Again, the "frivolous lawsuit" card is played|
by Jay Cook
President, Georgia Civil Justice Foundation
There are as many meritless lawsuits clogging Georgia's courts as there are weapons of mass destruction in Iraq. Haven't we learned by now that believing a lie doesn't make it true?
For more than 30 years, a coalition of powerful special interest groups, backed by the U.S. Chamber of Commerce, has been filling our heads with lies about the civil courts so that they can replace the Rule of Law with the Rule of Men.
The Rule of Law, one of the pillars of freedom upon which America was founded, ensures that nobody's above the law, that all of us—even the rich and powerful, even the government, and especially our elected leaders—must play by the same rules or face the same consequences.
That's the way our founding fathers wanted it. They gave us government regulations and impartial civil juries for a reason: to promote public trust and safety and to keep our rights from being trampled by those with too much power and money and too little humanity. They understood that America needed more than the free market economy to enforce the practice of fair play because they knew that not everyone plays fair. As James Madison wrote: "If men were angels we would need no government."
But men aren't angels. That's why we need government oversight and we need a fair and impartial way to adjudicate disputes and regulate the daily practice of fair play. That's why we have a civil justice system where everybody can have their day in court, a fair hearing by a fair and impartial judge or jury, a chance to tell their side.
What we don't need is a bunch of greedy corporate and insurance industry interests gaming the system for their own gain through "deregulation" and so-called "reform." Let's drop the misleading metaphors and call it what it really is: rigging the rulebook of Fair Play. They've already done a number on us taxpayers.
In the mid-1980s, the Rulebook Riggers began to heavily lobby legislators to restrict citizens' access to the courts. They pursued strict caps on damage awards, tougher standards for proving liability and caps on plaintiffs' attorney fees. In 1986, 1,600 "reform" measures were introduced in 44 state legislatures, 21 of which passed significant restrictions on lawsuits and jury awards. In 2005, Georgia's legislature passed "reform" legislation affecting medical malpractice litigation, including caps on non-economic damages.
Last week, a Fulton County State Court Judge ruled that the caps violate the Georgia Constitution's guarantee of a right to jury trial and the Separation of Powers doctrine. Caps on non-economic damages, she found, also tip the scales of justice away from women, children and the poor.
But Gov. Sonny Perdue isn't going to let the Constitution stop him from reinstituting the rule of men. He and his Rulebook Rigging friends are playing the marked "frivolous lawsuit" card again. This time it's to drum up public and political support for the governor's latest stab at making Georgia friendlier to business at the expense of public safety and our access to the courts.
The new proposal, Senate Bill 101, offers freedom from legal liability to any Georgia-based pharmaceutical company selling FDA-approved products and services.
The FDA's ability to protect public health and safety can be summed up in two words: peanut butter.
The Senate Economic Development Committee on Tuesday rejected the bill. But it could come up for another vote later in the legislative session.
Supporters of SB 101 falsely claim that restricting the access of injured consumers to civil justice is necessary for a state's business economy to grow or even survive.
There is no reliable evidence to support this claim. But there is reliable evidence to refute it, a study by the Center for Justice & Democracy that ranked states based on the number of major tort law limits enacted since 1985, and correlated those findings with the states that have built the most number of new facilities or plants. The findings turned up "absolutely no connection between a state's enactment of 'tort reform' and the state's relative attraction for businesses."
Is there truth in anything they say in the name of tort "reform"?
Let's just say that their intelligence reports are about as reliable as those we received about Iraq. The difference is that the "reform" movement's intelligence was invented with the intent to deceive. Corporate entities banded together to set up think tanks like the Pacific Research Institute, the Manhattan Institute, and the American Justice Partnership, among others, to make up facts to "prove" that not only was there a crisis in the courthouse but also that "we all pay the price" as a result.
Amidst all the lies and fear-based hyperbole, it's easy to forget that the real goal of our tort system is safety.
Our civil justice system determines or apportions responsibility, compensates the wrongly injured and encourages safe behavior and accountability, such as the manufacture of safe products and delivery of non-negligent services.
We must keep these objectives in mind when considering "reforms" and not allow ourselves to be tricked into changing the system in ways that benefit a few while cheating the rest of us. Remember that the object of our tort system is to make America a safer, fairer and more trusting place to live and do business. Do we really want "reforms" that do none of the above? Do we really want to reinstate the Rule of Men?
Jay Cook, an Athens attorney, is a past president of the State Bar of Georgia and current president of the Georgia Civil Justice Foundation, a non-profit, non-partisan organization dedicated to public education about the civil justice system. Online at Fairplay.org. [full bio]