Tort reform strips consumers of rights

The 7th Amendment to the U.S. Constitution guarantees the right to a trial by jury. It says:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Arkansas Constitution contains similar guarantees:

"The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy..." Ark. Const. Art. 2, § 7.

The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution. Ark. Const. Amend. 80, § 3.

These seemingly clear mandates from our Founding Fathers are under assault. Insurance companies, big business, and politicians blame "runaway juries" for all sorts of public ills. These folks advocate for "tort reform," which is a techincal word for two concepts: (1) limiting the types of lawsuits that can be filed in the first place, and (2) placing a cap on the amount a judge can award in a judgment against a wrongdoer, regardless of what a jury believes is required to fairly compensate an injured person.

Tort reformers have spent, literally, billions of dollars in advertising campaigns trying to convince the public that jury awards are out of control. Ask yourself this — How many total runaway jury awards can you name? How many in Arkansas? How many involving someone you know, either as a party or on the jury?

Compare two cases. One one hand is the often-ridiculed McDonald's hot coffee case. Look at the image of the elderly woman's scalded thighs. It's disturbing, isn't it? There can be little doubt that this is an actual, painful, physical injury, and the woman's treatment ultimately required skin grafts. There was evidence at that trial that the burns could and did happen in as little as two seconds. A simple accident in a parked car, a spilled drink, something that everyone has done, led to serious injuries in two seconds. There was also evidence that McDonald's knew about hundreds of other burn victims but didn't take preventive measures to prevent these types of burns. That is needless danger to the public, and it led to serious injuries. So, the jury enforced what it believed was an appropriate punishment that would make McDonald's change the way it served coffee — 2 days' worth of McDonald's coffee sales (which was later reduced by the judge).

On the other hand is FedEx. FedEx is on the board of the U.S. Chamber of Commerce. The U.S. Chamber is a wealthy lobbying group of major corporations that actively campaigns (1) against the right to bring lawsuits and (2) for other changes in the law that would discriminate against employees. As a large part of their strategy, FedEx and the U.S. Chamber complain about frivolous lawsuits. Hypocrisy seems to know no bounds — This is the same FedEx that filed a federal lawsuit against a man for creating furniture out of FedEx boxes (see photo at left) and putting pictures of that furniture on the Internet. If FedEx is so dead-set against frivolous lawsuits, then why is it filing federal lawsuits against its customers who make furniture out of FedEx boxes?

Insurance companies such as State Farm also support tort reform. Why? The fewer claims that can be brought, and the lower amount of those claims, mean that insurance companies can keep more premium dollars as profits. Take the case of former U.S. Senator Trent Lott, who once defended the insurance industry. After he lost a house in Hurricane Katrina, State Farm denied his claim. Senator Lott changed his mind and decided it was the insurance industry that was in need of reform.

Many times, the law can't put people back where the were before they were hurt. So, the law provides that money should compensate injury victims to fix things the best they can be fixed, to help what can't be fixed, and to make up for what went wrong. In some cases, where someone needlessly endangers the public, our law provides for "punitive damages" in order to deter future bad behavior. Our Founding Fathers realized that the best judges of how to fix, help, make up for, and punish (where appropriate) the wrongs of others was a committee of twelve citizens that had no interest in the case. Juries are, literally, the conscience of our communities. It decides what the rules are, and what value those rules have.

Tort reform really comes down to who you would rather decide the value of our society's rules: everyday people from your own community, or multinational companies?