Trial Magazine

Like many institutions, Congress has its own unique rhythm, which is why some bills are taken up and passed quickly and others never have a chance. Our advocacy team understands this rhythm and responds accordingly.

Tempo. This Congress started fast, with several bills quickly introduced and voted out of the House Judiciary Committee by February. These bills included the “Lawsuit Abuse Reduction Act” (mandatory Rule 11 sanctions); the “Innocent Party Protection Act” (more difficult to remand improperly removed cases); and the “Fairness in Class Action Litigation Act” (restrictions on class actions, multidistrict litigation, and asbestos trust claims).

How do we know which bills are going to move quickly?

The bill is sent to the House Judiciary Committee, one of the most partisan committees in Congress.

It is sponsored by the committee chair, Rep. Bob Goodlatte (R-Va.), or the chair of the Constitution and Civil Justice Subcommittee, Rep. Steve King (R-Iowa).

It passed the House in the last Congress and already has core support.

It is introduced in response to an event that received press attention.

Movement. Why do we ignore some bills and work feverishly to stop others? Some bills have no movement. This is due to a combination of tangible factors—other similar measures are supported by House leadership or the committee is working on other priorities—and intangible factors, such as the bill’s sponsor having bucked party leadership on a crucial vote.

Musical elements. Every week, new tort “reform” measures are introduced. While AAJ tracks all of them, we do not work on everything simultaneously. How do we decide which measures to prioritize?

Beat. The steady drumbeat of tort reform is led by the House Judiciary Committee chair and a few members, who sponsor most of the major bills. If the bill is about tort reform only, it will be referred to the committee—and it automatically becomes a priority for AAJ. Some measures may contain a small tort reform provision, while the bill is largely focused on other matters. Those bills will be referred to the committee that has jurisdiction over the main subject matter, such as transportation, and AAJ will work to strip the offending provision from the bill.

Reprise. Some bills are perennial favorites and always attract trouble. The drug and medical device user fee bill (manufacturers pay user fees to the FDA for product review) that is passed every five years—and 2017 is one of these years—usually attracts extraneous liability provisions. While AAJ has no position on the underlying measure, the bill often has preemption, immunity, and liability provisions that negatively affect health care claims. But the problems with this and other repeat bills are predictable, so we know what to expect.

Double-time. In every Congress, new tort reform issues come up. We worry about the ones that garner bipartisan support or the support of key Democrats. We work with a broad coalition of organizations to make sure that support for new measures is limited. And we rely on AAJ members to help lobby their senators and representatives. If you are close to a member of Congress, please contact Director of State Affairs Patricia Cooley at patricia.cooley@justice.org to help with our outreach.

Key. Sometimes, cabinet secretaries have tort reform priorities. Department of Health and Human Services Secretary Tom Price supports medical malpractice liability reform, with a focus on practice guidelines that would provide immunity to doctors for following them. The administration’s 2018 budget included Price’s proposal.

Encore. As congressional members return from the August recess and a month at home with their constituents, we applaud you for talking to them about the importance of civil justice and thank you for supporting your clients’ rights.

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.