Candidates differ on tort reform details

Tuesday, October 5, 2004

Editor's note: This is the third in a six-part weekly series examining key issues in the Missouri governor's race.

By Marc Powers ~ Southeast Missourian

JEFFERSON CITY, Mo. -- Overhauling Missouri's civil litigation system has been the legislative Holy Grail for Republicans since they took control of the legislature in 2003. Thus far, the quest has twice been thwarted by gubernatorial veto.

Business groups and members of the medical profession say reforms are needed to stem abuses that they claim drive up the costs of operating in Missouri. Gov. Bob Holden, a Democrat, rejected the sweeping changes proposed by the legislature as unfairly barring wronged Missourians access to the courts.

The major candidates to succeed Holden, Secretary of State Matt Blunt and State Auditor Claire McCaskill, each say they would make so-called tort reform a priority if elected. Where they differ is in the details.

Blunt, a Republican, says he would have signed either of the bills Holden vetoed in the two last legislative sessions. Key provisions of the bills sought to restrict where lawsuits can be filed, limit the financial liability of certain defendants and reimpose hard caps on damages for pain and suffering in medical malpractice cases. Action is vital, he says, to create a more business-friendly environment in state.

"Litigation reform is needed to revitalize Missouri's economy," Blunt said.

While agreeing those issues merit consideration, McCaskill, a Democrat, says meaningful tort reform must also clamp down on abuses by defendants in addition to imposing restrictions on plaintiffs. The current system, she says, provides deep-pocketed corporate defendants an economic incentive to wage wars of financial attrition against plaintiffs by intentionally delaying cases. McCaskill proposes speeding up the timetable for cases to come to trial.

"There is no reason for these cases to take four or five years," McCaskill said. "Most of them can be resolved within two years."

Blunt accuses McCaskill of opposing real change and cites the financial support she has received from trial lawyers, a key Democratic constituency that has opposed sweeping tort reform. A tort is a wrongful act that causes injury.

McCaskill counters that as a lawyer she has experience working both sides of the courtroom and better understands the issue. During 12 years in private practice, she spent roughly the same amount of time representing defendants as she did plaintiffs.

Venue and liability

A major component of the tort debate involves venue. Detractors of the current system say lawyers go to great lengths to file cases in jurisdictions, such as St. Louis and Kansas City, where juries have plaintiff-friendly reputations. Often those jurisdictions have little connection to a case.

"Civil litigation ought to be tried in the jurisdiction where the incident occurred," Blunt said. "We shouldn't move cases from Cape Girardeau County to St. Louis."

McCaskill says venue restrictions should be discussed but that where an injury occurs isn't the only criteria in determining proper venue.

In a product liability case, for example, a person may have suffered harm in their home, but the decisions that allowed a dangerous product on the market may have been made in a corporate board room on the other side of the state. Therefore, McCaskill says, it makes sense to sue where the wrongful act that precipitated the injury took place.

"I think it is wrong to dismantle literally decades of jurisprudence on what I think is the red herring of venue," McCaskill said.

Another topic is the principle of joint and several liability. Under that doctrine, when there are multiple defendants but some are unable to pay their portion of financial damages, the others are stuck with the tab -- even if they are found only peripherally at fault. For example, if a defendant who is 90 percent at fault is financially insolvent, a co-defendant who is 10 percent at fault must pay the entire award.

The principle, which comes from English common law, is intended to put the interests of victims first. However, Blunt says the doctrine treats defendants unfairly, punishing them for the actions of others. He advocates proportional liability.

"The needs of the victims need to be met, but those parties who are liable should pay their fair share -- nothing more, nothing less," Blunt said.

McCaskill favors limiting joint and several liability but wouldn't push for rules as rigid as Blunt suggests.

"I would not go for strict proportionality because making the victim whole is an important principle in our civil justice system," McCaskill said.

A point of agreement

On the need to restore a hard cap on noneconomic damages in medical malpractice cases, the candidates largely agree.

While serving in the House of Representatives in 1986, McCaskill worked on legislation that first imposed such a cap on damages for emotional distress. Several years ago, the Missouri Supreme Court essentially rendered that law meaningless by allowing multiple awards up to the cap in a single case. Both candidates support restoring the law's original intent.

Many doctors assert that skyrocketing medical malpractice insurance premiums are being driven by expensive lawsuits and are forcing some of them to quit practicing. Others say the insurance industry, not malpractice victims seeking redress in court, is the true culprit, passing on its investment losses to doctors.

Both candidates say insurance reform must accompany tort reform. In particular, they suggest requiring more public transparency in how rate decisions are made.

"I do understand we can't force people to sell insurance in Missouri," McCaskill said. "But we can force them to provide more information on those rates are set."

Blunt says he wouldn't, as some have suggested in recent years, consider changes to address only the litigation concerns of doctors.

"It would be wrong to fix the tort system for one group of people, but tell others they have to live under a system we just said was broken," Blunt said.

Next week: Public education funding.

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