ATRA Archives - Shopfloor

The Constitutional Basis for Federal Tort Reform in Health Care

By | Briefly Legal, Health Care | No Comments

The House Energy and Commerce Committee this morning is marking up H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011, legislation to control the unnecessary or excessive litigation costs that afflict health care in the United States. (Committee video. Hearing started at 10:41 a.m.)

In a timely and important contribution to the debate, the American Tort Reform Association has released a new paper,”The Constitutional Foundation for Federal Medical liability Reform.” In a news release, ATRA explained:

The ATRA paper, The Constitutional Foundation for Federal Medical liability Reform, addresses in some detail questions recently raised about whether provisions of H.R. 5 are consistent with the Commerce Clause, the Tenth Amendment, the guarantees of equal protection and due process, and the right to a jury trial.

“Citing more than 100 years’ worth of Supreme Court precedent, the consistent rejection of federal constitutional challenges to state medical liability reforms, and the opinion of the Congressional Research Service itself,” Joyce said, “our paper puts an end to any serious concern or question about the constitutionality of federal medical liability reform.

“With respect to perhaps the most important question about whether the Commerce Clause gives Congress sufficient authority to promulgate medical liability reform for the nation as a whole, it’s not even a close call. Congress has that authority.

Author of the paper is Mark A. Behrens of Shook, Hardy & Bacon L.L.P., a man who knows his civil liability issues. The National Association of Manufacturers has worked with Behrens and the law firm on numerous occasions over product liability litigation and related issues.

UPDATE (10:45 a.m.): Very timely report. Rep. Tammy Baldwin (D-WI) is making a “states rights” argument against the bill, proposing an amendment. She’s always been such a strong advocate for federalism.

Fighting Frivolous Litigation with the Lawsuit Abuse Reduction Act

By | Briefly Legal | One Comment

Rep. Lamar Smith (R-TX), the chairman of the House Judiciary Committee, and Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, today introduced an important piece of civil justice reform, the Lawsuit Reduction Abuse Act.

The House bill is H.R. 966 (text).

From the joint news release:

The Lawsuit Abuse Reduction Act (LARA) imposes mandatory sanctions for lawyers who file meritless suits in federal court. Federal rules mandating sanctions for frivolous suits were watered down in 1993, resulting in the current crisis of widespread lawsuit abuse. LARA restores the mandatory sanctions which hold attorneys accountable for lawsuit abuse.

Specifically, the legislation:

  • Reinstates the requirement that if there is a violation of Rule 11, there are sanctions (Rule 11 of the Federal Rules of Civil Procedure was originally intended to deter frivolous lawsuits by sanctioning the offending party).
  • Requires that judges impose monetary sanctions against lawyers who file frivolous lawsuits. Those monetary sanctions will include the attorney’s fees and costs incurred by the victim of the frivolous lawsuit.
  • Reverses the 1993 amendments to Rule 11 that allow parties and their attorneys to avoid sanctions for making frivolous claims by withdrawing them within 21 days after a motion for sanctions has been served.

The House Judiciary Subcommittee on the Courts has a hearing scheduled on the bill at 10 a.m. Friday, March 11. Victor Schwartz, general counsel for the American Tort Reform Association, will be one of the witnesses, ATRA reports.

Department of Labor: Working the Phones for Contingency Lawyers

By | Briefly Legal, Human Resources, Labor Unions | 2 Comments

We thought the White House Middle Class Task Force was a platform for the Obama Adminstration and organized labor to make common cause, with Vice President Joe Biden carrying the flag. Turns out the trial lawyers have a piece of the action, too.

From Fox Business News, Feb. 4, “Hate Your Boss? Call the Government“:

In an unprecedented and controversial move, the White House has launched a new program at the Department of Labor which will refer workers who have complaints about their bosses to a toll free number at the American Bar Association, where they can get a lawyer to work on their case on a contingency fee basis….

