Letter to the Greenwood Commonwealth by Charlie Swayze III - March 5, 2012

The issue of tort reform has resurfaced in the Chambers of the Mississippi State Legislature.  This time it is under the guise of “loser pays.”  “Loser pays” requires a losing plaintiff in a civil suit to pay the defendant’s costs and attorney’s fees.   Gary Chism, a representative from Columbus, Mississippi, has introduced House Bill (“HB”) 562 to establish a form of “loser pays” to Mississippi’s legal system.  The title to HB 562 begins as “An Act to Provide for the Payment of Costs and Expenses Incurred by a Prevailing Defendant in a Civil Action ....”  In short, it states in the bill that a defendant can submit “the expenses which may include time spent in preparation of defense and other legitimate expenses to the court for approval of payment from the plaintiff and the plaintiff’s attorney to the defendant in the event that the decision is in favor of the defendant.”

Under Chism’s proposed bill, only the defendant is entitled to recover costs and attorney’s fees. If the plaintiff is successful, he cannot recover attorney’s fees and court costs from the defendant or the defendant’s counsel.  Clearly HB 562 is an attempt to deny Mississippians access to the court system and create a chilling effect on litigation.

If HB 562 passes as proposed, Mississippians will not be provided an opportunity to hold corporations, manufacturers or drug companies responsible for dangerous products that they sell in this state.  A product’s liability case against a large corporation or drug manufacturer is very expensive for both plaintiffs and defendants.  Expert witness fees alone can reach upwards of $100,000.00 before trial.  Losing a product’s liability case and being forced to pay defendant’s attorney’s fees and costs would most likely cause the plaintiffs and/or their attorneys to file bankruptcy.  Plaintiffs’ attorneys would never file suit against a corporation or insurance company.  As a result, corporations could push defective products throughout the state with no repercussions.  Mississippians would be the ones who suffer. Should these companies get a free pass for their actions?

Most of the buzz over “loser pays” was generated in Mississippi’s most recent statewide elections.  Many candidates spoke of adopting a “loser pays” system to end “frivolous lawsuits”; however, under Mississippi rules, a system is already in place to rid the courts of “frivolous lawsuits.”  Currently, if a lawyer files a “frivolous lawsuit”, the judge can dismiss the case and order the losing party to pay the other side’s attorney’s fees and costs.

Thus, HB 562 is not about tort reform at all.  Rather, it is a bill advocated by large corporations and insurance companies to deny plaintiffs access to the courtroom.  Injured parties’ rights to seek recovery in a courtroom have been vastly reduced in recent years.  Anyone who has a credit card, bank account, mortgage or any other type of bank loan has signed away his right to have a court trial in the event that a dispute arises.   HB 562 will put the final nail in the individual rights’ coffin.

Additional tort reform in Mississippi is not needed or desired.  On December 5, 2011, the Clarion Ledgerpublished an article that the now Republican majority of the Mississippi House of Representatives may seek more tort reform.  The article quoted Mike Houpt, CEO of a the physicians insurance company, Medical Insurance Company of Mississippi (“MACM”),  as to whether or not additional tort reform was needed.  Houpt stated, “It would be hard for me to argue more tort reform is needed ... We’re content with what we have.”  The medical profession seems satisfied with Mississippi’s current legal climate.

HB 562 reeks of influence from large corporations and insurance companies.  The level of bias towards plaintiffs is so heavy that Lady Justice can no longer hold her scales.  In the end, Mississippians will pay the ultimate price as they will be denied access to the courts in the event that they are injured. Thus, we return to dueling in the streets.