Former U. S. Senator and 2015 Louisiana Gubernatorial candidate David Vitter.
In our first installment of the tort reform measure passed by the Louisiana Legislature in the most-recent special session (which focused on collateral source), we referenced that, in installment two, we’d “mention someone’s name who hasn’t even been referenced during all of the current tort reform efforts.” That individual is former U. S. Sen. and 2015 gubernatorial candidate David Vitter.
Then-Senator Vitter was very transparent (likely to such a fault that it cost him the gubernatorial election in 2015) entailing the direction he intended to take Louisiana, even going to the extent of publishing a “Together Louisiana Strong” brochure outlining many of his initiatives as part of his campaign.
Though the brochure didn’t explicitly outline his plans to implement tort reform if elected Governor, he made no secret of his plans to do so. One key element of his platform was his emphatic stand that Louisiana’s jury trial threshold (i.e. the level of alleged damages above which a defendant has a right to demand a trial by a jury of his peers) should be like that of 36 other states: zero!
At $50,000, Louisiana’s jury trial threshold has often been cited as a key reason Louisiana has the second-highest automobile insurance rates in the nation. Though the mainstream media felt it unworthy of coverage (trial lawyer advertising dollars?) and though the Sound Off Louisiana blog was in its infancy at the time, we certainly strived to keep tort reform front-and-center in voters’ minds in the 2015 election.
Let’s take just three short minutes to watch then Sen. Vitter’s emphatic statements about the jury trial threshold and the propensity of Louisiana lawyers to engage in “judge shopping and venue shopping.”
During 2015 Louisiana Governor’s Race, candidate David Vitter stresses the adverse impacts of Louisiana’s $50,000 jury trial threshold and Louisiana trial lawyers’ propensity to engage in “judge shopping and venue shopping.”
The recent tort reform initiative passed by the Louisiana Legislature lowered the jury trial threshold in Louisiana from $50,000 to $10,000 effective for auto accidents transpiring on or after January 1, 2021. Many anti-tort-reform folk indicated that Louisiana could expect to see a drastic increase in jury trials as a result of that lowering; however, in the preceding video, Vitter stated the exact opposite to be the case. He emphasized that the high jury trial threshold is what “floods” the courts with lawsuits in the first place, and we wholeheartedly agree with his assessment!
Vitter further argued that, once the plaintiff attorney gets the judge he or she desires, the defendant (and, importantly, his insurance carrier) are then essentially held hostage at the mercy of that judge and the plaintiff attorney for up to $50,000 to make the case go away.
Vitter could not have possibly been more accurate in his statement and, just as we used an illustrative example for collateral source, we want to use a real-life example of precisely what Vitter references in the above video.
Sound Off Louisiana founder Robert Burns and his mom have been insured by State Farm Insurance for the past 33 years. During that time, only one claim has ever been filed by anyone entailing an accident by Burns or his mom (it happened to be his mom), and we’re about to succinctly state the facts of that one claim and the resulting settlement made to the plaintiff once Burns’ mom was sued by a member of the trial-attorney cabal Vitter fought against so tenaciously:
Burns and his mom have lived at an apartment complex for which the speed limit is 5 MPH. One morning, Burns’ mother was backing out of her assigned parking space that sits between two main driveways of the complex. As fate would have it, the garbage collector had a flat tire as they were uploading dumpsters, and so they called for a replacement tire to be delivered and installed.
When the driver for the company who was used to install a replacement tire arrived, he quickly realized that he was on the wrong side of the apartment complex and, rather than going around the complex, decided to simply barrel directly down the path of the parked cars (intended for resident use only) at a speed vastly in excess of 5 MPH. Though Burns’ mom had just barely moved from her parking spot going in reverse (deemed automatically at fault in Louisiana irrespective of how irresponsible the other driver may be), he clipped the middle portion of her rear bumper and ripped half of it off the car. Here’s a photo:
Bumper of Burns’ mom’s car after being half ripped off by driver of tire-repair company in a rush to get to the other side of the apartment complex to replace a flat tire on a garbage truck.
To illustrate the minimal (i.e. nonexistent) impact on the tire-replacement vehicle, let’s also provide that photo:
Barely-detectable impact of tire-replacement vehicle.
Now, despite the driver of the vehicle depicted above, Lionel James, having obvious trouble complying with the court system entailing such things as being forbidden from carrying a firearm in light of his conviction for assault with a deadly weapon and attempted first-degree murder, he had no trouble whatsoever exploiting Louisiana’s civil court system in finding one of those trial attorneys Vitter references in the video above.
