August 30, 1994

Charles J.X. Kahwaty
Editor in Chief, The Bergen Barrister
The Lincoln Building
45 North Broad Street
Ridgewood, NJ 07450

As I am sure most of you are aware by now, tort reform is a hot issue in Trenton these days. Over this past summer, the Senate Commerce Committee held hearings which focused upon several bill, the passage of which would do little more than give unwarranted privilege and immunity to corporate and individual wrongdoers. I'd like to discuss with you the substance of these bills and what, in my view, we as lawyers need to do in this critical battle to preserve the civil justice system in our state.

The focus of this so-called reform has centered on a package of five proposed bills which have been strongly supported by a group called CALA - Citizens Against Lawsuit Abuse. Those bills are as follows:

(a) S765/A998 which would eliminates joint and several liability.

(b) S292/A1334 which would effectively eliminate a consumer's ability to obtain punitive damages.

(c) S290/A999 which would provide immunity to a retail seller of a defective consumer product.

(d) S763/A716 which would provide immunity to a medical provider who implants a defective medical devise into a patient.

(e) S766/A263 which would require an affidavit of merit within 60 days of filing a malpractice complaint. The bill requires that at least 80% of the affiant's practice be devoted to teaching or to clinical practice.

Two additional bills which were debated before the Senate Commerce Committee without opposition by CALA, but which CALA now says it does not support, are S423 which would require the plaintiff who looses a civil lawsuit to pay the legal fees and costs of the successful defendant and S424 which would eliminate the contingency fee.

I am pleased to report that none of these bills was voted out of committee this past summer notwithstanding that the chairman of the committee ardently supported each of them. The battle, however, has just begun.

Governor Whitman publicly stated that she is in favor of tort reform and directed her counsel to hold roundtable discussions to discuss these bills. While I was pleased that representatives of ATLA-NJ and of many consumer groups were invited to and in fact did participate in these hearings, I was somewhat disappointed that the format of these meetings did not provide for any debate between and among groups with different points of view. These discussions have concluded and we must all now wait to see what recommendations come from the Governor's office.

While many groups and many individuals, including members of your own Bar Association, deserve much credit for preventing passage of this anti-consumer legislation, we must recognize that we have much work ahead of us. We lawyers, including lawyers from the defense bar, have not done enough to teach those in business, government and academia about the rule of law. We quietly have endured years of lawyer bashing and, as a result, are now witnessing the bashing of not only innocent victims but also of our very system of civil justice. Professor Marc Galanter, in an article entitled "Pick a Number, Any Number", observed that

It seems that in addressing the legal system, fibs and fables are acceptable. The response of the legal profession has been feeble. For too long, lawyers have acquiesced to a public discussion of legal policy that tolerates argument by anecdote and assertion without evidence. The profession has failed to build a knowledge base that would rescue public debate from bogus questions and fictional facts.

Our feeble response must end. The legislation ultimately passed by our lawmakers will have a lasting and profound effect upon all of us in this state. We must ensure that our decision makers not be persuaded by argument based upon anecdote and propositions built upon myth. They must understand that those who would use estimates of the cost of our civil justice system as a guide to implementing policy show a significant and callous indifference to the very vital function that the law performs by affording vindication to the injured; inducing investments in safety by business and industry; and deterring undesirable behavior by wrongdoers.

We are told that the system needs to be reformed because New Jersey is flooded with lawsuits, many of them frivolous. However, products liability lawsuits comprised only 1.16% of all civil cases filed from 1991 through 1993, according to statistics published by the Administrative Office of the Courts. This is far below the national average and probably was a direct result of product liability legislation passed in this state in 1987. Moreover, all tort liability lawsuits (excluding auto) make up less than one-half of one percent of the total caseload of our state courts.

It has been alleged that medical malpractice reform is necessary because the present system increases the cost of health care and imposes an unfair burden upon practicing physicians. Again, however, the facts do not bear out the allegation. According to a study conducted by the Harvard Medical Practice Study Group and extrapolated nationally, 80,000 Americans die in hospitals every year from the negligence of their health care providers and, astoundingly, more than 300,000 Americans are injured due to medical negligence. Medical negligence is the third leading cause of preventable death in the United States, behind only cigarette and alcohol related deaths. Notwithstanding that dramatic fact, only about 2% of those injured by physicians' negligence ever seek compensation through the legal process. In New Jersey, malpractice cases constitute only 1.13% of all civil cases filed. And, in a 15-year review conducted by the Medical Interinsurance Exchange, a doctor-owned insurance company which insures approximately 70% of the doctors in this state, it was reported that jury awards in malpractice cases have been fair and that unjustified payments were rare.

We lawyers must provide our decision makers with these facts so that they can make informed decisions on these issues which are of crucial importance, not only to those who seek privilege and immunity from the consequences of their wrongdoing, but to the victims of careless drivers, defective products and medical malpractice as well.

We inherited our civil justice system, with its centerpiece of trial by jury, from persons who believed it was worth dying for. We are responsible for those who come after us. As long ago as 1803, in the landmark case of Marbury v. Madison, Chief Justice John Marshall declared

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.

I and other members of ATLA-NJ pledge to continue the fight to assure that this special interest legislation, which does nothing more than grant unwarranted privilege to corporate and individual wrongdoers, is defeated. I invite you, at this most important time in the history of the civil justice system in our state, to become a member of ATLA-NJ and to join us in this battle.

DONALD A. CAMINITI
President, ATLA-NJ