California’s “tort wars” over the rules governing personal injury lawsuits are heating up again and dueling ballot measures may land on the 2022 ballot.
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One of the Capitol’s most enduring conflicts pits personal injury attorneys and their allies in consumer advocacy groups against corporate interests and their insurers.
The two factions clash incessantly over what events are deemed wrongful acts (torts), who can sue over those acts and what monetary damages can be awarded.
Dubbed “tort wars,” the conflict has raged for decades in the Legislature, in the courts and occasionally via ballot measures, each side depicting itself as the good guys and the other as rapaciously evil. Millions of dollars are spent each year on lobbyists, media strategists, political campaign advisors and other tools of the political trade.
The intensity of the war varies from year to year, and 2022 is shaping up as one its hotter periods as the factions propose dueling ballot measures. One would effectively undo a 1975 law that limits damages for “pain and suffering” in medical malpractice cases, while another would place a new limit on the fees that personal injury attorneys can claim.
That 1975 law, entitled the Medical Injury Compensation Reform Act (MICRA) and signed by Jerry Brown during his first year as governor, limits non-economic damages for malpractice to $250,000. Its passage was not only a big win for medical providers and their insurers but the opening salvo of the war.
The attorneys not only have tried — very unsuccessfully so far — to repeal or modify MICRA but have sought to expand opportunities to sue and collect damages and fees, such as allowing them to intervene in cases that ordinarily would be handled by local or state legal authorities.
Business groups and insurers, meanwhile, have not only attempted to blunt the attorneys’ expansive ambition but to carry the MICRA model of damage limits into other potential injury cases.
In 1987, 12 years after MICRA was enacted, the speaker of the state Assembly, Willie Brown, mediated extensive negotiations between the warring factions on a truce, culminating in the infamous “napkin deal” worked out in Frank Fat’s restaurant near the Capitol with Brown hopping from table to table.
Quickly ratified by the Legislature, it gave lobbyists for every interest involved something to take back to their clients, including a slight modification of MICRA and new protections for the tobacco industry from lawsuits by smokers for cancer and other illnesses.
The napkin deal truce lasted for a few years, but tort wars resumed in the 1990s and have been waged ever since on specific issues, including several unsuccessful efforts to change MICRA. One subset of the conflict, involving roughly the same interests, has been perennial jousting over workers’ compensation, the employer-financed, multi-billion-dollar system that covers job-related injuries and illnesses.
A ballot measure that would indirectly but effectively repeal MICRA is already qualified for the 2022 ballot even though the anti-MICRA coalition has failed repeatedly in the past to undo what the Legislature and Jerry Brown wrought 46 years ago.
Meanwhile, the Civil Justice Association of California, an umbrella organization of business and insurance interests, has unveiled its own initiative measure that would limit lawyers’ contingency fees in personal injury cases to 20% of monetary judgements, sharply lower than the traditional one-third or more. The goal, obviously, is to make attorneys less willing to take on cases.
The stage is set, therefore, for the competing factions to spend tens of millions of dollars to persuade voters, which would be a tiny fraction of the many billions of dollars at stake in the outcome. And regardless of what happens next year, the immense stakes mean tort wars will continue to rage indefinitely.