{"id":133,"date":"2015-03-11T18:04:17","date_gmt":"2015-03-11T18:04:17","guid":{"rendered":"https:\/\/pjcihon.expressions.syr.edu\/?page_id=133"},"modified":"2015-03-11T18:04:24","modified_gmt":"2015-03-11T18:04:24","slug":"tort-reform-article","status":"publish","type":"page","link":"https:\/\/pjcihon.expressions.syr.edu\/?page_id=133","title":{"rendered":"Tort Reform Article"},"content":{"rendered":"<pre>Subject: Fwd: NYTimes.com Article: Shot in the Arm for Tort Overhaul\r\n\r\n\r\nShot in the Arm for Tort Overhaul\r\n\r\nNovember 17, 2002\r\nBy ADAM LIPTAK\r\n\r\n\r\n\r\nTHE politics of overhauling American tort law are anything\r\nbut straightforward. They involve odd alliances,\r\nideological paradoxes and a great deal of money.\r\n\r\nYet it is all but certain that the Republican Party's\r\nelection victories will move the call for reform, sought by\r\nthe business world for years, higher on the legislative\r\nagenda.\r\n\r\n\"It's going to be a hot priority,\" said Joan Claybrook, the\r\npresident of Public Citizen, a consumer advocacy group.\r\n\"It's going to be brutal.\"\r\n\r\nWhen it's all over, the rules governing tort actions - the\r\ncivil lawsuits, usually for money, claiming wrongful\r\nconduct by defendants, usually companies - may well change\r\ndrastically.\r\n\r\n\"Reform\" - a capacious and loaded term usually used by\r\ndefendants - is most likely in the areas of class actions\r\nand punitive damages, especially involving asbestos\r\nliability and medical malpractice, among other issues.\r\nProponents will no doubt use enormous punitive awards, like\r\nthe $28 billion awarded last month by a Los Angeles jury to\r\na single plaintiff in a tobacco lawsuit, as a rallying cry.\r\nThe frivolous suits filed each year also provide\r\nammunition. The American Tort Reform Association's Web site\r\neven lists \"loony lawsuits,\" like one saying the haunted\r\nhouse at Universal Studios in Orlando, Fla., is too scary.\r\n\r\nDespite the anger those cases incite, even among the\r\ngeneral public, earlier Republican Congresses have been\r\ncautious in addressing the issue. But George W. Bush, as\r\ngovernor of Texas, pushed through sweeping limits on tort\r\nsuits. Days after taking office in 1995, he declared a\r\nlegislative emergency to address the \"junk lawsuits that\r\nclog our courts.\" He asked for - and got - limits on\r\npunitive damages, curbs on awards in cases with multiple\r\ndefendants and restrictions on where suits can be filed.\r\n\r\n\"It was far more successful than anyone thought the\r\nLegislature would go for,\" said Frank B. Cross, a law and\r\nbusiness professor at the University of Texas at Austin.\r\n\r\nThe victory was particular striking given the strength of\r\nthe opposition. \"At least until fairly recently, parts of\r\nTexas had a reputation for being very plaintiff-friendly,\"\r\nsaid Joseph Sanders, a law professor at the University of\r\nHouston. \"They talked about it the way they now talk about\r\nMississippi.\"\r\n\r\nDEMOCRATS and Republicans have always had competing\r\nphilosophies about civil justice, said Philip K. Howard,\r\nauthor of \"The Death of Common Sense\" (Random House, 1995),\r\nwhich argues that society has become too reliant on\r\nregulations and lawsuits. He is also the founder of Common\r\nGood, an advocacy group that supports broad changes.\r\n\r\nLawsuits, he said, enjoy \"a superficial appeal which is\r\nconsistent with traditional liberal rhetoric, that the\r\nlittle guy has the right to litigate.\" This litigation\r\nculture, Mr. Howard added, is supported by \"the private-jet\r\ncrowd\" of trial lawyers, who have generally been big\r\ncontributors to Democratic politicians.\r\n\r\nYet the legislative discussion is largely based on\r\napocryphal or at least anomalous lawsuits, said Stephen\r\nDaniels, a senior research fellow at the American Bar\r\nFoundation, which is a nonpartisan research group. \"Some of\r\nit is philosophical debate, but most of it is the clash of\r\ninterest groups,\" he said.\r\n\r\nPushing the issue called tort reform has never been as\r\nimportant to Republicans as opposing it is to Democrats.\r\n\"It looms so large in Democratic Party power politics,\"\r\nsaid Walter Olson, a senior fellow at the conservative\r\nManhattan Institute. By contrast, said George L. Priest, a\r\nlaw professor at Yale, \"the Republicans are not\r\nsingle-minded.\"\r\n\r\nThe Republicans must also try to reconcile support for\r\nlegislation that would have its greatest impact in the\r\nstate courts with their traditional philosophical\r\ncommitment to federalism, which would leave most local\r\nmatters to the states.\r\n\r\nStill, with a president who has made tort reform a\r\nsignature issue and with the Democrats on the run, \"if the\r\nRepublicans are smart, they can get more than they have\r\never gotten,\" said John Coale, a plaintiffs' lawyer in\r\nWashington and a major contributor to Democrats.