Fungal Meningitis Outbreak: Tort Reform Legislation Sponsor Still Doesn’t Get It.

I recently wrote about a few of the ways the tort reform legislation that hit Tennessee effective October 1, 2011 will impact the victims of the fungal meningitis outbreak.  

Heidi Hall of the Tennessean talked to one of the sponsors of the tort reform legislation.  This is what he said:

Sen. Jack Johnson, R-Franklin, said he stands by the need for it to attract companies and jobs to Tennessee — even though now at least 52 have been sickened in the state by the outbreak, and six of those cases resulted in death.

“If there was wrongdoing, I hope these people are run out of business,” said Johnson, who recently won a National Federation of Independent Business award for his tort reform efforts. “Let’s throw the book at these people.

“But for Tennessee and trying to make us a pro-business state, you take $750,000, that’s still a lot of money. How do you put a price on pain and suffering?”

There are so many things wrong with these statements that I don’t know where to begin.  But let me give it a shot:

  • The tort reform legislation doesn’t just protect in-state companies – it protects companies like the New England Compounding Center, which almost certainly has never employed a single person in Tennessee.
  • The entire idea that limiting the rights of people with valid lawsuits will result in more jobs has always been foolish.
  • Sen. Johnson wants to "throw the book" at the people who caused this problem, but he voted for legislation that makes it harder to do this.  Does he mean that the executives who ran these companies should go to jail?  Highly unlikely.  And corporations can’t go to jail – corporations can only be harmed by taking away their money.  But Sen. Johnson’s legislation limits the compensatory and punitive damages that can be awarded against people and corporations that harm others.  
  • "$750,000 is a lot of money."  Of course it is.  Few people would deny that.  But that statement is meaningless.  Do you think  Sen. Johnson would support a law that provides that no home in his district ( Brentwood and Franklin) can be sold for more than $750,000 because $750,000 is a lot of money?  Of course not.  Because one can only determine whether any given dollar value is too much or too little by looking at what you are trying to value.  Is $750,000 for non-economic losses too much for a person who must live the rest of their life on a ventilator?  For a person confined to a wheelchair?  To the person who lost a spouse? 
  • "How do you put a price on pain and suffering?"  It is easy.  We do what we have done for over 200 years in this country.  We gather up citizens from the community, swear them  to do their duty, have lawyers present a case under the guidance of a judge who tells the jury the law, and let those jurors decide the value after hearing evidence.  The trial judge is granted the right to change the amount determined by the jury under certain circumstances, and the Court of Appeals and Tennessee Supreme Court have the same right.  By the way, the people we trust to serve as jurors are frequently the same people we trust as voters.  I am sure Sen. Johnson has confidence in the ability of his constituents to vote for the right person, but I  wonder why he doesn’t trust them to follow the law when they serve on a jury.  He trusts jurors to impose the death penalty, but not to award an amount of money damages that they believe is reasonable under the evidence.
  • And by the way Senator, you and your colleagues did put a price on pain and suffering and death – without knowing any of the facts of any given case.  Let’s apply that to houses in your district:  "No home in zip code 37027 shall be sold for a price more than $750,000."  Is that fair?  
  • A "pro-business state."  All of us want Tennessee to be an attractive home for business. But what about the people who live here?  Don’t we want to be a "pro-human being state?"  And when we artificially limit the rights of people killed or injured by the negligence or recklessness of another aren’t we saying that we value the rights of businesses above the rights of people?  
  • Does Sen. Johnson really think it is fair that the Tennesseans who were killed and injured in this matter will receive less money than the citizens of other states who suffered the same outcome?  All because "$750,000 is a lot of money?"

No, Sen. Johnson and I will have to agree to disagree on this one.  I am not anti-business.  But I am opposed to any legislation that limits the responsibility of people or corporations for the harm they cause others.  And the fact of the matter is that some number of the fungal meningitis victims will get harmed twice in this tragedy – once by the companies that are directly responsible for the contaminated steroid, and once by a law designed to protect  those who caused the harm.


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