DATE: Saturday, March 1, 1997               TAG: 9703010018

SECTION: FRONT                   PAGE: A12  EDITION: FINAL 

TYPE: OPINION 

SOURCE: BY ROBERT J. HADDAD 

                                            LENGTH:   67 lines

WHAT IF NICOLE HAD BEEN KILLED IN VIRGINIA?

Admittedly, my circle of friends and acquaintances may not be representative of the people of Virginia as a whole. However, to the extent that one can gauge the feeling of the general public to the $25 million punitive-damage award against O.J. Simpson, it might best be described as euphoric. The general feeling seems to be, ``He got what he deserved.'' People seem to be basking in a sort of vindication that a bad act has not gone unpunished, albeit O.J. is being punished monetarily rather that through the loss of his freedom.

While the spotlight of the verdict still shines, it might be time for the people of Virginia to reflect upon the status of the law in Virginia, and on what the result would have been had this act occurred in Virginia.

Several years ago, the Virginia legislature jumped on the ``tort reform'' band wagon, and in a decision hailed as a victory for common sense, decided to limit the amount of punitive damages that could be awarded against a defendant. The limit was imposed with no consideration for the defendant's ability to pay, no consideration for the egregiousness of the action to be punished and no consideration as to whether the amount would truly act as a deterrent to someone intent on doing some terrible act. The amount chosen was $350,000.

What that means is that if O.J. Simpson had decided to bring his ex-wife to vacation in Virginia Beach and kill her here, he would not be facing a financial penalty of $25 million. He would be facing a penalty of $350,000. This is probably less than he received for writing his book while he was in prison, awaiting trial on the criminal charges. Is there anybody who feels that would have been a fair result, given the fact that this jury decided that he did, in fact, kill his ex-wife? Can you imagine the outrage of the nation had this occurred in Virginia and all the world was told that no matter what the jury wanted to do, and no matter how much money Simpson might have, the maximum penalty would be $350,000?

It is precisely this type of case and this type of conduct that punitive damages are designed to punish. Unfortunately, in Virginia we have decided that in punishment, one size fits all. It doesn't matter if the defendant wastes $350,000 a year on golf fees at exclusive country clubs. In Virginia, no matter what you do, or how much money you have, you can rest easy knowing that you will never have to pay more than $350,000 in punitive damages.

Similarly, in Virginia, we have decided to limit awards against doctors to $1 million. While this limitation does not affect most people, the people who are affected are the most severely injured and the most deserving of recovery. For the most part, the limitation comes into play only where a child has been severely injured as a result of a doctor's negligence. Despite the child needing several million dollars' worth of medical care and treatment over the course of his lifetime, despite the child never being able to work and being dependent upon public assistance for the rest of his life, the most that child can recover is $1 million.

The bottom line is that when you hear someone talking about the ``benefits'' of limiting damages, don't accept it without questioning. I dare say that even the most ardent ``tort reformer'' would be unable to justify ``punishing'' O.J. Simpson to the tune of $350,000 or awarding only $1 million to a child facing future medical bills of $2 million. Unfortunately, in Virginia, we have decided to substitute arbitrariness for the wisdom and compassion of the people of Virginia who would otherwise sit in judgment on a jury. MEMO: Robert J. Haddad is a plaintiff's attorney in Virginia Beach who

has been practicing 13 years. The views expressed are his own, but he is

a shareholder in the firm of Shuttleworth, Ruloff & Giordano and

president of the Tidewater Chapter of the Federal Bar Association.

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