\r\n\r\nFour issues top the legislative agenda.\r\n\r\n\"Class-action\r\nreform is probably the most ripe in terms of the work\r\nthat's been done,\" said James M. Wootton, president of the\r\nUnited States Chamber of Commerce's Institute for Legal\r\nReform. A bill called the Class Action Fairness Act of\r\n2001, which was passed by the House in March, would allow\r\ndefendants to move major interstate class actions filed in\r\nstate courts to federal courts. That would address the\r\ncomplaint by defendants that a few out-of-the way courts,\r\nin places like Madison County, Ill., are too friendly to\r\nplaintiffs and thus handle a disproportionate number of\r\nclass actions.\r\n\r\nA bill to address medical malpractice claims was passed by\r\nthe House in September and will probably resurface. It\r\nwould shorten the statute of limitations, limit certain\r\nkinds of damages, disallow claims where regulators have\r\napproved the product in question and give courts the power\r\nto review lawyers' contingency fees, which entitle them to\r\na percentage of what plaintiffs win.\r\n\r\nLegislation that is likely to be introduced in the next\r\nCongress would address the internecine disputes among\r\nlawyers who represent plaintiffs who were exposed to\r\nasbestos and have actual or potential ailments.\r\n\r\nAnd legislation may also be introduced to cap big punitive\r\nawards, which loom large in the public debate on all tort\r\nreform issues.\r\n\r\nAdvocates of tort reform like to justify their agenda by\r\npointing to big punitive awards, meant to punish and deter\r\nrather than to compensate. Opponents say those awards are\r\nunusual and generally justified, but they are often\r\nreversed on appeal.\r\n\r\nLast month, the Supreme Court of California, in a 4-to-3\r\ndecision, declined to hear a challenge to the largest\r\npunitive award ever affirmed in American history in a\r\npersonal injury case. The decision let stand a $290 million\r\naward by a jury in Ceres, Calif., to the family of three\r\npeople killed in the rollover of a Ford Bronco in 1993.\r\n\r\nTheodore J. Boutrous Jr., a lawyer for Ford, said his\r\nclient would ask the United States Supreme Court to hear\r\nthe case. He added that the outsized award, sustained at\r\nall three levels of the state court system, demonstrated\r\nwhy federal legislative action was needed.\r\n\r\nLAWYERS for Juan Romo, one of the surviving family members,\r\nsaid the award was justified by Ford's conduct in making\r\nwhat the family called \"the weakest roof in Ford's\r\nhistory.\" Made of fiberglass, the roof was sold by Ford as\r\n\"tough\" and \"rugged\"; the roof's design included a hollow\r\nhump that suggested the presence of a rollover bar even\r\nthough it did not have one.\r\n\r\nOther big punitive awards imposed recently in a variety of\r\ncases have also made headlines. The biggest is that $28\r\nbillion in punitive damages given by a California jury last\r\nmonth, an award in a suit brought by a smoker with lung\r\ncancer who accused the Philip Morris Companies of luring\r\nher into a lifelong tobacco habit with fraudulent\r\nadvertising and marketing.\r\n\r\nThe United States Supreme Court is considering whether\r\nState Farm Insurance must pay a policyholder $145 million\r\nin punitive damages, in addition to $2.6 million in\r\ncompensatory damages, in a car-accident insurance dispute.\r\nThe Alabama Supreme Court is reviewing a $3.4 billion\r\npunitive award, on top of a $90 million compensatory award,\r\nin a case about the interpretation of an offshore gas\r\nlease.\r\n\r\nPlaintiffs' lawyers say punitive awards are quite unusual.\r\n\r\n\"Seeing a check in the mail from a punitive award is very,\r\nvery rare,\" Mr. Coale said.\r\n\r\nTo address the issue of excessive awards, Mr. Boutrous\r\ncontended, Congress should consider limiting each state's\r\ncourt system to imposing damages based on a defendant's\r\nconduct only in that state.\r\n\r\nAnother approach was suggested by Lori S. Nugent, a Chicago\r\nlawyer who represents corporate defendants. \"One of the\r\nmost effective reforms would be to mandate trials in three\r\nphases,\" she said. Under that system, a jury would first\r\ndecide whether and how much the defendant must pay in\r\ncompensation, then whether punitive damages were warranted.\r\nOnly after that would the jury set the amount of any\r\ndamages.\r\n\r\nSuch micromanagement of state judicial systems is not\r\nuniversally endorsed, even by people who generally favor\r\nchanges in this area.\r\n\r\n\"A federal legislature would be loath to impose a\r\nprocedural limit on state proceedings,\" Mr. Boutrous said,\r\n\"and I am not even sure that they could.\"\r\n\r\nMs. Nugent argued, though, that the federal government\r\ncould and should act. \"It's a wish-list item,\" she said.