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ATRA Mixes It up with Plaintiffs’ Lawyers Over ‘Constitutionality’ of Statutory Liability Limits

In a recent story about court challenges to state statutes that reasonably limit awards for pain and suffering in certain types of lawsuits, the American Bar Association’s ABA Journal quoted an ATRA spokesman who said, “[l]imiting awards for subjective, noneconomic damages is one means to reduce incentives for bringing meritless lawsuits.”

The ATRA spokesman, director of communications Darren McKinney, considers the ABA Journal story to be “largely accurate and fair,” but adds that “it’s slightly weighted toward the view of plaintiffs’ lawyers and could lead a general reader to incorrect assumptions.  Not included in the story is the fact that a sizeable majority of state high courts that have considered the contitutionality of statutory limits on noneconomic damages have upheld them, rejecting arguments, among others, that limits deny plainitffs their right to a jury trial.  Only a minority of outlier states have struck down such limits.”

Disappointed by the story’s omission, McKinney went online to comment on the story, prompting reactions from two personal injury lawyers.  A back-and-forth ensued, in which McKinney argued that statutory limits on certain civil damage awards no more deny a plaintiff’s right to a jury trial than statutory limits or mandates for sentences deny a criminal defendant a right to a jury trial.  Since no one argues that a mandatory minimum sentence, for example, denies a criminal defendant his right to a jury trial, how can anyone with a straight face argue that a limit on civil damages denies a civil plaintiff her right to a jury trial?

John Vail of Washington, D.C. and Mark Ledbetter of Tennessee tangled with McKinney, defending the illogic of plaintiff-friendly state high courts in the minority for defending statutory award limits.  But non-lawyer McKinney held his own before an ABA Journal editor appropriately threw a bucket of cold water on the sparring match:


1. Darren McKinney Mar 27, 2013 10:55 AM CDT
It’s absurd to argue that a constitutional right to a jury trial per se proscribes lawmakers’ authority to limit what a jury may consider.  Criminal juries, for example, are not free to sentence a nonviolent burglar or car thief to death.  Similalrly, the type of evidence that a civil jury may be allowed to hear is routinely limited or expanded by lawmakers.  So how can anyone with a straight face argue that lawmakers have no constitutional authority to enact reasonable limits on damages in personal injury cases?  No one’s being denied a jury trial; it’s simply that parasitic plaintiffs’ lawyers are being denied opportunities to get rich beyond their wildest dreams at the expense of everyone else.

-Darren McKinney, American Tort Reform Association

2. John Vail Mar 29, 2013 9:19 AM CDT
Absurd?  Take a look at the opinion of the Washington Supreme Court in Sofie v. Fibreboard,  Argue with a straight face that legislators are not empowered to muck with jury awards?  See the Oregon Supreme Court’s explication in Smothers v. Gresham Transfer,  The short answer is that people didn’t trust corruptible legislators to deal with these issues.  They preferred to vest this power in a randomly selected group of themselves, not subject to the same corrupting influences.  “Parasitic plaintiffs’ lawyers” often provide the only access to justice against powerful corporate bosses and their well-compensated minions.
3. Mark Ledbetter Apr 1, 2013 12:26 PM CDT
The notion that ATRA has that to reform torts[civil wrongs], you do another wrong: limit the victim’s recovery. Mr. McKinney and his ATRA are looking out the wrong window. In fact, they need only look in “the mirror,” to see that, to reform torts or civil wrongs, you stop committing them! Simple, Darren. Work on that instead of trashing your victims. To make the perp the victim is the worst sort of evil, and one for which ATRA owes the world its apology!
4. Darren McKinney Apr 1, 2013 1:27 PM CDT
Please, Mr. Ledbetter. The only victims of ATRA are the connivingly parasitic personal injury lawyers who abuse our civil justice system in selfish pursuit of personal wealth at the expense of everyone else.  We don’t oppose righteous lawsuits filed by folks who’ve suffered real physical or financial injuries as a result of another’s negligence or recklessness.  We oppose the flimflams, the asbestos frauds, the orchestrated car accidents with alleged “soft-tissue” injuries, the shameless no-slip slip-and-falls, and multimillion-dollar class actions wherein consumers get coupons while you and yours get private jets.  With respect to Mr. Vail adducing two crackpot high courts that have jealously defended their plaintiff-friendly fiefdoms, so what?  That only means that lawmakers sometimes have to take the extra step of amending state constitutions, as they’re doing now in Missouri after the Show Me State’s high court struck down a reasonable statutory limit on noneconomic damages in medical liability suits last year.  If legislatures can and routinely do limit or mandate sentences for certain crimes without running afoul of anyone’s constitutional right to a jury trial, then surely logic dictates they can limit or mandate the ranges of awards for damages in civil matters.
5. John Vail Apr 1, 2013 1:40 PM CDT
How many focus groups does anyone think it took to come up with “parasitic personal injury lawyers”? And “crackpot high courts,”?  Those are not states that ATRA includes in its “judicial hellholes” program, and the Oregon court long has been regarded as a primary explicator of state constitutional law.

I’ll stand on the reasoning of Sofie and Smothers, which I’ve put out here for all to see.  And I would hope some good lawyers will see them, and look freshly at the organic documents of their states instead of letting views be shaped by DC propaganda shops.

6. Darren McKinney Apr 1, 2013 1:57 PM CDT
You flatter me, Mr. Vail.  No focus groups or extra expense were needed for me to discern and speak the truth about self-interested parasites as I see it (see additionally  If and when you’re candidly prepared to admit that a significant percentage of personal injury lawyers works to game and corrupt our civil justice system, giving the rest of you a reputation that rivals that of yesteryear’s horse thieves, the public may come to find you as credible as it finds ATRA.

7. Lee Rawles Apr 1, 2013 2:56 PM CDT

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