Friday, August 31, 2018

Yes Issue One, Tort "Reform" is Still That Bad, Even if its not Interpreted that way.

Very early on when I was on the radio with Paul Harrell talking about Senate Joint Resolution Eight, (which has now become Issue One) I made some provocative claims. I said the so-called "tort-reform" measure would limit punitive damages so that giant out of state corporations could write off killing your mother as a cost of doing business. It is straight out of that scene on the airplane in "Fight Club" where the Edward Norton character confesses to his fellow passenger that he works for a big car company whose products often kill people if they don't do recalls. His job was to calculate the cost of a recall, then calculate the cost of the damages they would have to pay for killing people if they didn't do the recall. If the cost of the recall was higher, they didn't do the recall. Issue one would help companies like that keep the cost of killing people low and known.

Tim Griffin has come out hard in favor of Issue One even though his SOP is to remain motionless and quiet while controversial issues are raging, emerging only once things have settled down and there is credit to be harvested for some good news that he had almost nothing to do with. His two opponents in the race, Independent-minded Libertarian Frank Gilbert and Democrat Gary Bland, have come out against Issue One.

Now some people have suggested to me that I don't know what I am talking about because the measure has been amended to lift the cap on punitive damages based on "intent". The people who are telling me that I don't know what I am talking about don't know what they are talking about. They continue to trust Republican politicians long long long after huge amounts of evidence have piled up right in front of them that these people should not be trusted. They continue to put confidence, and votes, in people who have repeatedly demonstrated that they don't deserve it. I wish they'd stop and face the truth because their refusal to do so is badly jeopardizing our children's future. Yes the language was amended to include a provision to lift the caps based on intent. No it doesn't say what people think it says or wish it says. It says what it says.
In this case it is easy for you to personally determine which of us you should believe, me or these politicians and their apologists. Read the resolution. In particular read section two paragraph (c)(2) where it describes the conditions under which the limits on punitive damages do not apply:
(2) Subdivision (c)(1) of this section does not apply if the
 finder of fact determines by clear and convincing evidence that: (A) The defendant intentionally pursued a course of conduct for the purpose of causing injury or damage to the claimant; and (B) The defendant's intentional conduct harmed the
31 claimant.
Read what it says, not what is reasonable, but what the plain language of the law says. It does not say that the caps on punitive damages can be lifted if it is proven they were intentionally reckless or negligent. It does not say the caps are lifted if they knew a product was dangerous and they intentionally covered it up. It doesn't say the caps are lifted if they covered up a known defect for the purpose of maximizing their profits. It says they must pursue a course of conduct for the purpose of causing injury or damage. That is, it is not enough that they built a car that they later discovered blew up at random times and intentionally elected to cover it up and not do a recall in order to save themselves money. They must set out to intentionally build a car that will randomly blow up and injure their customers!

You say "but no one would do that, its crazy." Exactly. But there is a lot of crazy in the world these days including people's continued faith in Republicans and Democrats. But that is what the law says them must do before the caps on punitive damages were lifted. And not only must they do that, intentionally pursue a course of conduct to hurt people, but the claimant must be able to provide clear and convincing evidence that this is what they were doing!

Now some of you may be thinking, and I am aware that some attorneys are thinking, that judges won't rule on what's written in black and white. They will "interpret" the law to mean something more reasonable than what it actually says. Maybe. Maybe not. But its the judge who rules on what it actually says that's following the law. What's written in the law is awful. So why vote for something that's terribly written in the hopes that some judge will ignore what it says and rule based on some more reasonable idea about what it should say? Why not just vote against it until they give you something that makes sense as written?


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