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Damage Caps – Where Do Oklahoma Constitutional Conservatives Stand

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Yesterday I wrote a blog entitled “Oklahoma Republican Party at War – Can Constitutional Conservatives Save our Right to a Jury?” In that blog I discussed constitutional conservatism as it relates to so called “tort reform” and/or as I call it “corporate immunity.” The blog focused more on the battle within the Oklahoma Republican Party as it relates to the State Chamber versus grassroots constitutional activists.

Today I want to take the argument a step further and begin addressing specific “concepts” big business is trying to force upon average Oklahomans in the area of tort law. The first “concept” I would like to discuss is what is commonly referred to as damage caps. As you may or may not know, United States and Oklahoma law have long allowed a party to recover “damages” if she, he or it has been harmed as a result of the negligence of another. It’s essentially the same thing as one business suing another over failure to perform a contract wherein that failure cost the suing business actual and/or anticipated money.

Now before we focus more thoroughly on the conservative argument against damage caps, I wanted to fill our readers in on Oklahoma’s Constitution. Most of us already know that the United States Constitution’s 7th Amendment provides for a jury trial. However, did you know that Oklahoma’s founding fathers not only provided for a jury trial but also for a fair and equitable court system. Oklahoma’s founders found the right of a fair and equitable court system so important that it addressed these RIGHTS in two different sections.

Oklahoma’s Constitution Section II-6 is entitled “Courts of justice open – Remedies for wrongs – Sale, denial or delay” and states

The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.

Oklahoma’s Constitution Section II-19 is entitled “Trial by jury” and states

The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars ($1,500.00), or in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00). Provided, however, that the Legislature may provide for jury trial in cases involving lesser amounts. Juries for the trial of civil cases, involving more than Ten Thousand Dollars ($10,000.00), and felony criminal cases shall consist of twelve (12) persons. All other juries shall consist of six (6) persons. However, in all cases the parties may agree on a lesser number of jurors than provided herein.

Now as to damage caps. Most likely the establishment wing of the Oklahoma Republican Party will attempt to enforce damage caps on individuals, not businesses; this next session. I hope I am wrong but this is the exact vernacular coming from the leadership of the Oklahoma GOP. As I quoted in the last blog, many of the republicans that will be leading the fray to impose draconian tort reform laws on Oklahoma citizens were the same Republicans whom last year quotes are new laws as the best in the nation and stated that they provided an equitable playing field for all parties. Apparently a level playing field is no longer sufficient where insurance companies and big business are concerned.

From a conservative standpoint, damage caps on non-economic damages fly in the face of the sanctity of our Constitution and invade the province of the jury. Juries are often chosen from the list of those who vote. These juries can sentence a human being to death in a criminal case. However, some of our elected officials are telling you that the same people whose opinion on the evidence can end a life are not intelligent enough to award monetary damages in a civil case. Am I the only one that sees this as the ultimate form of hypocrisy?

The unfiltered fact regarding damage caps is that politicians believe they are better suited to determine the damages an individual sustains in a catastrophic semi accident, in a medical malpractice accident where the doctor was on drugs and/or in cases where pharmaceutical companies knowingly sell dangerous drugs while hiding the deadly side effects. As seen in our last election cycle, most Oklahomans are not fans of Nancy Pelosi and Harry Reid. Yet, by allowing your legislature to impose damage caps you are essentially giving authority for Nancy Pelosi, Harry Reid and/or John Boehner (you can substitute any Oklahoma politician for the aforementioned names) to decide the value of an Oklahoman’s negligence lawsuit without seeing one iota of evidence regarding the case. Isn’t this among the most dangerous invasions of individual freedoms we can experience?

When analyzed in terms of the elderly, stay at home mothers and children, damage caps are the epitome of government intrusion and intervention designed to limit and alienate 65% of the population. Now I know many of our readers are saying “what the heck is he talking about?” Let me give you a prime example, to have “economic damages” one must incur those damages in the form of medical bills and/or lost time at work among other objective economic losses. Take a thirty (30) year old stay at home mother for example who has the capacity to have medical bills but due to her position as a stay at home mother does not have “lost wages.” Suppose she is injured by a semi driver who is on drugs and becomes a paraplegic. Being a paraplegic she cannot perform many of the same household duties she did before the accident simply due to her disability. Now each and every one of us knows the tremendous duties a stay at home mother has. From cleaning the house to taking care of the kids it is a 24 hour a day job. Now contrast the stay at home mother with a thirty (30) year old man who makes $70,000.00 per year working in the oil field. He suffers the same injuries. As part of his damages, we can objectively calculate that over his work lifetime, he will lose $70,000.00 per year. For purposes of this illustration we won’t even include cost of living adjustments and pay raises. Assuming he would have worked till sixty (60) his claim will automatically be worth $2,100,000.00 dollars more than the stay at home simply because his job paid money.

