Editorial on damages misses point

March 12, 1996

WHILE YOUR disparaging March 6 editorial, "Damaging bill on punitive damages," attacks the supposed greed of Peter Angelos (and other plaintiffs' lawyers) for pushing legislative changes which would make it easier for people to collect punitive damages in Maryland, it misses the bigger picture concerning the current state of the law and of the asbestos litigation in Maryland and particularly in Baltimore City.

The Maryland Court of Appeals has in a series of opinions over the past five years changed the legal requirements for establishing a claim for punitive damages. A plaintiff must now establish by "clear and convincing evidence" that a defendant has "actual malice" toward a plaintiff in causing his injury. It is no longer enough to show willful indifference on the part of a corporate defendant or that the corporation had actual knowledge of a product defect (e.g. Ford Motor Co. in the case of Ford Pinto years ago) that would likely lead to injuries and death. "Actual malice" requires a finding that a defendant intended to cause the injury (or death) of a given person. The practical effect of this is that punitive damages no longer can be recovered in Maryland against any corporation for any misconduct, no matter how reprehensible.

This is the toughest standard of any state in the union. But it will have no effect on bringing business to Maryland (or keeping it here), for businesses simply don't look to state tort law as a reason for moving into or out of a state. The argument advanced by your paper that the current state of the law strikes a "climate of stability companies need to plan effectively" is sheer propaganda. The only industry affected is the liability insurance industry, which simply doesn't want to, now as in the past, pay any liability money it can avoid paying. To see The Sun trumpeting the disingenuous bombast of the insurance lobby (the so-called tort reform lobby) is just plain sickening.

The Maryland/Baltimore City asbestos litigation, currently involving some 20,000 injured, dying and deceased workers, is at a near standstill because of a lack of available judges, pending legal cross-claims between numerous defendants (all insured) and lengthy appeals that go on and on.

The underlying struggle is between the victims and their lawyers (such as Peter Angelos) and the insurance companies that pay the asbestos claims on behalf of the asbestos manufacturers. The elementary fact is that the insurance carriers do not wish to see these cases move to trial and they wish to hold on to their "claims dollars" indefinitely. Punitive damages was one of the few "cards" that could be played by the victims' lawyers to pressure settlements, but now that card has been taken away.

Maryland statutory provisions actually discourage settlement in the asbestos litigation, for non-settling defendants may actually achieve a far greater reduction of any final verdict than the actual amount received by the victim from settling defendants. That, and the lack of judicial resources, creates a stalemate that denies asbestos victims fair compensation.

It is a situation that is profoundly unfair and cries out for legislative changes. The plague of mesothelioma continues to spread among the asbestos victim community. It is sad that your editorial board has lined up against that community in such a strident and uninformed manner.

# William F. Mulroney

Baltimore

Pub Date: 3/12/96

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