Updated Election Results for Nader/Gonzalez State by State

Tort System

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Defend, Restore and Strengthen the Civil Justice System

The civil justice system is one of the last places in this country where individuals can successfully challenge insurance companies, the corporations that make dangerous consumer products, and those who injure and kill through environmental and occupational dangers.

But for the past twenty years, corporations have been in the forefront of an all out attack – they call it tort reform, we call it tort deform— on the American right to trial by jury in civil cases.

This tort deform movement has invested millions of dollars into a campaign to create hundreds of think-tanks, public relations, polling and lobbying firms – the propaganda machine of reckless companies seeking to escape the law.

These groups keep chipping away at state and federal laws designed to protect individuals from the rapacious wrongdoing of large multinational corporations.

The ultimate goal of the tort deform movement is to immunize corporations from lawsuits brought by injured citizens seeking justice against the perpetrators of harm.

The corporations pursue this goal in a myriad of ways – but primarily by lobbying legislators to deny injured citizens their full day in court by denying them a variety of long-established remedies and procedures—and by targeting for electoral defeat conscientious judges.

The corporate lobbyists are not absolutists. They will take what they can get. And they have gotten a lot – one slice at a time, year after year.

In many states, their tort deforms campaigns have capped real damages, pain and suffering damages, and punitive damages.

They have also successfully limited contingency fees, and restricted joint and several liability.

The corporate tort deformers falsely argue that the civil justice costs too much.

But they say nothing about the human destruction that results from unsafe corporate practices that are responsible for hundreds of thousands of preventable deaths, injuries, and diseases and enormous economic costs to workers, consumers and the environment.

They say nothing about how the civil justice system reduces these costs by deterring companies from engaging in the wrongdoing in the first instance and making harmful and polluting corporations pay for their "torts.”

Despite corporate propaganda to the contrary, the American people want a chance to obtain justice before judge and jury.

Nader/Gonzalez would reverse the federal tort deforms of the past two decades, encourage the states to restore and strengthen the civil justice system, defend Americans’ constitutional right to a jury trial, and assign the resources necessary to bring to justice those corporations that unjustly injure innocent consumers and other citizens.

For more information, see:



Tort Deform, In Great Detail

For the last twenty years, the tobacco, pharmaceutical, auto, oil, chemical, and health care industries, in concert with their respective insurers, have fought to limit people’s rights to sue and to further limit their own liability for the damages they cause innocent victims. Targeting Congress and state legislatures with misinformation and anecdotal evidence, this de facto coalition has striven to undo careful progress made in our state courts affirming the right of every American to seek legal redress of harms. It should be a source of national pride that people who are powerless and defenseless sometimes get justice. Nevertheless, moneyed interests have long worked to persuade lawmakers to look upon this progressive evolution as shameful, economically harmful, and in need of misnamed legislative "reform."

A brief survey of the nature and scope of the most common legislative restrictions on the common law of tort vividly illustrates the grave restrictions posed by such an agenda. Advocates of the tort lobby widely support:

Bent on minimizing corporate liability at the expense of the individual’s right to have justice for injuries and damages, the "tort reform" lobby does a disservice to the very concept of reform, which certainly should not describe a reduction of the rights of people. The lobby’s aim is neither to improve upon nor correct our system of tort law; rather its aim is to disable that system. The lobby’s true aim is tort <b>deform</b>.

Due to the pervasion of corporate influence in Washington, DC, the tort deform lobby has met with considerable success in recent years. The Clinton Administration signed into law several pieces of legislation restricting the rights of injured consumers to sue the perpetrators of their harm. Dating back to his Texas gubernatorial days, President Bush has supported enactment of some of the cruelest tort deforms in the country; tort deform proved to be a central issue of his first presidential campaign.

Nader/Gonzalez strongly opposes the enactment of tort deform legislation and supports repeal of all such legislative immunities and limitations on liability that Congress and state legislatures have enacted to date. Moreover, the Nader/Gonzalez Campaign would press for Congress to repeal the provision of the Employment Retirement Income Security Act of 1974 (ERISA), to allow medical malpractice victims to sue their HMOs.

We support the implementation of real reforms for controlling the federally-unregulated property/casualty insurance industry, reporting record profits. The Nader Campaign would prohibit use of protective orders and confidential settlements to conceal hazards. We advocate the strengthening of sanctions for companies engaging in document-destruction and other discovery abuses.