An even further illustration is a doctor who works in the Sudan treating children. He or she makes $100,000.00. On the other end is a neurosurgeon who makes $1,000,000.00 a year. Both are in accidents and can’t work for the remainder of their work lives which is 20 more years. With capped non-economic damages, are we as a public really willing to say that the neurosurgeon’s claim is worth $18,000,000.00 more than the doctor who travels and works philanthropically in the Sudan?

As you can see damage caps can create a great disparity between claims where people have the exact same injury. How is this constitutionally conservative in light of our State Constitution’s guarantee that justice will be open to everyone and no one will experience prejudice? Isn’t the ultimate prejudice valuing someone’s life more than another simply based on how much they earn?

Frankly, as a proud Republican and a proud lawyer I get tired of the establishment beating up my profession based upon non conservative ideas promulgated only to appease their biggest donors. They propose damage caps under the guise of a better economy and creating jobs. Nothing could be further from the truth. Even if true, how many jobs does it take for you to be willing to sacrifice your constitutional rights? As founding father James Madison once said

In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.

7 Comments

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  1. james O'Hare RPLU AIC AIS says:
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    Caps for causes of action that can not be measured, nor weighed should be capped. Loss of earnings, past and future, cost of future care etc can be measured. Pain can not be measured. The only subjective cause of action.

    A paper cut to a ballerina diva and to a Navy Seal are completely subjective. The answer to what pain is worth is always a lot. Math only enters the discussion when the money is counted, and then it becomes objective.

    Re the injured housewife: an economist can opine as to the monetary value a housewife brings to the home. In 25 years of adjusting med mal claims, I have seen $30-65k/ yr.

    Skip the caps for those causes of action that can be measured. If you cant earn that $50k/yr for the next 20 years, there is your million. No argument, there is a ruler for that.

    Keep the jury system and consider arbitration. Let us be honest, Doctors do not get a jury of peers. How about a college degree to sit on a med mal jury. Use any dictionary of your choice to define peer. The plaintiffs’ bar does not want this. They only prefer reform that helps there cause, whether or not it is actually fair when both sides are considered.

    Do you think the usual blue collar jury understands staging and doubling times of infiltrating ductal breast cancer, when treated by fluoricin instead of adriamycin ? The answer is no, and the plaintiff bar likes it that way.

    Place your efforts into mandatory insurance for Docs with minimum limits. A gazillion dollar verdict is not collectible anyway and does not decrease the frequency of med mal.

    Thanks for your article.

    James O’Hare RPLU AIC AIS
    VP med mal claims
    Physicians Ins co
    Pompano Fl

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    Mr. O’Hare

    Thank you for responding. From the outset I will note that I am part of the “plaintiff’s bar” as you describe but I also see you’re the Vice President for medical malpractice claims at a Florida Insurer. I think it’s obvious to say we come from the opposite end of the spectrum as your companies’ profits depend on paying out less to people and my job is the get them the best possible outcome the law will allow.

    As to my post. It appears you do not dispute that caps are not conservative but rather believe they are needed. In summation, it seems your basis for implementing caps comes from the statement:

    “Let us be honest, Doctors do not get a jury of peers. How about a college degree to sit on a med mal jury. Use any dictionary of your choice to define peer. The plaintiffs’ bar does not want this. They only prefer reform that helps there cause, whether or not it is actually fair when both sides are considered…Do you think the usual blue collar jury understands staging and doubling times of infiltrating ductal breast cancer, when treated by fluoricin instead of adriamycin ? The answer is no, and the plaintiff bar likes it that way.”

    My interpretation of that statement is that you do not believe that a “blue collar jury” is intelligent enough to decide a medical malpractice case. I take offense to that in that many of the most intelligent men and women I have known in my lifetime do not have a college degree and may not even have good grammar and other characteristics the wine and cheese crowd would base their views of intelligence on. Yet when it comes to mathematics, electronics, building things, chemistry and other items I would put them up against just about anyone. I’m quite sure after expert testimony et al they could find the right conclusion to a trial. In fact, Oklahoma’s largest insurer has made public statements to the effect that juries typically get it right. Further, these people whom you seem to view as not intelligent enough to decide a medical malpractice case are intelligent enough to elect the same political officials who may or may not want to cap damages. Going a step further, what makes politicians “intelligent” enough to decide arbitrary caps. Is $250,000.00 a fair cap? How about $1,000,000.00? Does it really take a medical degree to decide that a doctor who was high on vicodin during a surgery committed malpractice?

