Josh and Aaron discuss currently proposed legislation that could have a devastating impact on injured Texans and their ability to seek recovery after an accident.
Listen here or read the transcript below. FVF’s podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.
0:00:16.6 Josh Fogelman: Hey, Josh.
0:00:17.3 Aaron Von Flatern: Hey, Aaron.
0:00:18.0 JF: Do you think most Texans prefer small government?
0:00:22.7 AF: I think most Texans probably do prefer a small government.
0:00:30.6 JF: Do you think most Texas legislators tell people that they prefer small government?
0:00:37.7 AF: I think Texas legislators, the majority of them probably do.
0:00:44.0 JF: What’s the smallest form of government that you can envision that would regulate, say, a $2 trillion corporation?
0:00:53.1 AF: It would be you and me.
0:00:55.4 JF: The jury, baby.
0:00:56.6 AF: The jury.
0:00:58.0 JF: What’s happening out there in Texas?
0:01:00.8 AF: Yeah, I mean, people should be really alarmed, though. I understand why people that aren’t in the business that we are in would not even know to be alarmed. But what’s happening in the state of Texas right now today is our state legislature is trying to pass some tort reform bills, meaning new laws that limit the rights of people who get hurt by the carelessness or recklessness of someone else and limit their recoveries, limit their ability to bring claims, and essentially hush them. Because insurance lobby groups are paying lobbyists. I mean, insurance companies are paying lobbyists to go and have these extremely insurance company friendly laws passed.
0:02:00.1 JF: And I, I’m gonna take a different tact. Okay?
0:02:01.2 AF: Do that.
0:02:03.6 JF: So they are trying to limit the injured person’s rights, right?
0:02:08.3 AF: They are.
0:02:09.0 JF: But if I was talking to one of my Texas friends who is a sort of staunch Bill of Rights constitutional protector person, I would point out that, that the limitation is actually being imposed upon our juries.
0:02:29.2 AF: It is.
0:02:29.8 JF: The juries have currently power to make judgments and to enforce their community standards on whomever they would like. If the jury finds the next door neighbor trespassed on one person’s property, they can award whatever they’re going to do. There’s. And if they find that the Tesla Corporation has done something evil, they can hit Tesla for an amount that actually affects Tesla’s stock price that day. You know, the jury has lots of power. And my understanding was that when the Bill of Rights was kind of put in place and the seventh Amendment was put in there, it went as part of a package. And you’ve probably heard people defending the Second Amendment who said, hey, we really need each and every one of our citizens to have the power to fight back if something bad happens, if the government overreaches, if a king takes over, if for whatever reason, we just need each and every one of our citizens to have the ability to bear arms so that they can personally fight back. The Seventh Amendment was just like five amendments behind that one. You know, it’s a. Hey, we need juries. We need the 12 citizens, good and true of the county to come in and make a judgment for their particular community.
0:03:53.1 JF: That’s specific. We need people that, unlike legislators, unlike the president, unlike the governor, can actually be made to sit through eight hours a day for weeks on end, sometimes of evidence and hearing all, know all the testimony and get the guidance of the judge on how to interpret that testimony under Texas law, and then give us the proper answer so that we can have a government that is most efficient and truly of buying for the people. That was my understanding.
0:04:29.7 AF: Yeah. Well, we’ve said on this podcast many times what the value of the jury system is in the state of Texas, how the jury system empowers a random group within a community to have an exceptionally loud voice and say, this is what we will tolerate and this is what we will not tolerate. And that’s in many aspects of the law. But it’s very, very important part of community safety. Saying we won’t tolerate a company putting dangerous vehicles out on the road, putting dangerous drivers out on the road to harm, kill, maim our innocent citizens. And when you have a legislation, a legis… When you have a legislature that comes in and says we’re just not real happy with the way the juries have been raising their voices lately, everyone should be concerned, because it is an overreaching right, because it does erode the seventh amendment that you’re talking about. And what we’re dealing with right now in the Texas legislature is very, very much that and really presents the type of problem that honestly and truly can trickle down and impact each and every member of the. Of every community in the state of Texas by dramatically eroding the rights that we’ve enjoyed for over a century.
0:06:33.3 JF: So let me ask you this, and I’m going to get to the point of, like, well, what’s in these bills? You know, people might want to actually know some details from us because we are lawyers.
0:06:40.5 AF: Sure.