Accordingly, Burns’ mother soon found herself on the receiving end of a lawsuit filed by James. Burns was in contact with the State Farm adjuster throughout the process and, upon his mother being sued, he called the adjuster to inform her of that fact. She immediately asked to which judge the case had been assigned. No sooner did Burns get the words “Janice Clark” out of his mouth did the State Farm adjuster respond with, “Oh, God!”
In light of the foregoing, State Farm decided it was best to simply settle the lawsuit. The settlement amount? $48,500 (incredibly close to that magical $50,000 jury trial threshold, no?). Let’s take a look at the settlement letter Burns’ mother was sent by State Farm, shall we?
$48,500 settlement letter from State Farm attorney.
Now, we can rest assured that the “$30,000 in medical bills” referenced in the above letter is where the collateral source benefit kicks in. God only knows how much less any actual payment to the doctor for James’ “soft tissue injuries” were. Moreover, notice that the attorney representing State Farm specifically references the fact that the case was assigned to 19th JDC Judge Janice Clark, who recently unsuccessfully sued in Louisiana District Court to remain on the bench at 73 years of age notwithstanding that Louisiana’s Constitution requires judges to retire at the end of their terms after they reach the age of 70. She has not ruled out filing a separate action in Federal Court.
The above example demonstrates exactly what Vitter was referencing! Had State Farm had the right to insist upon a jury trial, this case would have been exposed for the sham that it and so many others like it are! With a jury trial threshold of $10,000 rather than $50,000 (especially when combined with the new collateral source statutes), no doubt James would not have likely been practically shoved into a doctor’s office to rack up likely vastly-inflated medical billings (the actual payments of which were likely a small fraction of the $30,000 billed), and the best he and his attorney could maybe have hoped for was $8,500 rather than $48,500. Why? Because State Farm would have simply insisted upon a trial by jury rather than allowing Judge Janice Clark to be the sole determinant of how much James could obtain from this lottery ticket accident.
Now, if anyone believes the trial lawyers in Louisiana were going to just turn loose of the money train derived from the kinds of litigation abuses depicted above, let’s take just one minute to again let Vitter state in his own words just how diligently those trial lawyers fought him on his proposed tort reform:
Vitter outlines the costs to Louisiana families of Louisiana’s judicial hell hole legal environment and the extent to which the trial lawyer cabal in Louisiana went to in order to ensure his defeat in the 2015 election for Governor of Louisiana.
Now, the trial lawyers would never be so stupid as to try to counter Vitter’s statements by touting Louisiana’s legal system because they knew (and know) as reflected by this link we provided above that Louisiana citizens, by a huge majority, have long supported meaningful tort reform to rein in Louisiana’s out-of-control legal environment. From the preceding link:
• Approximately 2/3 of Louisiana voters believe there
are too many lawsuits in our state.• More than 8 out of 10 Louisiana voters believe
lawsuit reform is needed.• Roughly 70% believe lawsuit abuse costs jobs and
hurts our state’s economy.• 85% believe that personal injury lawyer ads
encourage people to sue; and• 78% believe that lawyers take advantage of disasters to file frivolous lawsuits
So, what were trial lawyers and then-candidate John Bel Edwards left with to use to oppose Vitter’s initiatives given that the vast majority of Louisiana citizens agree with his positions regarding tort reform? Well, we all know the answer to that question.
Then-candidate Edwards was also smart enough to know that Louisiana citizens strongly supported (and support) meaningful tort reform. Accordingly, his advisors insisted that he pass on the lawsuit abuse forum at which Vitter outlines his initiatives above. Nevertheless, we at Sound Off Louisiana did our best to force Edwards to provide his stance on tort reform, especially the jury trial threshold. Let’s take just another minute to see just what Edwards stated his stand on the jury trial threshold was (and is):
Then-candidate John Bel Edwards, during a 2015 debate for Governor of Louisiana, expressed his rationale for opposing the lowering of the $50,000 jury trial threshold in Louisiana.
Now, don’t anyone for a moment believe that John Bel Edwards believes a word he is saying about electing “conservative judges” in Louisiana. He is an attorney, and he knows how the system works. State Judges are elected from for each district (e.g. 19th JDC) from geographic areas that are represented by very conservative judges AND by very liberal judges. When a lawsuit is filed within that district, a plaintiff has a supposedly-random (some have questioned if it’s truly “random”) chance of drawing a conservative judge vs. a liberal judge. They are supposed to be allocated sequentially as suits are filed.
Once the attorney knows which judge has been drawn, he or she basically knows (as does the defense attorney and defendant) whether the plaintiff is sitting in high cotton (e.g. the “Oh, God” commentary of the State Farm adjuster above upon learning that the assigned judge was Janice Clark) or whether in fact it is the plaintiff who recognizes a need to go into immediate “let’s settle fast for whatever small amount the defendant’s insurer will offer” mode (e.g. if former 19th JDC Judge Michael Caldwell had been drawn).
