ACTRESS: Would you mind if I investigate this a little further?
TOM BEARDEN: Based on a true story, last year's hit movie "Erin Brockovich" was compelling. A gutsy legal assistant moved heaven, earth, and the legal system to get a lot of money for people who had been poisoned by a local utility plant.
SPOKESPERSON: $20 million is more money than these people have ever dreamed of.
ACTRESS: These people don't dream about being rich. They dream about being able to watch their kids swim in a pool without worrying that they'll have to have a hysterectomy at the age of 20.
TOM BEARDEN: But even without the added Hollywood drama, personal injury cases are often compelling. Take the Sharrel family, for example. For the last six years, Joyce Sharrel has never been far from her husband Philip's side. That's because in 1994 he suffered a brain injury after being hit by two 40-pound boxes that fell from a top shelf at a Colorado Wal-Mart store. A jury awarded the Sharrel family $3 million; $1 million for medical bills, $1 million for economic loss, and $1 million for pain and suffering.
JOYCE SHARREL: He's not the man he used to be. He isn't as alert as he used to be. He can't remember stuff. His short-term memory is really bad. He gets tired easily. His energy level is real low anymore. And, it's just a different man.
TOM BEARDEN: But unlike Hollywood's usual happy ending, Sharrel has not been able to collect all of the money awarded to him. That's because Colorado was one of 46 states in recent years to pass laws that limited or capped the amount of money personal injury victims could receive. In Colorado, the cap for pain and suffering is $500,000.
JEFFREY HYMAN: What is the emotional stress, depression, anxiety, and loss of enjoyment resulting from a permanent brain injury?
TOM BEARDEN: Jeffrey Hyman is Sharrel's lawyer. He thinks the law is unconstitutional, and is now challenging it in court.
JEFFREY HYMAN: The challenge is the denial to the access to the courts, and denial of the right to... the fundamental right to a jury trial. The jury in Sharrel's case spoke, the legislature, the politicians, and the government, they don't trust the jurors. They're saying that the juries are irrational, incompetent, and that the power of the jury is better vested in the legislature.
ROBERT PECK, American Tort Lawyers Association: May it please the court...
TOM BEARDEN: Hyman's challenge is just one of many launched in the last three years by the American trial lawyers association as part of an orchestrated campaign to roll back tort reform. Their most recent challenge was in August when they took on Florida's newly passed injury award limits.
ROBERT PECK: Any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional.
TOM BEARDEN: Robert Peck is the association's legal director.
ROBERT PECK: So far, in four states, we have invalidated entirely the tort reform statute that we undertook. That's Illinois, Oregon, Indiana, and Ohio.
TOM BEARDEN: The laws were called tort reform laws, and were designed to change how torts-- or compensation lawsuits-- were handled. Supporters of injury caps pointed to what they considered outrageous awards, cases like this one, where a woman was awarded $3 million after spilling a cup of hot McDonald's coffee on herself.
SPOKESMAN: This is not an unreasonably dangerous product. It is not an unreasonably dangerous practice.
TOM BEARDEN: The reformers said such high awards encouraged Americans not to take responsibility and to blame others for their accidents.
LINDA RANSON: (commercial) My name is Linda Ranson. My daughter, Tara, has a silicon brain shunt.
TOM BEARDEN: They use TV commercials to deliver their message to state legislators and consumers, that huge awards hurt manufacturers and their customers.
LINDA RANSON: (commercial) Lawsuit abuses severely hamper progress in medical devices. Please speak out. We have to have sources of future implants.
TOM BEARDEN: Reformers also accuse trial lawyers of taking vantage of juries. Congressman Joel Hefley sponsored Colorado's reforms when he was a state representative.
REP. JOEL HEFLEY, (R) Colorado: If you could put an emotional kind of case before the average jury, their heart's going to go out to them, whether it makes any sense or not from the standpoint of whose fault it is.
TOM BEARDEN: But the Sharrels say the jury, as well as the victim, has been penalized by the reform laws.
PHILLIP SHARREL: Jurors spent three weeks on this. I mean, they gave up a lot of personal time, a lot of work and everything to give me this award, but because of the caps, I can't get it.
TOM BEARDEN: Jeffrey Hyman says the reforms weren't needed in the first place.
JEFFREY HYMAN: There are some large jury verdicts. They're the exception, they're not the rule in America... the American judicial system. And what needs to be understood is that within our judicial system-- the courts, the judges, from the trial judge all the way to the appellate judges-- have the power to reduce large verdicts that are not reasonable, that are not rationally based, and that are excessive.
TOM BEARDEN: That's exactly what happened in the McDonald's coffee case. The $3 million verdict was sharply reduced.
JUDGE: I'm going to reduce the punitive damages award to $480,000.
TOM BEARDEN: Some consumer advocates are delighted to see the tort reform laws dismantled. They credit high jury awards for improving everything from children's car seats to fuel tank design. Joan Claybrook is President of Public Citizen.
JOAN CLAYBROOK, Public Citizen: Damage awards are often given because a company has ignored, refused to change, been unwilling to help the consumers that they've harmed, and this isn't the first consumer, usually, that has been harmed. It's usually the 500th consumer that's been harmed. And that's what really irritates. The jury, they say, you don't understand anything but money, so we're going to make you pay through the nose for this one, and maybe you'll change your policies. And by the way, it works. That is what makes companies change.
TOM BEARDEN: But those in favor of caps are alarmed at the recent backlash. Congressman Hefley:
REP. JOEL HEFLEY: I don't think the challenges are legitimate. I don't think... At least in Colorado, where I am most familiar with, we in no way restricted a person's ability to get their case before the court, and to be made whole. The idea of tort law is to make people whole. You're in an accident that's caused by someone through their carelessness and so forth, well, you shouldn't have to pay your medical bills and your rehabilitation bills and all that kind of thing, you should be made whole. The idea was not to make people rich, to make it a lottery that you could cash in on.
TOM BEARDEN: Sherman Joyce, President of the American Tort Reform Association, thinks courts that overturn tort reform are violating the principle of separation of powers.
SHERMAN JOYCE, American Tort Reform Association: You read these opinions, these courts are basically saying, this is our province, and our province alone. The legislature and the governor have no business making liability laws. We think that's wrong.
TOM BEARDEN: The battle over tort reform is being fought in many venues.
SPOKESMAN: You've got to look at the whole law.
TOM BEARDEN: In state, district, and supreme courts, and in the court of public opinion. Those who oppose reforms enlisted the help of the real Erin Brockovich, who appeared in a TV commercial aimed at persuading Oregon voters to reject limiting injury awards.
ERIN BROCKOVICH: If you're going to get down to the bottom line here, and let the legislature and the politicians become our judge and jury, it's a crime.
TOM BEARDEN: Voters agreed, and defeated the tort reform measure.
SPOKESMAN: Fight lawsuit abuse...
TOM BEARDEN: But supporters of injury caps vow to search out other avenues to continue their fight.
AD SPOKESMAN: I didn't take this job to sit around and worry about getting sued.
SPOKESMAN: We have to mount aggressive challenges in the courts. Unfortunately, the politicization of the judges has made this a political issue, and being involved in the process of choosing judges is inevitable. We may not like it, we may find it distasteful, but it's an inevitable outgrowth.
TOM BEARDEN: As the challenges continue, a patchwork system is emerging. Some states have caps, others don't. Both sides are likely to continue their appeal to voters and legislatures for new standards.