Res Judicata: Leave Tort Reform to the States

Written by Howard Foster on Monday October 10, 2011

One tenet of all the Republican campaigns is the demand that Congress enact some type of “litigation reform.” This usually means caps on damages in civil tort litigation in general and punitive damages/pain and suffering awards in particular. Currently, there are no such limits under the Federal Rules of Civil Procedure.

So a plaintiff with a typical tort case for medical malpractice or a personal injury case filed in the federal courts can seek an unlimited amount of damages. If the jury agrees to award him or her, say $10, 000 in compensatory damages and $1 million in “punitive” damages or for pain and suffering, the jury can do so. The defendant can move after the trial is over to reduce the award on the ground that there was no evidence to support it, and if that fails, the defendant can, of course, appeal.

But the vast majority of ordinary tort cases are filed in state courts. And this is where the headline-grabbing jury awards occur. Only tort cases where the parties are from different states or those arising from a federal statute (like employment discrimination) are heard in the federal courts.

Some states, like Texas, have enacted caps on tort damages. Other states, like Illinois, have enacted them, only to have the state supreme court strike them down as violating the separation of powers provisions of the state constitution. Most states do not have such damage caps. For a presidential candidate to advocate meaningful damage caps, the caps would have to apply in state courts. And this means enacting a nationwide federal statute which would preempt (bar the states from passing their own laws) over that entire field of tort damages.

This is antithetical to concepts of federalism, “states’ rights,” and limited government. The Tea Party does not advocate such legislation. (Nor has it made opposing such a law a priority.) Gov. Rick Perry is explicitly in favor of such a law, and Mitt Romney is implicitly in favor of it (discerning his position from his economic plan released a few weeks ago). As Governor of Texas, Perry has strongly advocated tort caps (also euphemistically called “tort reform” when the advocate does not want to spell out how such a law would actually work), got them enacted by the legislature, and wants to do the same thing as president. But enacting damage caps at the state level is not an affront to the notion of federalism. It does not force other states to live under such legal rules. (For the record I’m in favor of state caps.) Gov. Perry has never, as far as I can tell, tried to reconcile his Texas model with his stated desire to adhere to the Tenth Amendment, which requires this entire area of law be left to the states. I hope this will come up at one of the Republican debates. He should have to explain this quite glaring inconsistency in his ideology. He will probably turn in one of his dismayingly inarticulate answers if it does.

Romney, possessing a much more nimble mind, might be able to explain what, precisely, his position is on this complex issue. Which is more important to him, federalism or the rights of tort defendants? I hope he will say something like, “let’s enact damage caps in federal courts, and if it works, then maybe more states will do the same.” There is no principled way for him to come out for federalizing tort law. This would be an unprecedented arrogation of federal power and flatly inconsistent with his critique of Obamacare.

If Romney really believes the federal government is not the solution to all of our problems, then here is where he must draw the line-at the place where one part of his base, doctors and other tort defendants, wants legislation at the expense of another part--the Tea Party and other advocates of federalism.