Texas Watch—Consumer Protection. Corporate Accountability. Citizen Advocacy.

Although the American Legislative Exchange Council (ALEC) has been in the spotlight in recent weeks for promoting legislation similar to the Florida “Kill at Will” law at issue in the Trayvon Martin case, for decades the organization has been quietly “ghostwriting the law” to the benefit of its big business funders and the detriment of consumers, investors and victims of corporate wrongdoing. Increased attention on the shadowy organization is revealing that ALEC’s now-notorious and since-disbanded foray into gun rights and voter suppression was a tangent from a massive, concerted campaign to set aside laws that hold corporations accountable when they pollute the environment, sell dangerous products or defraud consumers. All the more effective for its stealthy nature, ALEC’s war on corporate accountability has received only a fraction of the scrutiny the media has focused on the Kill at Will controversy.

ALEC’s Civil Justice Task Force drives this agenda under a banner of “tort reform.”  A “tort” is a wrong that gives rise to a legal claim. Tort lawsuits seek to compensate victims for physical, economic and psychological harm and deter future negligence or intentional wrongdoing. Because most tort law is made at the state level and many cases are tried in state courts, ALEC’s state-focused Civil Justice Task Force is a crucial element of a broader corporate-driven “tort reform” effort.

Read More: Media Matters

Appeals court judges in Texas are increasingly hostile to jury verdicts in civil cases, especially when the jurors rule in favor of plaintiffs, according to a new study.

The report, which examined a full year of decisions in 2010-11 by the state’s 14 courts of appeals, found that the judges reverse more than one-third of all civil jury verdicts and that they are more likely to overturn jury verdicts that favor plaintiffs than verdicts favoring defendants.

Even in nonjury cases, the Texas appellate court reversal rate of lower court judgments favoring plaintiffs was double that of decisions favoring defendants.

The study, conducted by two appellate lawyers at Haynes and Boone, found the Texas appellate judges have an overall reversal rate of 49 percent when they review cases that the plaintiff won in the trial court and the defendant appealed. But those same judges reversed only 25 percent of the cases in which the defendant prevailed at trial and the plaintiff appealed.

Read More: The Dallas Morning News

Public employees, like everyone else, have accidents in the course of their duties. The public has a right to recover damages for property, physical injuries or loss of life when those accidents occur. Tort law is supposed to protect the public in cases of loss or harm.

That was the idea behind the Texas Tort Claims Act, a measure passed by the Legislature in 1969. Prior to the act, Texans could not recover damages in cases in which government employees were performing their duties.

Lawmakers also recognized that taxpayers deserve protection from frivolous and excessive lawsuits. So, additionally, the act limits the circumstances in which a governmental entity is liable for compensatory damages and caps those damages.

As Express-News staff writer John Tedesco reported, however, the caps — now $250,000 per individual — often don’t allow members of the public to fully recover actual damages. That shouldn’t be the case.

Civil jury trials are becoming rare in Texas.

The right to have disputes decided by a panel of fellow citizens is cited in the Declaration of Independence and explicitly confirmed in the constitutions of Texas and the United States.

But new statistics show that the right to “trial by jury” is quietly and steadily disappearing thanks to a mixture of tort reform laws and Texas appellate court decisions that have made it more difficult for parties in a lawsuit to have their disputes decided by juries. In addition, lawyers and judges say the expenses of litigation, including discovery and increased attorneys’ fees, have made getting a lawsuit to a jury cost prohibitive.

The result is that the system has made it so procedurally and financially onerous that individuals and even many companies can no longer have their peers judge their disputes.

Read More: The Dallas Morning News (subscription required)

In a case testing the boundaries of tort reform, the Texas Supreme Court is weighing whether two female patients’ assault allegations against a doctor are health-care liability claims under Texas Civil Practice & Remedies Code Chapter 74, which caps punitive damages at $250,000.