\r\n\"But when you see the kind of drain that punitive damages\r\nis placing on the economy, it joins the ranks of reality.\"\r\n\r\nRegardless of whether the issue of punitive damage awards\r\nis addressed, the asbestos crisis may well move toward a\r\nresolution. \"The Supreme Court seems to have given Congress\r\na strong hint that it needs to do something about the\r\nasbestos crisis,\" said Catherine M. Sharkey, a fellow at\r\nColumbia Law School.\r\n\r\nIn 1999, in the process of setting aside a $1.5 billion\r\nclass-action settlement in an asbestos case, the Supreme\r\nCourt referred to what it called \"the elephantine mass of\r\nasbestos cases\" that \"defies customary judicial\r\nadministration and calls for national legislation.\"\r\n\r\n\"Asbestos will be on the agenda in the next Congress,\" Mr.\r\nHoward said, \"and that bill will be supported by\r\nplaintiffs' lawyers who represent people who are actually\r\nsick.\"\r\n\r\nMr. Howard was referring to internecine disputes between\r\nlawyers who represent people who have actually developed\r\ncancer and other symptoms of asbestos exposure and those\r\nwho are suing on behalf of people who fear getting sick in\r\nyears to come. The finite sums of money available are\r\nlikely to mean that not everyone can be compensated.\r\n\r\nMichael E. Baroody, executive vice president of the\r\nNational Association of Manufacturers, said legislation to\r\naddress this issue was likely.\r\n\r\n\"The courts are not distinguishing between people who are\r\nsick now, and genuinely so, and people who have been\r\nexposed,\" Mr. Baroody said. He said he expected that\r\nlegislation to establish medical criteria, at the least,\r\nwould be introduced in the next Congress.\r\n\r\nIn addition, he said, Congress could suspend statutes of\r\nlimitations to ensure that those who did not sue\r\nimmediately would lose no rights.\r\n\r\nThere is proposed legislation on broader medical issues,\r\ntoo, much of it driven by what doctors call an insurance\r\ncrisis. Even Mississippi, widely regarded as one of the\r\nforums most receptive to plaintiffs' suits, recently\r\nenacted legislation curbing medical malpractice suits.\r\n\r\nIt apparently had to - the market had intervened.\r\n\r\n\"When\r\nthere is no doctor around, you really notice,\" Professor\r\nPriest said. \"You notice it less if there are fewer\r\nproducts to buy.\"\r\n\r\nMr. Coale said caps would be unwise and unwarranted. \"I\r\nhave had clients with catastrophic medical injuries, and\r\nthey really need this money,\" he said.\r\n\r\nBy most accounts, however, the Republican majority in the\r\nnew Congress is facing treacherous political terrain on the\r\ntort reform issue.\r\n\r\n\"It's very scary for those of us concerned about protecting\r\nthe jury system,\" said Joanne Doroshow, the executive\r\ndirector of the Center for Justice and Democracy, a\r\nconsumer group that focuses on the civil courts, \"but it's\r\nhardly a done deal that Congress will start passing huge\r\namounts of tort reform.\"\r\n\r\nMr. Nugent, a defense lawyer, said action like that was\r\nlikely.\r\n\r\n\"We are now in a political environment where reform has a\r\nreal shot,\" he said, \"and that will save jobs and help the\r\neconomy.\"\r\n\r\nRalph Nader, the former presidential candidate, said he\r\nagreed that legislation was likely. But he thinks it will\r\nbackfire. \"The Republicans will attack the civil justice\r\nsystem,\" he said. \"That will sharpen and focus the issues,\r\nand it will boomerang against them.\"\r\n\r\nhttp:\/\/www.nytimes.com\/2002\/11\/17\/business\/yourmoney\/17TORT.html?ex=1038541200&ei=1&en=6608e93582b3d95f\r\n\r\nCopyright 2002 The New York Times Company<\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Subject: Fwd: NYTimes.com Article: Shot in the Arm for Tort Overhaul Shot in the Arm for Tort Overhaul November 17, 2002 By ADAM LIPTAK THE politics of overhauling American tort law are anything but straightforward. They involve odd alliances, ideological paradoxes and a great deal of money. Yet it is all but certain that the &hellip; <a href=\"https:\/\/pjcihon.expressions.syr.edu\/?page_id=133\" class=\"more-link\">Continue reading <span class=\"screen-reader-text\">Tort Reform Article<\/span><\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":[],"_links":{"self":[{"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=\/wp\/v2\/pages\/133"}],"collection":[{"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=133"}],"version-history":[{"count":1,"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=\/wp\/v2\/pages\/133\/revisions"}],"predecessor-version":[{"id":134,"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=\/wp\/v2\/pages\/133\/revisions\/134"}],"wp:attachment":[{"href":"https:\/\/pjcihon.expressions.syr.edu\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=133"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}