Tort Reform in Mississippi Legislature Dies, Revives and Dies Again
By
Earnest McBride
Ó2004.
Earnest McBride, Freelance Writer with the Jackson Advocate, Jackson,
Mississippi.
Note: Jefferson County, Mississippi, has been the venue for some of the largest class action suits in the nation, including the f$14.5 billion en-phen diet settlement and the multi-billion dollar tobacco lawsuit, both with national implication.
Ed Blackmon Billy McCoy Percy Watson
Bryant Clark
Tort
reform is dying the death of the multi-headed Hydra of Greek Mythology: Cut off
one head and two grow in its place.
Tort
reform---or lawsuit reduction---has been pronounced dead on at least three
times during the 2004 legislative session. It’s most recent transmigration to
the heavenly—or infernal---purlieus supposedly happened last week when a
tort-reform amendment failed passage out of the House Judiciary “A” committee
headed by Canton Representative Ed Blackmon.
Yet
the house came back a few days later and voted overwhelmingly to pass House
Concurrent Resolution 114, a bill suspending the rules and subsequently allowing for the introduction of new reform bills.
The
House was due in part to the fact
that Governor Haley Barbour and some of his staunchest conservative allies in
the Senate are determined to have a tort reform bill satisfactory to them or
die. Barbour repeatedly threatened to call a special legislative session on
tort reform if a bill fails in regular session. House members concerned over
repeating a marathon 2002 special session on tort reform last Thursday
announced a vote to suspend the rules so they will be able to introduce a new
bill for tort reform.
This
has angered most of the 11 black members in the Senate, which voted 36-9
Tuesday to pass concurrent legislation to suspend the rules. But the Senate
also revived the two bills previously pronounced dead.
“The
House declined to concur n the invited conference with the Senate,” says John
Smith, Secretary of the Senate. “But the House and Senate will meet, sending
three members each to the meeting, to work out some conclusion to the
concurrent session on the suspension resolution.”
Senate
president pro tem Travis Little is acting in the stead of Lieutenant Amy Tuck,
who is expected to remain out for the rest of the session due to illness.
“The
tort reform bill is dead,” says State Senator Alice Harden of Jackson, a member
of the appropriations, labor and corrections committee, all three of which have
a strong interest in tort legislation. “I don’t think you’re going to find very
much support here in the Senate to revive that dead horse.”
State
Senator Hillman Frazier is even more adamant in his opposition to reviving a
possible reform package this term.
“We’re
in the last phase of the legislative session,” Frazier says. “And I don’t know
how we can spend the appropriate amount of discussion in these last few days to
come up with a viable bill. I think we should just drop it for this session. I
am opposed to any proposed tort reform currently under consideration.”
Frazier
indicated that he voted against the 2002 reform bill that was passed in the
special session called by former Governor Ronnie Musgrove. That bill has yet to
be given a chance to prove itself, say a number of state legislator unwilling
to go any further along the path of reform without having some justification
for doing so.
Actions
by House Democratic leaders last week should have killed a tort-reform
amendment pasted onto an innocent-looking banking bill by Republican
conservatives in the Senate with the support of the Governor’s office. Barbour
threatened to call for a special session on tort reform after the in early
April before the door was closed on legislation in the 2004 session.
Judiciary
“A” Chairman Representative Ed Blackmon of Canton took a lot of heat because he
would not allow the conservative bill that was in conference committee to go
out on the House floor for debate.
At issue
are the proposed caps on non-economic damages, such as pain and suffering, to
be allowed under the proposed amendment. These caps were to be left out of the
debate, according to several legislators close to the bill.
Democrats
concerned about the Senate trick of putting the tort amendment inside an
innocent banking bill were able to devise a strategy that sent the bill to the
Judiciary “A” committee, chaired by Blackmon. Republican conservatives led by
Lt. Governor Amy Tuck dominate the senate, a Democrat turned Republican just
last year. The retaliatory action on the part of House Speaker Billy McCoy has
riled conservative spokesmen all across the state. Yet, it is Representative
Blackmon rather than Speaker McCoy who has become the conservatives’ whipping
boy.
McCoy
defended his actions, the Associated Press reported last week, saying that he
diverted the tort reform amendment to its proper committee.
"It's a
damnable insult to the legislative process and the House of
Representatives," McCoy said of the Senate’s loading the banking bill with
lawsuit reform. "If they want to work with us, you could see (tort reform)
happen. But we won't allow it to be done by an enema.
"By
changing the original purpose of the bill from revising the small loan law to
providing general tort reform revisions, the Senate amendment leads me to refer
the bill to the proper committee having subject-matter jurisdiction over tort
reform issues - the House Judiciary A Committee - in order to get this
committee's input on those tort reform matters," McCoy wrote in a message
to the House.
Governor
Haley Barbour has strongly suggested that he will call for a special session to
push through more stringent measures of tort reform if the bills he wants
passed fail to come across his desk.
