By Michael L. Slack

In one of the most contentious sessions in memory, the 78th Legislature responded to tort-reform activist-patrons by delivering a comprehensive and radical rewrite of civil justice laws.

The effort showcased a sharp contrast in approaches, with the House of Representatives passing a bill with little or no input from opponents and the Senate taking a far more deliberate and measured assessment of the proposed legislation.

Ultimately, the central pieces of the legislation, HB 4 and HJR 3, ended up in conference committee, where the House was able to extract changes favorable to their position. The bill was signed into law by Governor Rick Perry on June 11, 2003. Space limits our ability to describe the Bill in full, but in a nutshell:

Caps on damages in medical malpractice cases. For non-economic damages: $250,000 for all physician or health care provider defendants collectively; $250,000 for each health care institution, up to $500,000 for all institutions collectively; aggregate cap of $750,000, regardless of number of defendants. The caps are just one feature of many that confer special treatment under the law for doctors and hospitals.

Presumption of non-liability in pharmaceutical cases. Defendants are immune from liability for “failure to warn” if the defendant includes warnings approved by the FDA or those stated in monographs developed by the FDA.

Submission of non-parties. Defendants will be able to ask juries to allocate fault to persons who are not even parties to the lawsuit. Defendants can blame persons, even though they cannot be sued by the plaintiffs, such as bankrupt entities. In some instances, “phantom” or unknown persons can be blamed.

Product liability cases limited. Except in rare instances, product sellers, other than manufacturers, are immune from claims. Sellers cannot be sued for most products over 15 years old. Sellers are virtually immune if the product conformed to minimum standards, even if the standards have nothing to do with a defect.

Please see our Attorney Papers for a comprehensive overview.