Through letters judge, lawyers weigh in on Texas tort reforms

Marilyn Tennissen Apr. 10, 2008, 5:42am

When attorney Alistair Dawson moderated a panel discussion on the state of the Texas justice system in January, he had no idea that comments he made would start a letter-writing debate that is not over yet.

Dawson, an attorney with Beck Redden & Secrest in Houston, listened while a panel, which included U.S. District Judge Royal Furgeson, began to discuss recent tort reforms in the state of Texas.

"In the course of their discussions they started talking about the impact of tort reform and the panelists believed that it was not good," Dawson said via telephone on April 8.

Dawson said in furtherance of discussion, he commented that tort reform advocates will say the impact has been very positive for business in the state of Texas.

"I mentioned that advocates cite that 20 years ago Texas was known as a very pro-plaintiff, anti-business place to litigate," Dawson said. "Companies were scared to go to court in Texas, do business in Texas or locate their headquarters in Texas. But today, advocates of tort reform say the state has become much more pro-business and pro-defendant. They see that as resulting in more companies coming to Texas and creating more jobs in Texas, which is good for the all the citizens of Texas."

Dawson said a few weeks after the seminar he received a letter from Judge Furgeson, who had put some more thought into the debate. Furgeson serves in San Antonio for the Western Division of Texas.

The Jan. 22 letter pointed out what Furgeson believed to be flaws in the tort reformer's arguments. Through the wonders of e-mail, the letter began to circulate among attorneys throughout the state.

In March, attorney E. Lee Parsley of Austin wrote his own letter to Furgeson, furthering the pro-tort reform arguments.

And on April 8, Judge Furgeson told the Record via telephone that he is currently working on a response to Parsley.

Furgeson said he wrote to Dawson to address the statement that keeping people from suing will bring, and has brought, prosperity to the state.

"I want to know exactly how they make that correlation," Furgeson said.

In his letter to Dawson, Furgeson wrote that a well-functioning free market economy depends on the rule of law in which everyone is accountable.

Furgeson wrote that he believes some tort reformers are trying to structure a system where all persons are not accountable and cutting off access to the court process.

"Why are they so intent to do this? Because they distrust juries," Furgeson wrote. "They reason that, if the business community and doctors do not have to face juries in Texas, then business and medicine will flourish."

By allowing some members of society to be unaccountable for their actions, he wrote, then "the very rule of law is jeopardized."

"As the rule of law is weakened and as fewer people can access the courts to redeem their rights, it follows that respect for the law weakens as well, eventually undermining the foundations of our democracy," Furgeson wrote.

Parsley, who has represented Texans for Lawsuit Reform for several years, sent his response to Furgeson on March 11. He countered Furgeson's suggestion that the goal of recent reform efforts has been to limit lawsuits against business interests.

"It is fairer to say, I think, that the goal has been to correct real imbalances in the civil justice system," Parsley wrote.

Parsley cited the recent efforts to address problems in asbestos-related litigation.

The Texas Legislature enacted a law in 2005 that incorporated the American Bar Association's recommended medical criteria to distinguish between individuals with a non-malignant asbestos-related disease causing functional impairment and those having no functional impairment.

"Texas law now provides a mechanism for unimpaired claims to remain pending indefinitely, while requiring a speedy trial in serious asbestos-disease cases," Parsley wrote.

He wrote that the litigation reform allows anyone that can demonstrate an asbestos or silica-related injury using medically valid criteria to file suit in Texas, if they are otherwise entitled to invoke the jurisdiction of Texas courts.

"Business interests obtained no protection from lawsuits brought by claimants who can show an actual asbestos or silica-related injury," he wrote.

Parsley continued that many critics of tort reform refer to the state's cap of $750,000 for non-economic damages in medical malpractice cases.

"The Legislature passed this measure with overwhelming majorities, and the voters adopted a constitutional amendment implementing the non-economic damages cap," he wrote.

As a result, wrote Parsley, access to health care for the people of Texas has "incontestably" improved, and "unprecedented numbers of physicians have sought admission to practice in Texas." That includes high-risk specialties like orthopedics, neurosurgery and obstetrics in previously underserved geographic areas, he wrote.

"Your letter suggests that recent tort reform measures are harming society's confidence in the judicial system," Parsley wrote to Judge Furgeson. "I do not see evidence supporting the premise. I do believe the public correctly regarded the judicial system as being unfair in the past."

Furgeson said he was looking forward to continuing the dialogue, and is working on his response to Parsley.

"This is an important discussion," Furgeson said. "I'm glad it's continuing."

"I inadvertently got these letters going, but both Judge Furgeson and Mr. Parsley are very smart and intellectual men, so this is a good discussion," Dawson said. "It's good to air these kinds of important issues."

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