Time is of the Essence in Opposing Tort Reform

Published: 1:00 am Mon, December 27, 2004

By DOUGLAS K. SHEFF Massachusetts Lawyers Weekly

Following the presidential elections, George Bush declared that he had a “mandate” and was going to spend his “political capital” during his second term. Unfortunately, for consumers and trial lawyers, this capital will be spent in a serious attempt to undermine the integrity of the civil justice system.

Everyone knows that President Bush will sign just about any measure that enacts tort reform. It is a safe assumption that the U.S. House of Representatives will pass just about any such measure. The last line of defense with respect to outrageous, unfair and unconscionable reform is the U.S. Senate.

We only have 44 Democrats in the 100-member Senate. Unfortunately, 17 of these senators are up for re-election in the midterms. Many are from “red” states where Bush won by wide margins. Several of these members won their races by the slightest imaginable percentages. These senators have observed what happened first to Max Cleland of Georgia and then to Senate Minority Leader Tom Daschel from South Dakota.

These popular senators lost their bids for re-election when refusing to comply with White House requests. As a result, there are many “weak-kneed Democrats” who will not commit to support the civil justice system.In other words, we may not be able to muster the 41 votes necessary for filibuster in the U.S. Senate and, therefore, may be subject to substantial and sweeping tort reform for the first time in United States history.

The Bush agenda for tort reform is diverse. It includes all elements of personal injury practice from auto to class action cases. Medical-malpractice reform is on the forefront and includes measures that may include $250,000 caps on non-economic damages; the elimination of bad faith claims; caps on attorney’s fees; and restrictions and immunities applicable to nursing homes, medical products and pharmaceutical drugs.

There will also be early efforts to restrict class action/mass tort litigation. These measures are said to force all cases into federal court where they may sit without resolution for a decade, as appellate review will become available for any and all issues, including certification of a class.But tort reform will not be limited to high-profile cases. Indeed, the current administration has sought to dismantle every facet of tort practice, including the ordinary caseload of the everyday practitioner.

One of the most popular legislators today, Sen. John McCain, has filed, and is expected to file again a national no-fault choice auto bill. This kind of bill encourages consumers who wish to pay less premiums to unwittingly opt out of the tort system altogether.

In other words, under such a plan, there will be no compensation for pain and suffering. Attorney fees will be limited as well. The measures under discussion may mean the end of automobile practice as we know it.

Some well-meaning advocates maintain that the federal government cannot mandate such limitations here in Massachusetts. Attorneys should disabuse themselves of this myth. Federal law will indeed preempt state law. States’ rights arguments are dead in the U.S. Congress. They simply have no traction and will not change a single vote.

Any discrimination lawyer will tell you that their clients are now paying federal income tax on awards. This situation was not the case just a few years ago. The sole reason for the change is federal preemption.Similarly, those who would suggest that a tort reform measure that passes this year might be able to be reversed in the future are also misinformed. The proverbial pendulum will not swing back and forth in this context. Once a bill becomes law, as a result of the proponents garnering 61 votes (and defeating filibuster), the only way to reverse that measure is with an amendment to the bill, filed some time in the future.

In this case, those opposed to the amendment can utilize filibuster, and those wishing to reverse the unreasonably harsh legislation would then have to muster 61 votes as opposed to 41 — an impossible task given the makeup of the Senate.

There is very little time to act in opposition to these Draconian measures that threaten to eviscerate the civil justice system. It is said that within three to six months, an entire panoply of bills will be filed and legislated. Anyone who wishes to be heard or orchestrate opposition needs to act immediately.

The Association of Trial Lawyers of America and the Massachusetts Academy of Trial Attorneys have been working in concert to execute a plan in opposition to tort reform. Locally, a group of concerned trial attorneys organized a series of meetings to inform attorneys and the public of the dangers of tort reform, the immediacy of the threat, and steps we can take to prevent a disastrous result.

Anyone interested in protecting the civil justice system should attend these meetings, and/or contact MATA, ATLA or me in order to receive further information.

Boston attorney Douglas K. Sheff is former president of the Massachusetts Academy of Trial Attorneys.