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When president Bill Clinton spoke to the Association of Trial Lawyers of America convention in Chicago on July 30, he got a reaction the city usually reserves for Sammy Sosa. Maybe that’s no surprise. He and the plaintiffs’ bar are no strangers — although, strangely, it was the first time he had officially addressed them as a group. Many of them have given generously to and hosted fund-raisers for the president and his party. He has shared their battles against the tobacco industry, gun makers and health maintenance organizations (HMOs). And in his speech, which urged Congress to pass a patients’ bill of rights that would permit lawsuits against HMOs, he uttered a phrase that could serve as ATLA’s motto: “A right without a remedy is just a suggestion.” Still, an examination of the Clinton tort reform legacy raises questions about why the president got such a warm reception. At least 11 times during his presidency, Clinton has signed bills that limit the remedies of injured people and their lawyers in cases involving defective aircraft, faulty medical implants, Y2K glitches, securities fraud and other things. � The General Aviation Revitalization Act of 1994. It sets an 18-year statute of repose for small aircraft and aircraft parts. That means a plaintiff can’t sue if a defective airplane or part is more than 18 years old. Backers claimed products liability lawsuits were killing the small-aircraft business in the United States. � The Federally Supported Health Centers Assistance Act of 1995. This law limits the liability of community health centers by treating them as though they were agencies of the federal government. Plaintiffs may sue only under the Federal Tort Claims Act. � The Small Business Job Protection Act of 1996. A provision of this bill declares that punitive damages and damages for emotional distress are taxable income. President Clinton signed the bill despite reservations, saying that emotional-distress damages should be treated like damages for physical injury, which are not taxed. � The Aviation Disaster Family Assistance Act of 1996. This law prohibits lawyers and insurance representatives from contacting the survivors or families of people killed in an airline crash for 30 days from the date of the crash. � The Bill Emerson Good Samaritan Food Donation Act of 1996. This act protects people or companies from most civil suits and criminal prosecution that otherwise might arise from food donations. � The Coast Guard Authorization Act of 1996. This law includes a controversial provision limiting the medical malpractice liability of cruise ship operators. � Volunteer Protection Act of 1997. It bars negligence lawsuits against people who volunteer for nonprofits or government agencies. In other cases, it requires plaintiffs to show clear and convincing evidence that the volunteer acted intentionally or with flagrant indifference to the plaintiff’s safety. The act also abolishes joint-and-several liability for pain and suffering and other noneconomic damages, requiring that defendants pay the plaintiff in proportion to their responsibility for causing the injury. � The Amtrak Reform and Accountability Act of 1997. It caps damages from a single passenger rail accident at $200 million. It also says that plaintiffs may not recover punitive damages without proving a defendant acted with a flagrant indifference to the rights of others. � The Securities Litigation Uniform Standards Act of 1998. In the wake of the Private Securities Litigation Reform Act, a broad set of limits on federal securities lawsuits passed in 1995 over President Clinton’s veto, plaintiffs’ lawyers began filing their cases in state courts. The 1998 law closed off that avenue, requiring that class actions involving 50 or more plaintiffs be filed in federal court. � The Biomaterials Access Assurance Act of 1998. This law partially immunizes companies that supply raw materials or components for medical implants. Plaintiffs can sue suppliers only if they failed to meet product specifications and if the failure actually caused the plaintiff’s injury. Litigation against silicone breast implant manufacturers, well under way at the time, was specifically exempted from the law. � The Year 2000 Information and Readiness Act. The Y2K act pitted two of the administration’s most important blocs of support, trial lawyers and high-tech companies, against one another. High-tech won. In addition to many new procedural and factual requirements for plaintiffs claiming damages from a year-2000 failure, the law requires that a plaintiff provide the defendant with a 90-day notice period in which to fix any problem. It also raises the bar for punitive damages, requiring that plaintiffs show by clear and convincing evidence that such damages are warranted. Punitives against small-business defendants are capped. The law also provides that defendants generally will be required to pay only their proportional share of the damages, and are not jointly and severally liable. Class actions claiming $10 million and involving more than 100 plaintiffs are to be heard in federal court. Although one of the broadest and most bitterly fought of President Clinton’s tort reform measures, the Y2K Act became a nonissue when New Year’s Day came and went without disaster. Despite all these laws signed by President Clinton, Sherman Joyce, president of the American Tort Reform Association, does not consider Clinton an ally in his fight against plaintiffs’ lawyers. Joyce says that tort reformers have successfully pressed their case in state legislatures and in Congress, but have often run into a roadblock in the White House. “When it came to the major proposals, the ones that were more comprehensive in scope, [Clinton] was an opponent,” says Joyce. In addition to his veto of the Private Securities Litigation Reform Act, which Congress overrode, President Clinton vetoed the one bill aimed at setting federal products liability rules, the Common Sense Product Liability Legal Reform Bill. Passed in 1996, it would have barred punitive damages unless a plaintiff could show by clear and convincing evidence that a defendant acted with a “conscious, flagrant indifference to the rights or safety of others.” Even then, punitive damages would have been capped. It set a two-year statute of limitations for plaintiffs to sue. And products more than 15 years old would have been made immune from suit, under a statute of repose. Finally, defendants would have paid only their proportional share of pain-and-suffering and other noneconomic damages. President Clinton’s use of the presidential “bully pulpit” has also helped the trial lawyers considerably. Under Clinton, the Food and Drug Administration fought to regulate nicotine until it was rebuffed by the Supreme Court. And the Justice Department has investigated Big Tobacco and has brought an unprecedented lawsuit, pending in Washington, D.C., federal court, for billions in dollars the government claims it spent treating sick smokers. “[Presidential support] scares the hell out of the defendants,” says John Coale, a veteran of battles over tobacco, guns and HMOs. He is a partner at Washington, D.C.’s Coale, Cooley, Lietz, McInerny & Broadus. “It’s not just a bunch of plaintiffs’ lawyers any more,” he says. “It’s plaintiffs’ lawyers and the White House.” Joyce, the tort reformer, blames the president for claiming that Congress is unable to stand up to certain industries, inviting trial lawyers to step into the vacuum. TORT REFORM AND ELECTION 2000 Despite disappointment with the Y2K bill and a few others, Richard Middleton does not consider the president to be a tort reformer, stealthy or otherwise. And Middleton, who just completed his term as ATLA’s president, paints a stark contrast between Al Gore and George W. Bush on civil justice issues. “There’s no question Governor Bush will attempt federal legislation as a payback from the money that corporations have put into his campaign,” he says. While there are always exceptions to the rule, Republicans in Congress have generally supported federal tort reform. Democrats have generally been opposed. Despite occasional protestations to the contrary on both sides of the debate, tort reform remains a partisan issue. For example, ATLA is endorsing 11 U.S. Senate and 12 House candidates, but only one is a Republican: Rhode Island Senator Bill Roth. And ATLA members overwhelmingly say that they favor Gore over Bush for president. Tort reformers, on the other hand, are hoping that Bush, if elected, will make tort reform a priority, as he did in Texas. Both sides are backing their bets with millions in campaign contributions. “Democrats are far more reliant on lawyers’ money than are Republicans,” says Sheila Krumholz, the research director of the Center for Responsive Politics. According to Krumholz, Federal Election Commission records show that in the current election cycle, lawyers and law firms have so far contributed $38 million to Democrats. Republicans, by contrast, have only managed to pull in half that amount, although they beat the Democrats in money raised from tobacco companies, insurers and other backers of tort reform. As a result, although they agree on little else, tort reformers and trial lawyers are both saying that the results of the 2000 election will have a big effect on the civil justice system for years to come.

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