And since Vice President Joe Biden says the lawyers will be working on a contingency fee basis, and not pro bono, doesn’t that pretty much guarantee that the lawyers will be more apt to earn those fees via lawsuits against businesses? 

The program was actually announced back on Nov. 19, 2010, by the Vice President. From the White House blog, “Helping Middle-Class Families Pursue Justice.”

[The] Department of Labor (DOL) and the American Bar Association (ABA) are launching a new partnership to help workers resolve complaints received by DOL’s Wage and Hour Division, such as not getting paid the minimum wage or overtime, or being wrongfully denied family medical leave.  DOL resolves more than 20,000 of these complaints every year, but because of limited resources, there are thousands more they are unable to pursue.  Starting next month, people whose cases cannot be pursued will be provided with a newly created toll-free number that will connect them with an ABA-approved attorney referral service so they can find a qualified lawyer to help with their claims.

We anxiously await the TV ads, “Need a lawyer? Your boss messing with you? Call 1-800-etc.”

Hat tip to the American Tort Reform Association and its president, Sherman “Tiger” Joyce, who observes, “Members of the plaintiffs bar, one of Washington’s most influential special interests, are the only ones who benefit from lawsuit-spurring policies such as this.”

Around the States, Civil Justice Reform to Improve Business Climate

By | Briefly Legal, Economy | No Comments

Gov. Scott Walker and the Wisconsin Legislature have led the way in 2011 in improving their state’s business climate by enacting a major civil justice reform package, but other states are aggressively following the same pro-jobs, pro-investment path. Sherman “Tiger” Joyce of the American Tort Reform Association reports promising developments in major states around the country in a piece in Metropolitan Corporate Counsel, Prospects for Tort Reform Strong in Many States.

Despite the shellacking its candidates took in last November’s elections, the nation’s always-formidable lawsuit industry remains optimistic about advancing its liability-expanding agenda here in Washington. What the new House majority may prevent plaintiffs bar lobbyists from achieving legislatively, they expect to achieve administratively through the regulatory agencies of the executive branch. Read More

Court Won’t Review Government Misuse of Contingency Lawyers

By | Briefly Legal | One Comment

The U.S. Supreme Court on Monday declined to review a case that could have reined in the excessive use of contingency-fee lawyers by governments. Without comment, the court declined to grant certiorari in Atlantic Richfield et al. v. Santa Clara County.

Some cash-strapped counties and cities will no doubt interpret the court’s decision as granting them carte blanche to contract with private attorneys to carry out government lawsuits. However, these contingency fee arrangements remain an example of bad public policy that puts the law firms’ interests ahead of the public interest.

The National Association of Manufacturers joined other industry groups in filing a friend of the court brief urging review of the case. Our NAM Manufacturing Law Center entry summarized the issues, which include a due process argument:

Read More

‘Judicial Hellholes’ Report Highlights Unfair, Jobs-Killing Courts

By | Briefly Legal, Economy | No Comments

The American Tort Reform Foundation this morning released its annual Judicial Hellholes® report, one of the best overviews of the failings, excesses and even criminality of the U.S. civil justice system as manifested at the state and local level.

From the news release:

Washington, DC, December 15, 2009 — The American Tort Reform Foundation today released its annual Judicial Hellholes®report, naming some of the nation’s “most unfair civil court jurisdictions,” including first-time “Hellholes” New York City and the appellate courts of New Mexico, which join perennials South Florida, West Virginia, Cook County, Illinois, and Atlantic County, New Jersey.The report also cites several “Watch List” jurisdictions that are on the cusp – “they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law” – in California, Alabama, and former Hellholes in the Rio Grande Valley and Gulf Coast of Texas, Madison County, Illinois, and Jefferson County, Mississippi. …

“Lawsuit abuse continues to have a negative impact on both the nation’s economy and its health care system,” began ATRF president Tiger Joyce. “Every dollar spent defending against a groundless lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation. Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the threat of costly litigation.”

The full report is available here as a download. It’s an excellent read.

