I recently posted a blog that explained the limits that have arisen against asserting or receiving punitive damages. Those limits remain controversial on both sides of the debate. Many think they remain insufficient – so much so that “tort reform” remains a buzz word among politicians. Flip the coin, and many others think the limits now in place should be struck down.
A popular argument is that legislatively imposed limits infringe on the power of the jury to decide the verdict. That has gained traction in a state or two in the Midwest whose courts have struck down laws limiting punitive or non-economic damages. But it has failed more frequently. That is because the legislative branch’s authority to cap punishment or recovery (by opposition to deciding the actual punishment or award) is not really in question. It is easily seen in criminal law. The legislature may not decide what prison sentence an individual convicted defendant will face, but it can say, for instance, that a felony of the nth degree is punishable by imprisonment of no more than so many years. Likewise, it may say, again as a hypothetical example, that punitive damages may never exceed $500,000, leaving the jury free to decide whether or how much to award under that limit.
Another attack on tort reform recently failed in Florida. An uncommon administrative process adopted to adjudicate some neurological injuries to newborns, and which bypasses the courts and awards the parents set amounts, was challenged as contrary to the state constitution’s guarantee of access to the courts. The challengers faced a hurdle: the state may curb unfettered access so long as it provides a reasonable alternative to protect people’s rights and shows an overwhelming public necessity. Sure enough, the process the legislature enacted was found reasonable and the need for simplified adjudication overpowering.
Whether tort reform should go further than it already has, whether it is a mere political tool, or whether it has gone too far already, is a debate not soon ended. In the meantime, better your attorney knows the lay of the land.