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Editorial —Texas Takes Tort Reform Too Far

Lawyers who represent Texas consumers have been complaining for years about the “tort reform” movement that has deprived Texans of so many legal rights over the years. But insurance companies and big businesses are never satisfied, and keep coming up with more and more ways to prevent consumers from filing legal claims against them.

An opinion piece in the Houston Chronicle last week makes a nice summary of the situation. Here are excerpts:

Of all William Shakespeare’s enduring lines, perhaps the one that has resonated most through the generations comes from “Henry VI”: “The first thing we do, let’s kill all the lawyers.” Taken out of context, it’s a great lawyer joke, as if the Bard knew modern society would blame lawyers for everything from inscrutable contracts to ridiculous consumer warning labels. A lawyer-free world conjures a society free of hair-splitting and hucksterism – in other words, Utopia.

Or does it? In Texas, we’re learning what happens when you can’t turn to a lawyer for help. Two strong forces are making it nearly impossible to seek redress for injury in state courts: sweeping tort reform laws and a Texas Supreme Court with an activist conservative bent. The results aren’t pretty.

Consider the case of Michelle Gaines, who in June 2006 was a popular Palestine teenager with a bright future when an 18-wheeler hauling an oil rig smashed into her car, causing severe brain damage. A Tyler jury ordered the driver who caused the wreck and a businessman involved with the oil rig to pay her $8 million – money Gaines’ family desperately needs to provide for her rehabilitation and care for the remainder of her life.

A Tyler appeals court overturned the jury’s decision, claiming there was no evidence to support the verdict, and the Texas Supreme Court recently declined to consider Gaines’ appeal.

And yet trial testimony showed that the men had destroyed crucial evidence demonstrating joint ownership of the rig and that the driver had been bribed to alter his story. Gaines’ attorneys say the court’s decision violates precedent that evidence should be construed in a light favorable to a jury’s verdict.

“It’s an outrageous decision,” said University of Texas law professor Steve Goode, a member of Gaines’ legal team. (The Gaineses’ attorneys have asked the court to reconsider.) “It’s astounding that they refused to consider this as evidence against this defendant.”

But it’s not just attorneys involved in specific cases who believe the court is engaging in wrong-headed activism. Tea party activists are beginning to question whether Texas Republicans have dismantled the Seventh Amendment – the right to a jury trial – in their slavish devotion to limiting lawsuits.

Former Harris County District Judge John Devine, who recently defeated Texas Supreme Court Justice David Medina with tea party support, has criticized the court’s willingness to overturn jury verdicts. And two independent studies suggest that the Texas Supreme Court – once criticized as biased for trial attorneys – has swung to the opposite philosophical pole.

UT law professor David Anderson, in a 2007 study of 69 opinions written by the court in 2004 and 2005, found that defendants – the parties accused of causing injuries – won 87 percent of the time.

Is that different from other states? Anderson examined all state appellate cases involving Wal-Mart between 1998 and 2005. The Texas Supreme Court ruled in favor of the discount chain in all 12 cases it received. There were 81 other cases in other states, but Wal-Mart prevailed in only 56 percent of them.

Texas Watch, reviewing cases involving consumer complaints from 2004 to 2010, found the court overturned jury verdicts an amazing 74 percent of the time. Wrote the study’s authors: “The Texas Supreme Court is expected to respect reasonable jury verdicts. … In the final analysis, the court fails this test, impermissibly usurping the authority of juries and demonstrating contempt for their verdicts.”

Tea Party Nation founder Judson Phillips uses Texas as a cautionary tale against Republican presidential nominee Mitt Romney’s plan for federal tort reform. “Texans are losing their Seventh Amendment rights because they can’t get lawyers to take cases anymore,” Phillips wrote in a recent blog post.

He cited the case of Charles Caldwell, who died in October 2008 in a Dallas-area nursing home when attendants tried to force medications down his throat, but instead filled his lungs. When his son tried to sue, he could not find a willing lawyer.

Why? Texas tort reform legislation put such low caps on damages that no lawyer could afford to take the case. Yet, earlier this year, the Texas Board of Nursing issued a reprimand against the nurse for committing major medical errors.

Houston attorney Mark McCaig, has been warring with Texans for Lawsuit Reform, which lavishes campaign contributions on friendly politicians, by urging the Republican Party to rethink its stance. He’s often dismissed as a phony conservative since he works for trial lawyer Steve Mostyn, a prominent Democratic campaign contributor.

But McCaig believes the rise of the tea party will challenge tort reform. “What you have seen happen is (that) it has taken away the rights of people with legitimate claims. It goes against the notion of personal responsibility.” In our society, that means access to the courts, and to lawyers.

But Shakespeare knew that. The speaker of the famous line from “Henry VI” wanted to replace the rule of law with the personal whims of despots. In a society bereft of legal boundaries, there’s no need for lawyers.

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

About This Blog

The title of this blog reflects my attitude toward those government agencies and insurance companies that routinely mistreat injured or disabled people. As a Dallas, Texas lawyer, I've spent more than 45 years trying to help those poor folk, and I have been frustrated daily by the actions of the people on the other side of their claims. (Sorry if I offended you...)

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