0:06:41.5 JF: However, first, I need to ask you, how do we get here? Like, why is it that the average person feels that they can’t trust juries anymore?
0:06:50.3 AF: Well, there is a concern about the personal injury business as a whole. So there’s this concept of nuclear verdicts, where you have juries awarding staggering verdicts against individuals and companies for personal injury cases and for wrongful death cases, and then advertising those on billboards, which gives fodder for companies and like, active companies that are getting sued or who could potentially get sued, that are paying insurance premiums as well as the insurance companies themselves. Fodder to say, something is broken here. It’s not us. We haven’t done anything wrong. We don’t deserve to have these types of verdicts taken against us. Regardless of how egregious our conduct may have been, regardless of how unsafe we may have, unsafely we may have behaved to change somebody’s life or some family’s life.
0:08:10.5 AF: They’re saying this is just unreasonable. And look at this. How can we operate our businesses in the state of Texas if we’re having to pay these enormous verdicts all the time? And of course, insurance companies who are profit driven entities who ultimately have to pay out on these claims, are tired of paying out on claims, or actually, maybe even more succinctly like to look at those types of signals and say, here lies an opportunity for us to capture those messages, those alarms, and use those as ammunition to levy an effort to change the law that might actually help us shut that down completely, thereby having to pay out fewer claims for fewer money, thereby making more money for ourselves.
0:09:10.7 JF: Yeah.
0:09:11.8 AF: So, I mean, the problem that we have here, of course, is a lot of the basis for the complaint by the insurance companies and the companies fails to recognize the full picture, which is the jury is the conscience of the community. And oftentimes, if you’re going to see a verdict, there’s a couple things. One, if you see a verdict that’s an alarming amount of money, it was probably preceded by conduct that was in and of itself alarming and that shouldn’t be tolerated and should never have been allowed or authorized in the first place. And two, there are a lot of checks and balances in place in our existing system as it is today, with the courts, with the appellate courts, with the trial courts, with the Texas Supreme Court to step in in that unique case where the award by a jury might be disproportionate to what conduct preceded that award, to stand up and say, hey, listen, this is out of control. We’re going to reduce the award to something that we deem more reasonable.
0:10:42.1 JF: Or to motion for new trial and just start.
0:10:43.5 AF: Just start over. And that system has worked for many, many, many, many, many, many years. So the concern that we have here is you’ve got this rhetoric, this messaging from an alliance of businesses and an alliance of insurance companies and their lobbyists, lobby groups saying the sky is falling, we can’t do business here anymore, when in reality the appropriate response to that would be, hey, let’s really dig a little deeper and see if this is really a problem. If it really is a problem and things have gotten out of control, then let’s talk about how to handle that. But instead you have a government listening to those complaints and just swing in the pendulum so far that it’ll effectively, if passed dramatically, reshape the way that personal injury victims, victims of corporate abuse, victims of corporate recklessness can actually raise their voice and, and be heard and be treated fairly.
0:12:07.3 JF: Well, things will get less safe.
0:12:08.9 AF: Yeah, things will get less safe.
0:12:10.5 JF: I’ve having had the privilege to travel to other countries where they didn’t have the same legal system. And as a lawyer, all I can do is help. You know, I can’t help but notice how these, like, weird ladders don’t have handrails and house surfaces don’t have the right coefficient of friction and people you talk to locals about. And I remember I was in one country one time and the driving behavior was so bizarre to me and scary that I asked a local like, hey, it all seems to work. You know, I guess everybody figures this out and there’s no car accidents. And the person turned to me and said, oh no, there’s always car accidents and people die a lot, all the time. You know, it’s like when there’s not a, a there’s going to be an equilibrium. There’s a safety equilibrium. Just like there’s a verdict equilibrium, just like there’s an equilibrium for the lamp that you buy on Amazon. You know, there, there is a safety equilibrium that will find itself post tort reform. If there is some if there’s, if there’s something serious here and we don’t know what it looks like, but it’s not, it’s not safer.
