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Fact check: Has Texas Supreme Court Justice Lehrmann demonstrated hostility to tort reform?
February 29, 2016
By Autumn Lewien
Angling to win Super Tuesday’s Republican primary race for a seat on the Texas Supreme Court, Michael Massengale, speaking to the Texas Tribune in early February, claimed that Justice Lehrmann “has demonstrated a hostility to tort reform.”[1] A similar statement made by Massengale in a November 2015 interview with KFYO, a Texas based news-talk radio station, provides more context for his claim:
| “ |
[Lehrmann] is the most frequent dissenter against the conservatives on our court [...] My opponent is the only member of the Texas Supreme Court who thinks that these tort reform laws actually are unconstitutional. In two different cases she was the sole member of the nine judge court who would have held a tort reform law unconstitutional.[2][3] |
” |
First, a little background: Michael Massengale (R), who has been a judge on the Texas First District Court of Appeals since 2009, is running against incumbent Debra Lehrmann (R), who assumed her position on the Texas Supreme Court bench in June 2010. The winner of Tuesday’s primary will face Democrat Mike Westergren in the November general elections for a seat on the nine-member court. Since 1994, no Democrat has won a seat on the court.[4]
Is Justice Lehrmann against tort reform? To answer this question, we examine Justice Lehrmann’s voting record, paying particular attention to the two cases Justice Massengale cites.
What is Tort Law and Tort Reform?
Tort law refers to the “body of rights, obligations, and remedies”, applied by courts through civil proceedings, that provide a system of relief for persons who have suffered harm from the negligent or tortious (wrongful) acts of others.[5] Today, tort law governs a wide array of behavior including, but not limited to, wrongful death suits, medical malpractice and product liability.
Tort reform refers to the legislative measures implemented to restrict tort law actions. In recent decades, tort reforms have been enacted in attempts to reduce the number of liability lawsuits, and thus decrease the cost of malpractice insurance premiums for doctors and hospitals.[6] Common tort reform measures include caps on compensatory damages, restrictions on expert testimony, shorter statutes of limitations or statutes of repose and heightened proof standards, among others.
Tort Reform in Texas
In 2003, Texas legislators passed House Bill 4, titled The Medical Malpractice and Tort Reform Act of 2003, which altered many aspects of the tort system in Texas. H.B. 4 also proposed a [Constitutional Amendment—passed by voters as Proposition 12—that overcame several objections raised by the Court in the past regarding the constitutionality of specific tort reform measures.
H.B. 4, among other controls, capped liability for noneconomic damages assessed against a health care provider at $250,000, added a ten year statute of limitations applicable to health care liability claims, and introduced a unanimous jury requirement for the provision of punitive damages.[7] The Act also contains language that safeguards emergency room doctors from civil damages unless it could be proved that they acted with “willful and wanton” negligence—that they not only put the patient in extreme risk but knew that their actions would likely result in injury.[8]
Lehrmann’s voting Record
Is Justice Lehrmann “the most frequent dissenter” among conservatives on the Texas Supreme Court? According to the records housed on the Texas Judicial Branch website, from September 1, 2010, the start of the fiscal year in which Justice Lehrmann assumed office, to August 2015, Lehrmann has issued or joined a dissent a total of 40 times—the highest number among the current members of the Texas Supreme Court.[9] Additionally, when we calculate the number of times each justice dissented as a percent of the total dissents issued during their time served over the period from September 2010 to August 2015, we find that Justice Lehrmann, at 40 percent, still ranks highest among all current sitting justices. The below chart provides more information about each justice’s dissent numbers and ranks.
| Number of Dissents for all Current Justices: absolute values for FY 2011 to FY 2015 and as a share of total Dissents issued over individual tenures | ||||
|---|---|---|---|---|
| Justice | Date Assumed Office | Term Expires End of | Total Dissents (FY 2011 to FY 2015) | Dissents as a Percent of Total Dissents (%) |
| Nathan Hecht (R) | 1-Jan-1989 | 2020 | 16 | 16 |
| Paul Green (R) | 1-Jan-2005 | 2016 | 18 | 18 |
| Phil Johnson (R) | 11-Apr-2005 | 2020 | 32 | 32 |
| Don Willett (R) | 24-Aug-2005 | 2018 | 31 | 31 |
| Eva Guzman (R) | 18-Oct-2009 | 2016 | 24 | 24 |
| Debra Lehrmann (R) | 21-Jun-2010 | 2016 | 40 | 40 |
| Jeffrey Boyd (R) | 3-Dec-2012 | 2020 | 20 | 38.5 |
| John Devine (R) | 1-Jan-2013 | 2018 | 17 | 32.7 |
| Jeff Brown (R) | 27-Sep-2013 | 2020 | 9 | 17.3 |
| Sources: Texas Judicial Branch, "Supreme Court," accessed February 29, 2016 | ||||
How do these two cases relate to tort reform?
