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As we have just entered 2007, I wanted to extend a sincere greetings to one and all for a happy and healthy new year! In this new year, I resolve to continue to discuss tort reform and its implications on consumers’ ability to recover for real wrong-doing, force accountability, and make products and services safer. I hope to present the facts in a fairly objective way. Last year was not a milestone year to cheer the safety of consumer products and services. In fact, according to Business Week Online, in an article entitled “How Business Trounced the Trial Lawyers,” last year proved to be a milestone year for anything but consumer product safety.

In my opinion, the article spends considerable time discussing the impact of tort reform on lawyer salaries and not enough time analyzing the impact of reform on safety. Focusing on lawyers, the article caters to catchy soundbites and media slogans. However, some interesting points come across in the discussion about litigation reform. For example, Business Week cites a series of litigation reforms brought about in Texas limiting the right of any consumer to file suit against a product seller more than fifteen years after the sale of a product. Thus, consumers cannot sue a seller of a product in Texas if the sale occurred more than fifteen years after a cause of action arose. As a result of this “reform,”

After a doctor was decapitated by a Houston hospital elevator in August, 2003, no suit could be filed against the manufacturer, since the elevator was too old. Dallas attorney Todd Tracy notes that many other products, including automobiles, farm and construction equipment, and factory machinery are used for extended periods and now enjoy the same protection.

I am sure that the family of the physician or even the physician himself had no idea that the elevator was sold over fifteen years before the good doctor stepped onto the elevator. Why should such an artificial time limit prevent this family from filing suit alleging that the elevator was defective and unreasonably dangerous, demanding accountability, and encouraging safety-related changes? Often product defects are not discovered for some time after they are sold. In Texas, I do not believe a manufacturer has any real incentive to ensure that its products are safe after reasonable wear and tear for any period of time beyond fifteen years. Does this “reform” help make our consumer products safer?

Also, cases involving malpractice reform and caps on “noneconomic harms” limit access to the courthouse by elderly and children who do not usually suffer real economic harm. For example, in Texas,

Doctors also gained substantial shielding under the 2003 statute, with a $250,000 maximum on “noneconomic damages”–essentially pain and suffering. Both defense and plaintiff firms say this has been a death knell for many medical malpractice suits. The reason is that a huge number of potential claimants, such as kids and the elderly, suffer no lost income in the view of courts. That means the top recovery is $250,000, and it can easily cost $100,000 or more in expert fees to prepare a case for trial–making litigation a money-losing proposition

for elderly or children patients suffering harm as a result of the negligence of a professional physician. Thus, in Texas, a physician could amputate a leg of a child rather than conducting a routine knee exam and likely would not be held to account for the child’s tragic consequences. Does this make our medical profession safer?

Also, the Texas Tort Claims Act prevents individuals from suing state agencies in Texas except for very limited types of claims. I am not a Texas lawyer and do not want to provide legal opinions about the implications of this Act. However, suffice it to say that the limitations are much narrower and more restrictive than those allowed under Arizona law. The Business Week Online article highlights several Texas tort reform initiatives likely because these initiatives first started while President George Bush was governor of Texas. Do these reforms make the State of Texas and its government more accountable to its citizens? Do citizens of Texas have access to safer, cheaper products, services and healthcare than what exists in other states? Has anything changed as a result of Texas tort reform other than limitations placed on the ability of real aggrieved victims to demand accountability and force safety changes?

This new year, I’d like to point out the real troubling aspects and unintended (or even intended) consequences of tort reform and the implications on safety. Based on the Business Week article, I believe that the quest for tort reform has gone way too far and the time has come to reverse such trends based on the implications of “reform” on safety. Responsible corporate profits are an important laudible and appropriate goal. However, corporate profiteering at the expense of responsible safety should not continue unfettered. Personally, I would rather err on the side of safety than to limit the ability of business and professionals to be held to account for real harm. I also believe that private market influences rather than government interference in business make our markets more efficient. What do you think? Once again, please accept best wishes for a happy, healthy and safe new year.

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