Trial lawyer protection is Dems’ priority

by | Feb 27, 2008 | Capitol Review, Notes

If you lie awake at night anguishing over unemployed trial lawyers, you must be a Democrat politician.

In Congress, 66 trial lawyers who donated $1.5 million to Democrat candidates are "credited" with derailing an anti-terrorism bill that passed the Senate with 67 votes.

Here in Colorado, the immediate stakes aren’t as severe, but businesses will be paying for 66th General Assembly for years to come as Democrats advance an agenda that might be dubbed, "Leave No Trial Lawyer Behind."

Long regarded as a leader in tort reform, Colorado ranked eighth among the 50 states in the U.S. Chamber of Commerce’s Lawsuit Climate ratings in 2006. Last year, after a round of tort deform, that ranking fell to 21st.

Judging from this year’s basket of trial lawyer favors, it appears Democrat legislators and Gov. Bill Ritter won’t be satisfied until they drive our state into the company of such infamous judicial hellholes as Illinois and Mississippi.

One such bill, House Bill 1020, blitzed through both houses and across the governor’s desk in barely a month — a pace that indicates a leadership priority.

Did HB 1020 cure a grave injustice? Judge for yourself.

Colorado law currently encourages parties to a lawsuit to settle their differences without going to court. If a plaintiff rejects a settlement offered by the defendant and proceeds to court only to receive less than was offered, the plaintiff must pay the defendant’s legal fees for needlessly prolonging the case. Likewise, a defendant who rejects a reasonable offer from the plaintiff takes the same risk.

Most fair-minded people would consider that law to be even-handed, but not trial lawyers and their allies. The new law, sponsored by Rep. Alice Madden and Sen. Jennifer Veiga and signed by Gov. Ritter, orders the defendant to pay a portion of the plaintiff’s fees even if the settlement offer was more than the plaintiff ultimately received from a jury.

That’s a lose-lose for defendants, and a win-win for trial lawyers who would have even less incentive to settle.

In two committee hearings, the only witnesses supporting this change were trial lawyers. Remember, these are the folks who complain that "loser pays" is unfair, but so long as their minions control the statehouse, the scales of justice need not be balanced.

Another gem of tort deform would blast a cavernous hole in Colorado’s successful limits on medical malpractice judgments.

Under existing law, a person who has been injured by a doctor’s negligence is entitled to be fully compensated for all past and future lost earnings, medical expenses and other health care costs.

State law also allows additional damages, up to $300,000, for intangibles, like pain and suffering, inconvenience and emotional stress.

Unfortunately, Senate President Peter Groff (D-Denver) and Rep. Terrance Carroll (D-Denver) want to increase that cap by 50 percent to $450,000. In addition, their Senate Bill 164 would create an entirely new category of damages for "physical impairment and disfigurement."

Reasonable people might think physical impairment or disfigurement would apply to victims who are severely deformed. Wrong. Nothing in SB 164 limits impairment or disfigurement to serious or life-altering injuries, and a plaintiff’s attorney has every incentive to argue that something as ordinary as a post-surgical scar constitutes disfigurement.

Moreover, this new category of damages would be subject to no limits whatsoever. While a sympathetic jury might want to exceed the existing caps in a particularly severe case, that jury sees only the impact of its verdict on the doctor and injured patient in one case.

Juries do not see the impact of numerous large verdicts — or settlements, which avoid the risk of unpredictable verdicts — on ordinary families who aren’t in the courtroom and are struggling to pay for health care.

"If you bankrupt the system with litigation, you won’t have money to provide care," reckoned Sen. Bob Hagedorn, a lonely Democrat willing to buck the trial lawyers in favor of affordable health care.

If other Democrats are serious about controlling health care costs or promoting justice, they sure have a funny way of showing it.


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