Copyright 1999 The Times-Picayune Publishing Co.
The Times-Picayune
October 10, 1999 Sunday, ORLEANS
SECTION: NATIONAL; Pg. A1
LENGTH: 1142 words
HEADLINE:
CANDIDATES SPEAKOUT ON TORT REFORM;
BYLINE: By Steve Ritea Capital bureau
DATELINE: BATON ROUGE
BODY:
The four major candidates for governor are split along party lines on
questions related to how the courts should handle lawsuits seeking compensation
from personal injury or property damage. This is the "tort reform" debate that
has become a political battle in recent years between the state's trial lawyers
and big business.
By tightening restrictions on how and when civil
lawsuits can be filed, trial lawyers say, legislators have trampled on the
average citizen's right to seek redress in the courts. Business interests, on
the other hand, say floods of frivolous lawsuits and outlandish jury awards have
cost the state jobs and tax revenues by scaring away new industries or
bankrupting existing ones. Gov. Foster said his tort reform efforts also have
protected government from frivolous lawsuits, keeping the state from having to
dig into taxpayers' pockets to pay out untold millions.
"I have no
problem at all when somebody pays their fair share when they hurt somebody,"
Foster said. "But not more than their fair share."
U.S. Rep. William
Jefferson, D-New Orleans, argues that what Foster and others call "tort reform
is actually tort regression."
He added: "The Legislature and the
governor should not decide cases. Juries should."
Lawyer-businessman
Phil Preis, the other major Democrat in the race, said recent changes to tort
law have only done more to disenfranchise the poor and middle class. "Mike
Foster wants to balance the scales of justice with how much money you have
rather than whether your claim has any merit," he said.
State Sen. Tom
Greene, R-Maringouin, is more closely allied with Foster's position but said he
thinks the governor has pushed tort reform a bit too far.
"You've got to
have a balance," he said. "There's got to be a happy medium."
Here is a
look at where the major candidates stand on a variety of other tort reform
issues:
*** Medical monitoring ***
Based on a 1998 Louisiana
Supreme Court ruling, "medical monitoring" allowed people exposed to toxic
chemicals to sue the responsible company for the costs of ongoing medical
testing even if they showed no immediate symptoms of illness or injury.
Supporters say it is needed to give victims peace of mind and quick
diagnosis and treatment of problems. Critics say it opens the floodgates for
suits from people who can provide no evidence of harm.
A bill backed by
Foster and approved during the last legislative session bars the practice until
symptoms surface.
"It's dangerous to allow the courts to allow medical
monitoring," Foster said. "It's tough enough ... to be responsible when you can
identify and see something (indicating harm), but when you only surmise there
may have been a problem, that has all kinds of possibilities for abuse."
Greene said this year's legislation went "too far."
"I'm for
reestablishing medical monitoring," he said. "We need to tighten it up and not
open it up for lawsuit abuse, but not eliminate it."
Preis said he
favors medical monitoring "even (when) there is no immediate evidence of medical
problems," but "only in the event that there is a significant environmental
pollution of hazardous material."
Jefferson shared Preis' position,
saying it should be ordered whenever health risks are a possibility.
***
Hazardous waste accidents ***
In 1996, Foster signed a bill eliminating
punitive damages -- those over and above economic losses and pain and suffering
awards -- in some hazardous waste accident cases.
Environmental groups
objected, but Foster said he's "never been a fan of the idea that lawyers and
the courts should be in the punishment business. That's what the criminal system
is all about."
Greene said he supported that legislation, agreeing that
only when a hazardous-waste situation rises to the level of criminal behavior
should there be punishment.
Preis said he believes punitive damages
should be allowable in all such cases.
"Some businesses make decisions
based on profits, not on safety," he said. "Any intentional conduct involving
the exposure of hazardous waste should be subject to punitive damages."
Asked if such punitive damages should be eliminated, Jefferson offered a
single-word answer: "No."
*** Judgeships ***
Louisiana judges
are elected, not appointed, and the two Democrats in the race are fine with
that.
"If (they are) appointed for terms, they may be beholden to the
appointing authority and lack independence," Jefferson said. "It is better that
judges remain beholden to the public to ensure greater independence and
impartiality."
