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Justice system wouldn’t be there for Abbott today

The case for limiting "frivolous lawsuits" is largely the stuff of anecdotes, albeit often interesting ones.

On Thursday, Bill Hammond,
CEO of the Texas Association of Business, shared on the group's website
this gem about a "nutty" lawsuit filed in federal court in Brownsville. A
woman is reportedly seeking more than $1 million after she allegedly
fell as a result of peanut shells on the floor of the Texas Roadhouse
restaurant in Harlingen.

Numbers, though, aren't nearly as powerful. Even Texas Attorney
General Greg Abbott seems to understand this. In July, when I asked the
gubernatorial candidate why he supported damage caps in medical
malpractice cases, given his  own multimillion-dollar liability
settlement after being paralyzed by a falling tree in 1984 while jogging
in River Oaks, he gave me anecdotes.


Anecdotes about doctors he
claimed were leaving the profession because of frivolous medical
malpractice lawsuits, anecdotes which are not supported by evidence.
And, as he often does, Abbott used his own anecdote to prove a point.


"If you had a jogger out in
Houston today who was injured the way I was, that person would have
access to the very same remedies I had access to," Abbott told me.


Tort reform since 1985


Only, that's not true. Texas
courts don't operate on a different planet than they did in the 1980s,
and not just because of the Republican political sea change that's taken
us from high verdicts upheld on appeal to lower verdicts often
overturned by the Texas Supreme Court.


There have
been several tort reform laws passed since Abbott's accident that could
hinder a victim's ability to obtain a reward similar to the one he
received in 1985. For example, Abbott collected from both a homeowner
and a tree company that had examined the tree before it fell.


But the Texas law governing
"joint and several liability" was changed three times for all tort
lawsuits in ways that made it harder for victims to recover from
multiple wrongdoers, according to a tort reform database maintained by a
Northwestern University law professor.


Where the law once was
simple, basically making any negligent party responsible for the amount
of jury award a co-defendant couldn't pay, "now it's very complicated
and protective of the defense," says Houston personal injury attorney
Don Riddle. "It has the effect of sometimes, the injured party does not
get paid his full compensation."


Numbers tell the tale


Riddle's perspective carries
more weight than most. He's the attorney who represented Abbott all
those years ago in the liability case.


"Today, a claimant would not
have the same benefits," Riddle said, "because they'd be limited by the
new joint and several liability limitations."


Silver, the UT law
professor, also takes issue with Abbott's contention that today's
justice system would be as hospitable to a victim who experienced a
similar accident. He and a research assistant took a closer look at
claims in Texas involving spinal cord injuries between 1988 and 2010.
The median payout was around $380,000. The average, which was affected
by the largest payouts and inflated by tort reform pushing out small
cases from the system, was about $1.3 million.


"They're not chump change,"
Silver said of the payouts. But if you take $10 million as the net
present value of Abbott's settlement, it's a "top 1 percent settlement,"
Silver says.


'Getting harder to sue'


That, of course, is in large
part due to Abbott's special circumstances: as a 26-year-old law school
graduate, he was a very sympathetic plaintiff with his life ahead of
him when, through no fault of his own, he found himself with a crushed
spine and using a wheelchair. And Abbott was able to sue multiple
parties, including a company and a wealthy homeowner.


But Silver points out that, although payouts jump around from year to year, large awards have gone down overall.


In 1990, for instance,  29
percent of spinal injury liability awards were over $1 million. In 2010,
it was down to 17.9 percent.


"That is evidence that it's
getting harder to sue and it's getting harder to recover large dollars
when you do sue," Silver says. And while it wouldn't be impossible for a
victim today to recover $10 million in a case similar to Abbott's,
Silver says, "it would be harder for that person to recover that


Abbott may take comfort,
even cover, in the assertion that the justice system would be there for
today's victim the same as it was for him 30 years ago. But we can't
take comfort that it's true.



"We have fought hard to
limit frivolous lawsuits, but they continue to survive," Hammond writes
in the post, then he asks readers to share examples of the "crazy
lawsuits" they've heard of on Facebook or via email.


Crazy anecdotes are one
weapon in the tort reform fight, but I tend to think a good judge is a
better one. An astute jurist is perfectly capable of dismissing "crazy"
cases on motions by defendants and even sanctioning lawyers and
plaintiffs who file them. And numbers suggests they're doing this with
increasing regularity, according to University of Texas law professor
Charles Silver.

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