The civil justice system provides our society with its moral and ethical fiber. When the rights of injured consumers are vindicated in court, our society benefits in countless ways. Necessary compensation of injured victims and their families for unspeakable losses saves taxpayers from having to assist them. Preventive practices are encouraged in the marketplace, spurring safety-minded innovation. Public awareness of the needless and unacceptable risks associated with some products and services is elevated through disclosure of facts discovered during trial. This same public awareness often spurs the implementation of higher safety standards. The authoritative role of our judicial forums as havens for the ethical growth of the law is affirmed. This testimony to the United States’ respect for human life and individual rights serves to distinguish our country as an example among nations.

The tort deform legislation proposed in Congress and state legislatures around the country over the last twenty years undermines each of these functions. Under tort deform, the most severely injured or afflicted Americans are prohibited from holding the perpetrators of their harm accountable and obtaining fair compensation for their grievances. By their very design, tort deform legislation restricts the rights of 99 percent of Americans and allows corporations to escape restitution for reckless misconduct. Current trends in tort legislation are also unfair to well-behaved companies. When courts are endowed with the authority to hold corporations accountable for their misdeeds, every company has a genuine incentive to embrace best practices.

Tort deform is a direct threat to the independence of the civil justice system, one of the few forums wherein individuals can effectively challenge raw corporate and financial power. Judges and jurors are free from the direct influence of corporate lobbyists who use their influence to weaken regulations. Framed by legislators who never see, hear, or evaluate the evidence in specific cases, tort deform ties the hands both judges and juries, undermining our uniquely individualized system of justice.

If any judicial determinations are ever to be replaced by a codified system, that system must be premised on comprehensive, accurate data—not the monies of political action committees and special-interest influence-peddling. Only too aware of how damaging the adoption of a reasoned approach would be to their case, supporters of tort deform rely instead on false, distorted, or prejudicial evidence that either belies credulity or is so manipulated as to more closely resemble fiction than fact. Nor does the tort deform lobby ever ask judges for their considered opinions as to the need for such frivolously cruel legislation.

Here is what the uncooked data show: around the country, machines break, chemicals burn their victims, and the annual cost of the casualty count in the workplace and marketplace runs into the billions. Five years ago a landmark Institute of Medicine study reported that as many as 98,000 Americans were dying each year as a result of medical malpractice in hospitals alone 2, more than from motor vehicle accidents (42,815), breast cancer (39,800) or AIDS (16,369). By some reports, the situation may be much worse. According to a July study from the health care quality ratings and service company HealthGrades, Patient Safety in American Hospitals:

…over 575,000 preventable deaths occurred, as a result of the 2.5 million patient safety incidents that occurred in U.S. Hospitals from 2000 through 2002. 3

As the means at our disposal of accurately assessing the tragic consequences of lapses in the quality of American health care become more sophisticated, the gravity and frequency of those lapses seems only to increase.

Yet at least eight times as many patients are injured by medical malpractice as ever file a claim; at least 16 times as many suffer injuries as receive any compensation. Indeed, very few injured Americans file lawsuits. Overall, only 10 percent of injured Americans ever file a claim for compensation, including informal demands and insurance claims. Only two percent file lawsuits. 4

Moreover, the number of tort lawsuits filed in state courts is on the decline, down 4 percent from 1993 to 2002—despite a 13% increase in population, according to a ten-year survey conducted by the National Center for State Courts representing 35 states and 77 percent of the population. 5

Major corporations and their allies have also been feeding the public misinformation about the alleged need for tort deform legislation, including arguments that they are economically necessary. There is no basis for this view. The annual survey of business insurance, conducted by Ernst & Young and the Risk & Insurance Management Society, calculates annual insurance and claims costs for U.S. businesses, including property damage, workers compensation, and all other liability costs. These liability costs are minimal and generally declining—only $5.20 for every $1000 in revenue in 1999, down 37 percent from $7.10 in 1992. 6

This important fact (not to mention record corporate profits year after year) makes it preposterous for corporations or politicians to even argue the existence of an economic need to ration justice or limit compensation for people injured by corporate products or services. A recent report from the Center for Justice and Democracy offers further perspective:

…according to a report by the Consumer Federation of America (CFA) based on data collected by the National Association of Insurance Commissioners, products liability insurance costs only 16 cents per $100 of a retail product—a tiny fraction equaling less than 2/10 of 1 percent. Adjusted for inflation, products liability insurance costs have fallen about 75 percent over the last decade. 7

These figures represent an incredible bargain for reckless perpetrators, since 90 percent of those injured by medical malpractice, product defects, and toxic harm each year do not even file a claim for compensation. Corporate wrongdoers are paying only a fraction of the harm they are costing the family pocketbook, workers, and the health care industry. When an American is hurt and the wrongdoer doesn’t pay, taxpayers must often pick up the tab for publicly funded health and disability programs.

