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SPECIAL TO THE NATIONAL LAW JOURNAL Tort law battles are being fought in one-third of the states. “Joint and several liability,” an unlikely sounding war cry, is a major issue in many of them. That legal principle, which requires losing defendants in tort suits to pay all the damages regardless of their level of fault, is typically a part of a full “tort reform” legislative package. Its fate can be a predictor of how much of the rest of the package will pass. “It is the key issue. It is the thread that colors the entirety of tort reform legislation,” said Michael Hotra, who handles legislative efforts for Washington’s American Tort Reform Association (ATRA). “A lot hinges on these negotiations, because it depends on how much fundamental tort reform you will have.” The principle was once universal in the states. Since 1985, it has been undermined in 27 and abolished in 10. This year it’s been on the legislative agenda in 17 states, with Arkansas having joined those that abolished it. Thirteen states and the District of Columbia still allow a plaintiff to collect a judgment in its entirety from one defendant when another, possibly one bearing far more blame, is insolvent. States that have abolished joint and several liability have tended to adopt all or most of what has become a familiar package of bills on tort law. The fights are local but have national implications, with lobbying advice available from groups such as the U.S. Chamber of Commerce on one side and the Association of Trial Lawyers of America on the other. The chamber sometimes offers not just advice but also money and visiting experts. Individual fights, of course, vary widely from state to state. Besides joint and several liability, the “tort reform” package generally contains the following: Restrictions on venue to keep plaintiffs from seeking the friendliest courts. Legislation to allow trial court evidence on so-called collateral sources of compensation, such as medical insurance. An outright ban on punitive damages, though in practice caps are often imposed as a compromise. Restrictions on noneconomic damages such as pain and suffering. Caps on appeal bonds. The allowing of appellate challenges to class action certification. The “package” has been introduced in 17 states this year. In general, backers attempt an omnibus bill first, then parse out the various portions to get specific proposals passed. Joint and several liability usually is the first to succeed. It’s a legal principle that tort reform proponents have boiled down to a fairness argument: It’s wrong to raid the deep pockets of the relatively blameless. Joint and several liability developed as part of English common law. Its underlying theory is that victims should not be penalized for having been injured, so wrongdoers must pay up and collect from one another. “There’s a reason why 300 years of jurisprudence have led to this rule,” said Chris A. Messerly, a partner at Robins, Kaplan, Miller & Ciresi of Minneapolis who lectures on the tort reform issue from the trial lawyer’s perspective. “There is a fundamental fairness that I believe tort reform promoters hope to strip away.” He said that the rule of joint and several liability developed over time to ensure that plaintiffs who get a judgment aren’t stiffed by defendants’ shenanigans. Defendants use a variety of usually legitimate tactics to minimize the amount they have to pay and to postpone payment for as long as possible, he said. Joint and several liability ensures that plaintiffs are not further harmed by having to insert themselves into battles between the defendants over who is more at fault, Messerly said. Hotra of the Tort Reform Association countered by saying, “We feel the courts should assess fault, not participate in an endless search for deep pockets.” Fueling the legislative push is a rise in medical malpractice insurance that tort reform advocates say is a result of huge jury verdicts. After decisive victories for tort reformers in Pennsylvania, Nevada and Mississippi last year, doctors in West Virginia went on strike, complaining that their malpractice insurance premiums had skyrocketed because litigation was out of control. Doctor protests were widespread. President George W. Bush has called for damage caps and an end to joint and several liability. He mentioned the need for tort reform in his State of the Union address in January. Supported by doctors, business and insurance companies that had long pursued changes in the civil justice system looked to 2003 with high expectations. “Any time you have a popular president pursuing the same goals, then you’re [going] to get a lot more attention for your issue,” Hotra said. “We did some polling this year and you see a broad support for litigation reform.” Tales of two states With free box lunches and preprinted signs-handwritten signs being expressly forbidden-2,000 doctors descended on the Georgia Capitol in November 2002 to demand that the Legislature change the public’s access to the courts. The medical community joined forces with business heavyweights such as The Home Depot Inc., BellSouth Corp. and GeorgiaPacific Corp. to push for tort law changes. Senator Thomas E. Price, a Roswell physician and a leader of the Republican-dominated state Senate, introduced bill SB 133, which followed the standard tort reform model and called for damage caps and the end of joint and several liability. The alliance between business and the doctors fell on hard times when the