With all due respect to Senators Eric Johnson and Tom Price, they have the wrong solution to a major problem in our justice system. Price and Johnson will introduce a tort reform bill this week designed to cap punitive damages for product liability lawsuits to a limit of $250,000, as well as cap medical malpractice awards to $250,000 per occurrence as well. I say "bad idea" for both attempts.

I am not going to use dramatic, heart-wrenching, stories like Creative Loafing did this past week to convince you of my point. There won't be any heartstrings pulled in this article because, as always, my arguments rely only on logic to win a point. I hope the Republicans in the state senate who wish to push their bill employ similar logic in their thought processes as well.

Problem Statement

For years, I have read and heard all about the need for "tort reform" in this country. For most of those years, I was all in favor of it. Many of us read in the news about outlandish jury awards for cases like the infamous McDonald's hot coffee judgment ($2.9 million awarded in 1992 which was later settled for somewhere around $400,000), the tobacco settlements, lawsuits against gun manufacturers, lawsuits against auto manufacturers for not having air bags, lawsuits against auto manufacturers for having air bags and not warning people that some folks might be at risk upon deployment of the bag, sexual harassment lawsuits out the yin-yang, and so on.

[In fact, there is an excellent Website that documents the world's most outlandish lawsuits called Overlawyered.com which I encourage you to sign-up to get their e-mail. Pretty bizarre, but humorous, stuff.]

Last week, President George Bush addressed a group and publicly addressed the need for "tort reform" as well, implying the need to cap judgments of damages at a federal level.

There does need to be "tort reform." I won't argue against that. But, the "reform" lies in who sits on the jury, not how much is awarded in a verdict.

Limiting Punitive Damages = Limiting Personal Responsibility

According to the articles in this week's Atlanta Business Chronicle, the Georgia Chamber of Commerce is backing the concept of limiting punitive damages to $250,000 per case.

My question, as a Republican voter, is why should anyone's responsibility for their actions, whether a person or a corporate entity, be limited to $250,000 for negligence? Haven't we Republicans been screaming for YEARS about life would be so much better in this country if people just took responsibility for their actions?

Yet, now we wish to cap the punishment for negligence. Or, in the case of a physician who barely passed his medical board exams and is found to be derelict in his duty, all he has to worry about is limited punishment of $250,000. Wow. A lot of physicians earn $250,000 in the first 4 months of the year, so, getting hit with a $250,000 judgment all of a sudden appears to be quite the acceptable risk for being lazy and/or incompetent.

Same would hold true for a company building a product, it would seem. What's to stop them from taking shortcuts in quality control other than the threat of huge liability if they deliberately screw people? "Oops! Four kids died because we ignored the quality control engineer's recommendations? Ah, so what? The insurance company will pay for the pain and suffering and we'll pay the $1 million punitive, and still be able to sell our product for the next four years. Sounds like a good deal to us."

The True Problem

Jury awards of epic dollar amounts occur, not because there is no limit on punitive damages, but because the jury is composed of people who are not qualified to make such judgments. Regardless of how many "strikes" are allowed by opposing lawyers, the fact is that the pool used to supply the jurors is flawed.

In Cobb County, for instance, the jury pool is based on all registered voters. The Georgia Secretary of State reports that, on average, only 50% of the state's registered voters turnout and vote. To me, if you're one of the 50% sitting on your rear end come election time and not wishing to do your duty as an American citizen, then you sure shouldn't be eligible to serve on a jury. If you do not have enough of a tie with the free country you reside in to feel obligated to participate in our free elections, then what makes you qualified to participate in a decision process required by the 6th Amendment to the U.S. Constitution? Just in case we have folks from Canada and other non-US territories on the mailing list, this is what our 6th Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Granted, in tort cases, they are not "criminal," but the same concept of an impartial jury applies. Surely an "impartial" jury can be found via a smaller pool of applicants, right? Pick candidates based on whether or not they have voted once in the past 4 years. Those that haven't voted at least once in four years apparently don't care enough about their surroundings to participate in this government duty.

When I hear people brag about how they got out of jury duty, it makes me ill. When I hear conservatives like Rush Limbaugh espouse idiotic statements like "If you're not smart enough to get out of jury duty, you deserve to sit on a jury." What a moronic thing to say. No wonder we have outlandish awards. Because intelligent people pat themselves on the back because they were able to get struck from the jury rather than performing their duty as an American citizen. The system is broken because people have ceased doing their duty as citizens.

One other problem with the jury system is the smidgeon of money paid for jury duty once you get assigned to a case. I think it's around $20-$25 per day for jury duty. It has been this amount for at least 15 years. This paltry amount to pay working people (like me, or you, or my neighbor) to sit on a jury is, I'll grant you, a good reason why people try to get out of jury duty.

So, the answer to that is to increase the rate to the point so that Mr./Ms. Potential Juror can at least pay for their childcare per day if they are so required to be away from the home. And, whether it's dropping his kid off at daycare or paying someone $8 per hour for 8-10 hours per day, the cost would be on the order of $50-$65 per day. I don't have a kid myself, but I do have a dog that I would have to pay someone $30-$40 per day to walk if I was called for jury duty. No one should make a profit over serving for jury duty, but we should be compensated for expenses that will be incurred as a result of such service.

And, as it turns out, the Georgia Constitution requires the General Assembly to make the rules regarding how jurors are chosen and how much they are paid. Before the legislators start mucking with "limiting" how much someone is responsible for in a negligence case, I advise them to look at revising the jury pool methodology. That is what needs reforming.

Conclusion

I am as pro-business as the next Republican. But, I am also pro-responsibility. I am pro-integrity. I don't believe that businesses, whether product or service entities (which includes doctors), should be allowed to abrogate their responsibility to their customers when they provide: 1) the product or service advertised, and 2) such product or service by completely disregarding their responsibility of the customer's expectations. These expectations include not being harmed by the product or by the practitioner of the service.

Should there be limit to personal responsibility? Maybe. I'm not sure. If Senator Eric Johnson, in his profession as an architect, changed the facade of a building without consulting the structural engineer on the added load, and the facade came tumbling down and killed someone, should Eric's punitive liability due to gross negligence be capped at $250,000? As a former professional engineer myself involved in the process of designing such buildings, I don't think so. I doubt you would either.

The fact is, everyone involved in everyday life, whether in business or not, must follow some minimum standard of care. Those that violate that standard of care should either be expelled from that profession and/or, be punished. Until we start locking-up doctors and yanking their licenses due to malpractice, the only way to keep them in-line would be the threat of punitive damages that prevent them from flagrantly acting capriciously.

Note: For a more thoroughly researched explanation of all sides of this issue, as well as a heart strings version of the anti-tort reform side, I invite you to checkout the Creative Loafing article on it by Kevin Griffis.