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The past year has been a rough ride for the plaintiffs’ bar. Notwithstanding notable successes including billon-dollar verdicts and settlements against former lead paint manufacturers, Nortel Networks Corp., Sempra Energy and USG Corp., the litigation system is showing the effects of a well-laid campaign to rein in mass torts, according to plaintiffs’ and defense experts. Even in traditionally friendly jurisdictions like Texas and Mississippi, judges and juries haven’t been responding like they used to, litigators report. “It’s not that it’s been a bad year as much as it’s been a bad 10 years,” said Stephen Daniels, a senior researcher at the American Bar Foundation in Chicago who has spent the past decade studying the effects of tort reform in Texas. Then there’s the fallout from last year’s blistering opinion by a federal judge in Texas who accused the plaintiffs’ firms and doctors who screened silica claimants of manufacturing claims for money. The ruling has inspired a new pugnacity within the defense bar. To Thomas A. Clancy of Clancy & Stevens, a personal injury practice in Chicago, the tort reform movement has proved “sort of an accumulating wave of attacks on the system-not very spontaneous, but very successful.” Tort reform has long been a political staple for Republicans like George W. Bush, who promoted that message both as governor of Texas and as president. “It really rings a bell in some constituencies,” Clancy said. But even if the traditionally more plaintiff-friendly Democrats regain congressional control in November, it seems unlikely that they will “go back and correct the errors, because there’s no political capital in doing that,” Clancy said. The membership of the Association of Trial Lawyers of America appeared to bow to sentiment against their kind last July when voting to change their name to the American Association for Justice. The effects have been concrete: Texas, for example, capped non-economic damages in medical malpractice cases at $250,000 in 2003. That made a lot of legitimate cases uneconomic for lawyers to take on contingency, Daniels said. Moreover, the anti-lawyer rhetoric has made juries less likely to find for plaintiffs. Those factors, in turn, have made insurance adjusters less prone to settle cases early.
THE PLAINTIFFS’ HOTLIST A different sort of trial for plaintiffs The path gets rocky and steep Investors press their demands Getting inside a client’s head Novel strategy pays off big The Plaintiffs’ Hot List

“The strange success of tort reform,” said Daniels, quoting the title of a law review article he co-wrote, is that while many individual reforms were relatively modest, the environment created by the rhetoric is “shriveling the tort system.” William O. Whitehurst of Whitehurst, Harkness, Ozmun & Brees, a plaintiffs’ personal injury practice in Austin, Texas, noted that plaintiffs’ lawyers continue to do well in areas such as patent and commercial litigation. But new restrictions and damages caps have made for a “period of adjustment” for both plaintiffs’ and defense counsel, Whitehurst said. “Plaintiffs’ attorneys are trying to deal effectively with the new laws and still have a cause of action as a practical matter.” John H. Martin, a defense litigator at Thompson & Knight in Dallas and first vice president of the Chicago-based Defense Research Institute, said that Texas tort reform has significantly reduced medical malpractice and asbestos case filings. Although the asbestos litigation shows no sign of going away entirely, the drop in medical malpractice filings has been dramatic enough to send lawyers who spend a lot of time defending these cases looking for other work to do-such as defending doctors brought before state disciplinary boards, Martin said. As evidence of the trend, the seven hospitals in the University of Texas System Professional Medical Liability Plan reported 64% fewer new claims, 61% fewer open claims and lawsuits and 45% fewer new lawsuits from 2002 to 2005. ‘Jackpot’ no more The plaintiffs’ bar can still make headlines, as when a U.S. district judge in New York granted class certification to tens of millions of “light” cigarette smokers, in a case worth perhaps $200 million, an amount subject to trebling under the plaintiffs’ racketeering theory. But more fundamentally, the federal Class Action Fairness Act of 2005 has made it tougher for plaintiffs to certify class actions, long a target for critics of the purportedly disproportionate fees for plaintiffs’ counsel. Mississippi; Texas; West Virginia; and Madison County, Ill., long derided by tort reformers as “jackpot jurisdictions,” have cracked down on out-of-state filers. That’s driven plaintiffs’ lawyers to friendlier jurisdictions in California-San Francisco, especially-but tort reformers are on the march there, too. U.S. District Judge Janis Graham Jack, of the Southern District of Texas, lit a fire under the defense bar-plus congressional investigators and state and federal prosecutors-by throwing 10,000 silica claims out of court because of dubious medical expert opinions. Jack’s ruling emboldened several asbestos defense settlement trusts to announce that they no longer would honor diagnoses made by the doctors linked to the spurious silica claims. Defendants in other mass torts, including cases involving asbestos, fen-phen and welding rod fumes, have been digging in their heels as well. Last April, an Ohio state court threw out 3,000 asbestos claims diagnosed by doctors under investigation elsewhere who asserted their Fifth Amendment right not to incriminate themselves. The judge set aside for rediagnosis 35,000 claims involving those doctors. In June, 47 defendants in the federal asbestos multidistrict litigation likewise asked the court to dismiss 300,000 cases. After the first case in the federal welding rod multidistrict litigation settled on the courthouse steps, several subsequent cases in federal court in Cleveland fell apart on the eve of trial, prompting the presiding judge to impose a stricter case management regimen. Federal officials in Mississippi have been prosecuting fen-phen claimants for filing false claims, and a federal grand jury in Philadelphia reportedly is looking into allegations of more widespread abuses in fen-phen litigation. “Plaintiffs will continue to bring good cases,” said Mark A. Behrens, a partner in the public policy group in the Washington office of Kansas City, Mo.’s Shook, Hardy & Bacon, who represents asbestos and silica defendants and writes on related issues. “But defendants have learned the lesson that if you make the plaintiffs’ lawyers work hard and put up barriers, a lot less junk cases are going to get filed,” Behrens said.

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