No "crisis" or "explosion" in punitive damages awards exists to suggest the need for legislators to usurp the rightful authority of judges and juries. In fact, punitive damages are rarely awarded. A recent report by the Bureau of Justice Statistics and the National Center for State Courts, examining 2001 state court data in the nation’s 75 largest counties, showed that punitive damages were awarded in only 5.3% of cases won by plaintiffs, and that the median punitive award was under $49,000. The median punitive damages awarded by a judge were $46,000, slightly lower than the median punitive jury award of $50,000. 8

Strangely, lawmakers considering the enactment of tort deform rarely ask the opinion of judges, who have more intimate knowledge of the system than anyone. Perhaps this is due to the fact that judges are in fact extraordinarily supportive of the civil jury system. According to a May 2000 survey of federal and Texas judges published in the Dallas Morning News,

The judges’ responses reflect a high level of day-to-day confidence in the jury system…. Only 1 percent of the judges who responded gave the jury system low marks…. Ninety-one percent believe the system is in good condition needing, at best, only minor work…. Overwhelmingly…judges said they have great faith in juries to solve complicated issues…. Ninety-six percent said they agree with jury verdicts most or all of the time. And nine of 10 judges responding said jurors show considerable understanding of legal issues involved in the cases they hear. 9

Were the tort deform lobby to give federal and state judges their well-deserved due with respect to the issue, it seems a likely that a great deal of air would be let out of the lobby’s argument. Of course, the tort deform movment has never really been in business of seeking out the wisest counsel. There is a constant, inherent bias in tort deform. It restricts suits from individuals while brooking no such infringement upon the right of corporations to brings suits against each other—or against individual persons.

Tort limits do not reduce insurance rates. The only study ever conducted of the impact of tort restrictions on insurance rates in every state in the country finds absolutely no correlation between enactment of tort deform and insurance prices. Some states without tort deform have experienced low rate increases while other states with major tort deform laws have seen very high rate increases relative to national trends. 10

In 1995, under the lobbying of Governor George W. Bush, Texans were forced, through the enactment of a series of repressive tort deform measures, to trade away their legal rights in exchange for the promise of $864 million a year in insurance savings. But a recent study by J. Robert Hunter, Director of Insurance for the Consumer Federation of America (former Texas Insurance Commissioner and Federal Insurance Administrator under Ford and Carter), found that overall insurance premium savings, including any that might be attributed to these tort deforms, have been a "small fraction of the amount predicted by the legislature and claimed by the proponents." In fact, as the study found,

on an overall basis, premiums in Texas in the lines containing liability components have risen by 6.9% from 1995 to 1997, whereas the same lines saw a premium increase of 5.9% nationally. On an annualized basis, Texas premiums rose by 3.4% vs. 2.9% nationally. So, despite the ‘savings’ claimed for tort reform, premiums in Texas are going up for liability lines at a faster rate than the national average. 11

As you read the below history of the tort deform of the past two administrations, recognize the Democrat/Republican collusion, and that neither Obama nor McCain has spoken out against this injustice to average Americans.

The Bush Record Prior to 2000

The corporate attack on Texans’ rights began in 1987, returning in 1993 and again, with a vengeance, in 1995, under then Governor George W. Bush, who made tort deform a legislative priority for his administration. One of Bush’s first acts as governor in 1995 was to meet with representatives from nine "Citizens Against Lawsuit Abuse" groups in Texas—front groups for Texas corporations seeking to immunize themselves from lawsuits—after which he declared a legislative "emergency" on "frivolous" lawsuits. Governor Bush signed several bills severely restricting injured consumers’ rights and limiting liability risks for Texas corporations. The legislation signed by Governor Bush placed:

Taking time out from raising money for the Republican presidential race, Governor Bush in June 1999 signed a bill preempting lawsuits by cities, counties, and other governmental entities against the gun industry.

In a January 2000 study, Texans for Public Justice reported that:

PACs, business and individuals affiliated with Texas’ two major corporate tort groups contributed a total of $4.1 million to Bush’s two gubernatorial campaigns. As such, these business tort interests contributed more than any other interest category besides Energy and Natural Resources. 12

At least 75 percent of the members of the Texas Civil Justice League, the oldest tort deform lobby group in the state, contributed to Bush’s presidential campaign.

