Trial Magazine

In 2017, the U.S. House of Representatives focused on large tort “reform” bills that affected most members’ practices. But as Congress has become increasingly bogged down with government funding, immigration, and other matters, it has turned to smaller tort reform issues.

Congress preempts the law of one state. Rep. Jerry Nadler (R-N.Y.) had just taken the helm as ranking member of the House Judiciary Committee when a bill that not only preempts New York law but also has a disproportionate impact on Nadler’s district was moved swiftly through committee. H.R. 3808, the “Infrastructure Expansion Act of 2017,” preempts New York’s scaffold law, a strict liability statute passed more than 100 years ago to protect workers from falls. The New York State Assembly has repeatedly declined to repeal the law, but real estate developers have asked Congress to change it.

The bill preempts New York’s scaffold law when any federal financial assistance is provided directly or indirectly for projects the bill covers. This could include direct federal appropriations—such as highway and airport funding and disaster relief—and indirect federal funding, including research grants to hospitals and universities and small business loans. The funding nexus is so broad that it covers all projects and all construction sites, including the painting and cleaning of private property.

The bill’s likely effects on workers were made worse during committee consideration of a “manager’s amendment” sponsored by Chairman Bob Goodlatte (R-Va.). A manager’s amendment should be a perfecting amendment, but this one increased confusion. While H.R. 3808 originally provided that the scaffold law’s strict liability standard would be replaced with a comparative fault standard, the manager’s amendment stated that it would be replaced with either a comparative fault or a contributory negligence standard.

It was unclear whether the manager’s amendment further preempts New York law by giving judges a choice about what standard to apply or whether it preempts the laws of other states. A discussion between members of the committee did not resolve this.

Congress narrows ADA remedies. The House recently considered H.R. 620, the “ADA Education and Reform Act of 2017,” a bill universally opposed by disability rights advocates for watering down hard-won remedies in the Americans with Disabilities Act (ADA). H.R. 620 would significantly undermine the ADA by imposing burdensome requirements for people who have experienced discrimination when accessing public accommodations, such as restaurants and shops.

Most problematic, the bill gives wrongdoers a strategic advantage by forcing injured parties to wait more than half a year before filing a complaint to give the defendant time to comply with the ADA. Even with the extended time frame, there is no requirement that the barrier to access be removed. The legislation requires only that “substantial progress” be made, which may leave individuals with disabilities in limbo—without access to public accommodations and with delayed access to enforcing their rights in court. The bill contains no definition of “substantial progress,” causing further confusion.

During a vitriolic floor debate, proponents alleged that the bill was necessary to protect small businesses when litigation threatens them with extinction. Opponents, led by Rep. Jim Langevin (D-R.I.), cochair of the Bipartisan Disabilities Caucus and the first person with quadriplegia elected to Congress, and Minority Whip Steny Hoyer (D-Md.), an original author of the ADA, strongly argued against diminishing the rights of Americans with disabilities. The bill passed the House but without momentum for the Senate.

We also anticipate floor action on H.R. 3808 and are working to make sure there is no momentum for this bill. Your advocacy on these measures is key to our success. For more information, contact Kate Ilahi at kate.ilahi@justice.org.

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.