Chapter 74 was the centerpiece of an omnibus tort reform law that took effect in 2003. The law’s proponents wanted to curtail rising med-mal premiums and provide patients with better access to physicians. Opponents argued the law would insulate doctors from the consequences of tortious conduct.

The law, also known as H.B. 4, requires plaintiffs to file expert reports in suits that involve medical malpractice allegations; otherwise courts can dismiss those suits. Chapter 74 caps punitive damages against defendant-doctors at $250,000; but under Chapter 41 of the code, the limitations on recovery do not apply to conduct described as a felony in the Texas Penal Code.

Read More: Texas Lawyer

Port Elevator v. Casados
Barring negligence suits for temp workers
Case No. 10-0523; Opinion issued January 27, 2012

ISSUE
Is workers’ compensation (comp) the exclusive remedy when a temporary worker suffers a fatal, work-related injury, thereby barring suit against an employer?

FACTS
Rafael Casados worked for Staff Force, Inc. (Staff Force), a temporary staffing agency. In April 2005, Staff Force provided Casados to perform general labor for Port Elevator-Brownsville, LLC (Port Elevator) at its grain storage facility. During his third day on the job, Casados suffered a fatal, work-related injury.

Staff Force carried comp insurance through Dallas Fire Insurance Company. Port Elevator carried comp insurance through Texas Mutual Insurance Company. Texas Mutual denied coverage, claiming Casados was a Staff Force employee and not a Port Elevator employee. Casados’s parents emphasized that Port Elevator intended to – and did – exclude Casados from comp coverage because (1) it did not pay premiums for temporary workers like Casados; (2) Casados was a temporary employee whose job classification was not listed in Port Elevator’s policy; and (3) Texas Mutual denied coverage.

Casados’s parents sued Port Elevator for negligence, negligence per se, and gross negligence. The jury found Port Elevator negligent – but not grossly negligent – and the court awarded $515,167.09 to Casado’s estate for pain, mental anguish, and pre-judgment interest and $2,189,967.76 to Casados’s parents for mental anguish, loss of companionship and society, and pre-judgment interest. The court of appeals affirmed.

HOLDING
Justice Guzman wrote for a unanimous court. The Court held that because Port Elevator had a comp policy, Casados was an employee who suffered a work-related injury, and the jury did not find Port Elevator grossly negligent, the exclusive remedy is against the employer’s insurer under the Texas Workers’ Compensation Act, not the employer. The Court reversed the appellate court and rendered judgment for Port Elevator.

IMPACT
An employer can fail to pay premiums for temporary workers, fail to list a temporary worker’s job classification in their comp policy, have a court award millions of dollars in damages against them as a consequence of their negligence, and yet still receive the legal protections of comp’s “exclusive remedy” in the end. Workers’ lives are cheapened, and the lack of accountability engendered by the Court’s opinion will only further endanger workers across our state.

The Texas Supreme Court has a profound effect on the everyday lives of Texans. It is the court of last resort for non-criminal matters in the state. But according to a scathing report released this week by the advocacy group Texas Watch, over the last 10 years, the majority of Texas Supreme Court decisions have favored corporate interests over consumers. And the panel of judges, according to the report, has repeatedly overstepped its authority by overturning jury verdicts and interpreting the law to benefit the rich.

Listen: Texas Public Radio (Texas Matters, Segment 3)

Last August, ThinkProgress highlighted a Texas Watch report showing that the Texas Supreme Court “sided with consumers in 27 percent of cases involving an individual against a corporation or government agency — and it reversed jury verdicts in 72 percent of cases.” A new report by that same organization shows that the court’s favoritism towards corporations is now even worse.

Read More: ThinkProgress

Listen to Court Watch director Alex Winslow talk about Court Watch’s latest report with Kristen Flowers of KTRH radio in Houston.

“Texas families deserve a fair shake when they go to the courthouse. And, when they make it to the highest court in the land, they’re just not getting that fair shake.”