On the very day Governor Edwards was being inaugurated in 2016, Sound Off Louisiana‘s Robert Burns had arrived way too early for the same function entailing Attorney General Jeff Landry. Accordingly, in order to kill some time, he decided to just drop in and observe a few civil arguments in 19th JDC. He happened to visit Judge Don Johnson’s courtroom, and he was stunned to hear arguments to transfer a case from St. Tammany to Baton Rouge notwithstanding the fact that the defendant (a retirement community) was located in St. Tammany Parish, the plaintiff resided in St. Tammany Parish, and the case had already been filed in St. Tammany Parish.
What was the plaintiff’s argument for transferring the case? The out-of-state insurance company was being sued and, since its agent for being served was listed as being located in East Baton Rouge, that attorney felt that gave grounds to transfer the case to 19th JDC in East Baton Rouge. Naturally, the real reason was that St. Tammany is a highly-conservative parish in Louisiana, and obviously one of those “conservative judges” Edwards references in the above video had been drawn, so the plaintiff attorney had to find some way to transfer the case to a jurisdiction with a much higher probability of a favorable outcome for him than in St. Tammany Parish!
That is the type of “venue shopping” Vitter references, and it was incredible that such an argument was being posed in such close proximity to where a new Governor from Amite, Louisiana was soon to be sworn into office after having gone on record as supporting the very system that thrives on such garbage tactics.
Now, the defense attorney posed the counter argument (who knows, maybe he’ll read this post and remember it) that the plaintiff’s argument was utterly absurd on its face and that, if the court granted the transfer, it would result in massively-larger costs to both parties and that, if that’s all that is required to transfer a case (i.e. that an insurance company’s agent for process service is located in Baton Rouge), then virtually every case in which an insurance company is named as defendant would have to be tried in Baton Rouge! He also stated (in a semi-humorous tone), “Your Honor, I don’t know why opposing counsel wants this case tried in this venue so badly. Perhaps he likes you.” Judge Johnson merely waved his hand with a laugh, after which he said, “Look you guys are going to have to get this resolved at the Legislature, but I can tell you this: We are already jammed to the max on our dockets. I agree with defense counsel that moving this case to 19th JDC would not promote judicial efficiency, and I’m therefore going to deny the motion.” The case was thereafter settled in St. Tammany Parish, and we’re willing to bet it was for an amount substantially less than $50,000!
Notice in the above video that Edwards references that it “would not be efficient” to have 12 people miss a day of work for an $8,000 “fender bender.” Well, and, yes, we’re being sarcastic here, perhaps Gov. Edwards “saw the light” so to speak in that he signed a bill permitting 12 jurors to decide a case with only an additional $2,000 in alleged damages beyond the amount he stated would be “inefficient.”
No, the reality is that Gov. Edwards who, were he properly motivated by the welfare of Louisiana citizens and their will, would have supported tort reform long ago, has been in the back pocket of trial lawyers from even before he took office as a mere candidate in 2015. The “Damascus Road Experience” that Edwards encountered was that, had he not signed the bill, he could forget ever getting a single initiative he supported during his second term through the Republican-controlled Legislature! In fact, Moon Griffon has stated that he told at least one legislator, “I’m going to sign this thing because I don’t want this to be all we talk about the next 3 1/2 years!” If he in fact did say that, then let’s give him credit for being astute. He was spot-on in that this is one issue for which the people of Louisiana were simply not going to let go. Edwards obviously sized up as much and knew the only way to “move on” was for him to sign the bill. He knew that to be the case irrespective of how much it may alienate the trial-lawyer cabal which spent millions getting him elected over Vitter and thereafter fending off Rispone last year (though Rispone and his crew of out-of-state charlatan campaign managers did virtually all of the heavy lifting for Edwards).
We have no doubt that Vitter is smiling and content with the fact that the corrupt, gravy-train, downright-theft racket that the attorney cabal has been operating in Louisiana has been and will continue to be completely collapsing under its own weight. Further, in the end, even without Vitter’s election, the voters of Louisiana have been able to take the first step toward crushing it to pieces. Look for the next steps once a new governor is sworn into office in early 2024 to include: A) expanding the prescription period from one year to two years, B) eliminating the ability for the defendant’s insurer to be named as another defendant (i.e. direct action), C) meaningful legislation to restrict venue shopping, and D) further reducing the jury trial threshold to ZERO! Considering the fact that John Bel Edwards resides in the Governor’s Mansion, the current tort reform initiative can only be viewed as a VERY resounding victory for the people of the state of Louisiana!
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