Mitt Romney + Tort “Reform” = Cornucopia of Idiocy

Fresh off a resounding victory in yet another boring-assed straw poll (this one in Illinois), Mitt Romney has his sights set on South Carolina. Romney climbs aboard the ever popular tort “reform” political gravy train to whore for South Carolinians’ votes here:

Governor Romney Believes We Must Enact Common Sense Tort Reform At The Federal Level To Make The System Fairer And More Predictable For Both Companies And The General Public. These reforms will allow our companies to grow, while at the same time protecting those who deserve compensation for legitimate losses.

* Tort Costs Are Too High. According to a recent report, U.S. tort costs reached $260.8 billion in 2005, which translates to $880 per person. This is an amount greater than the Gross Domestic Product of all but 35 countries in the world. Frivolous lawsuits and outrageous damages awards create a “liability tax” or “tort tax,” which are passed along to every consumer in the country.

* Governor Romney Believes We Should Limit Non-Economic Damages And Prevent Excessive Punitive Damages Award. Non-economic damages are inherently speculative, and a reasonable statutory cap makes sense. Governor Romney also believes we need a statutory prohibition on outrageous punitive damage awards.

* Governor Romney Believes We Should Require More Disclosure In Contingency Fee Arrangements. More disclosure will help clients make informed decisions, and it will help end abusive lawsuits and extortionate settlement demands by plaintiffs’ lawyers.

* South Carolina Has Been A Leader In Reforming The Tort System. Despite passing numerous tort reforms, South Carolina still bears the burden of frivolous lawsuits and excessive damages because costs are passed across industries and states.

Yep, that’s right: tort “reform” at the FEDERAL LEVEL. That’s a pretty bold statement for someone who fancies himself a “strict constructionist.” Not surprisingly, Mitt has yet to point out which provision of Article I, Section 8 of the Constitution, “strictly construed,” authorizes Congress to fuck with state tort law.

But hey, maybe Mitt is a “strict constructionist” of convenience, a la Robert Bork. Despite his belief that the Constitution is “dead,” i.e., its meaning was set in stone at the time of ratification, Bork has no problem with national tort reform. The Framers surely didn’t view the Commerce Clause as a warrant for Congress to displace state tort law, but hey, things have changed! In fact, tort law has changed so drastically that the Commerce Clause changed too:

Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress’s power, may now be constitutionally appropriate.

The Constitution is still “dead,” mind you, but the Commerce Clause has sort of become zombified. Zombie Commerce Clause has slowly and ploddingly galumphed its way across the centuries to eat the tasty, tasty brains of the civil justice system. Or something.

The bullet points in Mitt’s press release are just plain ridiculous:

* If every man, woman and child in the U.S. actually received an annual $880 “tort tax” bill in the mail, there would indeed be reason to bitch. That’s not the way it works, and Mitt knows it. And the study Mitt’s talking about says nothing about how much of that $260.8 billion consists of Evil MegaCorporation A suing Evil MegaCorporation B for tortious interference with prospective business relations or some such shit. His implication that the whole mess results from personal injury lawsuits is absolute bullshit. Finally, the chances of Mitt Romney actually knowing what the term “frivolous lawsuit” means are roughly the same as the chances of Dennis Hastert cutting back his luncheons to a single family-sized bucket of Kentucky Fried Chicken and five pounds of gravy fries.

* Romney appears to be among the countless fools who believe that legislatures have the power to cap noneconomic damages. In truth, there is no limit short of death to the amount of pain or disability one can be forced to endure on account of an injury. That’s true regardless of what some gaggle of prostitute-patronizing insurance industry toadies in a lawmaking body have to say. Legislatures can only cap recovery; they most assuredly cannot cap damages.

And what to we get for fucking over the most severely injured? Not much. In 2003 Texas enacted a hard cap of $250,000 on recovery of noneconomic damages in medical malpractice cases. Soon thereafter GE Medical Protective, the nation’s biggest med mal insurer, went to the Texas insurance commissioner requesting a premium rate increase for malpractice policies. Why? According to Medical Protective itself, “Non-economic damages are a small percentage of total losses paid. Capping non-economic damages will show loss savings of 1.0 percent.”

“[S]tatutory prohibition on outrageous punitive damage awards” translates to “statutory prohibition on all punitive damage awards” because, to hear these fuckers tell it,  all punitive damages awards are outrageous. If ever there were a solution in search of a problem, this is it. In my not inconsiderable experience, the issue never even arises in the vast majority of personal injury cases. Where the issue does arise, juries hate assessing punitive damages. When a jury does make a punitive damages award, the trial judge usually takes it away in post-judgment motion proceedings. The few punitive damages awards that survive all that will more likely than not be vacated on appeal.

* If Mitt had any idea how many hoops an attorney and client already have to jump through to create an enforceable contingent fee agreement, maybe he wouldn’t be spouting such remarkably stupid shit. Then again, maybe he would.

A massive corporation can easily afford to hire a silk stocking law firm at $500 per hour to pursue some business tort claim against another massive corporation. For the vast majority of people, contingent fee arrangements are their only means of access to the civil justice system. The harder tort “reformers” make it to enter contingent fee agreements, the fewer people will make claims. The fewer people that make claims, the higher the insurance industry’s already-exorbitant profit margin gets.

Of course, the increased profits won’t be readily determinable since insurance companies are legally exempt from generally accepted and applicable accounting standards. They’re also exempt from federal antitrust laws.

Why not do something about THAT, Mitt? Because it isn’t really about eliminating the imaginary “tort tax”, is it? It’s about swallowing all the insurance industry semen your belly can hold. After all, they’ve been paying your bills for a long, long time.

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