The need for federal intervention in tort reform has never been clearer, and the opportunity has never been better. Flying the Unfriendly Skies:
It's Time for Tort Reform to Take Off

Perhaps running low on new deep-pocket defendants to sue, plaintiffs' lawyers are reaching to new heights and making the skies an unfriendly place in which to do business. The latest wave of personal injury lawsuits, titled the "economy class syndrome," are being brought by long-haul air travelers who claim they have developed life-threatening blood clots after sitting immobile on long flights in economy class.

Did we miss something? When were treadmills installed in the first and business class sections?

Clearly there cannot be a medical expert with any credibility who is willing to testify that deep-vein thrombosis--a blood clot that usually starts in leg veins and can break loose to cause life-threatening damage to the lungs and other organs--is more likely to happen to an economy class passenger than one seated elsewhere on the plane, driving a truck, or firmly embedded in the couch watching football.

Yet legal experts, like personal injury lawyers, seem to fall like rain when a lawsuit lottery is up for grabs. To make matters worse, one of the cases taxiing through the legal system is in the unpredictable 9th Circuit Court of Appeals.

Hope remains that the skyrocketing punitive and other damage awards may yet be grounded.

When the 108th Congress convenes in January, Republicans will control the White House, the Senate and the House of Representatives. The political climate to which many private interest groups, such as the Association of Trial Lawyers, have grown accustomed will differ markedly from last session. The 2002 elections give the Republican party a great chance to begin to move a broad agenda that could include meaningful legal reforms.

The need for federal intervention in tort reform has never been clearer, and the opportunity has never been better. Over the past 20 years, many states have enacted so-called tort reform statutes that limit punitive damages and/or compensatory awards. Mississippi--known as the "jackpot" state for its destructive legal climate--adopted a new tort reform bill just this week.

While it is a baby step in the right direction, Mississippi's law, like most tort reform legislation in the other states, has significant weaknesses. For example, the bill caps punitive damages at the still astronomical amount of $20 million. And, although it reforms "joint and several" liability, it imposes no limits on pain and suffering, and it does not address the bonding mandates imposed upon defendants who choose to appeal even the most outrageous lower court decisions. It also does nothing to address the "double jeopardy" lawsuits that many defendants face when attacked by multiple plaintiffs in multiple lawsuits with multiple lawyers.

Many state tort reform statutes have been held unconstitutional by state courts because they have violated the right to jury trial or equal protection rights. However, the U.S. Supreme Court struck down a $2 million punitive damages award as unconstitutional in a case involving a plaintiff who was awarded $4,000 in actual damages for not being notified that his "new" car had been repainted, finding the amount of the award so excessive that it violated the due process rights of the defendants.

The judicial climate may be changing.

With Republicans controlling the Senate, judicial nominations should accelerate, and the notoriously congested federal court docket should open up scarce judicial resources and jet forward efforts to move most major class action litigation from state to federal courts.

Just as the federal courts are better suited to handle these class actions, the goal of creating a fair and balanced civil justice system would be better served by eliminating the 50-state patchwork of tort legislation. The existing crises in the insurance, medical malpractice, and asbestos industries, coupled with the looming crisis in the airline industry, are but some of the reasons why Congress should take up legislation to restrict medical malpractice suits, federalize class actions and otherwise limit consumers' and attorneys' ability to receive windfalls for claims of questionable merit.

State borders have shrunk. Forum shopping has increased. Clarence Darrow's observation that "[t]he trouble with law is the lawyers" has never been more true. Congress has the constitutional authority, under the Commerce Clause, to "regulate commerce . . . among the several states." Congress must exercise its authority and pass real and meaningful tort reforms.

December 6, 2002
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