law is state law, meaning each state legislature has the power to determine tort laws for its own state. While many states have similar laws, where a victim was when injured can make a significant difference in the outcome of a case. For example, two different tort victims, in two different states, but with virtually the same set of facts regarding the cause of and type of injuries, may ultimately recover very different damages depending on where they must make their claims. When injured people sue a corporation, their attorney and the corporation’s attorneys must work within the system and follow established rules. Some corporations see the current tort system as out-of-control, expensive, and time-consuming. Defendants must respond to every claim filed against them. They may have to negotiate a settlement, pay a judgment, or file a costly appeal. As many defendants share common interests, they have put forth an active, cooperative effort to push tort reform measures.

A Back Door Strategy

Tort reform may change future outcomes for plaintiffs by modifying or eliminating jury discretion. Like other risk management tools, tort reform can help corporations limit their losses by eliminating legal exposure before the damages they cause have occurred. Through tort reform legislation, corporations target specific goals, including but not limited to:
  • Rewriting corporate legal responsibilities
  • Changing the standard of care
  • Revising duties through regulatory changes
  • Limiting the timing and circumstances for filing a suit
  • Capping or eliminating certain damage categories
  • Controlling defense attorneys fees for handling cases
  • Complicating litigation rules and procedures
  • Realigning responsibility for damages
A common strategy for tort reform is to tackle only one issue at a time. Unfortunately, tort reform laws ultimately aggregate in the destruction of plaintiffs’ rights.

A Team Approach

When industries push their legislative agenda, they employ a team effort. Corporations often combine resources behind the same organizations, lobbyists, and political action committees. This means:
  • Some PACs disseminate corporate funds to support candidates who are traditionally favorable to corporate interests.
  • Corporate lobbyists work to gain legislative support for their tort reform agendas.
  • Industries form member-organizations to combine their efforts and establish tort reform goals.
  • Industry organizations have legal teams who formalize their ideas into model legislation and lobbyists who promote their legislation to state and federal legislators
As described in a recent USA Today article, “Copy, Paste, Legislate,” model legislation is the method that has made stand your ground, right to work, and other controversial laws widespread. It means industry support can result in implementation of a specific agenda across the country, one state at a time.

The Pro-Industry Organizations

If you want to learn more about how industries use financial and political resources to legislate away your individual legal rights, research the activities of these organizations:
  • American Tort Reform Association. ATRA wants to “change the way people think about personal responsibility and civil litigation.” They claim credit for enacting tort reform in a number of states, including Virginia.
  • The US Chamber. The US Chamber represents three-million businesses, industry organizations, and local chambers of commerce. The organization works with a team of lobbyists and policy experts to “advance the business community’s interests.” Their annual report, How They Voted, documents and ranks members of Congress based on their so-called key business votes.
  • The US Chamber/Institute for Legal Reform. The Institute for Legal Reform is an arm of the US Chamber dedicated to changing the country’s legal system. These tort reform advocates rate state legal systems based on their standards and “effectiveness.” Their report, 101 Ways to Improve State Legal Systems, recommends that states enact specific tort reform to limit plaintiffs’ rights to recover damages and reduce the liability of negligent parties. In addition, they want states to:
  • Follow a contributory negligence standard that prohibits a plaintiff from recovering damages if their negligence is equal to or exceeds the defendant’s negligence.
  • Safeguard a defendant’s right to appeal and reduce defendant appeal bond requirements.
  • Protect “innocent” product sellers by eliminating their liability exposure as parties in the chain of product distribution.
  • Cease liability when a product meets the end of its useful life.
  • American Legislative Exchange Council. ALEC defines itself as a non-partisan organization, but it promotes “right to work,” tort reform, regulatory reform, and hold other pro-industry stances. The ALEC membership roster includes corporate entities, think-tanks, lobbyists, and corporate trade groups. The organization drafts model legislation that promotes specific interests and provides it to state legislators, who then work to implement it. ALEC produces reports such as The Impact of State and Federal Regulations on Liability. This document includes the text of ALEC’s Model Regulatory Compliance Congruity with Liability Act, a “model” law that promotes deregulation as a means to limit liability.
These are just some of the organizations that are dedicated to changing tort law across the country, and the changes they want invariably favor corporations over injured individuals.

Our Personal Injury Lawyers Are Looking out for You

The personal injury attorneys at Emroch & Kilduff are dedicated to advocating for injured clients and recovering the damages they deserve for their injuries. Our lawyers often stand toe-to-toe with corporate and industry attorneys. Just a few of the organizations that support injured individuals include:
  • American Association for Justice. Promotes accountability by standing up to corporations, insurance companies, and the commercial entities who dominate our political processes.
  • OpenSecrets.org. Tracks lobbyists, documents their political contributions, and allows individuals to see which politicians have received payments from whom.
  • The Center for Media and Democracy at PRWatch.org. Monitors and reports on corporate lobbyists, think-tanks, and other special interest groups.
These groups monitor and publicize the damaging actions of industry-related political groups, their members, and the latest legislative developments.

Call Our Virginia Personal Injury Attorneys if a Corporation’s Products Hurt You

If you have questions about industry-written tort reform, or you were injured because of someone else’s negligence, you need a lawyer who can explain your rights and will fight for you. The experienced legal team at Emroch & Kilduff handle personal injury cases in Richmond, Petersburg, Tappahannock, Fredericksburg and the surrounding communities. We have successfully recovered hundreds of millions of dollars in damages for our injured clients. Contact Emroch & Kilduff today at (804) 358-1568 or online to schedule a free consultation and learn if we can help you.

William B. Kilduff


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