    It seems fundamentally unfair and against our system of justice to adhere to the standard of “peers” you have stated. Does anyone really believe a group of doctors would find another doctor guilty of malpractice? There are doctors still operating on people who have been found guilty of professional malpractice on multiple occasions and medical licensure boards keep allowing them to practice.

    Even though your comment seems focused on malpractice, caps as purposed apply across the board. Can truck drivers only decide if a truck driver is negligent? Can a 28 year old mom only decide if a 28 year old mom is negligent in a car accident? Where do you draw the line at peer and what extent would you require our justice system to go to in order to have a jury of our peers?
    To me it’s quite simple and has worked efficiently for over 200 years yet big insurance has in the last 20 years decided that 200 years of working is insufficient for their profit lines.

    I will note that you mention that a stay at home mother’s value can be calculated. While that is true in some jurisdictions it is not true in all jurisdictions. However, even following that argument to its conclusion your analysis seems to wholly neglect children who I’m sure you know have no jobs and their loss earnings cannot be calculated should their injuries require a lifetime of maintenance and prohibit them from certain lines of work.

    Also, arbitration has been shown for a long time to be a corporate tool used to drive down the value of cases. There is a reason many nursing homes and even some hospitals are now trying to insert “forced arbitration clauses” into their contract for services.

    Thank you for responding. Without discussing these issues we are relying upon ill informed politicians to make decisions that are not based upon conservative ideas but rather fear and a desire to appease special interests.

  3. james O'Hare RPLU AIC AIS says:
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    thanks for your reply, I enjoy the discourse. You did assume and add meaning to my first comment, that shows that you are an effective attorney. The old- your terrorist is my freedom fighter.

    i never implied that blue collar people are dumb and you did not accept my challenge regarding the peer definition. I am impressed by the brilliance of Max, the guy that did the valve job on my car. I wouldnt want him to do my cardiac bypass. The dog and pony show of a trial may be the best tool for you.

    Assuming that I meant that we need a 28 year old to judge another 28 year old is disingenuous. If a doctor commits a robbery, then anybody is a peer. Not so much for the standards for an elective retrograde cholangiopancreatatogram.

    Would you reject a physician as a juror. I have yet to see one in 25 years. Peers will not help you gain a maximum return for your client, because it is about money and not justice. Wouldnt you rather have a jury of attorneys as your pool to decide your fate.

    By the way, my job is not to shortchange your clients claim, but to pay what can be supported for meritorious claims, and not the lotto number. Would you accept more from a jury than what you ask them for? It is and never has been about justice.

    There is still no ruler for pain. Re a cap, I’ll let you pick a fair number. There is no ruler for pain and it is an emotional and subjective concept. I thought my first comment was clear that pain cant be measured and is subjective. Measure it for me. Cant be done and is entirely emotional.

    In sum- caps for P&S, you pick a fair number. A jury of peers for docs, not other docs, just a bachelor degree. thats all
    jim

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    The fact is that the founding lawyers devised a remarkable system and enshrined it in our founding document: the right to a jury trial. The idea is to keep The People’s control over certain critical parts of governing.

    I think Jame’s reaction to “subjective” measures, and suggestion that we create an “objective” (or, more accurately, “arbitrary,” since simply putting a hard limit is not “objective” in any real sense), is natural and even sensible, in a vacuum.

    But in the context of democratic governance, one quickly sees that allowing caps is simply taking the decision making away from the People (i.e., the jury), and putting it into the hands of a few elected officials. History demonstrates the mistake of failing to consider this context.

  5. Pete Mackey says:
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    Mr. O’Hare:

    You are correct. The mechanic may have trouble understanding the intricacies of a medical malpractice claim. A doctor may have trouble understanding causation in a seatback failure case. That is why good lawyers use experts who not only know their craft, but know how to explain their opinion so that it’s easily understood. And good lawyers can simplify what might seem complex – or which the professional defendant wants to appear as complex.

