Tort Reform

There is an assault upon personal responsibility and accountability occurring in our State Legislature all in the name of purportedly making West Virginia more business friendly.  I am not here to debate the merits of any particular “tort reform” proposal.  My colleagues are doing an excellent job in exposing the fallacies of the positions being espoused by the tort reformists who have declared a mandate was set forth in the past election to change the West Virginia legal system.  I am here to say to those in our State Legislature that if you believe that West Virginians have abandoned their value system in favor of the corporate welfare legislation being pushed through the halls of our State Capitol Complex, you are mistaken.

I spent enough years in Charleston, including in the Capitol Complex to know that it’s all about how you frame the message. The smoke and mirrors will soon disappear and you will not be able to credibly reconcile your positions to the ordinary West Virginian who values personal responsibility and taking care of the innocent and infirm beyond all else.

A few examples of the inconsistencies in tort reformers’ positions:

Social Welfare – Those pushing “tort reform” such as damage caps, limitations on liability for deliberately injuring workers and “comparative fault” legislation are also advocating reduction in social benefit programs, such as food-stamps, welfare, assisted living, and Medicaid.  The question that the tort reformers need to answer is who is going to pay the bill when the sole breadwinner of a family is injured or killed by a company which puts profits over safety or an individual who drives intoxicated, but is subject to only nominal liability due to damage caps or statutory immunities created to “create jobs.”  These businesses can and do factor in the potential liability as a cost of doing business without regard for the impact their conduct has on the lives of the innocent victim and his family.   The wrong-doer will get to go on with life as if nothing happened.

The innocent victim, however, is left with no recourse.  Injured and unable to work, the victim has no income to pay medical expenses necessary for treatment of the injury, no income to provide housing and food to survive and has lost the benefit of the insurance he paid for to protect himself and his family because, oh, by the way, if the “tort reformers” get their way, the wrongdoer gets a set off for anything covered by the victim’s own insurance as well.   He and his family will likely end up dependent upon social welfare programs to survive.  But wait, the tort reformers want to eliminate those as well.  Now the innocent victim and his dependents are left to depend on family, friends and charitable and religious organizations to survive while the wrong-doer goes about their business as if nothing happened.

Punish the criminal – The tort reformists often present themselves as hard on crime.  The Bible says you must pay for your sins they say.  However, they are not picking and choosing who is punished for their sins and who is protected.  Crime must be deterred by increasing jail-time for individuals who commit a crime according to the tort reformists.  But when a business commits a crime or intentionally injures someone, it should be immune from punishment in the name of making our State “business friendly”.   How can those two positions be reconciled?

Protect the innocent and those who cannot protect themselves.  Tort reformists also often invoke the Bible to say you must protect the innocent life and those who cannot protect themselves.  These are words to the tort reformists designed to evoke emotional responses.  I would like for these tort reformists to spend some time answering the calls we take at Bordas & Bordas from people who have lost loved ones or been injured through the negligence of others.  I want them to try to explain to someone whose own life or that of a close family member has been forever changed (or lost) due to the negligence of another that, in light of the damage caps in place, holding the wrong-doer responsible is just not economically or emotionally feasible due to the exorbitant litigation costs necessary to counter an aggressive defense.

But wait, say the tort-reformers, the caps only apply to non-economic damages for things such as pain and suffering.  You can still recover for economic damages such as lost wages or medical expenses.  I would like for the tort reformers to have to explain this “reasoning” to the family of a 90-year-old nursing home resident who was given improper medication resulting in brain damage.  The nursing home resident will have relatively little economic damages.  However, when a similar medication error occurs with a 35-year-old coal-miner with a wife and three children, the economic damages are huge.  Same error.  Different result.  One victim is elderly and infirm.  The other victim is young and income generating.  The first victim’s recoverable compensation is limited.  The other victim is able to recover more than just the minimum allowed by the cap.  So, are the tort reformers really protecting the innocent and infirm as they say the Bible instructs them to do?  You decide.

I was born and raised in Wheeling, West Virginia.  I went to Catholic school my entire life.  I remain a member of the Catholic Church.  The sense of personal responsibility, accepting the full extent of the consequences of my actions and choices, good or bad, and the responsibility to protect those who cannot protect themselves was instilled in me from an early age and has been reinforced again and again throughout my life.  My friends and neighbors have similar values.  I left West Virginia for several years, but I came back.  Many others I know have left and came back.  We came back because we believe in personal responsibility and caring for others.  We are the people the tort reformists say have been driven from West Virginia.  What I have to say is we have not.  We are here and the changes you are trying to make to our beloved State are not what we are about.  If you want us to listen to you, be consistent with your positions.

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