Unlike in past presidential elections, “tort reform” is not a hotly debated issue this time around. Nevertheless, for a New York personal injury lawyer like myself, whose firm is currently representing hundreds of injured tort victims, it is an extremely important issue. I therefore decided to research how the four main presidential candidates (Trump, Cruz, Clinton and Sanders) feel about so-called “tort reform”. (Note: Those in favor of limiting injured victims’ rights in court invented the term “tort reform”, but since I don’t think our tort laws need “reforming”, and I think that denying victims their day in court is a bad idea, I would rather call it “tort deform“. I recognize, however, that most people won’t know what I’m talking about if I call it “tort deform“, so I will — unwillingly — call it “tort reform” just like they do.)
Donald Trump: Although many or even most of Trump’s supporters would probably support tort reform, Trump himself is no enemy of lawsuits. In fact, he is one of the most free-wheeling lawsuit filers on the planet. He often uses lawsuits to force settlements or to stop people from saying things about him that he does not like. For example:
- He threatened to sue Ted Cruz if he did not remove a campaign ad where Trump is shown in a 1999 interview claiming he was “very pro-choice.”
- He sued his ex-wife for $25 million for talking about their relationship. You say talk is cheap? Not if it is about Donald Trump.
- He sued Bill Maher for joking on TV that he would pay Trump $5 million if he could prove that his father was not an orangutan. (The orangutan reference was mocking the Donald’s hairdo. See the hilarious clip on youtube here. Maher was spoofing Trump’s “birther” challenge to Obama’s U.S. Citizenship.) Trump’s lawyer later sent Maher a letter enclosing Trump’s birth certificate to show his father was a human being, not an orangutan, and asked for payment of the $5 million. When Maher did not pay, Trump sued. This suit also went nowhere.
- Trump threatened to sue Rosie O’Donnell for saying he went bankrupt. When interviewed about the incident, he called O’Donnell “disgusting, both inside and out.” The suit went nowhere.
- He sued Univision after the Spanish-language network said it would not air Trump’s Miss USA and Miss Universe pageants because of his statement that illegal immigrants are rapists and murderers. The suit went nowhere.
- He sued several authors for understating his net worth. Trump claimed that the low estimates were false and hurt his reputation. The suits were dismissed.
- He threatened to sue someone (for $25 million) who started an online petition to force Macy’s to drop Trump products from their stores because of Trump’s alleged sexism and climate-change denial. Trump never actually sued, only threatened suit.
The above is just a smattering of the lawsuits Trump has either threatened to file or has filed. For a more thorough list, go to the Daily Beast articled titled “Trump Sued Everyone But His Hairdresser“.
Apparently, Donald Trump believes we should all be able to sue like he does. He promised supporters at a Texas rally that he would make it easier for them to sue journalist. So even though Trump has not stated any position on so-called “tort-reform”, given his proven love of litigation, it would be hard for the Donald to suddenly become a credible tort reformer. He believes in the civil justice system as a means to get justice — or perhaps as a means of bullying people who disagree with him — so it would be difficult for him to don the tort-reformer mantle.
Ted Cruz: Cruz is an ardent, proud, tort-reformer. He defended the 2003 Texas law that allows Texas doctors to commit malpractice without fear of consequences because suing them is virtually impossible. When he was a policy adviser to George W. Bush, he developed Bush’s pro-tort reform proposals. Of the four main presidential candidates, he is the only one likely to push for tort reform. (Note, however, that as a private lawyer, and for a large fee, he once defended two huge plantiffs’ personal injury verdicts — $110 million. So yes, he is an ardent tort-reformer, but he is also willing to defend a huge tort verdict for a fee! Hypocrisy? Just sayin . . .)
Bernie Sanders: Senator Bernie Sanders is generally against tort reform, but for a long time he defended a law that granted the gun industry immunity from personal injury suits when they sell guns to criminals. His position was probably due to the rural nature of the State of Vermont. However, he eventually “saw the light” and reversed his position. (Clinton, of course, loves to point out that he flip-flopped on this issue whereas she has been consistently for gun industry liability).
Hilary Clinton: Historically Hillary Clinton has opposed “tort reform”. As noted above, she has even been in favor of expanding tort law to allow victims of gun violence to sue the gun industry for selling guns to criminals. The problem with Hillary is that her positions change according to the political winds. Thus, if she felt it was politically advantageous to suddenly become a tort-reformer, she would no doubt do so.
In sum, of the four big candidates, the only real tort reformer is Ted Cruz. The one who most loves our civil justice system — and loves to use it — is Donald Trump. It is not likely he would support tort reform. Finally, both Bernie Sanders and Hillary Clinton have strong records of opposing tort reform.
So on the tort reform issue alone, we support anyone but Ted Cruz. On the other issues, we pass no judgment here . . .
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Michael G. Bersani, Esq.