COLUMBIA--U.S. Sen. Lindsey Graham asked state lawmakers to follow his lead Monday as he unveiled federal "loser pay" legislation in hopes of curtailing frivolous lawsuits.
"If you want to sue McDonald's for making you obese, I guess you have the right to do so," he said. "But under my bill, if you lost, and the jury says you're part of your own problem, then you'd have to pay McDonald's' legal costs."
Graham, R-S.C., unveiled the legislation during a news conference at the Matthew J. Perry Federal Courthouse in Columbia. He was joined by Gov. Mark Sanford.
Together the men called for state lawmakers to add the loser pay proposition to tort reform efforts under way in the General Assembly.
Reached by telephone Monday, several legislators said they would be receptive to such an initiative, though most admitted loser pay would be a hard sell at the Statehouse.
House Ways and Means Chairman Bobby Harrell, R-Charleston, said he supports the notion, but understands the concerns of those who don't.
"It would definitely stem frivolous lawsuits, but there is a legitimate fear that it would dry up lawsuits that are not obvious slam dunks," he said.
Graham's legislation would establish guidelines under which the loser of a lawsuit in federal court could be required to pay the winner's attorney fees. It applies to cases in which the parties are from different states.
To receive compensation for fees, the winning side of a lawsuit must have made a settlement offer that was rejected and then file a petition with the judge requesting compensation. The judge would make the final determination.
Richard Hricik, an attorney with the Charleston law firm of Clekis and Hricik, said that such a bill would only serve to further insulate big business.
"The idea that there is some crisis of frivolous lawsuits is just a myth. Lawyers are businessmen, too. They wouldn't stay in business if they took frivolous lawsuits," he said. "The people hurt by this are the everyday citizens who will not be able to afford the risks associated with taking a big corporation to trial."
Earlier this year, the House passed legislation that placed a cap of $2 million on non-economic damages, such as pain and suffering, and limited the venue in which lawsuits could be filed. That legislation is under debate in the Senate Judiciary Committee and is scheduled for discussion today.
S.C. Sen. Gerald Malloy, D-Hartsville, is a member of the subcommittee considering the measures. An attorney by profession, Malloy said he does not believe adding loser pay to the legislation will be a high priority. Harrell also said he thinks "loser pay" would have a tough time passing.
Graham said something has to be done.
"I don't believe it's unfair to ask all parties in litigation to assume some risks," he said. "I think it is unfair to ask one party to assume all the risks."
Sanford applauded Graham's proposal, calling tort reform one of the bricks needed in reconstructing state government in South Carolina.
