Abbott Faces Questions On Turnabout and Fair Play

Greg Abbott at El Pato restaurant during a campaign stop in McAllen on July 15, 2013.
Greg Abbott at El Pato restaurant during a campaign stop in McAllen on July 15, 2013.

When Greg Abbott’s spine was crushed by a falling oak tree in 1984 he had no health insurance, no paycheck and no feeling in his legs.

But he had a good lawyer and, back then, access to a civil justice system that was generally hospitable toward plaintiffs. So Abbott did what many people would do in his situation: he sued.

Nearly 30 years later, as Texas attorney general and the leading candidate for governor, Abbott is facing new questions about the multimillion-dollar settlement he was awarded and about his advocacy of laws that critics say have tilted the judicial scales toward civil defendants.

Those critics, generally Democrats who oppose the Republican-backed lawsuit curbs, say the policies Abbott has fiercely promoted over his career as a judge and elected official make it virtually impossible for a plaintiff to win the kind of award he got.

“You would think that a young man, at the start of his career, crippled by an injury, would want to make sure that others that may have the misfortune to follow in his footsteps would ensure that those people had the opportunity to be compensated for their injuries in the same way he was,” said Tommy Fibich, a Democratic donor and personal injury lawyer. “He instead closed the door because that would help him get re-elected.”

Abbott said the reforms he had backed and helped cement in court rulings had been necessary to curb a rash of frivolous lawsuits. But he said the changes would not affect people like him.

“If there were someone jogging today, got hit by a tree today, suffered the same kind of accident today, they would have access to the very same remedies I had access to,” he said.

“Our legal system was abused in this state,” he continued. “There were many invalid claims that were filed in court, that clogged up the courts,  that either denied or delayed access for people who had valid claims.”

Tort laws have changed drastically since Abbott’s accident, adding hurdles for people who sue for personal injuries and making it harder for them to win large sums. But there is disagreement about whether Abbott could receive a similar settlement today.

The accident happened on July 14, 1984, when Abbott, then a 26-year-old law school graduate, was jogging. As he ran through the affluent River Oaks neighborhood in Houston, a giant post oak tree snapped at its base and fell, striking Abbott in the back.

The 75-foot tree crushed his spine, leaving him paralyzed and confined to a wheelchair.

Abbott sued the homeowner whose tree fell on him — Roy W. Moore, a go-to divorce lawyer for affluent Houstonians — and the Davey Tree Expert Company, which had inspected the tree for Moore. Abbott alleged that Moore and the tree company were negligent for failing to warn people about the dangerous tree or to take action to prevent it from falling.

In addition to claiming medical expenses, the lawsuit said Abbott had “suffered injuries resulting in physical pain, mental anguish and physical impairment, as well as the reduced capacity to work and earn money.”

Moore was not at home when the tree fell on Abbott. But Moore, now retired, said in a recent telephone interview that he had been shocked to learn that the towering oak had rotted from the inside.

“I had walked outside the morning before, and it looked green as a gourd,” he said. “I had no idea the thing was hollow.”

Moore said he never thought — and still does not think — that he had any liability. He also believes he would have won the case had it gone to trial.

“I don’t blame him for suing me,” said Moore, who plans on voting for Abbott for governor. “But I don’t know what the basis of the claim was, to tell you the truth, except that you had a rich River Oaks lawyer and a poor boy that was crippled for life.”

Court records show that Moore blamed the Davey Tree Expert Company for Abbott’s injuries. Records indicate the company inspected Moore’s trees in early 1983 and found them in “pretty good condition,” but the report took special note of a tall one near the sidewalk.

“There is some basal decay in the post oak, but that can’t be corrected,” it said. Basal decay indicates rotting at the base of a tree. The company recommended fertilization — the wrong treatment, according to Abbott.

Davey Tree denied any negligence at the time and declined to comment for this article. 

The parties reached a settlement in 1986, the details of which Abbott discussed for the first time last week. The proceeds were paid by the defendants' insurance companies. Under the agreement, Abbott receives periodic lump sum payments plus monthly income. By the end of this year, he will have received about $5.8 million and is entitled to monthly income from the settlement until he dies. 

Court papers show Abbott had incurred $82,811.85 in medical expenses a year after the accident, and he claimed two months of lost wages from a job that was supposed to start paying him not long after he was injured. He had future medical costs to pay, but most of the settlement came from noneconomic losses for pain and  suffering and mental anguish, said Abbott’s former lawyer, Don Riddle of Houston.

“The strength of this case was in the intangibles — the noneconomic items,” said Riddle, who has been critical of Abbott’s pro-tort reform stance.

Not long after Abbott’s accident, sentiment against trial lawyers and large jury verdicts swept through Texas politics, which helped propel Republicans into dominance and laid the groundwork for new lawsuit restrictions.

In 1995, the Legislature capped punitive damages stemming from noneconomic losses at $750,000. Lawmakers also erected hurdles for plaintiffs who try to collect from multiple defendants.

Meanwhile, the conservative Texas Supreme Court, on which Abbott served from 1996 to 2001, began adopting tighter standards for losses that involved pain and suffering and mental anguish.

Then in 2003, the Legislature capped noneconomic damages in medical malpractice cases at $250,000, a move that Abbott supported. That means when the medical equivalent of a freak tree accident happens in an emergency room today, people who sue the doctors face a limit on the amount of noneconomic damages they can receive. That limit is frozen in statute at $250,000 and does not have any built-in increases for the rising cost of living. Nuances in the law can lead to higher awards in wrongful death cases or when more than one health care institution is involved.

Abbott said the medical malpractice reforms were needed to keep doctors from leaving Texas over a flood of meritless lawsuits, and he says it worked. Critics say the reforms were meant to help insurance companies and cite a university study casting doubt on the benefits claimed by tort reform proponents.

There are no such caps in nonmedical liability lawsuits, like the one Abbott filed in 1985, and punitive damages were not alleged in Abbott’s case — though his lawyer says that could have happened if it had gone to trial.  

With so many variables, it is impossible to say for certain whether he could get the amount today that was settled on back then. Abbott said that defendants and juries weigh a variety of factors when lawsuits arise, including shared liability by the plaintiff.

“You can’t really just kind of cast out numbers or hypotheticals without knowing the details of a case,” Abbott said.

Charles M. Silver, a professor at the University of Texas at Austin School of Law and co-author of the study that disputed claims made by proponents of medical malpractice caps, said changes in personal injury law and a “pro-defendant” posture in the judicial branch made such a large financial settlement substantially less likely.

“Today that would be an extraordinarily high recovery,” Silver said. “It would be harder to get that type of award today.”

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