Tort Reform in Tennessee - Tennesseans better pay attention - Gov. Haslam and the "Tennesseans for Economic Growth" are going after more of your rights this year!

Not satisfied with the rights they stole from you last year, Gov. Haslam, Republican lawmakers and the deceptively named lobby group the "Tennesseans for Economic Growth" are angling againt to steal away more of your rights under the guise of economic growth and the catch phrase frivolous lawsuits. They offer you no real statistics, mind you. And they ignore the fact that we already have a rule in place to protect people from frivolous lawsuits and to sanction lawyers who bring them.

Rule 11 of the Tennessee Rules of Civil Procedure says:
11.02. Representations to Court.
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, --

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denial of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
When a lawyer signs a complaint and files a lawsuit, he is representing that he is not violating Rule 11. If he does, Rule 11 goes on to provide for punisments for the attorney and the plaintiff, including paying the defendant's legal fees.

So, all this nonsense about need laws that make the loser pay is a waste of time. Any civil judge in TN can already punish lawyers and plaintiffs for filing frivolous lawsuits. The reason I mentioned statistics is that there are not many frivolous lawsuits filed in this State, relative to the lawsuits with merit.

What this is all about is protecting corporations, health care and insurance companies from having to face lawsuits if they injure someone or do something that the rest of us are liable for. They simply don't want to have do it. They think they should be exempt from the responsibility that every individual in this society has to every other individual.

They justify it by saying that it promotes business. What they are really saying is that in provides protections for business so they feel free to push the lines of safety. They only care about profits, not people. That is the problem. I've worked for major corporations and I've seen this first hand. It is all about maximizing shareholder profit.

As you know, we are in the worst economic shape we've been in in seventy years. There are more people at the poverty level than there have been in the last half century. Yet, the rich are getting richer every day. Everyday, the gap between the poor, the middle class and the rich class is growing. Everyday, they take your money away from you, because they control the rules of the game.

That's all they are trying to do here, control the rules of the game for their own interests. If they can keep you out of court, they can do what they want, injure people, poison people, put dangerous productts on the market, let bad doctors practice, let drunk drivers drive trucks and run us over. All in the name of "economic growth."

You see, these folks see lawsuits as a form of regulation. And they don't like being told what to do - not by a government - State or Federal, and not by a Court. But, I suggest you think carefully about any company or industry - is there any one that you would trust to "self regulate" - would you believe them if they did? The bankers did a great job of that a few years back, didn't they?

Everyone needs to speak out. If you don't, they are going to take more of your rights away. They did it last year, they are going to do it again. We must fight back!

If you have been injured, wrongfully discharged, victimzed by fraud... call the Vogel Law Firm today 865-357-1949 or email rlvogel@robertvogellaw.com We will answer your legal questions and help you.

More TN tort reform may make the 'loser pay'

