This story originally provided by The Charleston Gazette
June 22, 2004
Chris Stirewalt
Now we're looking up to Mississippi
Magnolia State has upped the ante on litigation reform
If West Virginia's trial lawyers succeed in getting Justice Warren McGraw
reelected this fall, they may be sealing their own unhappy fates.
Change can't be stopped forever, even here. And the longer the plaintiffs'
bar keeps propping up an extremist status quo, the worse it will be for them
once it finally tips over.
Of course, they won't see it that way. The tortmeisters will keep plowing
money into McGraw's campaign, considering each dollar they give as a down
payment on new Porsches and beach houses.
But the more observant in the litigating class have surely seen the
handwriting on the wall, even if they can't bring themselves to admit it.
This month, Mississippi did what would have been unthinkable four years ago.
The Legislature there enacted sweeping tort reforms that will cut the legs out
from under the state's thriving lawsuit industry.
Gov. Haley Barbour is just back from a victory tour of the East Coast
financial centers to proclaim Mississippi "open for business." After
years of being considered the worst lawsuit environment in America,
Mississippians were ready to do whatever necessary to prove to corporate America
that their state was a good risk.
The reforms Barbour helped push through in a special legislative session
include a $1 million cap on non-economic damages in all civil cases, except for
medical malpractice cases where the cap was set at $500,000.
Reform-minded legislators also hemmed in punitive damages, tying the size of
punitive awards to the ability of defendant corporations to pay.
With Mississippi emerging from the lawsuit haze, you know who is left behind
sucking smoke.
West Virginia, once the second-riskiest place for companies to invest, will
finally have sole possession of the tort title.
How did Mississippi, the only state named in more punch lines than West
Virginia, come to such a point?
By traveling the same path that we're on now.
In 2001, Magnolia State doctors saw medical malpractice insurance rates
skyrocket as underwriters left the state in droves. Doctors began to leave, and
the largely rural state began facing the prospect of worsening doctor shortages.
At the same time, home and business insurance rates began a steady increase
for similar reasons.
The public began to realize that there were real costs to having a
free-for-all civil justice system. Politicians got the message and acted in 2002
to give doctors some relief.
Starting to sound familiar?
In the statewide elections of 2003, lawsuit reform was a key issue.
Candidates touting tort reform, like Republican Barbour, were swept into office.
Barbour put tort reform at the head of his agenda and held the legislature's
feet to the fire until he saw a bill he liked. Now the business world is
praising Mississippi and promising that investment will soon follow.
Even if West Virginia eventually gets to the same point as Mississippi, it's
not too late for the plaintiffs' bar to preserve some of the amazing success
they've had here.
But not if they keep Warren McGraw, who has become nationally infamous as a
justice who never saw a civil suit he didn't like.
With a McGraw win in November, plenty of legislators would want to step in
and take power away from judges and juries by imposing strict caps and other
harsh measures. They'll have the hearty support of the insurance industry and
the business community.
McGraw will be turned into a poster boy for a broken system, and Mississippi
has already provided one blueprint for fixing it.
But if McGraw were to have to turn in his robe, moderates would have a pretty
good argument for calling extreme tort reform unnecessary. If voters were
willing to remove out-of-control judges, the system could come back into balance
without any more meddling from the Legislature.
Good judges and good juries are the best form of tort reform possible.
Keep McGraw and have him made irrelevant -- or lose him and keep the doors to
litigation riches at least partly open. It's a tough choice for lawyers to make.
I suspect they won't spend too much time pondering, but at least Mississippi
has already shown them what they're in for.
Get ready, y'all.
Stirewalt can be reached at 348-4824 or at cstire@dailymail.com
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