This week the Oregon Senate killed a bill that would have allowed juries to award full compensation to victims for the negligent acts of others.
If you’re injured by another person and want to bring a lawsuit, current Oregon law caps your non economic damages to $500,000. That means if you or a loved one is grievously injured, loses a limb, a kidney, or the ability to walk, the State Legislature says your “pain and suffering and loss of enjoyment of life” isn’t valued at any more than $500,000.
Your health care provider and the hospital that treated you can still recover all their medical costs, and you can get your lost wages. But regardless of the severity of your injury, you’re quality of life is only worth a maximum of $500,000.
These laws are commonly called tort caps, or using the terms of insurance companies and the medical and pharma industries that are the main beneficiaries of these caps, “tort reform”
But this year the Oregon Legislature considered House Bill 2014 which would have deleted the cap. If a jury said your damages were $600,000 for losing your legs or $1,000,000 for living the rest of your life in a wheelchair, or god forbid, if your child sustained brain damage and lost sense of self and a jury awarded millions of dollars, then the insurance company would have to pay you that amount for the loss that a jury of peers determined was appropriate.
Even though the bill passed overwhelmingly in the House of Representatives, it was defeated in the Oregon Senate when every Republican as well as Democratic Senators Betsy Johnson, Elizabeth Steiner Hayward, Laurie Monnes Anderson and Lee Beyer voted no.
As reported by Oregon Public Broadcasting during debate a Senator Shemia Fagan a co sponsor of the bill said:
… it was a myth that insurance rates would rise if the bill passed. She argued that businesses and others opposed the bill because they knew jurors would come to fair conclusions.
“In a word, juries are incorruptible,” she said. “No wonder the powerful are terrified of them — incorruptible, ordinary people.”
This explains a lot. Maybe more even than Senator Fagan intended. And it extends way beyond the issue of tort caps.
Why do the most powerful institutions require employees to sign agreements waiving the right to a jury trial? Why do major corporations include in most of their contracts a provision requiring confidential binding arbitration rather than allowing parties to bring lawsuits in court? Why do even the basic real estate listing agreements we all sign require alternative dispute resolution (mediation and arbitration) and bar people from filing a lawsuit? Why do so many of these agreements also provide that each side has to pay their own attorney fees?
Perhaps it’s because powerful special interests use their lobbyists, connections, and campaign contributions to build relationships and goodwill among Legislators. They can get meetings whenever they want with Senators and Representatives and powerful staffers in the Governors office. In shaping legislation – like the caps on non economic damages – they can spend as much time and money as is necessary to persuade the representatives of the people to enact laws that allow them to limit our right to access the court system. But why would they want that?
In a courtroom, the Judge doesn’t allocate court time based on how much a party or it’s lawyers contributed to their campaign. Each side in court gets to call as many relevant witnesses as they chose. One side doesn’t get to take the jury out for lunch during the proceedings and talk about their case, or sign side deals with jurors to give “economic development and business advice”. Motions, opening arguments, direct and cross examination and closing arguments are equally available to all parties in a courtroom. Judge abides by a set of rules that apply equally and fairly to each side. Those rules weren’t written by one party, or one sector of litigants. They were developed over centuries of Anglo American jurisprudence – and Anglo Saxon common law before that.
Private mediation and arbitration are poor substitutes for a jury. And big business knows it. What powerful economic interests fear is the sense of justice and outrage that juries are uniquely known for. They prefer a retired Judge or layer who mediates and arbitrates for a living. Powerful interests are also interested in maintaining privacy. The last thing bad actors want is to have their bad acts exposed in open court as other aggrieved parties may be discovered once the bad acts become widely known.
The trend of Legislators to enact laws to allow powerful economic players to limit court access – or in the case of this legislation limit the ability of injured parties to be made whole by a jury of their peers – should be equally alarming to conservative, progressives, libertarians, and constitutionalists alike. While hiring an attorney can be expensive, Courts are the one branch of government where everyone has the same rules and no one can use their insider status to effect the outcome or financially reward the finder of fact – the jury – to rule in their favor.
It’s why you see over and over again the most powerful elements do all they can to stop access to courts. Whether it’s through contracts or legislation.
This bill was a test of our elected legislators commitment to fairness, their commitment of freedom to access courts, and their understanding of the historical role Courts have played in holding the powerful accountable.