Foster said the public seems to like choosing its own
judges, but he fears raising campaign money has the potential to pervert the
system.
"It allows the same people (appearing) before those judges
seeking justice to be major contributors to some of those judges' campaigns," he
said. Foster said he would like to create a system where judges did not have to
solicit funds.
Preis agreed and suggested a system whereby the state
would play the principal role in financing judges' campaigns, matching up to
five times what a candidate raises. "That takes the politics out of judgeships,"
he said.
Greene was the only candidate who said judges should be
appointed rather than elected.
"With merit selection, at least, they're
more familiar with the law," he said.
*** Property owners ***
At
the end of the 1996 session, Foster counted among his successes an ambitious
civil law package that changed the concept of strict liability to protect
property owners from damages unless negligence was proven.
Greene agreed
it was a positive reform.
"This is a case of, you know, you're walking
up the stairs and a limb falls," he said. "You shouldn't be allowed to sue
unless I knew the limb was dangling there for six months."
Preis agreed.
"No person should be held liable unless it can be shown that he was
negligent," he said.
Jefferson said the property owner's liability
should be contingent on the degree of danger that exists on the property.
"Where the risk is minimal, then the plaintiff should be required to
prove that the owner did not use reasonable care to prevent injury," he said.
"But where the risk for public injury is substantial and the activity on the
property dangerous, then the owner should be responsible without proof."
*** Pain and suffering ***
Preis and Greene agreed there should
be a cap on compensatory damages, such as those for pain and suffering, and did
not elaborate on their answers.
Foster said they should be capped in
some cases, because "when they're open-ended it encourages huge attempts at
settlements" and "the costs go out of sight."
Jefferson said there
should be no cap because "accident victims should be made whole to the extent
possible."
* * * * * * *
Staff writer Stephanie Grace
contributed to this story.
GRAPHIC: Legal arguments
Here is where the four major gubernatorial candidates -- Gov.
Foster, U.S.
Rep. William Jefferson, D-New Orleans, state Sen. Tom Greene,
R-Maringouin,
and Baton Rouge lawyer-businessman Phil Preis -- stand on
issues related to
civil law and lawsuits seeking compensation for personal
injury and property
damage claims:
Should the Legislature or
the courts decide the parameters under which an
individual can file a
lawsuit?
Foster: The truth is they both have a responsibility. The courts
are not
supposed to make the law, they're supposed to interpret the law.
Greene: The Legislature should do that. We shouldn't have the courts
legislating.
Jefferson: The Legislature.
Preis: As a matter of law
the Legislature should establish what the law is,
but no matter how good a
job they do of drafting the law, the courts are
required to interpret the
law to specific facts.
Should judges be elected or appointed?
Why?
Foster: I think some type of merit selection where judges did not have
to go
out and solicit (campaign) funds would be superior.
Greene:
Appointed. One of the things I've seen is how politicized the judicial
system is and how incompetent some judges are.
Jefferson: Elected. If
appointed for terms, they may be beholden to the
appointing authority and
lack independence.
Preis: I think they should be elected because they
represent the views of
their constituents at the time when they're elected,
but we should adopt a
(new) system of public finance in the election of
judges.
As long as roadways are maintained to the design
standards in effect when they
were built -- as opposed to current federal
standards -- should state and
local governments be protected from suits when
traffic accidents occur on
those older roads?
Foster: We can't take all
of our old highways up to federal standards. It
would (take) $80 billion.
Greene: Yes. What you're going to do is open up a Pandora's box. ... A few
people are going to try to get a lot of money and that's going to preclude
money being available to address the road problems.
Jefferson: No. Why
should our citizens be exposed to bear the burden of
roadway accidents
because our state has not modernized our roadways to design
standards that
we know will limit or prevent these accidents?
Preis: The problem is we got
lousy roads in the state and we don't know how to
finance the repair. ...
That shouldn't be an excuse for not having safe
highways. Mike Foster, Tom
Greene, William Jefferson and Phil Preis
speak out on trial lawyers, A-14
4 PHOTOS
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