The passage of tort reform legislation in South Carolina is really a story about unity and persistence.  It is about the value and strength that can come from bringing together a diverse group of individuals and organizations and focusing their energy behind a single issue.  In this case, we improved the quality of life for the people of South Carolina. 

 

The simplicity and emotion in that message was the key to our success.  Rather than making the issue about the legal ramifications of tort reform, or focusing on the motives of trial lawyers, we focused on the economic impact that our current judicial system had on South Carolina.

 

Our effort was about remaining competitive, impacting job creation in our state and in the end, ensuring economic prosperity for our citizens.  That proved to be a pretty difficult position for the opposition to overcome.

 

When the effort started three years ago, no one believed that meaningful tort reform was possible in South Carolina.  This was true for a number of reasons:

 

        1.   Both our House and Senate are heavily populated with plaintiff’s attorneys.

2.   The issues are complicated and complex.

3.   The relationship between our Governor and the legislature was strained.

4.   Unlike some other states, we did not have a crisis or seminal event that raised the profile of the issue.

 

So, how did we do it?

 

First, we spent two and a half years pushing the tort reform issue, educating the media and the legislature, fine-tuning the message and building a grassroots organization.

 

Another major factor was the strength of the tort reform coalition. The business community provided key leadership with high profile CEOs and small business owners taking an active role in the legislative process. The business coalition represented every major business and professional association and most of the Fortune 500 companies with a significant presence in South Carolina. You can’t say enough about the value of having the right people deliver the right message at the right time.

 

One of the more important strategic decisions was separating the medical debate from the business debate. This ultimately helped the medical community reach their objectives as well.  By introducing two bills, the legislature had to deal with each issue and organization separately and could not play one against the other.

 

The focus of what we called “The Black Eye Bill” was then narrowed from fourteen issues to four.  "The Black Eye Bill" or House Bill 3008 that I sponsored had 63 co-sponsors which was a majority of the House of Representatives. The narrowing of the issues to focus on those causing South Carolina a "black eye" proved to be a wise strategy. 

 

One issue was our venue statute.  Prior to the passage of House Bill 3008, South Carolina’s venue statute allowed plaintiffs to shop for a favorable place and often, a favorable jury, to hear their case.  As a result, many plaintiffs chose to have their case heard in Hampton County, South Carolina, a jurisdiction rated by the American Tort Reform Foundation as the third worst “judicial hellhole” in the nation. South Carolina was also one of only ten states not to have modified their joint and several liability doctrine and only two insurance companies were writing general liability insurance for homebuilders in our state due in part to South Carolina’s 13-year statute of repose.

 

They say you create your own luck through timing and persistence.  Well, we certainly took every advantage of the opportunity presented by the recent success of Mississippi and Georgia.  Their passage of tort reform challenged South Carolina to pass meaningful reform or risk becoming less competitive from an economic development standpoint. The House of Representatives rose to the occasion and on February 16, 2005, the House of Representatives passed "The Black Eye Bill" 101 to 15 and sent it to the Senate for action.

 

The Senate debated tort reform for nearly three weeks. Ultimately, the Senate Republican and Democrat Leadership reached a bi-partisan agreement on joint and several liability.  This agreement established a 50% liability threshold before the “deep pocket” could be held liable for the entire amount of the award. The second big test for supporters of tort reform came when the legislation headed back to the House.  Previously, the House had passed a tort reform bill with an “empty chair defense” in the joint and several liability section that the business coalition strongly opposed. The Senate version eliminated the "empty chair defense". The opposition in the House wanted to non concur with the legislation and send it to conference committee in an attempt to either weaken the bill or kill it.

 

In the end, the House Republican and Democrat leadership worked out technical issues and the House voted to concur in the Senate version of tort reform. The final bill included a joint and several liability threshold of 50%, venue reform, reduction of the statute of repose from 13 to 8 years, frivolous lawsuit sanctions, changing of the post judgment interest rate from 12% to prime plus 4%, and a ban on certain types of lawyer advertisements.

 

None of this would have been possible without the leadership of the House, Senate and Governor Sanford, a unified business coalition, the tort reform success of other Southeastern states, and the support of our national allies such as the American Justice Partnership.  It truly was a team effort.

 

So, what’s next?  Efforts to improve the economic prosperity of South Carolinians do not end here.  I am working with the business coalition and have already introduced a bill (H. 4154) to establish reasonable limits on non-economic and punitive damages, which is essential if South Carolina wants to once again lead the Southeast in economic development.  I look forward to working with the diverse groups of individuals and organizations to continue to improve the quality of life for the people of South Carolina. 

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