Looking Back Part III: The Tort Reform Special Session of 1996

To the Editor:

For years the civil justice system in Louisiana was one of the worst in the nation in spite of very few bills being passed by the Legislature to liberalize tort laws and generate more lawsuits. The blame belonged with our appellate courts, particularly the Louisiana Supreme Court, that was greatly under the influence of the plaintiff’s bar at that time.

That changed abruptly after the state elections of 1995. Mike Foster, no friend of lawsuits and plaintiff attorneys, was elected governor. He ran on a platform of tort reform as did many newly elected members of the Legislature. Governor Foster wasted little time taking up that challenge. He called a special session shortly after his inauguration and pushed a package of three major reform bills to bring some balance back to the civil justice arena—and to remind the state Supreme Court that it was the Legislature’s job to write laws, not the court’s.

Foster’s three-bill package included reforms long sought after by LABI and the business community: strict liability, joint and several liability, and punitive damages reforms.

The strict liability doctrine held that property owners were responsible for damages or injuries occurring on their property regardless of whether or not they knew or even could have known of a defect present. Ownership equaled unfettered liability in those days.

The joint and several liability doctrine held that co-defendants in a lawsuit could be responsible not just for their degree of fault but could be forced to pay for the fault of others if those defendants were unable to pay for the level of damages they caused.

Regarding punitive damages, the state Supreme Court had expanded them to include cases involving the transportation, storage or handling of hazardous or toxic substances—not wastes. The federal government had a list of about 2,000 of those substances at that time including such “deadly” items as burlap and cotton bags.

The governor’s package emerged from the House Civil Law Committee hearings fairly easily but entered rough waters on the House floor. Former Representative Chuck McMains (R-Baton Rouge) was the lead author and an able proponent, but he had little support from any lawyers in the House.

Numerous plaintiff attorney members of the body attacked the legislation full bore. The atmosphere was tense as the first amendment votes were taken on the lead bill abolishing strict liability. The first serious amendment, which would have gutted the bill, lost by only one vote.

I will never forget one of the governor’s staffers running up to me with a cell phone right after that vote. The governor told me to have someone make a motion to end consideration of amendments. I told him it was too early, the motion would fail and would give momentum to the other side. I can’t print his response here. The next gutting amendment failed 50-48, and after that, the log jam broke, and all three bills cleared the House.

The Senate was a friendlier arena due to two factors: the recent elections had removed several anti-business incumbents and replaced them with pro-business reformers, and Governor Foster had just left the Senate and had many friends there.

The three bills passed by large margins, and shortly afterwards I stood by the governor as he signed all three into law. It had been a long journey. For years I had given countless presentations and written numerous articles about the need for a fair civil justice climate in Louisiana and appellate courts that refrained from writing law from the bench. The tort reform special session of 1996 didn’t cure all of the problems facing business, but it reinforced once again that a unified business community teaming up with an activist governor could enact major reforms in a short period of time.

That session eliminated some major obstacles to attracting industry and investment to Louisiana, but it didn’t solve a lingering problem with the civil justice climate: a Supreme Court that was actively engaged in expanding tort liability through judicial fiat. It took time and an even greater effort in a different arena, but that problem has been reduced significantly by subsequent judicial elections.

Dan Juneau

President, Louisiana Association of Business and Industry