This is the third in a series of blogs discussing the erosion of the right to a jury trial.
In recent years, politicians and advocacy groups have bombarded us with calls for “tort reform.” It’s usually touted as a way to stop litigation abuse or to curb runaway verdicts. Unfortunately, it’s often little more than an excuse to strip away valuable rights, including the right to a jury trial.
We see this in the imposition of damage “caps.” Naturally, one of the jury’s most important jobs in the trial of a civil case is to determine the plaintiff’s damages. But tort reformers think they know best by capping certain kinds of damages. Trial lawyers will tell you that the most significant damages in a personal injury case aren’t always lost wages, medical costs, and other economic losses. Instead, it’s often noneconomic losses--things like pain, suffering, emotional distress, annoyance, aggravation and inconvenience. And that’s exactly where the tort reformers go to work.
Years ago, the legislature passed caps that applied in medical malpractice cases and in cases against governmental agencies. Then in 2015, the legislature passed a sweeping bill that imposed a cap in all tort cases. Even if someone was permanently and totally disabled and forced to suffer pain every day for the rest of their life, tort reformers said their pain was worth $500,000--not a penny more.
Another way tort reformers chip away at the right to a jury is by enacting absolute defenses. The open-and-obvious defense is a good example. Under prior law, it was up to a jury to decide whether a plaintiff should have seen and taken precautions against a danger. The jury would consider all of the facts and the fault of all of the parties in deciding whether a recovery was proper. But tort reformers pushed through a bill creating a new defense that kept many of these cases from even reaching the jury.
The framers of our constitution put their faith in jurors, not legislators. Tort reform has taken away more and more of the jury’s voice. That’s bad news for all West Virginians--especially for those who seek recovery for their injuries, only to find that our courts are no longer able to provide full and complete justice.
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