Congress Jeopardizing Rights of Wrongfully Injured

Senator Robert Byrd has been exceptionally busy of late defending the United States Constitution, especially those sections on the prerogatives of Congress vis-à-vis the Executive Branch.

Strange as it may seem, there are very few Senators or Representatives who take strong and enduring stands to defend our Constitution against hairbrain, impulsive legislation. In the past two months, the tireless Senator from West Virginia has spent many hours on the Senate floor battling the line-item-veto and balanced budget proposals.

Now he has another opportunity to uphold a basic principle of federalism which for two centuries has left to the states the development of personal injury law whereby citizens can hold those who harm them responsible. The Senate is debating S. 565 and other bills that would both federalize and weaken these traditional tort laws that now hold negligent or criminal perpetrators of death, injury and disease accountable to their victims in civil court cases.

The only people who see, hear and evaluate the evidence in cases of wrongful death and injury are the judges and juries. Ninety five percent of these “tort” cases are filed in state courts. A massive clutch of corporate lobbies — from the auto to the drug to the medical industries — want a Washington takeover to tie the hands of all state judges and juries.

So no matter how serious the injuries — permanent brain or

spinal incapacitation, horrible burns and internal organ malfunctioning — that flow from defective cars, drugs, building materials, lead, asbestos, heart values and the like, these business lobbies want cruel caps on pain and suffering for medical malpractice, caps on punitive damages and other escape rules for business recklessness.

A prime sponsor of one of these bills, Senator Jay Rockefeller, is not concerned that his legislation, S. 565, would destroy, in his own state of West Virginia, the existing rights that people have in four key sectors of law-and-order for wrongdoers.

West Virginia allows punitive damages without arbitrary caps, strict product seller liability, joint and several liability and no cut off date when a defective product manufacturer becomes immune to suit. The Rockefeller bill would seriously weaken these rights.

In a rare public pronouncement, the Conference of Chief Justices of the state Supreme Courts testified against a federal takeover before the Senate Commerce Committee. So did the conference of state legislators. The sum of their arguments: there is no demonstrated need for such a takeover, enormous interpretive complexity and costs will be placed on the state courts, and our system of federalism leaves such laws to the states to shape and implement.

What is astonishingly brazen about this proposed federal dictate is that the orders to the state courts not only favor defendants against injured plaintiffs, over and over again; but they also tell the state judges what they must do procedurally in several key areas.

There is something called the 10th amendment to our Constitution which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The States have strong and legitimate interests in setting the rules for judging dangerous products in their courts. They have even more vital interest in controlling the way in which cases are tried in their own court systems.

When it comes to safety engineering standards for motor vehicle brakes or other consumer products, it makes sense to have one national standard. But when it comes to adjudicating disputes in court under what has always been state law and procedure, Congress should stick to its knitting.

Senator Byrd has shown repeatedly what is properly the function of Congress and what is properly the function of the Presidency. Now he can teach the Senate what is properly the role of the States and what improprieties the Senate would do well to avoid. The invalidation of hundreds of wise state judicial decisions, state statutes and even provisions of several state constitutions, affecting the rights of the wrongfully injured, was contained in the madness that the House of Representatives passed last month. The Senate should know better.

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