A 30-Year-Old Law Prevents Woman from Jury Award

A Bucks County, PA jury has awarded a woman $14 million for severe injuries – loss of her left leg above the knee, a crushed pelvis, and other lower body fractures – that she sustained after an out-of-control Pennsbury school bus ran over her in January 2007. The accident was caused by driver error, a fact proven during the police investigation. Although Pennsbury finally accepted legal responsibility, it wasn’t until the day before the trial started.

The verdict reflected nearly $3 million in past and future medical expenses and $11.1 million in non-economic damages, such as pain and suffering and disfigurement. Unfortunately, this tragic victim will never see the full award under Pennsylvania’s 30-year-old state law that limits the legal liability for local governments, including school districts, to $500,000. That figure includes all damages not just "so called" pain and suffering. The state's highest court reviewed the liability cap issue in 1986 when it ruled that the State Legislature, not the courts, had the power to determine whether civil actions can be brought against a government body. It is this writer's opinion that the decision and decision like it violate the 7th Amendment of the Constitution (the right to jury trial and jury assessment of damages in civil cases).

Although an appeal by the plaintiff is expected, the plaintiff’s attorney hopes the school district will stop hiding behind the cap and do the right thing, but the chief legal counsel for the PA School Boards Association says it is not that easy; “the caps were put in place to limit the exposure to liability risk for state and local government bodies and, "by extension," taxpayers.”

Four days after the award, the plaintiff’s attorney learned that the Pennsbury School District has a $10 million umbrella policy for liability claims. The excess liability policy was in effect between July 1, 2006 and July 1, 2007; recall that the accident happened in January 2007. It covers personal injury, bodily injury, sexual abuse, fire damage and other claims. The district was legally bound to release this information during the investigation leading up to the trial, but failed to do so. Did the district negotiate in good faith? Why does a cap apply to this case but not others? Why the need for $10,000,000 in insurance if you have a constitutional cap?

After the accident, this young lady was hospitalized for 40 days and kept in a medically induced coma much of that time because of the pain from her crushed pelvis and other injuries; her left leg was amputated six inches above the knee. At 21-years-old, she is faced with a lifetime of physical, emotional, and financial challenges. Without a high-tech artificial leg that will cost $66,000, or $2 million for the rest of her life; she will never walk again. An expert witness testified that the victim would need $2.5 million to $2.6 million in accident-related medical care, if she lives to the expected age of 78; when adjusted for inflation the total would exceed $5 million; $5 million, and what will she receive? The most this young lady can expect is $500,000, less attorney fees and costs, and that is only if the other seven claimants do not win damage awards because under the statute, the $500,000 limit applies to all awards stemming from a single incident. Is $500,000 adequate compensation for the loss of her leg and a lifetime of pain and suffering, caused by someone else’s carelessness?

The US Chamber of Commerce and other “tort reformers” often call multi-million dollar recoveries “jackpot justice”. This little catch phrase suggests that people are being handed millions of dollars in what they call "frivolous cases". Did this case result in “jackpot justice”? What kind of life will this woman experience? How will she survive when the money runs out?

The chief legal counsel for the Pennsylvania School Board Association pointed out that exceeding the cap is not a simple decision. He said:

“The caps were put in place to limit the exposure to liability risk for state and local government bodies and, "by extension," taxpayers.”

Nonsense. The burden falls to the taxpayer anyway. And, in this case, the taxpayers funded a worthless $10,000,000 insurance policy! When this very unfortunate woman runs out of money (it will happen quickly) the taxpayers will be saddled with the burden; public assistance will pick up the difference. Why? Despite the rhetoric that "tort reform" benefits the taxpayer, it clearly does not. Its principal purpose is to increase the bottom lines of wealthy corporations and government entities at the expense of the seriously injured and disabled and the taxpayer! It is a taxpayer funded bailout of corporate and government interests. Liability caps have the perverse effect of limiting a plaintiff’s rights and shifting responsibility for the plaintiff's damages from the guilty member of the private sector to the taxpayer. Shielding corporations and government entities from liability and full damage awards is not a solution; the only solution is to improve safety, prevent injuries, save lives, and hold those responsible accountable for their actions. Lawsuits and full and fair compensation deter harmful, unsafe conduct; tort reform does not. If wrongdoers are not held fully accountable, what is left to deter wrongful conduct?

Damage caps are unconstitutional (read the 7th Amendment), unjust, and unfair. As citizens of this country, we have the power make a change for justice. Stand up for your rights; tell the US Chamber of Commerce, corporations, insurance companies, and other tort reform advocates to stop lying to the American people. Lawsuits are the number one safety enforcement tool in America; they are pivotal in bringing about necessary change. While big business and the Chamber spend millions blaming the lawyers who fight for your safety, lawsuits serve the crucial purpose of improving safety. While tort reform efforts weaken the ability of our civil justice system to enforce safety standards, the trial lawyers are out there, every day, fighting to strengthen those standards. Isn’t it time corporate America and the U.S. Chamber of Commerce spent its money on improving safety rather than on attacking lawyers and seriously injured citizens for the simple purpose of increasing already obscene corporate profits at the expense of the injured, the disabled and the taxpayers? Isn’t it time for all of us to stand up for safety and justice?

For the life of me, I cannot understand why a conservative Republican, who stands for strict constitutional observance, separation of powers, smaller ("hands off") government, and lower taxes would support the intrusion of the legislative branch into the judicial, the bailout of corporate interests at the expense of the taxpayer, and the blatant violation of the 7th Amendment of the Constitution. You cannot call yourself a "constitutional Republican" and pick and choose which constitutional provisions and amendments you are for and against. By definition, it's an all or nothing proposition, isn't it?

Citizens of the United States of America: Use your voice and your vote. Tell your state and federal legislators to stand up for justice, stand up for safety, and stand up for holding the wrongdoers accountable for their actions. Stand up against tort reform. Tell them if they stand with the tort reformers you will vote for their opponents. Together, we can make a difference.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board