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New York’s Costly Tort Laws and How to Fix Them

New York has long been a battleground over civil justice issues with progressives on both sides of the issues. A recent report by the non-partisan, non-profit think tank, the Empire Center for Public Policy, shows how many of New York’s laws, though, have been bent over the years to overly favor personal injury lawyers and their lawsuit industry.

Part of the problem the report notes is that the Empire State has more lawyers per capita than any other state in the nation – 1 in every 112 residents of New York is a lawyer, which is more than twice the national average. The overabundance of lawyers, which include both plaintiff and defense lawyers, shows no sign of leveling off. The report found that the state’s population of lawyers is growing at 10 times the rate of the overall citizenry. Litigation feeds the lawyers, and the laws have long been written to spur litigation.

There is a high cost to this excessive litigation for everyone else. The Empire Center’s report also found that the runaway growth of the lawsuit industry hurts New York’s overall economy, including the public sector. New York has some of the highest insurance costs, highest medical costs, and highest taxes in the nation, due in large part to the draconian and outdated liability laws put in place at the behest of the legal industry, and most notably, the plaintiff’s bar.

In the 1980s, Governor Mario Cuomo, who was no shrinking progressive, understood the negative effects the state’s liability laws even back then were having on his beloved state. In 1986, Cuomo created a bi-partisan commission, chaired by former Court of Appeals Justice Hugh R. Jones, to make recommendations on how to make the state’s civil justice rules more just.

The Jones’ Commission released a two-volume report filled with proposals to fix New York’s imbalanced legal system. Yesterday’s report from the Empire Center shows that many of the proposals recommended by the Jones’ Commission were never implemented, and sadly, many of the predictions of high auto insurance rates, high medical costs, and high taxes have all come to pass.

In addition to cataloging the myriad ways in which New York’s civil justice system stymies public and private sector growth, the Empire Center report identifies four areas of excessive liability in New York:

· Construction and real estate liability under the so-called “Scaffold Law”
· Unbounded medical liability due to plaintiff-friendly court rules
· Auto Insurance liability where accidents are down, but lawsuit filings are up
· Asbestos litigation and the ongoing travesty in the New York City asbestos court

After detailed analysis of each of the areas above, the report offers recommendations for reform, many of which echo the recommendations from the Jones’ report years before.

The current Governor, Andrew Cuomo, would be wise to champion the recommendations of the commission his father created. Saying that the “trial lawyers are the single most powerful political force in Albany,” as Andrew Cuomo did in 2014, should not be an excuse, but a call to action. New York cannot, and should not, be beholden to any special interests, particularly the trial lawyers. Mario Cuomo knew that, and his son Andrew Cuomo should aim to carry out his late father’s vision by enacting some of the mainstream reforms recommended thirty years ago.

Tom Stebbins, PPI Center for Civil Justice Advisory Board Member