This week, advocates in a dozen states are taking part in “OurBullyPulpit’s Take Action Screenings” to raise public awareness about workplace bullying. Many are advocates for pending legislation, which in most states is the Healthy Workplace Bill [HWB]. But, the HWB they’re fighting for includes a $25K Cap on our (victims’s) emotional distress portion for those who haven’t lost their jobs, been demoted or suffered any other negative action. You also have to prove malice and health harm. The argument by the drafter of the HWB is that a purposely low Cap and high hurdles will help avoid “frivolous lawsuits.”
But, using Caps to avoid “frivolous lawsuits” is the battle cry for Tort Reform and so far much of the success from this effort has been the ability to place low monetary caps on court settlements. Wisconsin’s controversial Governor just passed a tough reform in his state.
The powerful documentary, Hot Coffee, which premiered on HBO this summer, has fired up the national debate and helps demystify commonly held misconceptions for us laymen. We all want a law to stop bully bosses. But, each of us has the right to ask that a law reflects our desires and concerns. Those that want to can easily ask their legislator to strike the Cap out of the bill. Please read the insightful Atlantic article excerpted below and see the movie:
Everyone has their own spin for so-called “tort reform” laws. Here’s mine: In each instance, state legislators, who are elected largely through corporate donations, have acted to reduce the authority and ability of jurors to render meaningful verdicts against corporations. These lawmakers have interceded to protect corporate interests in advance, via statutes that nullify the facts of individual tort cases, with arbitrary damage caps that are designed more to protect wrongful defendants from liability than protect the victims of their wrongdoing. And the state judiciary, also now being bought and paid for in many states, has followed the lead of the legislative branch in undermining the role of the jury.
No one wants a “frivolous” lawsuit but what exactly is that, anyway? And who is better to decide what is “frivolous” or not? The lawmaker who caps out damage awards based upon the views of the lobbyist who has made a campaign contribution? Or you and your neighbor sitting in judgment on a plaintiff and her case? No want wants an “excessive” jury award but what exactly constitutes “excessive?” Was it excessive for the Gourleys to want the corporate defendants, and their insurance carriers, to pay the $6 million it will take to pay for Colin’s care? Nebraska lawmakers made that decision for the family, in advance, without regard to the facts of their case. Were they better equipped than the Gourleys’ jury to evaluate the definition of the word “excessive”?
The message has been simple: Corporations are being preyed upon by plaintiffs, trial lawyers, and juries, each of whom are involved in some sort of cosmic conspiracy to transfer wealth from the rich to the poor by virtue of a damage-award verdicts. This propaganda implies that this redistribution of corporate wealth in this fashion is unconstitutional or otherwise unfair. The narrative also pits neighbor against neighbor, juror against juror, and thereby undermines both the letter and the spirit of the Seventh Amendment, which codifies a right to civil trial by jury.
In short, the “tort reform” movement has largely succeeded in making jurors out to be anti-American vengeance-mongers, a mob of citizens unhinged by law or logic and set loose upon innocent corporations. This is all wrong. Tort reform isn’t democratic because the people’s wishes are being expressed through state legislation. It’s anti-democratic because the lobbyists have succeeded in taking away the power of individual plaintiffs and jurors to set damage awards at an amount they feel is just. Remember, no damage award has ever been handed out to a plaintiff who lost a tort case against a company.
How has this marketing campaign been so successful for so long when it’s so obviously built on so many misconceptions about the justice system? Easy. For decades, the media machine dutifully has played along. Indeed, one of the most striking parts of Hot Coffee is its consistent use of old news broadcasts to highlight the extent to which journalists, on the whole, have miserably failed to explain the true nature of “tort reform” to their audience. So many people uninformed about the nature of a jury’s work! So many people underinformed about who benefits and who is burdened by tort reform!