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Walters : California’s ‘Tort Wars’ Flaring Up Again
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By Dan Walters, CalMatters Commentary
Published 3 years ago on
April 21, 2021

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To Capitol insiders, the term “tort wars” is shorthand for decades of political wrangling over the rules governing lawsuits for personal injuries — who can sue and collect damages for which actions.

The rules are a mix of legislation and appellate court interpretations, and with untold billions of dollars at stake, lawyers who specialize in personal injury suits and their political allies, such as unions and consumer advocates, clash constantly with business groups and insurers.

The former seek to expand opportunities to sue and the latter resist such expansions and occasionally try to narrow the scope of liability.

Dan Walters

Opinion

A Perpetual Conflict of Interests

Over the decades, the conflict has generated some memorable events. In 1975, for instance, a newly inaugurated Gov. Jerry Brown signed a landmark law, dubbed MICRA, that imposed tight limits on “pain and suffering” damages in medical malpractice cases. Next year, nearly a half-century later, California voters will decide whether the $250,000 cap should remain in place or be lifted, the latest of many attempts to undo the 1975 law.

A particularly colorful episode occurred in 1987, when lobbyists for personal injury lawyers and rival interests negotiated an armistice, finalized at Frank Fat’s restaurant in Sacramento with its provisions jotted down on a napkin. The “napkin deal,” as it came to be known, reduced liability for harmful products, such as cigarettes, and gave lawyers higher fees in medical malpractice cases.

The truce was short-lived, however, and the warring factions soon resumed hostilities in the Legislature and in ballot measures. Tort wars are a subset of the perpetual conflict that pits business, insurance and employer interests against unions, trial lawyers, consumer advocates and environmental groups over a broad array of specific issues.

Democrats Push to Expand Lawsuit Opportunities

Although the latter coalition is closely allied with the Legislature’s dominant Democrats, it has not been particularly successful over the years in advancing its agendas — and that’s true of tort wars as well, exemplified by multiple failures to change the MICRA cap.

However, with expanded Democratic majorities in the Legislature, new efforts are being mounted this year to expand lawsuit opportunities.

The Civil Justice Association of California, a business-backed lobby that does battle with Consumer Attorneys of California and other pro-lawsuit interests, has issued a list of bills it says would “threaten to undermine fairness and balance in the state’s civil justice system.”

Most would create “private rights of action,” empowering lawyers to enforce new state laws through lawsuits. One example is Assembly Bill 95, carried by Assemblyman Evan Low, a Cupertino Democrat, that would require employers with 25 or more employees to provide 10 days of paid bereavement leave, and allow lawsuits to enforce it.

Employers see the threat of such suits, with potentially heavy damages, as a tool to extract concessions and earn fat fees for lawyers. However, advocates say private rights of action are needed to discourage employers from flouting the law.

Occasional Exceptions

As noted earlier, most tort war clashes involve legislation that would expand opportunities to sue and collect monetary damages. But there are occasional exceptions and one is Senate Bill 332, which would reduce the likelihood of lawsuits for using controlled burns to counter the threat of wildfires.

The measure is being carried by Sen. Bill Dodd, a Napa Democrat whose district has been especially victimized by recurrent wildfires. It’s supported by agricultural and environmental groups, Indian tribes that have traditionally employed controlled burns, and the University of California. However, it draws opposition from Consumer Attorneys of California and, oddly, insurance companies that usually oppose the lawyer lobby.

It’s not the first time that tort wars have generated strange bedfellows.

About the Author

CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary.

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