In February 2000, candidate Bush unveiled his tort deform plan at Newberry College in South Carolina. Included was a provision that would penalize victims exercising their constitutional right to reject a defendant’s settlement offer and go to trial and win, but receive less by the judge or jury. In such cases, the injured victim would be required to pay the other party’s costs, including legal fees—pressuring victims with even very strong cases against pursuing their legitimate claims in court, for fear of economic devastation from legal costs on top of already substantial medical bills. Notice how this favors deep-pocketed, expense-deducting corporations as compared with individuals. Bush’s proposed plan also made it easier for defendants in civil actions to remove cases to federal courts, presently considered more "friendly" to business interests. Furthermore, Bush’s plan contained several provisions targeting plaintiff lawyers’ general contingent fees, even though it is the defense lawyers who are paid by the hour and are thereby motivated to drag out lawsuits.

At the time of Mr. Bush’s proposal, I criticized his animosity to the right of all Americans to have their full day in court, under state tort jurisdiction without federal preemption. I called Vice President Gore to stand up for the civil justice system with a strong response to Mr. Bush’s pro-corporatist position. Although Mr. Bush was playing handmaiden to the tort deform lobby, the Vice President, with his several corporate lobbyists advising him, chose to remain silent on the matter.

The Clinton/Gore Record

Perhaps Al Gore’s response should have come as no surprise. After all, for the previous 16 years callous corporate interests had been greasing the House and Senate with tens of millions of dollars year after year in their push for tort deforms, often with the appalling cooperation of the Clinton Administration. Indeed, the Clinton Administration signed into law several pieces of legislation to partially federalize, preempt, and downgrade the nation’s state tort laws. A more comprehensive bill, which Clinton had signaled he would sign, never reached his desk on account of an intra-industry struggle within the Senate. Such a preemption had been opposed by numerous judicial experts, including the Conference of Chief Justices in the 104th Congress, as presented in testimony before the Senate Commerce Committee by the Honorable Stanley Feldman, Chief Justice of the Supreme Court of Arizona. Even so, among the bills that President Clinton signed into law were:

According to a tabulation by the National Law Journal, President Clinton on 11 different occasions signed bills that limit remedies of injured people and their lawyers in cases involving, among other things, defective aircraft, faulty medical implants, Y2K glitches, securities fraud, and railroad accidents. These laws should be repealed to restore consumers’ rights in the courts.

While President Clinton vetoed the Private Securities Litigation Reform Act of 1995, which makes it more difficult for defrauded investors to file lawsuits for securities fraud, his tepid opposition failed to secure enough votes to withstand the override drive of fellow Democratic Senator Christopher Todd. The veto override was one of only two in Clinton’s Presidency. Changing his position altogether, Clinton would eventually sign into law a second bill expanding upon the first one, the Securities Litigation Uniform Standards Act of 1998.

Now Congress is considering several additional bills, with misleading names, that would create drastic new immunities for corporations, the result being that corporate wrongdoers will get away without being made to pay for the harm and damage they cause. Among the bills Congress is now considering that require strong opposition are:

Presidential candidates should strongly oppose each of these bills.

Though it was nearly twenty years ago that I authored a piece for the Denver University Law Review declaiming tort deform as "one of the most unprincipled public relations scams in the history of American industry," it saddens me to concede that the callousness of the tort deform lobby’s well-financed propaganda has proven to be no obstacle to the lobby’s broad success. Predicated as their arguments are upon an ideological drive for ever more immunities—preaching the urgent necessity for restraining the individual’s access to the civil courts even as dockets are flooded with inter-corporate suits over commercial losses 13—tort deform’s proponents nevertheless benefit from the momentum driving the broader corporatist agenda, of which tort deform represents but a single facet. Still, there is a growing awareness of what makes the tort deform movement tick. In his October 2003 report for the Commonweal Institute, The Attack on Trial Lawyers and Tort Law, David C. Johnson adroitly conveys a keen sense of both tort deform’s ideological underpinnings and its practical purposes:

The alliance of the tort reform movement with the far right involves an agenda that goes beyond such tort-specific issues as jury awards. These linked movements want more than just restricting litigants’ rights and weakening regulatory restraints on business. By working to limit jury awards, and thus limiting the income of plaintiffs’ attorneys, conservatives seek to "defund the trial lawyers," thereby undermining the attorneys’ ability to lobby effectively and to contribute money to the conservatives’ political opposition. 14

Though this perspective on the problem of tort deform emphasizes potentially dire consequences within the narrower context of a partisan call to arms, Mr. Johnson’s insight into the immediate need for encouraging vigorous public debate on the matter is on point.