According to Massengale, Lehrmann, in two court cases, “was the sole member of the nine judge court who would have held a tort reform law unconstitutional.” In our examination of Texas Supreme Court cases, we find that Massengale’s claim is only partially correct. Since assuming the bench in 2010, Lehrmann authored 16 dissents. Of those 16, she was the sole dissenter in only 2 cases—tort reform statutes were at issue in both. However, when we looked more closely at these dissents, we find that only one of the two dissenting opinions can be described as Lehrmann holding tort reform law as unconstitutional.
Tenet Hospitals Limited v. Rivera
In 2014, Lehrmann issued a sole dissent in a case pertaining to the statute of limitations of health care liability claims under the Texas Medical Liability Act. In her dissent, Justice Lehrman argues that the Texas Medical Liability Act’s statute of repose, which requires a health care liability claim to be brought within ten years of the date of the act, violates the Texas Constitution "as applied to minors," as it may preclude a minor from pursuing a negligence claim in court before they are legally capable of asserting a claim.[10] In her dissent, Lehrmann concludes:
| “ |
I do not disagree with the Court’s analysis of the first factor. We have already recognized that the Legislature’s purpose in limiting the length of exposure to medical malpractice cases is a legitimate one. [...] However legitimate a statute’s purpose, the Legislature may not abrogate a child’s established common law cause of action before the child reaches the age of majority. The Medical Liability Act’s statute of repose does exactly that in this case, violating the Texas Constitution’s open courts guarantee as well as its prohibition against retroactive laws.[10][3] |
” |
The opinion of the Court, which includes the Court's response to Lehrmann's dissent, can be read here.[11]
U-Haul International Inc., v. Talmadge Waldrip
In a case argued in February 2012, Talmadge Waldrip, the plaintiff, sued several U-Haul corporate entities alleging negligence and gross negligence. In this case, Justice Lehrmann’s dissent disagreed with the court’s opinion that the admission of specific evidence “was an abuse of discretion that probably led to the rendition of an improper verdict,” not against the constitutionality of tort reform:[12]
| “ |
I think that it is doubtful that the trial court abused its discretion in admitting the evidence. Even assuming it was error, however, the error was harmless in light of the entire record. I respectfully dissent.[13][3] |
” |
Conclusion
According to Judge Massengale, Justice Lehrmann, as a member of the Texas Supreme Court, has demonstrated “a hostility to tort reform,” noting that not only is Lehrmann the “most frequent dissenter” among conservatives on court, but has also issued two dissents in which she was the sole judge to hold “a tort reform law unconstitutional.” In our examination of Lehrmann’s voting record, we find that, with 40 total dissents, Lehrmann dissented more time than any other current member of the Supreme Court Justices. Furthermore, we conclude that out of the two sole dissents Lehrmann issued, only the opinion in Tenet Hospitals Limited v. Rivera can be interpreted as Lehrmann maintaining the unconstitutionality of tort reform law. In this case, Justice Lehrmann holds that the statute of repose, as it applies to a minor's cause of action, violates both the Texas Constitution's open court guarantee and its prohibition against retroactive laws.
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Sources and Notes
- ↑ Rudner, J. The Texas Tribune, "Three Supreme Court Justices Face Challenges," February 9, 2016
- ↑ YouTube, "KFYO - Michael Massengale On Why He Wants To Be Texas Supreme Court Justice," November 12, 2015 (see 2:35 to 3:55)
- ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Champagne, A. The Journal of American Judges Association, "Court Review: Volume 42, Issue 2 - Judicial Reform in Texas: A look Back After Two Decades," 2006 (Page 78)
- ↑ "Tort Law." (2011). In Batten, D. (Ed.), Gale Encyclopedia of American Law (3rd edition, Vol. 14). Detroit, MI: Gale
- ↑ Ludden, J. NPR, "Tort Reform as a Campaign Issue," September 25, 2004
- ↑ American Medical Association, "Summary of Texas HB 4," June 2003
- ↑ US Legal "Wilful and Wanton Conduct Law and Legal Definition," accessed February 25, 2016
- ↑ Texas Judicial Branch, "Supreme Court," accessed February 29, 2016
- ↑ 10.0 10.1 Supreme Court of Texas, "Tenet Hospitals Limited v. Elizabeth Rivera (No. 13-0096) - Justice Lehrmann, dissenting," August 22, 2014
- ↑ Supreme Court of Texas, "Tenet Hospitals Limited v. Elizabeth Rivera (No. 13-0096) - opinion of the Court," August 22, 2014
- ↑ Texas Supreme Court, "U-haul International Incorporated v. Talmadge Waldrip (No. 10-0781 - opinion of the Court" August 31, 2012
- ↑ Texas Supreme Court, "U-haul International Incorporated v. Talmadge Waldrip (No. 10-0781 - Justice Lehrmann, dissenting" August 31, 2012
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