Tort Reform: The Time Is Now

Tort reform, the effort to curb abuses in the civil justice system, is sweeping the country. In reaction to a public outcry against frivolous lawsuits which produce awards far in excess of actual damages (if any) suffered, more than 30 state legislatures have enacted tort reform legislation since the mid-1980s.1 In 1996, Ohio enacted comprehensive reform, entirely revamping its tort system. Maryland weighed in with House Bill 597, sponsored by Delegate Ann Marie Doory (D-Baltimore City). This was designed to protect employers from civil liability when giving employee references in good faith. Doory’s bill passed, which was gratifying, but the real action revolved around the successful effort to keep the state from moving backwards.

Opponents of tort reform lobbied heavily for two measures during the 1996 legislative session. Senate Bill 607, introduced by Senator John A. Pica, Jr. (D-Baltimore City), would have weakened existing restrictions on punitive damages. Also, Delegate Gilbert J. Genn (D-Montgomery County) sponsored a bill to replace the doctrine of “contributory negligence” with that of “comparative fault” (H.B. 836). This fundamental change in the fault allocation system – a move supported almost solely by plaintiffs’ lawyers – would have had far-reaching impact on Marylanders. Under contributory negligence, if both parties to a lawsuit have been negligent, they pay their own damages and are barred from recovering against each other. By contrast, comparative fault allows juries to weigh respective “degrees of fault” of the parties in the suit; it may then award damages based on the parties’ perceived proportion of fault, encouraging litigation and increasing trial costs.

The Maryland Tort Reform Coalition – a group composed of businesses such as BGE, USF&G and T. Rowe Price – along with defense attorneys and non-profit organizations joined forces to fend off the attack. For his part, Baltimore Orioles owner Peter Angelos, the millionaire personal-injury attorney predominantly known for his work on asbestos cases, took the lead for tort-reform opponents.

Angelos and his allies at the plaintiffs’ bar were castigated for the naked self-interest they exhibited in pushing this legislation by the Baltimore Sun, which editorialized, “When the majority of the legal community joins with large and small employers across the state in loud and alarmed opposition to a bill [S.B. 607], even legislators ought to be able to tell the difference between (lawyers’) raw self-interest and the common good.”2

Fortunately, the Tort Reform Coalition prevailed. Delegate Genn withdrew H.B. 836, and S.B. 607 was defeated in the Senate Judicial Proceedings Committee. But here is the bad news: The Maryland Trial Lawyers’ Association has vowed to enact comparative-fault legislation in the 1997 legislative session,3 and Angelos is widely expected to mount a vigorous lobbying campaign on the punitive-damages issue.

Others besides legislative insiders are interested in tort reform. Last June, a watchdog group, Baltimore Regional Citizens Against Lawsuit Abuse (BRCALA), was formed. BRCALA – a non-affiliated outgrowth of the CALA movement in such states as Texas, California and West Virginia – has as its mission increasing public awareness of lawsuit abuse by sponsoring activities such as “Lawsuit Abuse Awareness Week,” and providing speakers for area organizations from its volunteer speakers bureau. BRCALA also promotes consideration of arbitration and mediation instead of filing lawsuits, encourages all citizens to serve on juries, and urges people to report barratry (ambulance chasing) by personal injury attorneys.

BRCALA Board Chairman Joe Sachs, an Annapolis delicatessen owner, has said that there are ample reasons for Marylanders to become involved in the fight against lawsuit abuse. Some highlights are sampled in table 1. Nationally, the situation is equally dire. From 1984 through 1994, civil court caseloads rose 24 percent. The median time from filing to disposition for all tort cases is more than a year (416 days); for jury trials, more than two years (748 days).4

According to Sachs, a small number of radio spots, describing the costs of excessive suits, run by BRCALA during Lawsuit Abuse Awareness Week, drew more than 300 responses from listeners. The county executives of Anne Arundel, Baltimore, Harford and Howard counties, as well as the Howard and Carroll county councils, demonstrated their concern by issuing proclamations declaring the September 23-29 Lawsuit Abuse Awareness Week in their sub-divisions.

Maryland’s business community can ill-afford the unfriendly message that setbacks in tort reform would send to potential Maryland employers. Consumers are beginning to realize that lawsuit abuse directly affects their pocketbooks. With two fronts now open in this battle, it can be hoped that the public interest – not special interests – will triumph.

Ms. Hirschburg is the vice president of Howard Consulting Group, a public-affairs and public-relations firm based in Maryland. She is also a member of the Calvert Institute’s board of trustees.

End Notes

[Top] 1. Richard B. Schmitt, “While Congress Debates, States Limit Civil Lawsuits,” Wall Street Journal, June 16, 1995.

[Top] 2. Editorial, “Damaging Bill on Punitive Damages,” (Baltimore) Sun, March 6, 1996.

[Top] 3. Mary E. Medland, “MTLA Renews Vow to Enact MD Comparative Fault Bill,” Daily Record, June 21, 1996, p. 9.

[Top] 4. State Justice Institute (SJI), State Court Caseload Statistics, 1994 (Washington, D.C.: SJI, 1994).

Posted in: Judiciary and Legal Issues