WASHINGTON, December 4, 2016 — In the run-up to his 2017 inauguration, President-elect Donald Trump has begun to make personnel and policy decisions that could seriously disrupt or even destroy the system of civil justice Americans have known and counted on since the days of George Washington. In the area of tort law in particular, Trump has named many adversaries of the current legal system to fill critical positions in government, the effect of which could be devastating to every American’s civil rights.
The term “tort” is derived from the French word for “wrong.” A tort can be defined as “a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm.”
Despite past efforts to protect wrongdoers and those who negligently harm others, (primarily by Republican administrations, notably that of George W. Bush), never before in our country’s history has there been such a threat to the rights victims have always relied upon.
Tort Reform—the phrase many people are unfortunately familiar with–is a term coined by those who are only interested in protecting wrongdoers and those individuals causing harm. That term has long implied that America’s civil justice system needs reform. But it is now shaping up to take on new meaning as a direct assault on the compensation laws in every state.
This “reform” effort should be appropriately called Tort Deform. The movement to thwart victims’ rights was previously orchestrated by big business groups, insurance companies, pharmaceutical companies, Chambers of Commerce, the auto industry, the medical profession, and other big-money groups—organizations and entities with the most to lose if and when victims of their neglect were harmed or killed. For a great many years, their efforts failed to advance. But the weapon they were missing now seems to be upon us: political clout.
More on that in a moment. First, let us consider what is currently at stake:
State laws now control injury claims. This could change.
The effort to preempt states, to take away their injury compensation laws and to make all injury claims federal would result in the almost total elimination of any true right to compensation for someone who is injured. This would include cases involving car crashes, slip and falls, medical malpractice, injuries from defective products and virtually everything that results in injuries because some individual or some company or organization was negligent.
Harmed victims would have little or no recourse at all and no ability to be compensated, while “legal immunity” would be ushered in for companies that do the harm. Most notably, this would be the case for doctors and other health care providers.
Imagine an auto accident. Currently, in most states without “no fault” laws, the at-fault party now has to pay for the medical bills, lost wages and suffering of the injured party. This could change.
Imagine a doctor who maims a surgery patient. Once again in most states, the doctor now must pay damages and even provide lifetime benefits if appropriate. This could change.
Or imagine a negligently designed product exploding and causing permanent blindness to someone. What recourse would this victim have if current law is changed.
The examples go on. We are used to the core system that generally requires those who cause harm pay for that harm. The framers of the Constitution recognized this and further that the states had an important role in protecting their residents. The 7th Amendment to our Constitution solidifies our right to a trial by jury in any civil action (exceeding a certain minimum amount).
Having one national or federally run system would not constitute a replacement of state laws and federal remedies. Instead, it would be a movement of the claims to be made to the federal government. The public would then have to trust the government to get it right every time. Time and again, the public has seen, that federal agencies do not always get it right, that regulated products and practices still present risks, and that people can suffer extreme second injuries after they are physically injured or maimed for which there is no financial compensation.
National “caps” on damages.
While many states have limits on how much a wronged or injured party may recover, nationalizing that limited amount would be horrific. Caps are wrong, period. Many states have overturned these laws, calling them unconstitutional.
When a case goes to a trial and a local jury awards the injured victim compensation, why should an arbitrary law control the jury result and not allow that victim to recover the amount awarded?
Caps limit jury awards. By example, if a jury awards $500,000 and a cap is in place for $300,000, the victim only gets $300,000. For a family that has lost a loved one, for an injured party who can never work again, or for someone with a brain injury or a lost limb, the jury’s award should be honored. An arbitrary award should not take away any part of the verdict.
Yet if instituted, a national cap on damages would rob hundreds of thousands of people—victims—of the money needed to fully and fairly compensate them. Worse, a national cap would likely be considerably less than many state caps currently in place.
Taxes on damage awards.
Now, the IRS says that a recovery of compensation is not income and is thus not taxable. This is an intelligent and right-thinking rule. At this time, an injured party is considered to have been “made less” than 100 percent. A financial award brings that person back to 100 percent, at least in theory. (Clearly. money cannot undo an injury or a death. But the underlying idea is that the money is the only thing realistically available to compensate.
If the anti-justice crew of the next administration gets their way, taxing damage awards is very possible. Imagine suffering a devastating injury and then having to pay taxes on the compensation for that injury. Depending upon the victim’s tax bracket, the tax could reduce the award under current laws by up to almost half of the award.
A national deadline to file a claim could be coming if the new administration presses the issue.
Now, what is called the Statute of Limitations (laws that are set by each state on the time a victim has to bring a claim) could be preempted and a new, shorter time period could be instituted. Such SOL laws mean that if a claim is not filed within the time period, no claim can be filed. Case over. Out of luck.
Many states allow two or three years to bring a claim, appropriately considering the time needed to be in a position to fully understand the entirety of the harms caused.
Imagine giving a deadline of one year to file a claim to someone still in need of and still receiving medical treatment for his or her injuries.
An assault on civil justice is coming, and it includes more than the concepts identified in this article.
The tort law system is designed to compensate, to deter bad conduct, and to push for corrective action. A fundamental change in this system, which may be coming, will result in continued harm to Americans with no reason to stop that harm.
One notorious example of this situation was the case of the exploding gas tank in the Ford Pinto automobile. Lawsuits forced Ford Motor Company to relocate the gas tank, assuring that if a Pinto driver were rear-ended, he or she would not die because a gas tank explosion caused the car to be engulfed in flames.
Emboldened by the success of Mr. Trump and claiming a mandate (even though he lost the popular vote by over 2 million), those individuals he has tapped to serve in his administration are true big business and big industry supporters, highly motivated to change the system to reward past support given to them.
The new President’s Chief of Staff, Reince Priebus, for example, has publicly called for “health courts” and other tort reform measures.
The next Attorney General-designate, Senator Jeff Sessions, has been an ardent tort reformer his entire political career. This means that Americans’ next top lawyer will be someone pushing for policies denying them their civil rights.
The future Secretary of Health and Human Services, Congressman Tom Price, is a former orthopedic surgeon and has been a leading force for tort reform during his entire Congressional tenure. He believes that doctors should be immune from all lawsuits.
Our next Transportation Secretary will be Elaine Chao, the wife of Senate Majority Leader Mitch McConnell. Among her plans are legislation and regulations to immunize manufacturers of self-driving cars from lawsuits and to prevent plaintiffs from learning what black box data in vehicles reveals. Not surprisingly, Senator McConnell himself is a well know supporter of national “no-fault” laws.
Dr. Ben Carson, the likely new Secretary of Housing and Urban Development, is an outspoken advocate for protecting doctors from accountability at the expense of the legal rights of injured patients.
Proposals to limit or deny Americans’ access to the civil justice system do not eliminate injuries or the need for compensation. Rather, they shift the costs away from the wrongdoer to something else, like taxpayer-funded health and disability programs.
Why should your tax dollars pay for some doctor’s mistake, some driver’s inattention, or some company’s defective product? Our system is about making those responsible for wrongs pay for them. That system should not be changed.
Yet here we are, at the beginning of what could be the undoing of that system in many respects, simply because politicians and appointees who owe the insurance industry, big business and industry concerns want to assure themselves of continued support from those groups and desire to repay those groups for their past support by immunizing them from lawsuits.
America really did not understand what it did in electing Mr. Trump as our next President.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.