Leader Blues

Tuesday, May 05, 2009

EDITORIAL >> No to ‘tort reform’

It is always re-assuring when a court does what American jurisprudence expects it to do, which is to ensure that justice is done. The Arkansas Supreme Court met that standard again Thursday, when it struck down two provisions of the state’s “tort reform” law that made it much harder and sometimes impossible for workers and consumers to be compensated for injuries that were caused by someone else’s negligence.

The court did not position itself on the side of workers against companies, which is how some will characterize its unanimous decision, but said merely that the Arkansas Legislature in its zeal to accommodate business interests exceeded its constitutional authority when it passed the Civil Justice Reform Act in 2005, or at least two sections of the act that were challenged in a lawsuit from Batesville.

Under the doctrine of separation of powers, the courts and not the legislature determine how testimony is admitted in trials and how liability is weighed.

The so-called “tort reform” movement was unhappy that the courts permitted too much testimony favorable to injured people and set out to limit it.

Thank you very much, but that is the courts’ prerogative, not the legislature’s, the Supreme Court said. A federal district judge who is trying the suit asked the Supreme Court to advise him on the two sections.

One of the sections allowed companies and individuals that are accused of negligence to bring in an array of other parties that cannot be sued and claim that those share the negligence, thus dramatically reducing their own liability for damages.

They may allege that cities or other agencies of government that cannot be sued were partly at fault. In the Batesville case, the Milwaukee manufacturer of a safety switch that malfunctioned and severely injured a mechanic at Eastman Chemical Co. claimed that Eastman altered the way the switch worked and should share a big part of the liability. The worker can’t sue his employer because the workers compensation system limits its liability to standard worker compensation payments.

The intended result of the phantom-defendant provision is that the injured person can never get full compensation.

In the same way, another section of the tort law prohibits testimony about a person’s total medical liability, limiting the testimony to the costs allowed under the employee medical plan. No, the Supreme Court said, the judicial branch and not the legislature determines what evidence is admissible. The Supreme Court has rules that govern procedural matters and any effort by the legislative branch to change them violates the separation of powers.

By protecting the constitutional safeguards against an overreaching branch of government, the Supreme Court coincidentally insured a measure of justice for workers. That usually is how it works.
—Ernie Dumas