Tort Reform Amendment Surfaces

On March 29, 2011, in News 2011, by Mark Norris
March 29, 2011

One of the most controversial elements of Governor Bill Haslam’s tort reform bill is the imposition of caps on non-economic damages. But the bill’s sponsors say the newest draft of the measure re-configures those caps.

Senator Mark Norris of Memphis sponsors Governor Bill Haslam’s tort reform bill.

He says the newest draft continues to focus on capping possible damages for product liability cases, but allows for higher awards in the case of some catastrophic personal injuries.

“Yet we understand that there are certain injuries, burn injuries and the like, that really have very little to do with business development. And those should not be subject to some of the caps that are being considered, so those types of changes are being worked through, and that’s why we have another draft floating around.”

The “draft” is a 17-page rewrite of the governor’s proposal, handed out to lobbyists and bill sponsors late last week.

Opponents had opposed the original bill on the grounds that it would have limited the amount of non-economic damages that would be awarded in a tragedy like the Nashville nursing home fire that killed 16 residents several years ago.

The new version allows a separate award to be reached for each victim

Norris calls the bill “very much a work in progress.”

The House Judiciary Subcommittee is expected to take up the new version of the bill as early as Wednesday.

The governor’s bill is HB 2008 McCormick/SB 1522 Norris. You can see where it is in both houses of the legislature at this link.

The governor’s amendment hasn’t been added to the state tracking system yet – it would become public when a standing committee adopts it, under current rules.

The amendment was apparently drafted by Herbert Slatery, the governor’s point man on the issue. Advocates say Slatery met with representatives of business, medical industry and trial lawyers and the Tennessee Bar to reach the new agreement.

Advocates for the bill – some of whom had a hand in wording the new version – say there are two categories of damages laid out in the governor’s proposal

1. Compensatory damages, designed to compensate the injured party – to put them back in the situation they were in before the injury or loss, as nearly as possible. Those damages fall into two categories:

a) Economic damages, which can be objectively arrived at – loss of earnings, medical expenses (no limit here).

b) Non-economic damages – pain & suffering, humiliation, embarrassment, things that are hard to quantify but “clearly they occur,” says one draftsman. The limit here would be $750,000 per plaintiff. If there were more than one victim in an incident, each victim might receive up to $750,000 in non-economic damages.

2. The second major category is punitive damages, assessed against the defendant to “punish” that person. In the governor’s amendment, the cap is the greater of

a) Two times the total of compensatory damages; or

b) $500,000, whichever is greater.

Just to complicate things, there are another two exceptions. There are no caps on a case against a person who injured another in the commission of a felony, or against a person who injured another while under the influence of drugs or alcohol.

And in certain defined catastrophic injuries, like spinal cord injury resulting in paraplegia, non-economic damages could ready $1.25 million

Senate sponsor Norris says some of the changes were foreseeable.

“They’re trying to address some concerns that we can anticipate. You know, I sponsored the previous round of tort reform, medical liability reform, over a six-year period. And this is a new administration, and they have a new approach, and they’d like to take the next step. They continue to refine. That’s why it hasn’t been filed yet, per se, but they have a working draft.”

Norris says the current amendment may not be the last word.

As to those categories of catastrophic injuries upon which both sides can agree, they should not be subject to caps. And the whole issue of caps is one that will continue under consideration and discussion as it did in the reforms we adopted in 2008.


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