0:13:28.3 AF: No, it’s definitely not safer. I mean, it probably I can understand how someone might listen to this banter and say, oh, well, this is a personal injury lawyer coming up and talking. And his views are skews like, well, I mean, maybe, but the winners of this are most likely going to be the insurance companies who are standing up and paying the massive lobbying organization to go and fight this and have this proposed using rhetoric that really doesn’t tell the whole story. And that should be concerning because we’ve seen this movie before, right? A little over 20 years ago, the same exact thing happened in a somewhat niche personal injury space, in the medical malpractice space where you had a lobby group of doctors who were really a front for insurance company lobby, insurance company lobbyists saying, our medical malpractice insurance premiums are getting so high that we can’t afford to practice medicine in the state of Texas anymore. And so there’s going to be a mass exodus of doctors that are going to flee the state of Texas and no longer choose to practice medicine here because insurance costs are too high and they can’t do it, which probably really wasn’t fully true.
0:15:00.3 AF: And the Texas legislature passed sweeping medical malpractice tort reform, basically making it almost impossible for a person who was legitimately hurt by legitimate medical negligence. I mean, a violation by a doctor of the accepted industry standard of care that resulted in a person’s lifelong injury made it almost impossible to bring those claims. And we see it every day in our practice.
0:15:40.8 JF: Do we?
0:15:40.9 AF: I mean, we get calls from people who were hurt by probable legitimate medical negligence, and we have to tell them, hey, listen, there is a law that makes it virtually impossible to bring your claim, so you’re tough out of luck. And if something like the proposed tort reform passes, we’re going to be having a lot of those same conversations with people for regular car crash cases, people that didn’t even choose to go see a doctor that had no control over the doctor that they went and saw, people that are driving down the road on their way to work, on the way to pick up their kids from school, on the way to go get a bite to eat with their buddies, hit, hurt badly by someone else. And you’re going to say, listen, you’re either dramatically limited in what you can do or you can’t really do anything at all because it’s not economically feasible for you to get help from an attorney.
0:16:43.2 JF: You remember the…
0:16:44.6 AF: Or get help at all.
0:16:45.4 JF: You remember the Ebola patient who left Presbyterian Hospital in Dallas and went on to infect like 14 or 15 other people in the community before it was discovered.
0:16:55.0 AF: I. I’m. I don’t know that story.
0:16:56.9 JF: So this happened a few years back, maybe five, 10 years ago. You know, time is an abstract concept for me at this point, but this…
0:17:05.5 AF: Yesterday-ish.
0:17:06.5 JF: This gentleman had checked into Presbyterian Hospital with every single symptom possible of Ebola. Ebola at that time was a big, scary, contagious virus that every hospital arguably was on the lookout for. And what happened was that at that time, there were less checklists in place than there were at the McDonald’s to make sure your coffee had the right amount of cream in it. You know, when you went through the drive thru they just. Because they were borderline immune from lawsuit over time. And remember, this is another. This is 10, 15 years after that legislation we talked about. Their standards had slipped because again, there’s a safety equilibrium. And the equilibrium in that case had slid so far that a person who was deadly dangerous walked out of that hospital to go accidentally harm other people. You know, not trying to, but he did not realize that he had all the symptoms and signs and should have. It should have been diagnosed. He was right there in the hospital, had checked in from a flight from a country where this was originating with all the symptoms.
0:18:26.2 JF: And the ER just kind of like, well, what are you going to do? And to this day, I don’t know if a lawsuit ever resulted from that case because I know that there are just so few lawyers in Texas who are willing and able and can afford to pursue those cases because now it’s a pay to play game where you’ve got to kind of line up your experts ahead of time and we don’t have to get into the weeds of that. But essentially medical malpractice is very difficult to pursue in the future. As you pointed out, regular tort cases could be difficult to pursue. And you may think, oh, well there should be caps on damages. We should take that right away from juries to say what’s fair until it’s you until your daughter’s horribly defigured in a fire or burn and the Texas legislature says, sorry, the most you can get for her whole entire life is a quarter of a million dollars to make up for, for all that harm and pain that she went through. Um, hopefully common sense will prevail here and hopefully people will want our government to remain local.
0:19:29.8 AF: Sure. And, and hopefully the Texas legislature will understand that when and if, if this tort reform passes, you’re going to be eliminating the access to health care for a lot of people. And I bet is not something that should be understated. And there’s, there’s this concept you were asked earlier, how did we get here? Well, there’s this notion that’s being expressly stated and discussed openly by the sponsor of this tort reform bill. It is no secret that what’s being attacked right now is a perceived conspiracy between personal injury attorneys and law firms and medical providers who treat personal injury victims to artificially inflate bills and then go and commit basically insurance fraud by saying you got to pay this crazy high bill and you can’t do anything about it, which is just, I mean, it’s false. Like is, are there bad actors in our industry? Sure.
