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Tort "reform" is not reform at all

By Scott Tibbs, February 7, 2012

It is useful to examine the flaws in conservative efforts to limit lawsuits. When the Washington Post took a shot at Rick Santorum for seeking a higher payout in a personal injury lawsuit than would have been allowed by his tort "reform" proposal to limit damages, it provided that opportunity.

Santorum isn't unique among conservatives in their desire to limit lawsuits, as the perception that "lawsuit lottery" is doing damage to business and costing people jobs. But there are problems with the idea of tort "reform," especially at the federal level.

When the states limit the right to sue, that is one thing. Advocating federal limits on awards and so forth is anti-conservative. The federal government should not be setting limits on lawsuits in state courts. That should be handled by the states under the Tenth Amendment. Especially as the Tea Party movement is pushing for more state sovereignty and less federal control, conservatives should be very wary of tort "reform."

A few months ago, I watched Hot Coffee, a documentary about lawsuits and attempts to limit those lawsuits. Despite the description on Netflix, it covers a lot more ground that the infamous McDonald's case, including a horrifying case of a woman who was brutally gang raped by fellow employees while in Iraq and was then prohibited from filing a lawsuit against her former employer. If nothing else, the photographs of the burns caused by the dangerously hot McDonald's coffee should be seen by anyone looking to inform himself about it.

Hot Coffee brings up a number of issues, and one of the most important is limiting access to the judicial system. We should be very careful about second-guessing the judgment of juries, especially with arbitrary caps on damages. We ran into that here in Indiana last year when a stage collapsed at the State Fair. The state legislature considered a special exception for this case because of the total cap on damages, which is a direct violation of the 14th Amendment's promise of equal protection under the law. But if there was no cap on damages, this would not be a problem. Furthermore, our court system allows for an appeals process that can pull back excessive awards.

Business groups have been brilliant in marketing their side of the tort "reform" debate, and the news media often picks up on sensational details without actually doing their jobs and investigating the facts. (The McDonald's case is probably the best example of this incompetence and laziness.) Senator Santorum found through personal experience that his proposal may be too restrictive in the real world. All members of the House and Senate should similarly educate themselves about tort "reform" and the dangers of top-down government restrictions at the expense of justice and judgment in individual cases.

For Christians, there is a Biblical precedent for punitive damages, as God commands that someone who steals an ox or a sheep pay back several animals as restitution. (See Exodus 22:1-6.) The concept of restitution beyond the damages caused is based in Scripture, so conservative Christians should carefully consider God's wisdom and why our Lord put this in the Law that He gave to the Israelites.

See previous editorials from September 2009 and February 2010.