Tort reform was marked near the top of the Wisconsin GOP's policy wish list during last year's campaign, as Scott Walker blamed frivolous lawsuits for costing Wisconsinites jobs, driving up health care costs and even destroying family farms. Along with anti-union measures and corporate tax cuts, the legislation is a priority of the business community, especially for Wisconsin Manufacturers & Commerce.
As always, the issue of civil litigation is distorted by the negative perception of the plaintiffs lawyers who make it possible the ambulance chasers, the scheisters, and John Edwards. I can't tell you how many times I've heard somebody claim to have read about a burglar who successfully sued because he hurt himself while breaking into a house. The only instance of such justice being rendered that I could verify took place in Liar, Liar.
And it's the perceptions, not the facts, which allow the GOP to define the status quo of corporate liability law as a situation in which large corporations and small businesses are at the mercy of any fool who slips and falls on their property or eats too many of their french fries.
Such is not the case. While some trial lawyers certainly partake in excess, so do many prosecutors. But both are still vital components of our system of checks and balances, in which persons who cause others harm should not only be forced to pay restitution, but should be punished. The governor, who has proudly reflected on his authorship of the legislation which sent thousands of nonviolent offenders in prison for years, should understand that concept better than anybody.
But now the governor and his party are proposing legislation that would cap punitive damages in civil suits to $200,000. The action is more symbolic than anything else. In fact, only two percent of civil suits which go to trial yield any punitive damages at all, and of those, the vast majority represent sums of less than $100,000. In fact, a national conservative think-tank rated Wisconsin quite well in the torts arena, and the Journal Times reports that, on average, only two product liability cases and one medical malpractice case go before a jury every year (the vast majority of civil actions conclude with settlements or dismissals).
Predictably, the Democrats, rather than countering with a serious discussion on our legal system, accused the Republicans of "protecting drunk drivers" who kill people. Even more predictably, Republicans responded by carving out an exception for drunk driving cases an exception that I am guessing will never be invoked in court.
Although it's disappointing to see the debate dedicated entirely to drunk driving, OWI does offer a good example of how the system is supposed to work. Our system (almost always) holds that a person who drives recklessly drunk and kills somebody will spend time in jail, regardless of the risk he poses in the future and how much remorse he expresses.
Why should corporations be treated any differently? Some counter that punitive damages are arbitrary, and in fact, the Supreme Court's rulings on them has encouraged this view. The Court has even specified what ratio of punitive to compensatory damages is constitutional (4:1), and has ruled that excess of that limit represents arbitrary deprivation of property rights. Talk about arbitrary.
It's a tough line to draw, but there needs to exist a means of punishing large corporations who often have nothing to fear from lawsuits from the little people. What is $200,000 of damages to WalMart? Certainly not a reason for it to change.