Coverage …

The “Record” publications are affiliated with the U.S. Chamber of Commerce and its legal reform arm, the Institute for Legal Reform.

Patient Safety Requires Available Specialists, Drugs and Devices

By | Briefly Legal, Health Care | One Comment

The Patient Safety and Medical Liability Reform National Advisory Council (NAC) Subcommittee met yesterday in Washington, initiating the long, consultative process that will lead to demonstration projects that will allow Congress to exclude tort reform from any health care legislation because, hey, they’re working on it. Here’s the agenda and a fact sheet on the $25 million White House initiative.

Sherman “Tiger” Joyce, president of the American Tort Reform Association, submitted a written statement to the advisory panel subcommittee, accmpanied by an ATRA news release, “ATRA to HHS: Surest Road to ‘Patient Safety’ is Access to Top Medical Specialists, Drugs and Devices.” Excerpt:

Washington, DC, October 26, 2009 — As a Department of Health and Human Services panel today convened a hearing to begin discussions of medical liability reform demonstration projects, American Tort Reform Association president Tiger Joyce reminded policymakers that, “Without access to the best specialists and live-saving drugs and medical devices, much of the recent talk about medical errors and patient safety could quickly become academic.”

ATRA’s written testimony to HHS’s Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, which conducted today’s tightly controlled hearing here in Washington, “was the only means by which to express our views and it was quite limited in length,” Joyce noted. “An effective medical liability system should provide predictability and fairness, guided by the over-arching principle of equitably and promptly compensating those who are truly injured by medical negligence,” Joyce’s written statement began. “A balanced system also would help to promote access to health care, deter harmful practices, and reduce the cost of wasteful ‘defensive medicine.’ But in these areas, the current system comes up short.

If we tend to cynicism about the medical malpractice demonstration projects — and grants — it’s because President Obama has never asked that tort reform be included in reform legislation, and he’s ruled out caps on non-economic damages. In recent remarks to the National Association of Manufacturers, Health and Human Services Secretary Kathleen Sebelius did not mention the issue. And, as former Vermont Governor Dr. Howard Dean said, “The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.”

Take a look at the American Association of Justice’s lobbying in the 3rd Quarter on the issues of health care tort reform. They’re against it.

For all the skepticism this process warrents, comments by an experienced lawyer friend of ours remind us to keep paying attention. He notes that these demonstration projects need not necessarily be directed toward cost savings or the reduction of frivolous litigation. A group could apply for a grant and use the demonstration project to undermine court rulings or past reforms. So examine those grants carefully.

By the way, did anybody see any news coverage of yesterday’s meeting?

Down Wisconsin! Worsening the Business Climate

By | Briefly Legal | No Comments

We’ ve paid little attention to the political goings on in Wisconsin since 2007, when Gov. Jim Doyle tried to pass a tax on oil company revenues, prohibiting them from passing the tax onto consumers. The tax grab eventually died for many reasons, including its obvious violation of the Commerce Clause.

The governor is once again sending business a message: Stay away! Attempting to undo the civil justice reform measures of the 1990s, Gov. Doyle included a major expansion of business and individual liability in his budget (Assembly Bill 75). According to Wisconsin Manufacturers and Commerce’s fact sheet:

It eliminates current joint and several liability rules that compare a plaintiff’s liability to each person who negligently caused the plaintiff’s injury.  Under the budget bill provisions a plaintiff could collect damages even when he or she is more at fault for the injury than any individual defendants, as long as the plaintiff’s liability is not greater than the combined negligence of all the persons against whom recovery is sought.

Further, it repeals current law where the liability of a person who is less than 51 percent negligent for an injury is limited to that person’s percentage of the total negligence.  Finally, it repeals current law that limits joint and several liability to a person whose negligence for the injury is 51 percent or more of the total liability.  Assembly Bill 75 provides that any person whose negligence is equal to or greater than the negligence of the person seeking recovery is jointly and severally liable for all the damages award to the person seeking recovery.