As stressed earlier in this campaign, the task of speaking out for our civil justice system—a pillar of our democracy—is uniquely suited to John Edwards, whose selection as Senator Kerry’s running mate puts him in the visible position, as a former trial lawyer, to defend against the commercial interests who seek to keep closing the courtroom doors. It was dismaying to hear Senator Kerry’s loose comments recently, to the effect that Senator Edwards’ laurels from bygone courtroom days might be made to camouflage a dearth of real policy in support of our tort law system. It was particularly disconcerting to hear Senator Edwards speaking at the recent Democratic National Convention with such pride for his past work within our civil justice system but with no words to indicate his future commitment to defending its ever more critical role as a bastion against reckless or willful harm from corporate technology or practices. Even searching for a passing reference to our tort system in the Kerry/Edwards Campaign website is an exercise in futility—remarkable and disturbing given the issue’s media visibility.

Among the positive steps Congress should take are:

Tort deform makes it difficult or impossible for American consumers who suffer devastating injuries at the hands of corporate wrongdoers to be adequately compensated for damages. It merely adds to the many obstacles that consumers hurt by defective products, toxic chemicals, and dangerous drugs already face in bringing offenders to justice. Tort deform is no more than a bailout from liability and responsibility for corporations, often the largest and richest corporations in the world, at the expense of all Americans. Tragic costs, both human and economic, are borne by the wrongfully injured and their families, with the wrongdoers themselves escaping accountability.

The interests of the tort deform lobby are not the interests any Presidential candidate should be elected to promote.


Center for Justice & Democracy. "Glossary of Tort Reforms." http://www.centerjd.org/free/mythbusters-free/MB_glossary.htm. (August 9, 2004).

Linda T. Kohn, Janet M. Corrigan, and Molla S. Donaldson, editors. To Err Is Human: Building a Safer Health System. National Academy Press. 2000. http://books.nap.edu/books/0309068371/html/1.html# pagetop. (August 8, 2004). 1.

HealthGrades. Patient Safety in American Hospitals. July 2004. http://www.healthgrades.com/media/english/pdf/HG_Patient_Safety_Study_Final.pdf. (August 9, 2004). 6.

Rand Institute for Civil Justice. Compensation for Accidental Injuries in the United States. 1991.

National Cetner for State Courts Statistics Project. Examining the Work of State Courts. 2003. http://www.ncsconline.org/D_Research/csp/2003_Files/2003_SubCivil-TORTCON.pdf. (August 8, 2004). 23-4.

Joanne Doroshow and Emily Gottlieb. Survey Says…"Tort Reform" Not a Priority for Business. Center for Justice & Democracy. 2001.  http://www.centerjd.org/free/tort-reform-not-priority.pdf. (August 8, 2004). 17-8. Ibid. 18.

U.S. Department of Justice. Bureau of Justice Statistics. Civil Justice Statistics: Summary Findings, 2001. http://www.ojp.usdoj.gov/bjs/civil.htm. (August 8, 2004).

Allen Pusey. "Judges Rule in Favor of Juries." Dallas Morning News. May 7, 2000. 1J.

J. Robert Hunter and Joanne Doroshow. Premium Deceit—The Failure of Tort Reform to Cut Insurance Prices. Center for Justice & Democracy. 1999 & 2002. http://centerjd.org/PremiumDeceit%20.pdf. (August 8, 2004). 15-8.

J. Robert Hunter. Texas Tort Reform’s Incredible Shrinking Savings. Consumer Federation of America. 1999.

Texans for Public Justice. The Governgor’s Gusher: The Sources of George W. Bush’s $41 Million Texas War Chest. January 2000. http://www.tpj.org/docs/2000/01/reports/gusher/interest.html. (August 9, 2004).

As has been commendably well documented by the Center for Justice & Democracy’s Hypocrites of "Tort Reform" study series. http://www.centerjd.org.

David C. Johnson. The Attack on Trial Lawyers and Tort Law. The Commonweal Institute. October 2003. http://www.commonwealinstitute.org/reports/TortReport.pdf. (August 8, 2004). 8.