The Lakin decision
has been credited with spurring a safer design for nailguns.
The March 13
issue of Liability and Insurance Week reports that
the "Yes on 81" campaign made a plea to members of the
American Tort Reform Association at its annual meeting
in Washington, D.C., seeking "$3 million from national
corporations."
The "No on
81" campaign is fronted by a large number of groups, including
a brain-injury victims association as well as environmental,
consumer and labor groups--but it's bankrolled almost
entirely by lawyers.
When Peter John Lakin borrowed a neighbor's nailgun, he
had no idea the device would change his appearance, transform
his personality and destroy his marriage.
Lakin, a Portland roofer, clambered up onto a sturdy
wooden platform in his mother-in-law's garage. With his
left hand he lifted a board over his head against the
eaves of the garage. With his right hand he pressed the
nailgun against the wood to trigger the autofire function.
The result? A misfire that jerked the gun around into
his cheekbone, where it fired a nail 3.5 inches up through
Lakin's skull and caused permanent brain damage.
Almost a decade later, Lakin's misfortune has spawned
the most contentious and high-stakes battle on the mail-in
ballot that will be sent to voters next week.
Ballot Measure 81 would give lawmakers the upper hand
over courts and juries in deciding what damages, if any,
a victim such as Lakin can be awarded.
Opponents say Lakin deserves whatever a jury thinks appropriate
given the facts of his case. Supporters of the measure,
however, say failure to rein in overly sympathetic jurors
will lead to hikes in consumer-goods prices and insurance
rates.
Today, the left side of Lakin's face droops, his vision
is restricted and he has only partial use of his left
arm and leg. "I've had to learn how to read again, and
I still haven't gotten down writing," he says. "I have
very little short-term memory."
Lakin and his then-wife sued the company, Senco, for
designing a faulty product. A jury agreed, awarding the
couple $10.2 million. Of that figure, $3.3 million was
to reimburse the Lakins for medical costs and lost wages;
$4 million was punitive damages against the company for
its design; and $2.9 million was for noneconomic damages:
pain and suffering and loss of "marital consortium."
The last part of the verdict ran into a problem: a $500,000
cap that the Legislature had placed on noneconomic damage
awards in 1987.
Lakin appealed, saying Senco should pay the full $2.9
million.
Last July, after two years of deliberation, the Oregon
Supreme Court unanimously ruled in Lakin's favor, finding
that the state's cap on jury awards violated the Oregon
Constitution, which says "the right to trial by jury shall
remain inviolate."
Just eight days after the verdict, however, lawmakers
took a stalled bill that would have regulated live nude
dancing and turned it into a ballot measure to reverse
the Lakin ruling--and much more.
While raising complex issues, Measure 81 itself is simple.
It inserts a sentence into the constitution: "Notwithstanding
any other provision of this constitution, the Legislative
Assembly by law may impose limitations on the damages
that may be recovered in civil actions."
The measure's opponents say that giving the Legislature
the explicit power to overrule juries in all types of
lawsuits, ranging from a car accident to a contract dispute,
is like giving matches to an arsonist.
The current pro-business makeup of the GOP-dominated
Legislature has been fertile ground for attempts to restrict
the ability of injured parties to sue. Gov. John Kitzhaber
vetoed four laws passed last session that would have curbed
people's right to file lawsuits.
On the other side, Measure 81 backers, including the
Oregon Medical Association, say that the legislative power
grab is needed. The broad wording of the Lakin decision,
they say, threatens other state laws aimed at protecting
health-care providers, good Samaritans and pubic employees
from liability.
This gets to the heart of the issue: Without Measure
81, supporters argue, insurance rates will soar. As proof,
the OMA notes that medical malpractice premiums in Oregon
have been cut in half since 1987, when the Legislature
put in place a package of "tort reform" laws that included
the cap struck down in the Lakin ruling. In addition,
the OMA says that in Washington, which has no caps, malpractice
rates are higher.
Neither argument holds up well under scrutiny.
The reality is that the entire country faced an insurance
crisis in the mid-1980s, and rates all over the country
have come down, even in states without caps on jury verdicts.
The comparison with Washington is also a bit misleading.
Malpractice rates for many specialists are, indeed, higher
in Washington. The premiums for general and family practitioners,
however, are comparable in the two states. And according
to federal statistics, the average malpractice payout
is the same in both states, $50,000, even though Washington
has no cap.
Tom Fine, vice president of underwriting for the Seattle-based
Physicians Insurance Exchange, said the difference in
the state premiums is explainable by a lot of things in
addition to differing laws. Washington has a higher cost
of living, he says, and Oregon juries are more conservative.
If the "Yes on 81" campaign's claims of an imminent lawsuit
crisis are exaggerated, that might explain the lackadaisical
response of campaign contributors. Doctors have written
a bunch of $200 checks, and medical insurers have kicked
in more than $100,000. But overall, the campaign has raised
only $700,000, according to a campaign report filed Monday.
That's far short of its $3 million goal.
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Willamette Week | originally
published April 19,
2000
