Trial Magazine
We Fight Back
May 2017I was a novice lobbyist at AAJ when then House Speaker Newt Gingrich pushed anti-civil-justice measures through the House with his deceptive “Contract with America.” So far, this Congress has that beat. But we are fighting back hard.
There have never been so many major anti-civil-justice measures rushed through the House Judiciary Committee in one month with so little process. No legislative hearings were held on any of them. Last month’s “On the Hill” focused on the House Judiciary Committee’s consideration of H.R. 720, the Lawsuit Abuse Reduction Act (LARA) (makes Rule 11 sanctions mandatory), and H.R. 725, the Innocent Party Protection Act (IPPA) (makes it more difficult to remand improperly removed state cases back to state court). That was only round one.
Round two. There is nothing fair about H.R. 985, the Fairness in Class Action Litigation Act. It was rushed through the committee less than a week after it was introduced. Much like its predecessor from the last Congress, it requires each class member to have the same type and scope of injury as the named class representative, making it much more difficult to certify the class. But it also contains at least one dozen new provisions, including ones applying only to plaintiff lawyers that restrict or limit who they can represent, how they can obtain discovery, and attorney fees. A new section essentially requiring plaintiffs to prove causation before discovery in multidistrict litigation was also added.
On the same day that the House Judiciary Committee considered H.R. 985, it also introduced and considered H.R. 906, the Furthering Asbestos Claims Transparency Act (restricts asbestos victims’ ability to recover damages and violates their privacy rights). The two bills were consolidated into one giant bill after they passed out of committee.
Round three. Four days after introduction—two of which spanned the weekend—the committee considered H.R. 1215, the Patient Access to Care Act. H.R. 1215 caps noneconomic damages at $250,000; eliminates joint liability for economic and noneconomic loss; caps attorney fees; and prohibits people from bringing products liability claims against health care providers. It applies to all health care lawsuits, including medical malpractice, drugs and devices, and nursing homes—regardless of the number of parties, claims, or liability theories.
The committee rejected amendments to narrow the bill’s broad scope, such as amendments to remove intentional tort and nursing home claims. An amendment to prevent the caps provisions from applying in states that constitutionally prohibit damages caps initially passed. However, through procedural maneuvering that allowed a committee member to bring up the amendment a second time after backroom pressure had been applied, several Republicans changed their votes, and the amendment was removed from the bill. As it stands under H.R. 1215, damages caps would apply even in states that constitutionally or judicially banned them.
Round four. With the exception of H.R. 1215, all of these bills were quickly scheduled for two days of debate as part of “Lawsuit Abuse Week.” Some readers will comment that AAJ should not use this phrase. But we want you to know that the debate is couched in this way so you understand the pressure involved in getting congressional members to vote “no.”
As expected, the bills passed the House. However, we had a great debate. Freshman committee member Jamie Raskin (D-Md.), along with ranking member John Conyers (D-Mich.), led the charge. All the Democrats voted “no” on H.R. 985/906 and H.R. 725. Only three Democrats voted in favor of H.R. 720. Some Republicans opposed all three measures. The strong opposition lays a solid foundation for stopping these measures in the Senate—and we must stop them.
Round five is coming. Are you ready to fight back? Help AAJ’s advocacy campaign by contributing to the voluntary membership assessment at www.justice.org/fightback. If you have already contributed, thank you.
Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.