Capitol Chronicle

Intentionally, Knowingly, Recklessly

In March, Donna Bailey of Corpus Christi testified at the Legislature. You might recall that name: Last year, she was a casualty of a rollover accident in a Ford Explorer using Bridgestone/Firestone tires, and she filed a lawsuit against both companies. Once a physical trainer and active outdoorswoman, Bailey was made a quadriplegic by her accident and breathes with the help of a ventilator. Just prior to trial she won an unspecified multimillion-dollar settlement, as well as unprecedented public apologies from the executives of both Ford and Bridgestone. She was able to testify before the House Committee on Civil Practices only by videotape.

Bailey spoke in support of House Bill 3125, which is an attempt to hold accountable those corporations that, like Ford and Bridgestone/Firestone, continue to market products despite considerable evidence of danger to public health and safety. Testimony before the committee made it plain that both manufacturers had known for years (via consumer complaints and numerous accident-related lawsuits) about the dangers associated with their products, but effectively ignored them. Millions of people were put at risk, and many injured or killed, because the problems were kept secret.

HB 3125 would -- in extreme cases only -- remove the punitive damage caps passed in 1995 as part of former Gov. Bush's "tort reform" agenda. As Texas law now stands, punitive damages are essentially capped at two times lost wages and medical expenses, plus $750,000 -- hardly a counterweight to the potential millions or billions in lost profits represented by a massive product recall. Houston Democrat Fred Bosse described his bill as an attempt to capture "the worst of the worst" corporate actors, and to "make an exception for conduct ... where someone can sit down in the accounting department and set a value on human life, and then can make marketing decisions based on those values." If anything, Bosse's bill is too lenient -- it requires explicit proof that a company's executives "intentionally, knowingly, recklessly, or with criminal negligence" continued to market a product they knew was unsafe, a smoking-gun standard so high it is virtually unactionable.

Donna Bailey told the committee that it is "immoral and criminal to sell a product that you know is dangerous," adding that if HB 3125 does not pass, "We will be telling corporations they can get away with endangering Texas families." Many of the more than 200 Ford/Firestone victims were Texans, and several joined Bailey in testimony. Dawn Fuhrman of San Antonio, whose daughter Ashley died in a rollover accident, said, "We teach our children to take responsibility, and that's what we want these companies to do." George Blossey, whose wife was severely injured and 11-year-old daughter killed in an Explorer rollover, said that corporations must be "held responsible, so that they will have to disclose when there are major problems with their products -- because human life will be held above monetary gain." The Fuhrman and Blossey cases emphasized a particular cruelty of Texas-style "tort reform": Since minors killed immediately have no medical expenses and no employment record, they represent no "actual damages" beyond funeral expenses, and the companies are therefore not liable for anything but punitive damages to their survivors. "They told me that my son wasn't worth anything," said Vickie Hendricks, "because he had not established a career, and there was no way to show that he had any compensation coming. Well, I disagree with that very strongly, because my son was worth more than any money that Firestone or Ford could ever make."

Indeed, Evelyn El-Misnad, whose daughter died in a rollover during her first ride in an Explorer, noted that monetary damages are hardly proportionate to her loss. "In my mind, it was premeditated mass murder, because of the knowledge they had that they kept hidden -- and in my mind it was criminal conduct, and people should be held accountable. I don't see anybody going to jail."

So it went, witness after witness.

The only person to testify against the bill was Alan Waldrop of Texans for Lawsuit Reform, the deep-pocketed lobby group and PAC devoted to defending corporations against public accountability. According to ethics commission reports analyzed by Texans for Public Justice, two dozen major donors accounted for 80% of TLR's $1.5 million in PAC money in the 2000 election cycle, with most of the donors' corporate interests concentrated in industries with large potential tort liabilities: chemicals and energy, construction, property management, investment counseling, and medical manufacturers.

Waldrop denounced HB 3125 as an attempt to "roll back tort reform," and proclaimed that it would mean even sellers of apples or pencils would be liable for not warning consumers of potential dangers of their products. Committee members responded that when they voted for tort reform, they were told they were protecting "honest businesses," not corporate criminals, and that the new law would only apply in cases of conscious, intentional negligence. Waldrop was unmoved. "This bill is so broad," he insisted, "it will punish the innocent as well as the guilty."

You can probably guess how the story ends. In response to Waldrop's comments and the corporate lobby's opposition, Bosse duly weakened his bill, even providing that any excess punitive damages would accrue not to the victims -- or to their attorneys, perish the thought! -- but instead be forfeited to the state, for university research on product liability. Even then, it was no use. When HB 3125 returned to Civil Practices, it was officially "left pending" -- but according to a legislative aide close to the committee, the bill is dead. "There was an intense fax and e-mail campaign from businesses against the bill," said the aide. "There are some words that just set off alarms among the legislators, and 'tort reform' is one of them."

Donna Bailey asked if the Legislature would tell corporations "they can get away with endangering Texas families." I guess she has her answer. end story

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Donna Bailey, tort reform, Ford, Bridgestone / Firestone, Fred Bosse, HB 3125, George Blossey, Dawn Fuhrman, Evelyn El-Misnad, Alan Waldrop, Texans for Lawsuit Reform, Texans for Public Justice

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