Mayer expects workermen's comp, tort liability reform in session

Newly elected state Senator Rob Mayer sees three things coming out of the next session of the legislature.

"What I expect to see is reform on workmen's comp, tort reform and changes to the foundation formula," he said in a Wednesday afternoon telephone interview. Mayer, R-Dexter, has served in the Missouri House but won election to the state Senate in the 25th District, which includes Dunklin County, in November. He succeeds Bill Foster of Poplar Bluff.

Regarding tort reform, Mayer said he anticipated caps on awards of non-monetary damages. "Somewhere in the neighborhood of $250,000 to $400,000 per claim is fair, I think," Mayer said.

He added he expected a cap on such non-monetary damages, like those for "pain and suffering," to be capped at $350-400,000. I think that's a realistic cap," Mayer said.

He also said he expected to see action to limit plaintiffs from seeking to change the location of a trial from a venue where the actual tort was alleged to have occurred, to one in which the courts are known to make generous awards to plaintiffs. "I think we'll see some tightening up on venue shopping," Mayer said.

And while he did not provider specifics, the new state senator said he expected to see some action to address the difficulties for defendants posed by "joint and several liability." Typically, in referring to a judgment for negligence, the concept of joint and several liability holds that each judgment defendant is responsible (liable) for the entire amount of the debt or judgment. Thus, if the liability is held to be joint and several, the person owed money can collect the entire amount from any of the defendants, and not be limited to a share from each defendant. The defendants are then left to sort out their respective contributions among themselves.

Proponents of tort reform have argued that joint and several liability often obliges anyone able to pay the entire judgement to do so, however slight his or her contribution to any injury or harm suffered by the plaintiff. Being obliged to pay out of proportion to one's actual responsibility, they argue, represents injustice rather than justice.

Mayer also noted discussion of "loser pays" in tort reform, a concept requiring the loser of the lawsuit, plaintiff or defendant, to pay the fees of the winner. Said to be used in courts in the United Kingdom, the concept has been touted in the United States as a means to reduce the number of frivolous lawsuits, since attorneys are expected to be more reluctant to take cases they do not expect to win, since they are less likely to get paid by defendants settling out of court in cases the defendants could reasonably expect to win.

Mayer said, however, that he did not expect "loser pays" would figure very prominently in any tort reform legislation enacted.

Opponents of "loser pays" argue such a system would deter plaintiffs with legitimate complaints but limited funds from seeking justice in the courts. Supporters point out that even a victorious court trial can cost a defendant more in attorney's fees than an out-of-court settlement.

Mayer said reform of workmen's compensation would likely aim at reducing what he termed a liberal approach in the current statute toward claims. "Right now the law tends to give the benefit of the doubt to the claimant," he said.

The effect, Mayer said, was to drive up workmen's compensation premiums, thus adding to business expenses and discouraging businesses from operating in Missouri. He defended the idea of limiting the liberality of the statute against likely criticism that such changes would hurt workers by noting the importance to the state of jobs for its people.

"We need to keep a workable system in place," Mayer said. "It doesn't do much good for us to have a workmen's compensation system if there isn't any work for people.

"What we need is to reform the system, not take away the ability for claimants to receive awards." Mayer said a rework of the foundation formula for funding education would need to address student needs, rather than simply provide funding on the basis of district affluence as reflected in property taxes. "We need to base the foundation formula on student need, not on how many shopping malls there are in the school district," he said.

Mayer acknowledged, however, that there were many variables to consider, each of which had its own effect. "We hope to be able to come up with a formula," he said, "but we've got a lot of work to do." And overshadowing all legislative activity was the issue of revenue. "There is increasing demand for social services," Mayer said. "We hope the money situation will be better, and we know the state's economy is doing well, but there are going to be more expenses for social services." On top of a desire to add more money to education, Mayer said, the demands on incoming revenues are likely to be at least as strong in the previous session of the legislature.

The next session begins early next year and is to run until May.