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Tort 'reform' unfairly shifts responsibility to the victim By RICHARD J. PRENDERGAST

On March 9, Gov. Jim Edgar signed tort "reform." The new law does next to nothing to reduce frivolous lawsuits, and it does absolutely nothing to reduce health or liability insurance rates. As Robert Reed, editor of Grain's Small Business, wrote, "Don't be fooled into thinking tort reform is for the small business owner or everyday consumer. This is a bill crafted by the big companies and for the big companies."

The Chicago Bar Association (CBA) maintains a long-standing policy of political neutrality that precludes the use of CBA funds for political contributions. To those who argue that opposition to these changes in tort law was confined to the plaintiffs' personal injury bar, it is enough to say that the vast majority of CBA members do not practice as plaintiffs' personal injury attorneys. In short, the vote of the CBA's Board of Managers in opposition to the legislation cannot be impeached either by political affiliation or by allegations of member self-interest.

While there is no evidence that the new law will save or create a single job or advance economic development in Illinois, it limits the amount recoverable in severe personal injury cases and adds unnecessary pre-trial requirements and procedures that will delay disposition of cases. The abolition of joint liability will also invite suit against even the most peripheral co-defendants in injury cases, thus adding to the cost and delay of litigation. Businesses in Illinois with legitimate commercial cases waiting for trial will have to wait even longer.

Beneficiaries are limited to liability insurance companies and those whose negligence will cause serious and permanent injuries to Illinois residents. Although most lawyers will not be hurt in the least, there will be some big losers — homemakers, children, the elderly, and those most severely injured by exposure to defective products and the negligence of others. Some of them, unable to obtain full and fair compensation in court, will eventually have to turn to taxpayers for their care and support.

Space does not permit a full review of the sweeping changes in the law. A few highlights, however, should suffice.

• It establishes a $500,000 cap on non-economic damages. This provision creates a legislative determination of the maximum damages recoverable for permanent disability, disfigurement, and pain and suffering. This legislative preemption of the jury's role and function is unwise, unfair and of questionable constitutional validity.

The amount of the cap is well below the range of damages awarded in legitimate cases involving severe permanent injuries — not frivolous cases, but rather cases involving paraplegia, quadriplegia, blindness, deafness, brain damage, and other genuine permanent injuries caused by negligent conduct and defective products.

• The law provides that any claim for personal injury automatically waives the confidentiality of any and all past medical records and communications between the plaintiff and any physician, clinical social worker, psychiatrist, clinical psychologist, infectious disease clinic, gynecologist or other health care provider, even if the present claim involves an entirely separate and unrelated injury.

• The changes in product liability law are so broad and one-sided as to virtually eliminate product liability law in Illinois, or at least to make it extraordinarily difficult for any plaintiff to prevail in a product liability case. Ironically, most defective products purchased in Illinois are manufactured outside of Illinois and are not subject to oversight by Illinois regulatory authorities. Thus, changes in the law that make it more difficult to bring suit or prevail against such parties serve largely to protect the interests of non-Illinois businesses to the detriment of Illinois workers and consumers.

As the law of product liability developed over the past 30 years, manufacturers became increasingly conscious of the need to produce safer products and to correct product defects. By contrast, does anyone remember an automobile or other product recall initiated by a manufacturer in the 1950s?

• In a number of significant ways, the law also unfairly shifts responsibility away from culpable defendants, to the detriment of injured plaintiffs. These "reforms" include the abolition of joint liability and the imposition of unnecessarily stringent requirements in order to hold a principal liable for the negligence of an agent. In a claimed effort to level the playing field, the proponents of this law have tilted it decidedly in favor of the negligent parties.

The need for a thoughtful examination of Illinois tort law dictates that a far more deliberative effort be made to explore the issues. The current session of the Illinois General Assembly is far from over, and there remains time to make important and necessary revisions in order to achieve real and fair tort reform. *

Richard J. Prendergast is president of the Chicago Bar Association. He heads his own firm, Richard J. Prendergast Ltd.