    The system our Founding Fathers endorsed strikes the perfect balance between all of the extremes. Sure – sometimes you are the windshield and sometimes you are the bug. Such is life. What you are endorsing, however, is something less than what we are guaranteed by the US and most State constitutions.

    In Alabama, the statistics are staggering in favor of the medical community. And my friends on the defense side readily admit that it is not because doctors have perfected their craft.

  6. Mark Bello says:
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    Jim, Jim, Jim, my old friend: How many juries have socked it to your insureds? How often have they gotten it wrong? Cite me statistics. And, when they do slam your doctors and your carriers, how often does the victim collect more than your doctor’s policy limits? And how often has a case that could have been settled, reasonably, go to a jury because a doctor and/or insurance carrier refused to be sensible? Which party decided to let the jury decide?

    I don’t want state or federal legislatures (are they smarter or better equipped to make these determinations than jurors?) to decide what pain and suffering is worth. I do not practice law; I do not benefit or suffer from “caps”. Lawsuit Financial can provide appropriate funding, either way. But, when you articfially restrict pain and suffering verdicts, you cheapen and formulize suffering and you do not adequately compensate for catastrophic consequences.

    As Jeremy correctly points out, this concept flies in the face of our federal and most state constitutions and infringes on our citizens’ rights to a jury trial. The taxpayer ends up with the bulk of the burden and Jeremy’s “corporate immunity” (I call it “corporate welfare”) prevails. Regards, Mark

  7. james O'Hare RPLU AIC AIS says:
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    I see that I am the only terrorist among all of you freedom fighters. Allow me to respond to a few things. I never argue law with attorneys, but allow me to take a few swings.

    The 6th and 14th amendments discuss juries and they are geared to benefit the accused not the plaintiff.Am I right? They actually stole this idea from Charlemagne.

    Is justice the goal or is it money? If your client is awarded 20 bucks, was justice done, because you won your case?

    It is about ca$h and either side of the case tries to tilt the field in their favor. True? This also points that it is about cash , not fairness, a level field, or justice. For me a pool of physicians would be the best jury, not so much for the plaintiff bar. Agreed?

    If pain is not a subjective concept,is it measured in pounds or inches, and how much for each unit? For those states with caps, isnt that always the starting point for paper cuts to 3rd degree burns.

    Maybe that is not fair nor just. How about this: What pain is worth $15,000 dollars and explain the difference to the $50,000 dollar pain?

    What is the difference between pain and suffering per unit? You pick the cap limit. Chances are better for your collection with a cap.

    I have denied “caps”, I talk about “cap”. Knock yourself out with the other causes of action that can be measured. I am ok with that.

    Mr. Mackey- Wouldn’t your expert have an easier time explaining his thoeries to a juror with a college degree instead of a 4th grade education?
    The reason you can’t agree with this is that this ” non peer” disparity improves your chances of recovery.

    In Alabama , I had a plaintiff attorney that was the cousin of the judge. This didn’t appear to be a problem and no attempt to keep it secret. It was clear to the court whose turn it was to bring the BBQ that weekend.

    Dear Mark:

    I have not tried a case in 3 years. I have settled 40 over that time. South florida jury pools have a strict requirement that jurors need a drivers license. That is it, you do not even need to speak English. What is the opposite of peer? Thats what we get.

    Over the years, the plaintiffs bar always brings up the fact that doctors win 80-85% of the time. Therefore, implying that jurors favor doctors.

    That could be true if every case is tried. Every carrier on the planet tries only those cases that they see as a slam dunk winner, Like the Colts in SuperBowl III. The Docs still lose 1 in 5. The others settle because the Jets sometimes win.

    The plaintiff rarely collects anything beyond the policy limits, it is kind of a cap we like to use. You may be better served by demanding that all docs have higher limits in exchange for a PS cap. – good idea?

    In 25 years I have settled more than 1000 cases, that is all I did in NY. I tried 74 to conclusion and guessed right on 62. Those other 10 still cause me to scratch my head.

    Defenses are always more sophisticated than the plaintiffs case. This is why a mainstream jury misses it often. If it is about justice, a more sophisticated pool of jurors gets us closer to justice. Doesn’t it?

    Can we at least agree that it is about cash, and it you get enough for your client, then we have justice?

    Again – a jury trial is for the benefit of the accused. please advise. There is no benefit to the accused, by having Max the mechanic considering liability causation and damages. Did I mention that I settle all my cases.

    Thanks for the debate.
    regards
    Jim- med mal claims guy