Tennessean, February 20, 2012

Group follows landmark law with plan to weed out frivolous lawsuits

Unsatisfied with landmark tort reform legislation that Gov. Bill Haslam and Republican lawmakers successfully enacted last year, business, insurance and health-care interests continue to push for laws that will reduce their exposure to civil lawsuits.
Proponents of the laws say they will help prevent the filing of junk lawsuits and improve Tennessee’s business climate. Opponents say they would improperly shield wrongdoers and close the courthouse doors to all but the very wealthy.
Last year’s legislation capped non-economic damages such as pain and sufferring at $750,000 and punitive damages at $500,000, with some exceptions for cases involving “catastrophic” losses or intentional misconduct, records destruction, or conduct under influence of drugs or alcohol. It also restricted claims that can be brought under the Tennessee Consumer Protection Act.
The Tennessee Civil Justice Act of 2011, as it was called, was enacted over the objection of trial lawyers and consumer advocates.
This year, the same coalition of businesspeople that helped sell the governor’s tort reform package, Tennesseans for Economic Growth, wants more limitations imposed in civil lawsuits, including a handful of bills targeting the losing side in civil cases and litigants who refuse to settle lawsuits.
One bill would require a party who loses a motion to dismiss to pay the litigation costs of the opposing party.
“Loser pays on motions to dismiss is designed to prevent frivolous lawsuits,” said Lee Barfield, a lawyer at Bass, Berry & Sims and lobbyist for the business coalition.
Another bill would require a plaintiff to pay the litigation costs of a defendant if the plaintiff refused a settlement offer from the defendant only to win less than 75 percent of the settlement offer at trial. Such payments would be taken out of, and capped at, a plaintiff's award at trial. The law would similarly punish defendants who refuse a settlement offer if the plaintiff wins more than 125 percent of their settlement offer at trial.
“It’s a two-way street,” Barfield said. “This is designed to get everybody to negotiate in good faith.”
Other lawyers disagree. While Barfield notes that the laws apply to all litigants, Lebanon trial attorney Keith Williams argued that, in practice, the laws will favor deep-pocketed corporations and insurance companies that can afford the risk.
Daniel Clayton, a medical malpractice lawyer in Nashville, said working-class Tennesseans and small businesses, on the other hand, might be too scared to file a lawsuit that has merit because the outcome of litigation is uncertain and they could get stuck paying the litigation fees of a company with an army of lawyers.
“If loser pays passes, it gives incredible power to insurance companies and big business because they can intimidate people and bankrupt people to make it very difficult for a family or small business to hold a corporation or insurance company accountable for wrongdoing,” Clayton said. “It would be the equivalent of the New England Patriots having to pay all the expenses of the New York Giants because they lost the Super Bowl. No one would claim that the New England Patriots shouldn’t have played in the Super Bowl.
“What we are dealing with is much more serious than a football game because it’s lives that have been catastrophically injured.”
Employer liability
Another reform supported by Tennesseans for Economic Growth would shield employers from having to pay punitive damages “when employees or agents cause injuries to others through intentional, reckless, fraudulent or malicious acts committed without the knowledge or complicity of the employer.”
Both Barfield and Clayton used the same example — whether a trucking company should be subject to punitive damages when one of its drivers injures or kills somebody while under the influence of drugs or alcohol — to make their points.
“It’s unfair to hold someone who is innocent liable for punitive damages when the punitive damages are designed to punish the wrongdoer,” Barfield said.
Clayton, however, said holding employers accountable for their workers promotes safety.
“If I know I’m responsible for my employees while they work for me, I’m going to have proper training, oversight and supervision,” he said.
Gary Zelizer, director of governmental affairs at the Tennessee Medical Association, said his organization will continue to push for a bill that would prevent emergency room patients from suing hospitals and doctors for negligence unless they can show “gross negligence.” When mistakes occur, Zelizer said it’s unfair to hold emergency room physicians to the same standard as doctors who know, and have a history with, a patient.
The ER difference
Clayton, however, said the current standard for medical negligence already affords protection to emergency room doctors because negligence is defined as care that is unreasonable or not consistent with standards set by their peers. In other words, Clayton argues that emergency room physicians already are held to a different standard because what is reasonable in an emergency setting is not the same as what would be reasonable in other situations.
“It allows doctors to commit malpractice and not be held accountable,” Clayton said of the proposed law, noting the difficult in proving gross negligence, defined as an act done with reckless disregard or utter unconcern for safety.
The emergency room, loser pays and innocent employer bills all are pending before the judiciary committees in the House and Senate.
Another proposal, which has not been formally presented but is being discussed at the statehouse, would see a constitutional amendment placed on the 2014 ballot. If approved, it would protect the Civil Justice Act from being overturned by the courts by amending the state constitution to specifically allow the General Assembly to cap damages in civil lawsuits.
Zelizer said medical malpractice insurers still don’t want to lower their premiums to hospitals and doctors, even though damage caps are now in place, because similar caps have been overturned by courts in other states.
Williams said that the fact that damage-cap proponents think a constitutional amendment might be necessary proves that the Civil Justice Act was an unconstitutional infringement on Tennesseans’ right to a trial by jury.
David Smith, a spokesman for Haslam, said the governor does not support a constitutional amendment. Smith said that last year’s legislation “was significant in making Tennessee more competitive for new jobs by bringing predictability and certainty to businesses,” but that this year’s proposals are still under review by Haslam.

http://www.tortreform.com/node/994