Barbour, the main instigator for
continued, radical tort reform in Mississippi, had initially agreed to keep the
discussion of caps off the table. Blackmon was prepared to let the bill bearing
the tort reform amendment out of Judiciary "A" committee. But several
conservative House and Senate members have refused to drop the discussion on
the caps. It was the conservative faction in the Senate that finagled the its
tort reform amendment into a House banking bill. Although Blackmon has taken a
considerable amount of heat from conservative editorial writers and special
interests groups statewide, he has found strong backing among the members of
the Black Legislative Caucus and the Mississippi Trial Lawyers Association,
whose spokesman, David Baria, claims “there is
no need for further tort reform."
Current House Ways and Means Committee Chairman Percy
Watson headed the 2002 special legislative session that gave Mississippi it’s
first true tort reform legislation that found a consensus among progressive
black lawmakers, white liberals and conservatives alike.
“We
should allow the law that was passed last year to work itself out to its best
effect,” Watson says. “There haven’t been any lawsuits to come through the
judicial system to test the new laws yet. So there really is no urgent need to
push for more reform when there has been any justification for it.
Watson
added, “there was some concern on the part of African American doctors who
serve some of the most severe health cases in the state that they would remain
the targets of unwarranted lawsuits that often cost more to defend than to just
settle, regardless to the merits of the charges. We provided protections for medical
personnel who devote a substantial part of their business to the care of
Medicaid and Medicare patients.”
The bill
that resulted from the marathon 82-days special session was signed into law by
former Gov. Ronnie Musgrove on December 2, 2002. It provided many changes in
legal procedure within the state, some of which has never been tested in a
court since then. Included in the reform package were venue reform, joint and
several liability, protection for innocent retailers, restrictions on “judge shopping,”
and restrictions on lawyer advertising in the state before obtaining a license
to practice in Mississippi.
Freshman
representative Bryant Clark of Ebenezer, son of the former House speaker pro
tem also questioned the motives of the small but well-financed groups who until
now have refused to compromise on restricting all lawsuits to subminimum
amounts.
“I don’t
think it’s a good idea to take a blanket approach to setting limits on the
amount someone can sue for,” Clark says. “Some cases of neglect, product
defects and malpractice are more severe than others. And even though I support
some reform in the justice system, I can’t support some of these proposed
changes that seem to be targeted against the poor and working class people.
These are my constituents that I am standing up for.”
Clark
also supported the defeat of legislation that would have placed 10 state
bureaus directly under the governor’s control for a year. That proposal died a swift death, Clark
says, because it was easy to see that some of the governor’s staff wanted a
license to dismiss the people in those departments with whom they might have
differences. Most State employees work under Civil Service protections that
would disallow any arbitrary by the governor and his bureaucratic chiefs.
Clark,
however, said Monday that he is opposed to taking up the tort legislation again
since the rules suspension resolution was passed.
“Let’s
let the legislation that was passed in special session under Governor Musgrove
have a chance to be put into action," Clark stressed.
A
variant of Lord Acton’s observation on great fortunes of the 19th
Century might run, behind every great conservative cause is a great crime. The
leading crusader, with wads of money for lobbyists like Haley Barbour, was the
tobacco industry. The Center for Justice and Democracy based in New York points
out how Big Tobacco nearly single-handedly created the “movement” for tort reform in Mississippi.
The center reports the following:
“In Mississippi, documents indicate that RJR, which had been committed to paying a 35 percent share of the tobacco industry's Tort Reform Project budget, poured more than $100,00 into Mississippians for a Fair Legal System in 1993, its first year. Lorillard, as a 10 percent partner, paid $27,500. The industry projected continued support for M-FAIR through 1996, when it budgeted $300,000 for the group. Letter from Keith A. Teel, Joseph K. Doss to Rodger L. Mosingo and Daniel W. Donahue, RJR, August 16, 1993, with attached budget of RJR contributions, Philip Morris Files, Document #2025773219, 2025773225; List of payments, Lorillard Files, Document #91880655-0669; October 3, 1995 Tort Reform Project Budget, Covington & Burling, Document #2041201160 et seq.”
Mississippians for Economic Progress is the leading organization
pushing for total tort reform. The chairman of the group cites some of the
popular epithets for Mississippi, presumably because of its propensity for
high-level lawsuits. Mississippi is known as “the home of jackpot justice,” he
says. “And it’s also called the tort hell-hole. Tort reform.
Unless some legislative epiphany takes place over the next week,
tort reform is dead for the year 2004. State lawmakers will close up the
current session on May 9.
"When I first met with the governor,” Blackmon says, “I said
I will never go along with caps on non-economic damages. I can't see telling
the parent of a child who was maimed that their life would never be worth more
than $250,000. Barbour conceded the obvious."
The last message Blackmon received from the Senate was: “We’re so
far apart, we shouldn’t even bother talking.”
RETURN TO