0:20:39.7 AF: Are there bad actors in most industries? Sure. Should you look at the actions of few to make sweeping policy decisions that dramatically impact the citizens of the state of Texas? No, you shouldn’t do it. And by way of example, what’s proposed in this bill is effectively capping how much a personal. And one of the things, one of the many things that’s proposed by this bill is if you’re hurt in a car crash, this law would cap and say you don’t have health insurance or you have health insurance, but it’s a high deductible plan or you are living paycheck to paycheck and you can’t afford, even if it’s a low deductible plan, you can’t afford to walk in to the hospital or walk into your primary care physician and pay hundreds of dollars for a copay. Right now, as the industry stands, you have options. There is a robust network of honest, phenomenal, phenomenal medical providers out there that are willing to basically treat you on credit. And those medical providers take a lot of risk because if they treat you on credit, there’s some chance they don’t get paid. There’s some chance that if they end up getting paid, it’s dramatically less than what they would have gotten paid from a health insurance insurance company.
0:22:13.0 AF: So there’s a free market around what they charge, how much they collect, how much they get reimbursed. But it’s not a scam. It’s a legitimate business that serves a legitimate need for people who need access to health care to treat the injuries they sustained that were caused by someone who was doing something careless.
0:22:35.5 JF: Yeah. The idea of putting it on health insurance is not that feasible for some people. When you’re talking about co pays and you’re going to therapy three times a week and it’s like, how much can you do per month?
0:22:45.2 AF: You’re missing work.
0:22:45.7 JF: Yeah.
0:22:46.2 AF: I mean, there’s a lot. The reality, the reality of what’s happening is there’s a lot of people struggling. And these people deserve to have access to medical care. And beyond that, they deserve to have access to the best medical care. They deserve to be able to choose who their providers are. And the notion that there’s this widespread fraud and people out there conspiring and that it’s really out of balance is just like we talked about earlier. There’s checks, imbalances that exist today in our litigation system that allow a person who suspects that is going on in a case to go and uncover it and figure it out and talk to a judge or talk to a jury about it.
0:23:38.4 JF: Get it fixed.
0:23:40.1 AF: And shut it down, get it fixed. But with the proposed legislation now, essentially, there will be a massive, massive limit placed on how much a personal injury victim can recover for their medical expenses, both for the care that they’ve received to date, as well as the care that they’re likely to need in the future. And the proposal is an amount that really leaves the victim holding the bag and all of the risk of what rising healthcare costs may mean in the future, what potential inability to access health insurance may mean in the future. I mean, it’s a massive shifting of the burden of risk for people who did nothing wrong but got hurt by the carelessness of someone else to have to really carry that bag for the rest of their lives. And it’s, it’s wrong. It’s a problem.
0:24:43.3 JF: At the end of the day, Josh, the defense firms are not taking out billboards advertising every time they get a zero from a verdict from a jury. They’re not taking out billboards every time they get a number that every motorist who drives by would think, oh, that’s awfully low for spinal surgery, or, oh, that’s awfully low for a whole body third degree burn, or, oh, that’s awfully low for a death. Those billboards just don’t exist. The billboards that do exist in, in my understanding is there’s two types. One of them is it’s kind of a ghost verdict that you took against a, a defendant who didn’t even show up to trial because they were insolvent and you just beat them up and got some big number from a, from a jury. Or there’s that other type where it’s a legitimate number and only the 12 people who sat through the weeks and weeks of testimony and evidence can understand the depth of the harm that was caused or the egregious conduct that was behind that large verdict. You know, ultimately this legislation to me comes down to billboards. You know, billboards, TV commercials, whatever you want to call it, whatever it is that’s getting the public’s attention and convincing legislators that it would be okay to help the insurance companies with this thing that takes rights away from both the the injured party and the jury in their power.
0:26:10.8 JF: That’s the only thing I can think would make legislators conclude it’s going to be okay to pass this. But for all those who are listening I would end, I would tell you right now, get out your Google machine. Check out Senate Bill 30, Senate Bill 39, House Bill 4806 in Texas. And if they’re still pending, they haven’t already already been killed. Please write your legislator. Ask them what the heck they’re doing.
0:26:37.0 AF: Yeah, it’s a problem. And I appreciate you talking through it with me.