Inclusion of policy provisions in fiscal bills is generally frowned upon, but it’s not clear whether the Legislature will remove the language as in years past. Democrats took control of the Assembly in the 2008 elections and expanded their control of the Senate, so trial lawyers are seeing an opportunity for major policy gains. See also:

Unfortunately, Wisconsin is just one state of many where the trial lawyers are trying to expand the opportunities to cash in on the litigation lottery. Sherman “Tiger” Joyce of the American Tort Reform Association summarizes the activity in the state legislature in the April issue of Metropolitan Corporate Counsel, “Rampant “Litigation Legislation” (Except Southeast) Threatens Recovery.”

UPDATE (1:05 p.m.): The Capital Times of Madison reports today, “Legislature set to change limits in personal injury cases.” Cutting to the chase…

“This is simply about the trial lawyers seeking out those who have the deepest pockets,” said Bob Fassbender of the Wisconsin Civil Justice Council Inc., a coalition representing Wisconsin employers that was formed earlier this year to fight such legislation. “But it’s going to have a chilling effect on the state’s business climate at exactly the wrong time.”

Wyeth v. Levine: Implied Preemption Cases are Fact Intensive

By | General | No Comments

Victor Schwartz, general counsel for the American Tort Reform Association (who has also represented the NAM on occasion), issued a statement in reaction to the Supreme Court’s ruling in Wyeth v. Levine. From ATRA:

Personal injury lawyers will applaud today’s Supreme Court decision, but we caution against any over-reading of the Court’s ruling. As the Court’s decision makes clear, implied preemption cases are fact-intensive, turning on what information the agency considered in a specific instance.

The Supreme Court’s decision focuses more attention on the flipside of the federal preemption coin. Several states have already determined, through courts or legislatures, that due deference should be given to the FDA in assessing the validity of a medicine’s warnings, particularly when there has been no wrongdoing by the defendant. The unfortunate truth is that all medicines come with risks. States should pick up the baton left for them today and join these other states in yielding to FDA scientists when, after years of earnest study, the FDA stamps a drug as safe and effective when accompanied by warnings explaining a medicine’s known risks.


This Week on ‘America’s Business’

By | America's Business, Briefly Legal, Energy, General | No Comments

Americas-Business-logo.jpgU.S. Secretary of Agriculture Ed Schafer headlines this week’s “America’s Business with Mike Hambrick,” highlighting the benefits of trade to the U.S. economy even during the tough times of recession. Secretary Schafer looks at prospects for the pending U.S. free trade agreements, and sees hope for congressional action next year on Colombia and Panama, if not Korea. (For more from this interview, see this post on Shopfloor.org.)

Also on the program this week is Peter Buffett, musician, composer and son of mega-investor Warren Buffett. Peter will be attending the Future Capitals Summit in Abu Dhabi on January 13-15. This conference is taking place to discuss which countries will emerge as centers of commerce in the coming years, a topic of the younger Buffet’s expertise.

The American Tort Reform Association has released its latest “Judicial Hellholes” detailing the states and venues where frivolous and abusive lawsuits drive up costs and destroy justice. ATRA’s general counsel, Victor Schwartz, joins Mike to tell us which jurisdictions are improving and which are becoming even more hell-like. We’ll follow that up with our “Legally Insane” case of the week with Renee Giachino of the American Justice Partnership.

Wind power promises to be an important part of America’s energy portfolio in the coming year. Here to give the lowdown on wind’s potential is Greg Wetston, Senior Director for Government Affairs at the American Wind Energy Association. And for another perspective on wind power, on the program is Steve Lockard, President and CEO of TPI Composites. TPI Composites manufactures the blades you see on those large wind towers.

In our regular segments, NAM commentator Hank Cox recalls “The Way It Was.” And the National Association of Manufacturers President Gov. John Engler will close the program with “The Last Word.”

For more about “America’s Business” and to listen to the program online, please visit www.americasbusiness.org.