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Mark A. Hofmann

Legal experts say outlook for federal tort law reform remains unclear

Elections outcome may have limited effect

March 30, 2014 - 6:00am

Tort Law Reform


Any change in federal tort law is likely to be procedural rather than substantive, at least for the foreseeable future, say legal experts on both sides of the issue.

In the short term, the political landscape isn't particularly conducive to substantive federal tort reform, although that could change if Republicans were to win control of the Senate and maintain control of the House of Representatives in the November elections, say observers.

Still, even a Republican-controlled Congress would not guarantee enactment of substantive federal tort reforms, such as national medical liability laws, given the White House's antipathy toward changes in the civil justice system.

In addition, the overwhelming majority of tort law is enacted at the state level and reviewed by state courts. Although a few pieces of substantive federal tort reform, such as the General Aviation Revitalization Act of 1994, have become law, other efforts, such as enacting a uniform federal liability code, have failed repeatedly.

Instead, procedural actions such as the Class Action Fairness Act of 2005, which allows moving certain class actions to federal court from state court, have become law.

However, CAFA was the last major federal tort reform effort to become law.

“I think procedural rules are more palatable,” said Robin Conrad, a partner in the Washington office of McKenna Long & Aldridge L.L.P. and former executive vice president of the National Chamber Litigation Center Inc. “They do not trigger the federalism concerns that arise out of federal substantive tort law pre-empting state law.”

In an address to the American Tort Reform Association earlier this month, ATRA general counsel and longtime tort reform advocate Victor Schwartz said most civil justice issues and tort law rules are addressed by state courts, with state legislatures coming in “on the periphery,” albeit often on significant issues such as limits on pain and suffering damages. Because tort law is primarily a state issue, substantive federal tort reform has been unusual, he said.

Mr. Schwartz said afterward that if this year's elections put Republicans in control of Congress, the Lawsuit Abuse Reduction Act could win passage, but whether the president would veto it “is another question.”

In general, the reason federal procedural measures face better odds than substantive changes is that “the federalism problem is taken off the table. When you have the federalism problem, you lose conservative Republicans” who view application of substantive tort law as a states' rights issue, he said.

An opponent of federal tort reform agreed that substantive changes are unlikely.

“I think that the idea that Congress is going to rewrite the substantive tort law of the United States and then impose that on each of the 50 states and the District of Columbia — that's not going to happen,” said Andrew Popper, a professor at the American University's Washington College of Law in Washington.

But changes in federal procedural law have in some ways created a “much more dangerous world for people who need and historically are entitled to access to justice,” he said.

He cited CAFA as an example, one that “changes the landscape in terms of the availability of state courts to hear and handle class actions.”

“The push to arbitration and other forms of alternative dispute resolution that are compulsory likewise shut down the courthouse doors,” Mr. Popper said. Recent changes proposed to in the Federal Rules of Civil Procedure “would radically alter pretrial discovery. They limit the range and number of questions that can be asked in interrogatories and they curtail — inexplicably, in my view — the deposition process,” he said.

Another tort reform opponent agreed.

“What I think is a thing of the past is wholesale pre-emption of state law,” said Pamela Gilbert, former executive director of the Consumer Product Safety Commission and now a partner at Washington law firm Cuneo Gilbert & LaDuca L.L.P.

“So-called tort reform on the federal level looks very different, but we still see a lot of it,” she said, citing recent efforts to amend bankruptcy trust law for asbestos victims “that would make it harder for them to receive compensation.” She also cited a proposal to institute so-called “loser pays” requirements in federal courts.

“What we're seeing are proposals in Congress that have a link to federal law,” Ms. Gilbert said. “Things like pre-empting state product liability law by an act of Congress are not being proposed these days.”

“You can't just look at federal tort reform in a vacuum. You have to look at the whole picture,” said Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform. “The whole picture is that there's not a lot of legislation moving in 2014.”

“The White House is not a friend of legal reform,” said Ms. Rickard. “That said, we are spending quite a bit of our energy on planting the seeds for reform in the future, and we're pouring a lot of fertilizer on there as well.”

In the meantime, reform supporters are defending matters such as federal arbitration rules, which are being challenged by Senate Democrats in legislation. “We work diligently in opposing those efforts,” she said.

“The big overarching federal tort reform bills are not going to surface in this administration,” said Mr. Popper. “They're not going to get through the Senate, and I would assume, even if they did, the White House would veto them. Maybe it's better to characterize it as currently in repose rather than being dead.”

 



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