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Fred Thompson describes himself as "a consistent conservative" and cites his record on tax cuts, balancing the budget and reducing federal regulation. But one area where the former trial lawyer splits with many conservatives is on tort reform, a broad term that generally refers to limitations on lawsuits. Many companies and trade groups have sought new tort laws to reduce how much they have to pay if they lose a suit.
Rudy Giuliani cited several of Thompson's votes against tort reform bills during a Republican debate in Orlando on Oct. 21, 2007.
"Fred was the single biggest obstacle to tort reform in the United States Senate," Giuliani said. "He stood with Democrats over and over again."
Giuliani said Thompson "voted against $250,000 caps on damages, which they have in Texas. He voted against almost anything that would make our legal system fairer: 'loser pays' rules, things that would prevent lawsuits like that $54 million lawsuit by that guy who lost his pants . . . Fred Thompson, along with very few Republicans, blocked tort reform over and over and over again. That is not a conservative position."
Thompson responded that he opposed some of the bills because of his preference for states to handle those matters. "Local issues belong at the state level. Most states have passed tort reform," he said. "That's our system. It's not all federalized."
But he added that he had supported tort laws that involve product liability and securities because he felt they related to interstate commerce.
We find Giuliani is stretching the truth with some of his claims, while Thompson is on more solid ground with his defense.
We find Giuliani has his facts only partially right and is stretching the truth with his rhetoric.
Giuliani is correct that Thompson cast a vote against a $250,000 cap on punitive damages, but that's only part of the story. Thompson's no vote back in 1995 was on an amendment to a product liability bill. The cap as written in the bill originally had been $250,000 or three times the economic damages, whichever is greater. The amendment lowered it to $250,000 or double the economic damages. Thompson was one of only six Republicans to vote against lowering the cap.
But the following year, when the amended bill came back for final passage, Thompson voted for it. President Clinton later vetoed the legislation.
Giuliani is right that Texas has a $250,000 cap on the amount individuals can receive in punitive damages in a health care liability case, although claims against separate hospitals and health care institutions can collect make that as high as $500,000. But Giuliani's comment was too vague; he would have been more accurate if he had said "punitive damages on medical claims."
As our friends at FactCheck.org noted in their report on this topic, Giuliani overreaches with his claim that Thompson was "the single biggest obstacle to tort reform in the Senate."
Giuliani is exaggerating with his claim that Thompson opposed "loser pays" rules.
Giuliani's claim that his rival opposed "loser pays" rules is based on Thompson's vote (on the winning side) to strip language from the 1996 bill that would have forced only the defendants — not the plaintiffs — to pay attorney and court fees if they refused to settle of court and the refusal was "unreasonable or not made in good faith." But this doesn't really fit the definition of "loser pays;" instead, striking the language did more to benefit the corporate defendants.
Overall, we find Giuliani's attack on Thompson to be Barely True.
Thompson's response, however, was more accurate.
In 1995, he voted with his party for a bill limiting product liability lawsuits against manufacturers. However, he was instrumental in narrowing it from the broad tort reform that the Republican leadership had wanted.
Asked in 1995 about the product liability bill, Thompson said, ""I've been supportive of that, but I've been against a broad takeover by Congress of our state court system ... I came to Washington to downsize the influence of Congress on people's daily lives and to give more authority back to the states."
Also in 1995, Thompson voted with fellow Republicans on a bill that made it harder for shareholders to file class-action lawsuits companies. When that law caused more and more class-action securities fraud lawsuits to be filed in state courts, Thompson voted for a 1998 law that required such cases to be handled by federal courts.
He is correct that most states have passed some sort of tort reform, according to Darren McKinney, spokesman for the American Tort Reform Association, a group that advocates state and federal tort reform.
Overall, we find Thompson's response to Giuliani's attack to be Mostly True. UPDATE: We have revised our ruling on Giuliani's attack with respect to Thompson's vote on the $250,000 damages cap. We orginally ruled it Half-True, but have changed that to Barely True. We discovered we had only examined some of Thompson's votes on that issue.
U.S. Senate Final passage of product liability legislation
U.S. Senate, 1995 Securities Liability Veto Override
U.S. Senate, Vote on 1998 Securities Liability law
U.S. Senate, Thompson punitive damages vote
Texas Civil Practice and Remedies Code, Chapter 74, Section 301
U.S. Senate, Thompson "Loser Pays" Vote
Chattanooga Free Press, Thompson Warns Of Legal Reforms Hurting States, May 10, 1995
ABA Journal, Mr. Thompson Takes on Washington: Whether as a lawyer, actor or now U.S. senator, Fred Thompson follows his own script, December 1995
FactCheck.org, Florida fandango