Court Asked to Overturn Law Limiting Liability Pay

Foes of Proposition 51, the “deep-pockets” initiative that limited liability for damages, asked the state Supreme Court on Thursday to declare the landmark measure unconstitutional.

Attorneys opposing the initiative in its first review by the court told the justices that the new law is impermissibly vague and violates the rights of plaintiffs seeking damages for pain, suffering and other non-economic injury.

“This statute puts a premium on things, rather than the value of human life,” said Daniel C. Cathcart of Los Angeles, lawyer for the plaintiff in the case before the court.

Retroactivity Fought

If the justices do uphold its constitutionality, they should drastically limit its impact by refusing to apply it to the tens of thousands of pending personal injury, property damage and wrongful death cases that await trial, the lawyers said.

But an attorney defending Proposition 51 said the voters made a valid policy decision to limit non-economic damages to a defendant’s proportion of fault and that refusing to apply the initiative to pending cases would thwart the intent of the electorate.

“Unless Proposition 51 is given retroactive application, its effect will not even begin to come about for four or five years because of the existing backlog of cases in our courts,” said Roy G. Weatherup, a Santa Monica lawyer representing two defendants in the case before the court.

A decision by the justices is expected by early next year, if not sooner. An array of businesses and municipalities, including Los Angeles and 38 other cities hit hard by damage awards in the past, have urged the court to apply the measure immediately. Plaintiffs’ lawyers contend that if the new law is to be applied at all, it should be only to future cases.

Proposition 51, enacted by the voters in June, 1986, limits liability for non-economic damages to a defendant’s share of fault for the plaintiff’s injuries.

Under the old “deep-pockets” doctrine, a defendant could be held liable for up to 100% of such damages--regardless of his fault--if another defendant in the case could not pay. Economic damages, such as medical costs or lost wages, are not subject to the new law’s restrictions.

The case heard Thursday arose in a personal injury suit brought in Los Angeles in 1981 by Gregory Evangelatos, who at age 18 was blinded while mixing chemicals for homemade firecrackers.

A state Court of Appeal held earlier this year that when Evangelatos’ suit against the sellers of the chemicals comes to trial, any claim for non-economic damages would be subject to the restrictions of Proposition 51. His lawyers appealed to the state Supreme Court.

Thus far, most of the debate over the initiative has focused on whether it applies to pending cases. But in Thursday’s hourlong oral arguments, the measure’s foes devoted most of their time to attacking its constitutionality.

Cathcart contended that the measure was unconstitutionally vague, raising numerous questions about its applicability that could bog down the courts for years. “It has thrown trial courts in this state into confusion,” he said.

Beyond that, he said, the measure denies equal protection of the law by effectively penalizing plaintiffs who suffer mainly pain and suffering while rewarding those whose claims stress economic damages.

“Little children injured by thalidomide . . . may not be adequately compensated,” he said.

Donald B. Caffray, a Long Beach lawyer appearing on behalf of the California Trial Lawyers Assn., told the justices that in the absence of specific language in the initiative, the measure should be applied only to cases where a wrongful act causing injury occurred after Proposition 51 was passed.

“This initiative could have had, but did not have, any words directing that it should be retroactive,” Caffray said. “Something as important as this should have been included, if it was meant to be included.”

Weatherup, representing the defendants in Evangelatos’ suit, cited arguments during the 1986 campaign by both proponents and opponents of the initiative indicating that they believed the measure would apply to all cases then awaiting trial.

The lawyer noted that a decade ago, the Legislature had enacted laws limiting non-economic damage awards, as well as attorneys’ fees, in medical malpractice cases. Those limitations were later upheld as constitutional by the justices. Weatherup said they were not any different legally from the restrictions enacted by the voters in Proposition 51.