Trial Lawyers Under Fire
Despite Repeated Attacks, ATLA Keeps on Winning
By John Bresnahan Roll Call Staff Trial lawyers once again find themselves in the bull’s-eye for Congressional GOP leaders and the White House at the start of the second session of the 108th Congress.
Despite having a strong year in 2003, during which they defeated or delayed every major legislative proposal they opposed, the Association of Trial Lawyers of America and the Trial Bar face a renewed GOP effort to push their tort-reform agenda — spearheaded by a proposal to limit class-action lawsuits.
Proposals to create a trust fund for victims of asbestos poisoning and to limit awards in medical malpractice lawsuits are also high on the GOP wish list, despite strong opposition from ATLA and various labor, consumer and civil rights groups to all these initiatives.
“These are three issues that are national in outlook, demand a national response, and only Congress can do it, “ said Sherman Joyce, president of the American Tort Reform Association.
Senate Majority Leader Bill Frist (R-Tenn.) has already announced his intention to bring up the class-action bill in late February.
The legislation, sponsored by Sens. Chuck Grassley (R-Iowa), Orrin Hatch (R-Utah), Tom Carper (D-Del.) and Herb Kohl (D-Wis.), would make it easier to shift class-action lawsuits to federal court from more plaintiff-friendly state courts, and presents a huge challenge to the ability of trial lawyers to use such lawsuits as a legal weapon against companies they sue.
Critics in corporate America brand such efforts “forum shopping” and claim they drive up costs for all consumers through “frivolous” litigation, as well as force companies to lay off workers to pay hefty legal tabs. ATLA counters that the trial bar is only seeking justice for those injured by negligent companies.
The class-action bill, a version of which passed the House last year, was narrowly defeated in October after Senate Democrats, under pressure from ATLA and consumer groups, upheld a filibuster by a one-vote margin.
Since then, Frist has cut a deal with several Democrats to modify the legislation, and the Tennessee Republican now apparently has the votes to bring the bill to the floor for debate.
Frist will also seek to forge a broad agreement on a plan to establish a $100 billion-plus trust fund for victims of asbestos exposure, another important issue for ATLA. Infighting among insurers and asbestos manufacturers and users, in addition to strong opposition from ATLA, the AFL-CIO and other labor groups, has hampered efforts to reach a consensus on that bill.
In addition, Frist will make another another effort to pass legislation that would cap damages from medical malpractice cases. GOP insiders said this bill has the poorest outlook of any of the three proposals, although business groups continue to press their case on the state level as well.
Republicans on K Street are already gearing up for the upcoming Senate fights, but no one in the GOP leadership or the White House is underestimating the ability of the trial lawyers to flex their muscles in Congress.
The trial lawyers, through ATLA’s political action committee and their own firms, pump millions of dollars into Democratic campaign coffers, which gives them great leverage with party leaders. During the 2001-02 cycle, ATLA gave nearly $2.5 million to Democratic candidates and incumbents, while handing out only $300,000 to Republicans. So far this cycle, that trend has continued. As of June 30, ATLA had donated $585,000 to Democrats and only $48,500 to Republicans. Individual lawyers and their firms have given hundreds of thousands more into Democratic campaigns.
“I don’t think the trial lawyers are any less effective,” said Stan Anderson, a top official at the U.S. Chamber of Commerce who runs the Institute for Legal Reform, a pro-business group focusing on tort-reform initiatives.
In addition to blocking these three proposals in the first session, ATLA stymied efforts to limit the liability of oil companies that made the fuel additive MTBE, which has been linked to contamination of water supplies in several areas where it was sold. This issue was a major roadblock in the Senate passage of an energy bill that Bush wanted last year.
Even the powerful National Rifle Association came up empty when it took on the trial lawyers. A proposal by Sen. Larry Craig (R-Idaho) to limit the financial exposure of gun and ammunition manufacturers, dealers, distributors and importers, some of whom are being sued by cities with heavy gun violence, went nowhere thanks to trial lawyers’ opposition.
But ATLA and the trial lawyers have been playing defense rather than offense since Bush entered the White House, and with a determined president and GOP Congressional hierarchy renewing their legislative campaign, they face a tough road in the coming months.
“The idea seems to be every month there will be a big fight over tort reform,” said Linda Lipsen, ATLA’s senior director of public and national affairs. “[The Republicans] have tried to make tort reform the panacea for everything, and it’s just not.”
Lipsen sees a partisan reason for the GOP initiatives aimed at trial lawyers — it helps the party in its efforts to raise money from business groups, while at the same time it makes it harder for individual citizens to win settlements against powerful corporations.
“What we’re trying to do is give injured consumers a fair share when they run into a defective product or medical malpractice,” said Lipsen.
ATLA made skillful use of coalition groups last year, giving mainly lawmakers a way to oppose a bill without appearing to be doing the bidding of rich, well-connected trial lawyers.
For instance, the class-action bill is opposed by dozens of consumer, civil rights and other groups, including AARP, Consumer Federation of America, NAACP, the Leadership Conference on Civil Rights, the Judicial Conference of the United States, and the Conference of Chief Justices, as well as a number of state attorney generals.
That broad-based front allowed Senate Minority Leader Tom Daschle (D-S.D.) and ATLA to round up enough votes for the Oct. 22 cloture vote, which Daschle barely won. The only Republican to support the filibuster was Sen. Richard Shelby (Ala.), himself a lawyer.
“This isn’t over yet,” Lipsen said about the class-action lawsuit legislation. “There’s lots of amendments that can be added to improve it. It’s just a more difficult strategy.”
While Frist has promised to bring an asbestos bill to the floor by the end of March, an agreement between all the parties involved in the talks remains elusive.
With so much as stake, the insurance industry and asbestos manufacturers and users have offered to pay as much as $114 billion into a trust fund designed to give priority to victims with the most serious medical needs.
But labor groups, which represent workers hurt by asbestos poisoning, are seeking an additional $40 billion for the fund. Despite heavy lobbying by Frist and Hatch for a deal, the various factions were not able to reach an agreement last year, and the outlook for this year is still unclear.