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Introduction
In
2004, the Mississippi Legislature passed comprehensive tort
reform legislation that many consider a model for the
nation. Among the provisions, the legislation reforms
Mississippi’s venue law, including a provision that venue
must be established independently for each plaintiff (thus
effectively wiping out the mass tort actions that have
plagued Mississippi courts for so long); caps non-economic
damages in general business / tort actions at $1 Million,
and caps non-economic damages in medical / health related
actions at $500,000 (thus, providing predictability with
regard to pain and suffering damages, the measurement of
which is totally subjective); immunizes sellers and
distributors of products from liability for latent defects
unless the seller / distributor has actual or constructive
knowledge of the defect; caps punitive damages according to
a sliding net-worth scale; and eliminates joint and several
liability, replacing it with a pure several liability
standard where a defendant only pays for his share of the
fault, regardless if this percentage is 1% or 99%.
(KRC:
WTTW, page 5)
History
-
The
2004 legislative session in Mississippi was not the
beginning of the fight. Instead, 2004 was the culmination
of a battle that had been waged for years, and especially
the last four years when the intensity had greatly
increased. (KRC:
WTTW, page 6)
-
In
2001, hearings were held in the Senate Insurance Committee,
and then in joint hearings before a special committee
appointed from the House of Representatives and Senate.
Major comprehensive legislation was introduced in 2000,
2001, and in 2002. In 2002, legislation actually came out
of Committee in the Senate during the regular legislative
session before it died on the floor calendar. This was the
most progress that had ever been made on major comprehensive
tort reform legislation in recent memory.
(KRC:
WTTW, A Short History, page 7)
-
The
Governor at the time was not a strong proponent of tort
reform, but public pressure had built to such a point,
especially with regard to the medical field, that the
Governor, over the objection of the plaintiff’s trial bar,
called the Special Session. After a grueling 83 day Special
Session, tort reform legislation was passed and signed by
the Governor.
(Both of
these bills can be found at www.ls.state.ms.us)
-
The
election of 2003 was an election where tort reform was front
and center. The Republican candidate for Governor, Haley
Barbour, and the Republican candidate for Lt. Governor, Amy
Tuck, both made tort reform one of the top platform planks
of their campaigns.
(KRC:
WTTW, A Short History, page 7-8)
We Fought a War, Not Just a Battle
-
War
is usually a series of battles that build upon each other.
The first key is the fact that the tort reform effort in
Mississippi was fought as a war, not just a battle. Just as
the invasion of Normandy in June 1944 probably would not
have been successful without the experience gained earlier
in North Africa and Italy, success in the tort reform war in
Mississippi would not have occurred without the lessons
learned and the foundations laid in the previous three years
of the fight. Conversely, the length of the war wore down
the opponents and taxed their resources.
(KRC:
WTTW, We Fought A War, Not Just a Battle, page 8)
-
Thus, a key to success in going forward in other states is
to plan to wage the fight over a length of time that will
allow all the necessary conditions and elements to be in
place for a final push.
(KRC:
WTTW,
We Fought A War, Not Just a Battle, page 9)
Consensus as to What Needed to Be Done
-
A
second key to success in the 2004 session is that there had
developed in the Mississippi Legislature a consensus as to
the reforms that were both substantively necessary and
politically achievable. This consensus resulted from the
fact that the fight extended over four years.
(KRC:
WTTW, Consensus as to What Needed to Be Done, page 9)
-
After the completion of hearings, the Senate members tried
to put our heads together to come up with a list of
recommendations. The list we compiled contained many of the
measures that various parts of the business or medical
community suggested. To a certain extent, the menu of
measures at that time was somewhat of a wish list of what
seemed to be good ideas. Unfortunately, there was no clear
consensus among legislative leaders of the effort at that
time on what was wheat and what was chaff, either
substantively or politically. By contrast, at the start of
the 2004 legislative session, the leadership of the pro-tort
reform forces in the legislature had a very clear idea of
the key provisions that could be sacrificed without any
significant loss to the effort. This consensus was only
possible because of the gnashing of teeth, the debate and
the process of living with the issues for three years
prior.
(KRC: WTTW,
Consensus as to What Needed to Be Done, page 9)
-
To
start, by 2004 valuable time and effort did not have to be
spent on educating a majority of individual legislators.
Further, the consensus gave legislative leaders the
confidence to say “no” to groups who wanted to add special
provisions to help their business or field. Most
importantly, “tort reform” came to mean something concrete.
(KRC: WTTW,
Consensus as to What Needed to Be Done, page 9)
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