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[J]uries consistently award women more in noneconomic loss damages than men ... [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men . Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women .15
Professor Joanna Shepherd of Emory University School of Law explained,
[B]y limiting certain types of damages relative to other damages, tort reform disproportionately reduces both compensation and access to justice for specific segments of the population . For example, existing studies show that caps on noneconomic damages disproportionately reduce compensation to females, children, the elderly, and the poor because a much greater proportion of their damage awards are in the form of noneconomic damages . These demographic groups often have lower incomes than other groups and, as a result, they have correspondingly less economic loss and relatively more noneconomic loss . Thus, noneconomic damage caps act as a regressive tax on their recoveries because they reduce the recoveries of lower-income plaintiffs by a higher fraction than they reduce the recoveries of higher-income plaintiffs .16
As will be explained in more detail later, caps also make it more difficult for injured people to find competent contingency fee attorneys to take their cases . California insurance defense attorney Robert Baker, who had defended malpractice suits for more than 20 years, told Congress in 1994, “[a]s a result of the caps on damages, most of the exceedingly competent plaintiff ’s lawyers in California simply will not handle a malpractice case ... There are entire categories of cases that have been eliminated since malpractice reform was implemented in California .”17
2. Limits on Contingency fees18
The contingency fee system provides anyone with a legitimate injury case, regardless of his or her financial means, with access to an attorney . As noted earlier, the attorney takes a case without charging any money up front and is paid only if the case is successful . Even organizations generally known for their support of tort reform have recognized this critical function of the contingency fee system . Associate Professors of Economics Alexander Tabarrok and Eric Helland of George Mason University and Claremont McKenna College wrote a book about this topic, called Two Cheers for Contingency Fees, published by the conservative American Enterprise Institute . In it, the authors wrote, “A second advantage of contingent fees [the first being cost reduction] is improved access to the legal system .”19 They also explained, “[c]ontingent-fee lawyers ‘screen’
15 Id.
16 Joanna Shepherd, Uncovering the Silent Victims of the American Medical Liability System, VanderbilT l. reV. 151, 175 (2014) (citing Lucinda M. Finley, supra note 14, at 1264–65); nicholas m. Pace eT al., caPPing non-economic awards in medical malPracTice Trials: california Jury VerdicTs under micra 30–33 (2004); Eleanor D. Kinney et al., Indiana’s Medical Malpractice Act: Results of a Three-Year Study, 24 ind. l. reV. 1275, 1288–89 (1991)).
17 See Jamie Court, The Medical Malpractice Insurance Crisis Hoax, mulTinaTional moniTor (Mar. 2003), http://www. multinationalmonitor.org/mm2003/032003/court.html.
18 This section is based on an earlier publication, cenTer for JusTice & democracy, courThouse cornersTone: conTingency fees and Their imPorTance for eVeryday americans (2013), available at http://centerjd.org/content/white-paper- courthouse-cornerstone-contingency-fees-and-their-importance-everyday-americans.
19 alexander Tabarrok & eric helland, Two cheers for conTingenT fees 7 (2005), available at www.aei.org/ files/2005/08/22/20050817_book827text.pdf.
Impact: Collected Essays on Expanding Access to Justice