Senate Judiciary Committee began debating joint and several liability. Doctors, who understood that they could be slapped with a verdict in a case in which they had had only marginal participation, demanded an end to joint and several liability. Key committee members balked at discarding it. “It was too much at one time,” said one business lobbyist. The doctors “didn’t want to practice the art of the possible.” When the doctors refused to budge, the business-oriented judiciary chairman, Charlie Tanksley, R-Marietta, engineered a compromise. He replaced language to forbid automatic joint and several liability with wording that allows trial courts to apply the rule only under specific circumstances. He removed a $250,000 general damages cap sought by the medical community but kept portions the businessmen wanted, such as the exceptions to vicarious liability. The substitute measure passed the Senate, 53-1, on March 27 and was sent to the House, where it’s now in committee. In Arkansas, on the other hand, successful negotiations over joint and several liability saved tort reform, according to both the Arkansas Chamber of Commerce’s chief lobbyist and the president of the Arkansas Trial Lawyers Association. “Joint and several was the issue that almost caused the entire legislation to collapse,” said chamber lobbyist C. Nicholas Thompson, a member of Mitchell, Williams, Selig, Gates & Woodyard of Little Rock, Ark. “It was the fundamental emotional hurdle that once we overcame helped us to win passage of the other, equally important provisions.” Bob Estes, a Fayetteville, Ark., attorney who heads the Trial Lawyers Association, agreed, though he wasn’t happy about it. Estes said that only two of the Senate’s 35 senators are lawyers and that almost the entire body is composed of freshmen because of term limits. He said that his explanation that tort law developed to ensure victims weren’t left without compensation couldn’t compete with stories of small businessmen saddled with huge verdicts when they were only marginally at fault. “When you have people who don’t have the training or the experience to comprehend and understand these complex concepts, they have to depend on lobbyists, and they’re not going to get the full picture,” Estes said. Only 77 days passed between a Capitol steps rally by 200 businessmen, poultry farmers and physicians and the bill-signing ceremony. Only 30 hours of committee testimony were logged. But the speed with which the reform package passed belies the closeness of the debate because Arkansas is no tort hellhole, and reform proponents had few actual verdicts that they could point to as outlandish. Since 1986, when the state’s office of courts administration started recording civil judgments, only seven verdicts have been for more than $1 million. Only a handful have reached six figures. “We were becoming the bull’s eye for law firms out of Alabama and Mississippi,” said Ron Russell, president and CEO of the Arkansas Chamber of Commerce. The group raised about $600,000, mostly from its members, who do business in Arkansas, with some help from the U.S. Chamber of Commerce and ATRA. About one-third of the money paid for a media campaign, about six times what had been spent in past efforts to pass tort reform legislation. The legislation was bottled up in the House Judiciary Committee until the proponents promised not to abolish outright joint and several liability. The real work came during a 15-hour closed-door session with senators, chamber lobbyists, the medical association and the poultry growers group. The trial lawyers were excluded. The sides basically bickered over what percentage of fault was needed for a defendant to avoid having to pay an entire judgment, including the damages accessed against an insolvent co-defendant. “There was going to be some modification of joint and several liability. We needed a percentage figure that we could all agree upon,” said Thompson. “Once that was done, the rest was easy.” Other states that have moved on tort reform this year include: Idaho, which capped punitive damages at $250,000 in March. Ohio, which replaced the rule of joint and several liability with something called “proportionate liability,” in which defendants will be held liable only for the entire amount of economic (special) damages if they are found to be at least 50% negligent. It went into effect on April 28. Oklahoma, where pending bills would set standards for experts, limit joint liability for defendants with a fault finding of less than 10%, reduce prejudgment interest on jury awards and limit venue to the county in which the incident occurred. Rhode Island, where substantial changes to joint and several liability were introduced after lawyers tried to pull Clear Channel Communications Inc. into the deadly Feb. 20 bar fire started by indoor fireworks. Clear Channel’s West Warwick, R.I., radio station ran a commercial advertising the concert. The legislation is in committee. Washington, where a GOP Senate majority passed bills that made up a comprehensive tort reform package. The Washington legislation was bottled up in the Democrat-controlled House till the end of the session. It was discovered that one of the doctors widely advertised as having been chased from the state by high insurance premiums actually had been repeatedly cited by medical regulators and had lost his hospital privileges. He left the state to join the military, which allowed him to continue practicing medicine.

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