Tort Reform’s Real Victims

It is an election year, so between now and November we can expect to hear many politicians at the national, state and local levels complain about trial lawyers and call for “tort reform.” As an article published this week in Slate outlines, however, an often disingenuous campaign designed to ‘protect’ big business frequently has an even more shocking effect – protecting child abusers and other people who injure children.

The article begins with the story of an Ohio pastor who was convicted of raping a 15-year-old girl in 2008. In addition to his criminal trial the man was sued by the girl and her family in civil court. As I have written in this space on many occasions, this right alone is important and worth defending. Access to courts for victims and their families is essential if justice is going to be served. As the article notes, quoting a legal scholar at New York University, often “the civil justice system is the only way for a perpetrator to be held directly accountable to the victim.”

A court awarded the victim $3.6 million in damages, but because of award caps required under Ohio’s tort reform laws she was only able to collect $350,000 – less than one-tenth of what the jury decided was her due. The girl and her family are now suing to have those caps declared unconstitutional on the grounds that they are “arbitrary and unreasonable, and thus a denial of due process.” Specifically, there is a strong argument to be made that damage caps violate the US Constitution’s guarantee of a trial by jury. An inherent part of that right is letting the jury decide what is fair – something that the tort reform movement seeks to stifle.

Caps like the ones in Ohio exist in many states, including Oregon, and imposing them nationwide is a top priority of the US Chamber of Commerce and other big business lobbies. In fairness, those groups are not attempting to stop sexual assault victims from receiving justice, but because of the broad way the laws are written, one attorney quoted by Slate says, “if you rape a child you get the benefit of tort reform.”

Here in Oregon tort reforms have capped wrongful death awards at $500,000 and claims against any state and local governments are also limited (the amounts allowed under the cap vary). As a Portland attorney specializing in injuries to children I am glad to report that Washington are not among the states with these kind of laws on the books, but attempts to pass them are a nearly annual feature of life in Salem and Olympia. Beyond the headline-grabbing cases involving rape and sexual assault, however, the unintended consequences of these laws should serve as a reminder of the broader purpose behind the tort reform movement: to protect companies at the expense of people. When the law is designed to protect corporate predators and the insurance companies afraid of having to pay out for their clients’ misdeeds real people suffer. As this year’s legislative sessions wrap up and the election season moves into high gear that will be an important thing for every voter in Oregon and Washington to remember.


Slate: Directly Accountable

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