Tort Deform at the House

Tort reform climbs the mountain -- and then gets pushed back down.

Rep. Leo Berman, R-Tyler, shows the effects of last week's marathon tort-reform session.
Rep. Leo Berman, R-Tyler, shows the effects of last week's marathon tort-reform session. (Photo By John Anderson)

If you missed last week's tort reform sessions in the Texas House, the members had a special treat for you: this week's not-so-instant replay. Last Thursday, the House was in the middle of its second day-and-night debate of HB 4, the fast-tracked omnibus medical malpractice/tort reform bill, when a point of order raised by Waco Democrat Jim Dunnam brought the freight train to a spectacular (if temporary) halt. Citing a formal affidavit provided by Civil Practices committee member Yvonne Davis, D-Dallas, and a video clip of a committee meeting, Dunnam charged that Civil Practices Chairman Joe Nixon, R-Houston, had violated House rules and possibly the Texas Open Meetings Act by holding a private committee meeting to announce he was merging HB 3 (the emergency medical malpractice reform bill) with HB 4 (the omnibus tort reform -- neither an emergency nor particularly popular among all members).

The GOP leadership -- having spent the previous 17 hours defeating about 60 of the 304 proposed amendments to HB 4, and anticipating several more days of the same -- was in no mood to start all over again. The House recessed while Speaker Tom Craddick and his parliamentarian looked for a loophole not only in the House rules but in the state constitution, which requires that "the sessions of each House shall be open." After several hours, Craddick finally emerged to announce his conclusion that "it was proper for the House to decide this issue" -- essentially asking members to stick out their own necks and vote to endorse the committee's violation of House rules.

No one on hand could recollect a precedent for Craddick's proposal, and even Republican members -- who had voted in virtual lockstep to reject any and all amendments to HB 4 -- balked at taking the fall for the speaker. El Paso Democrat Paul Moreno delivered a personal-privilege speech calling on the body to "do things right," and Nixon himself finally suggested he would withdraw HB 4, resubmit it to committee, and carry it again this week. With that surrender, Craddick sustained the point of order -- thereby rolling the tort-reform boulder back down to the bottom of the hill, where it slowly began its uphill crawl again on Tuesday. At press time Wednesday, the House had considered -- and once again mostly rejected -- about 30 of the more than 300 pending amendments to this one bill, and is expected (barring a procedural cutoff of debate) to continue throughout the week until exhaustion.

Emotions had been high throughout the long hours of floor discussion, and much partisan tension persists. Democrats complain mightily that Nixon "piggy-backed" tort reform -- which would radically limit citizen access to the courts, insulate corporate defendants from many forms of liability, and impose a broad-brush $250,000 cap on noneconomic damages -- onto the medical malpractice legislation in order to railroad the agenda of the business lobby through the House. Republicans charge that since the Democrats don't have the votes to defeat the bill outright (the House is 88-62 GOP, with a handful of additional intermittent Craddick-crats), they proposed to sentence it to the death of a thousand amendments. The result was a one-sided nondebate: With the exception of rare friendly amendments, Democrats addressed only each other on every amendment while the Republicans ignored them until their allotted time expired. Nixon would then move to table the amendment -- and the motion would pass handily, with 85 to 95 votes.

The single midnight exception was an amendment requiring evenhanded settlement treatment of both plaintiffs and corporate defendants -- an appeal to simple fairness that surprisingly won a 77-71 approval. Craddick immediately recessed, called an impromptu and private GOP caucus at the dais -- to the loud dismay of several Democrats -- and lo and behold, the amendment was suddenly reconsidered and defeated along party lines.

According to Dunnam, that moment reflected Craddick's consistently "heavy-handed" treatment of the House, as well as the GOP's single-minded deference to the corporate lobby determined to ram the tort-reform bill through unaltered. Craddick insisted that "the record showed" he had not been unfairly controlling the debate, but more than once tempers flared between Democratic members and Nixon over the relentless rejection of any and all substantive changes to the bill. At one point, Nixon even complained that he had a prior "agreement" with the anti-tort reform Texas Trial Lawyers Association over one rejected amendment -- provoking an angry outburst from Dallas Democrat Steve Wolens, who said all the amendments under consideration had been drafted by House members and that if Nixon wanted to claim otherwise, Wolens was ready to address the role of the business lobby -- particularly Texans for Lawsuit Reform and the Texas Association of Business -- in drafting the bill itself, and in stage-managing the debate from outside the House floor. Whenever he was asked who made the decision to roll the bills together, Nixon stonily replied, "I did." Following the point-of-order debacle, the Texans for Lawsuit Reform both endorsed Craddick's decision and denounced the Democrats for "abusing the legislative process."

Dunnam said that despite the unbending numerical odds, opponents to HB 4 are determined to debate every provision of the bill and every amendment on its merits, even if it means several more long days and nights. "As long as the process is not open and fair, and the process is tainted by the bill's supporters' refusal to debate," Dunnam said, "then the outcome is tainted as well."

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