NO GIANT STEPS

ON TORT LAW REFORM, boldness and courage did not abound at the American Bar Association's mid-winter meeting in New Orleans. Much of the discussion was akin to the medieval debate about how many angels can dance on the head of a pin. Nationally known attorneys contended at length over what constitutes a public purpose.

Finally, however, the delegates begrudgingly approved a resolution saying that in certain punitive damage cases, such as mass torts like aircraft accidents, the judge could be authorized to determine what portion of those damages should go to the victims and their lawyers. The rest of the award would be allocated to a related public purpose.Granted, the ABA did not accept the more sweeping language of its

commission that studied the tort issue. The commission said that in any liability action courts should - not could - determine the reasonable portion of punitive damages to compensate the plaintiff and his lawyer and allocate the balance to a public purpose.

In the same way, the bar association took halting steps to suggest modification of the lawof joint and several liability under which one defendant may be required to pay damages for pain and suffering caused by another. The ABA agreed those less than 25 percent at fault should not be required to pay non-economic damages attributable to someone else's negligence. This strikes at so-called deep pockets cases, where a defendant with only minor contribution to an injury is sued purely and simply because he may be the only one with funds enough to pay the judgment.

Similarly, the ABA voted to support a higher standard of proof before punitive damages, designed as punishment for irresponsible behavior, are awarded.

This is not a bold and challenging series of positions, but it is the first time representatives of the organized bar have agreed that the application of tort law, which determines who is liable when someone is injured, is running amok.

The system is foundering because judges and juries tend to be myopic, considering only the particular circumstances of the case before them rather than the long-term implications of injuries like asbestosis. Similarly, they tend to be blind to the costs to the community when damages are permitted to mushroom out of sympathy, say, for an injured child despite the fact no negligence was proved.

We have been paying for this litigation explosion in the cost of childhood vaccines, in the inability of communities to insure day-care centers, swimming pools, camps or even playgrounds, and in the closing down of hospital services

because of the inability of physicians to obtain affordable malpractice insurance. Also in the use of bankruptcy laws to limit the liability of companies saddled with judgments designed to punish behavior often not intentionally malicious.

No great strides were made in New Orleans, but the actions of the ABA do indicate a national consensus is developing that it is time to change the laws. The rest, under our Constitution, is up to state legislatures and Congress.

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