Immunity for pharmaceutical industries that manufacture bad drugs and medical devices. Caps on trial attorney fees. More incentives to stall payment of judgments to injured people and consumers. Bills calling for all of these so-called "tort reform" policies are promised features of Gov. Scott Walker's special session on jobs, which began Thursday.
Tort reform proponents, including the American Legislative Exchange Council or ALEC, argue current law makes it too easy for citizens to sue doctors for medical malpractice and businesses for faulty products and practices.
Opponents say these bills are anti-consumer, promoted only to further the interests of corporations and insurance companies.
The introduction of another round of tort reform in the Wisconsin legislature made Friday night's screening of the documentary Hot Coffee timely.
Produced by attorney Susan Saladoff, the film attempts to dispel misperceptions promoted by such groups as ALEC and the U.S. Chamber of Commerce about allegedly frivolous lawsuits, including one pursued by a woman who was severely burned by a cup of McDonald's coffee in the 1990s. The film also examines the politics behind tort reform -- including how national business groups have attempted to influence everything from public perception of injury cases to judicial elections.
The Center for Media and Democracy and the Wisconsin Association for Justice, an organization for trial lawyers, sponsored the screening at the Wisconsin Institutes for Discovery.
The tort reform bills in Walker's special session "have ALEC DNA" in them, Center for Media and Democracy executive director Lisa Graves said at the screening. ALEC, a group of state lawmakers and corporate representatives, drafts model legislation that promotes its goals of limited government and free enterprise.
Graves says she is particularly concerned about one proposal that would grant legal immunity to drug and medical device manufacturers if an allegedly defective product has been approved by the Food and Drug Administration.
She says she doesn't feel very reassured by the FDA's approval process and questioned the real motivation behind the bill.
"There is a whole list of drugs that have been approved that turn out to be bad," Graves said. "Whose bidding is [Walker] doing? What companies have injured Wisconsin citizens and need this?"
The Republican-controlled legislature passed a sweeping tort reform bill in January. Part of the argument in support of the reform involved a so-called "lead paint" case where a Milwaukee boy suffered brain damage as a result of ingesting lead paint chips. His attorneys could not determine what manufacturer made the paint so they sued a number of Wisconsin paint manufacturers that once sold products with lead in them.
Proponents of tort reform claimed that it was unfair to hold these manufacturers accountable for a product they had not made since the 1970s. This case, however, was only tangentially related to many of the restrictions passed by the legislature on tort lawsuits.
The Wisconsin Association for Justice argues that the statistics on injury cases in Wisconsin show people do not file as many lawsuits as tort reform proponents claim.
Mike End, president of the group, says the public does not understand how difficult it is to win a tort case.
More than 32,000 people were killed or injured last year due to medical malpractice, according to a Wisconsin Administrator of State Courts 2010 report. Only 147 filed a lawsuit and only 44 were successful.
"You would have to be a loon to take a frivolous case to court," End says.
University of Wisconsin Law School professor Peter Carstensen says there is an economic disincentive to bring questionable claims to court.
In medical malpractice and other negligence cases the lawyer usually pays the cost of the lawsuit and will not get any money unless the case is won.
"What I know from people who do medical malpractice, before you bring [the case] you need about $150,000 to pay for costs," Carstensen says. "You don't put that much money on the table frivolously."
One of the most famous "frivolous" cases was Liebeck v. McDonald's Restaurants, which concerned the elderly woman scalded by McDonald's coffee. The case was a subject of ridicule by the media and proponents of tort reform for years. In her documentary, Saladoff set out to dispel the misconceptions about this and other cases, where consumers were in fact gravely injured by the negligence of corporations or doctors.
"There has been a public relations campaign by corporations for the past 25 years to convince the public that our court system is broken," Saladoff says. "It was successful and now people vote for tort reform, or what Ralph Nader calls tort 'de-form.'"
While addressing the audience at the screening, Saladoff called the movie a "call to action. Do something about this!"
