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April 30, 2003

With new Buffalo News editorials, momentum for tort reform accelerates

Growing momentum for tort reform in Albany appeared to accelerate further this week as the Buffalo News began a series of comprehensive editorials supporting sweeping civil justice reform.

In a May 1 editorial, the newspaper recommends sweeping reforms, including: caps on noneconomic; repeal of the law preventing contractors from introducing evidence of worker negligence in workplace injuries; limitation or abolition of joint and several liability, vicarious liability, and other theories based on "deep pockets;" movement toward no-fault medical malpractice; movement of suits against municipalities to the Court of Claims; and consideration of restrictions on contingency fees.

The series began April 27 with an editorial entitled "A System Out of Control." The editorial argued that trial lawyers are the reason civil litigation is out of control.

"The key to judging the claims and counterclaims about the need for reforming the state's laws governing torts lies in this illuminating fact: Everyone but the trial lawyers admits his role."

The editorial added: "[Trial lawyers] contend that existing statutes are fine, even though those laws may punish defendants for damage they did not cause and, in a fantastic, Orwellian loop of contradiction, actually prohibit certain defendants in New York from defending themselves."

The second editorial April 28, entitled "Malpractice Misery," said awards given in malpractice suits often are a response to the severity of injury and not the negligence of the doctor. This is causing some doctors to refuse high-risk patients, and others to retire earlier. The field of obstetrics is hit especially hard since obstetricians are the most at risk for lawsuits.

"And, perhaps worst of all, the system fails at the crucial task of deterring malpractice," the editorial said. "The current system, expensive and confrontational, discourages doctors from owning up to errors, thereby missing the opportunity for many physicians to learn from another's mistake."

The third editorial ("No defense," April 29) focused on section 240-241 of New York's Labor Law. As the editorial said, "the law imposes 'absolute liability' on contractors when a worker is injured in a fall. It is the only such law remaining on the books in the country and it is driving insurers out of the state, contractors out of business and the costs of construction through the roof."

In New York, if a drunken worker falls from a contractor's ladder, the contractor has no recourse but to "get out [his] checkbook. In this state, you're not even allowed to defend yourself."

The fourth editorial April 30, titled "The Search for Deep Pockets," scrutinized the law that says a defendant found responsible for only 51 percent of injury may be required to pay for 100 percent of the damages.

"In statutory language, that bit of legalized pocket-picking is known as 'joint and several liability,' but mainly what it is these days is a strategy for finding deep pockets to pay for the ever-rising judgments in damage or injury lawsuits," the editorial said.

Tort law also says an auto-leasing company, such as Ford or General Motors, may be responsible for 100 percent of damages in any accident one of their customers is in.

"That trick is called 'vicarious liability,' and it, too, is designed to seek out deep pockets."

The editorials are available from www.buffalonews.com/opinion/buffalonewseditorials.asp.