LOWELL GRISHAM: Protect the vulnerable
Issue 1 on November ballot represents skewed values
Posted: March 13, 2018 at 1 a.m.
How much is my 6-year-old granddaughter's life worth? How much is my 39-year-old daughter's life worth? If Arkansas passes the constitutional amendment titled "Issue 1" in November, their worth would be capped arbitrarily at $500,000 each. If either my granddaughter or daughter were injured or killed by another's negligence, no matter how much physical or psychological pain they might endure, the value of their non-economic suffering would be $500,000 or less.
In November, Arkansas will vote on a constitutional amendment. Issue 1 proposes to limit non-economic damages to $500,000. My granddaughter is unemployed. The state would define her future potential lifetime income at no more than $500,000. My daughter is a stay-at-home mom. She's in the same economic category. At an income of only $25,000 per year, a worker will earn $500,000 in just 20 years.
If a defective product maims either of them, or if an understaffed, overworked hospital makes a devastating mistake, whatever pain, loss, suffering or even death that might ensue would only be valued at $500,000 or less in an Arkansas court. If the same injury were to happen to a rich 39-year-old businessman, he would be worth unlimited economic damage reimbursement. That seems wrong to me.
The Scriptures and Christian tradition mandate special protection for the poor and vulnerable -- "widows and orphans" and "the least of these." Jesus and the prophets go to great lengths to insist that it is the responsibility of the rich and powerful to care for the poor and vulnerable.
Issue 1 reverses that ethic. Under the moniker of "tort reform," Issue 1 presumes to limit access to the courts for those who cannot afford a lawyer, it takes away the power of a local jury of our neighbors to judge what is right and wrong, it lets politicians set the legal rules instead of the courts, and it assigns a dollar limit to the value of human life.
Nursing home neglect is already much too common in Arkansas. Twenty percent of our nursing homes are cited for errors each year, compared to only 5 percent in Oklahoma and Louisiana, according to the Arkansas Advocates for Nursing Home Residents. Maybe you heard about the Arkansas nursing home in December where every resident became infected with scabies mites while the administrators tried to cover up the paperwork. The nursing home industry and their incredibly powerful lobby is a major promoter of Issue 1.
Nursing homes factor in the modest costs of the minimal fines they face when such failures occur as a price of doing business. The only effective way to hold them accountable is for victims to exercise their Seventh Amendment right to a trial by jury.
Wealthy multi-million dollar industries like nursing homes have highly paid lawyers on their retainer. The poor family of an injured loved-one has to find a lawyer willing to fight those deep pockets for a percentage of a judgment, a lawyer willing to risk receiving no payment if they fail. Issue 1 also seeks to cap contingency fees for lawyers willing to take that risk for their injured clients. The writers of Issue 1 put that paragraph first because it looks like a virtuous slap on the face of greedy lawyers. Actually, the only limits are on the lawyers advocating for the injured, regardless of income. There is no limit on lawyer fees for wealthy industries.
Access to justice is already limited for the poor. Issue 1 handcuffs the weak even more. It removes the one thing that can scare a careless, dangerous company or manufacturer -- the threat of large, punitive judgments when they do wanton, careless damage to human beings.
Let's keep these decisions local. Let's continue to let a jury of our neighbors listen to the arguments from both sides and decide what is right and just. We don't need lobbyists and politicians deciding what a human life is worth. We don't need lobbyists and politicians telling us what non-economic and punitive damages are just when an act of negligence or malpractice causes serious injury.
The voters of Arkansas need to stand up to the rich and powerful and stand up for the right of every person to a day in court and to be justly compensated when they are seriously harmed. I don't want politicians and industry lobbyists deciding the limit of what my granddaughter and my daughter's lives are worth. Each of us deserves our Seventh Amendment right to a trial by jury and our right to a legal advocate. Remember in November, and plan to defeat Issue 1.
Commentary on 03/13/2018