Ted Carter with the Mississippi Business Journal wrote a balanced article last week on the tenth anniversary of the 2004 tort reform measures. Here is the article.

Representative Jeff Smith was quoted as saying that tort reform should have been unnecessary:

 Rep. Smith, who became a Republican after failing to unseat McCoy as speaker a few years after the special session, said he thinks to this day the extended brawl and what many view as stringent restrictions on personal injury lawsuits could have been avoided. Circuit judges in about 11 counties were neglecting their duties and letting juries hand down outlandishly high awards that in many cases far exceeded amounts plaintiffs sought. 

“If judges had done their jobs over the previous 25 years we would not have been where we were,” Smith told a luncheon gathering at the Stennis Capitol-Press Forum Monday. 

Smith held special blame for the Circuit Court in Fayette County. There, he quipped, plaintiffs typically outnumbered the people living there.

There is some truth there, but the story is a bit more complicated. Juries in Fayette County were getting out of hand. That was fixed not by the tort reform caps, but by the Mississippi Supreme Court’s decisions that prevent joining hundreds of plaintiffs in one case in a county where one plaintiff resides, but is unconnected to the defendant or the dispute.

The Fayette court was correctly applying the then applicable joinder and venue law. Could trial court judges have done more to prevent jackpot justice verdicts? Sure. But defendants now love some of those same judges, so it was probably more the joinder and venue laws than the judges.

Many Mississippi doctors were getting drug into court in Fayette County in pharmaceutical cases where the manufacturer was the target defendants. Defense costs were hurting the physicians’ insurers. It was a legitimate problem, though maybe not as dire as some doctors were led to believe.

But again, tort reform caps are not what fixed this problem. You could remove caps in medical malpractice cases and it would have very little effect on the litigation climate and the viability of medical malpractice lawsuits. There would still be few med-mal cases and the defendant would still win most of those cases.

Another huge problem was the requirement that a defendant had to post a bond of 125% of a judgment to appeal. That was hard to do on a $500 million verdict in Fayette or a similar county. The Supreme Court also fixed this problem.

The tort reformers take all the credit for things that the Supreme Court actually fixed. It’s a bit frustrating. But that’s politics, Coach.