Sue as I say, not as I sue

By The West Virginia Record | Nov 22, 2006

Dugger NEW YORK -- In recent years, the courts of West Virginia have been a favorite target of the self-labeled tort "reform" movement.



NEW YORK -- In recent years, the courts of West Virginia have been a favorite target of the self-labeled tort "reform" movement.

In West Virginia, and across the nation, the U.S. Chamber of Commerce and state chambers are attempting to push forward what they term tort "reforms." These legislative initiatives limit, constrict, and sometimes eliminate Americans' ability to go to court when they are injured by others' misconduct.

Of course, these chambers of commerce represent corporate business interests, and the fact that they are so aggressively pushing these initiatives forward must indicate to you that corporations see it as in their financial interest to make it as hard as possible to sue them, no matter what injuries their actions cause.

If given the opportunity to make yourself immune to lawsuits, wouldn't you take it? Nobody likes to be sued, but the important question is should somebody be sued, not whether or not they are happy about it.

It is striking, however, how quickly those who advocate for tort "reform" are willing to change their tune. While they publicly "speak out" about how too many lawsuits are ruining a state's economy, or how lawsuits are somehow innately "bad," when they or somebody they love is injured, all of this public rhetoric goes out the window and they go straight to court. In short, these people are tort "reform" hypocrites.

While the list of well known tort "reform" hypocrites is long and growing -- President Bush, Sen. Trent Lott (R-Miss.), Sen. Rick Santorum (R-Pa.), Ken Lay, and ABC News correspondent John Stossel, to name a few -- the case of West Virginia Chamber of Commerce President Stephen Roberts is clearly worth attention.

Roberts -- a longtime supporter of tort "reform" -- recently filed suit against his neighbors and their son after the child allegedly injured his daughter's eye with a paintball gun. Since the incident, his daughter has had four operations and still has only limited vision in her damaged eye. The inclusion in the lawsuit of a claim for "non-economic" damages is, to say the least, ironic in light of the West Virginia Chamber's attempts to reduce victims' access to this very form of relief.

A close look at Robert's public comments is striking. When questioned about his lawsuit, Roberts said "While we're extremely distressed with the situation with our daughter and the substantial loss of vision in her eye, there is nothing that we have advocated at the Chamber that would have any impact on this kind of situation."

This statement is untrue.

According to the West Virginia Chamber's own Policy Issues Paper, the legislation it supports as necessary to enact "civil justice reforms that will eliminate risks and impediments on West Virginia employers and revitalize the state so it truly can be 'open for business'" include the limitation of "non-economic damages."

Non-economic damages compensate an injured person for all of the less tangible aspects of their injury aside from things like their lost wages and medical expenses. These damage "caps" take the determination of non-economic damages away from the jury.

Had this type of legislation been pushed through by Roberts' organization, it would have affected the amount of non-economic damages that his daughter can receive to compensate her for her very real pain and suffering, disfigurement, emotional distress, as well as for the actual loss of function in her eye (in cruder terms the "value" of her eye).

Indeed, if she succeeds at trial, because his daughter has no lost wages to compensate (the court will estimate how her injury affects her future earnings, if at all) the great majority of her damages outside of medical costs will be these same non-economic damages. The Roberts have also requested compensation for non-economic damages as parents for their loss of "companionship and consortium" with their daughter as a result of her injuries.

Clearly, no amount of money can ever make a victim of any injury fully whole, as in the case of Roberts' daughter, for whom one can have nothing but sympathy.

However, for a lifelong injury to your ability to see the world clearly through both eyes, something more is needed than only compensation for your medical bills and some small amount for your lost "future earning potential" in order to claim that justice has been served.

Ultimately, it is a jury of our peers subject to judicial oversight, and not corporate lobbyists, who are supposed to determine these damages.

Roberts and the West Virginia Chamber of Commerce have tried to preempt this difficult process with their own particular view of what's fair, instead of leaving it to the juries we trust with such important decisions as the imposition of the death penalty.

In a telling turn of events, the shrill anti-lawsuit rhetoric that Roberts helped to create in the West Virginia Chamber is now just as easily turned against Roberts' daughter's, his wife's, and ultimately his own claim for compensation.

This irony should give sometimes self-righteous tort "reformers" across the country, at the very least, a moment of pause.

Dugger is the Senior Fellow in Civil Justice at the Drum Major Institute for Public Policy.

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