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With no fanfare and almost no debate, the U.S. House of Representatives recently passed a tort reform bill that could dramatically change the way certain personal injury and wrongful death claims are litigated. The bill is the first — and so far the only — tort reform measure to be promulgated since George W. Bush, who trumpeted tort reform while on the campaign trail, took over the White House. Tort reform measures rarely have an easy time of it on Capitol Hill. But this one, which would expand federal jurisdiction over single-accident mass tort cases such as airplane crashes and train disasters, sprinted through the House. A mere nine days after House Judiciary Chairman F. James Sensenbrenner Jr., R-Wis., introduced it in committee, H.R. 860 was approved by the entire House in a voice vote. Only one member, North Carolina Democrat Melvin Watt, voiced opposition. Watt moved in committee that the bill be given further consideration before referring it to the full House. He later wrote: “While some may characterize this bill as a ‘non-controversial’ piece of legislation that should be quickly moved through the legislative process, I believe we failed to properly exercise our responsibility as members of the Judiciary Committee by not conducting a more extensive review of this bill.” Watt told the committee that the bill is “a lot more controversial than anybody is making it out to be,” and it appears likely that the proposal will raise more eyebrows in the Senate. Last week, a senior staffer for a Democratic member of the Senate Judiciary Committee said the bill — which also contains a proposal on multidistrict litigation — is anathema to many senior Democrats and would likely face more scrutiny in the evenly divided Senate. “We expect [tort reform] not to receive a warm welcome on the Democratic side,” the aide said. The provision no one seems to have a problem with is the bill’s nullification of the Supreme Court’s 1998 decision in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach. In Lexecon, Justice David Souter wrote for a unanimous Court that, in consolidated multidistrict litigation, the judge appointed by the MDL panel to hear the consolidated pretrial phase must return the cases to their original districts for resolution. Few liked the ruling, arguing that a judge who got to know the cases intimately during the pretrial period should be able to keep them. Souter explained that existing law required courts to transfer cases back to their original districts and wrote that the “proper venue” for reconsidering the practice “remains the floor of Congress.” The measure approved in the House would give courts assigned cases for coordinated pretrial motions the flexibility to either keep the cases or farm them back to the jurisdictions where they were filed. In written testimony sent to the committee March 13, Leonidas Ralph Mecham, the secretary of the Judicial Conference of the United States and director of the Administrative Office of the U.S. Courts, offered support for both sections of the bill. He said it “would avoid multiple trials on common issues, minimize litigation costs, and ensure that litigants are treated consistently and fairly.” A FAMILIAR FIGHT The proposed curb on mass torts is hardly new on Capitol Hill. A measure attempting to steer such cases away from state court juries has surfaced in almost every congressional session since 1988. But often, as in the one put forward last year, it is part of a more sweeping tort reform package that garners strong opposition. In an interview this month, Watt said the fact that this is a relatively narrow measure probably helped it along. “I think people were relieved that they weren’t trying to take a bigger bite of the apple,” he said. Indeed, the bill would have no effect on the toxic tort or consumer class action litigation that rankles the American Tort Reform Association and other business interests. Rather, it focuses on litigation arising from a single accident in a discrete location in which more than 25 people die or suffer injury and in which each claim is worth at least $150,000. The March 18 derailment of Amtrak’s California Zephyr train in Iowa, en route from Chicago to California, is the sort of accident the bill contemplates. The wreck extended over a quarter of a mile and resulted in one death and 96 injuries. In such cases, the bill provides, federal district courts would have original jurisdiction if “minimal diversity” exists — if at least one plaintiff and one defendant are from different states. Advocates on both sides expect to see a number of tort reform bills introduced this session. Bills that address specific, contained types of litigation may not attract the immediate scrutiny of trial lawyers and consumer advocates, but in the aggregate could form an arc of tort reform. Victor Schwartz, a partner at D.C.’s Crowell & Moring and general counsel of the American Tort Reform Association, says that while the scope of this bill is quite limited, the concept of consolidating specific kinds of cases “might have a precedential effect… . It might lead to other consolidations.” But in a March 8 response to a question from Rep. John Conyers Jr., D-Mich., the ranking Democrat on the Judiciary Committee, Sensenbrenner said, “The bill will not serve as a precedent for other types of litigation reform legislation, which we may consider later on during this Congress. This is designed for a specific type of litigation, the airline crash litigation.” Last session, a similar measure died in the Senate. The new bill includes some changes intended to mollify concerns with previous versions. For example, the minimum claim per injured party was raised from $75,000 to $150,000. A remaining problem, say defense lawyers, is that the hazy language in the bill renders it unworkable. “From a defense attorney’s perspective, expanding the scope of federal diversity jurisdiction is generally favorable,” says Kurt Hamrock, a litigation partner in the Washington, D.C., office of McKenna & Cuneo. “But the provisions in this bill are too qualified, ambiguous, and inconsistent to be of any benefit.” Although the bill gives federal courts jurisdiction if at least two parties are from different states, it also denies federal jurisdiction if a “substantial majority” of the plaintiffs are citizens of the same state as the “primary defendants,” and if state law would primarily govern the claim. But there is no explication of the difference between a majority and a “substantial majority,” or what makes a defendant a “primary defendant.” But the real problem for plaintiffs, says Public Citizen staff attorney Brian Wolfman, who testified in Congress against an almost identical bill in 1999, is that the bill affects cases never previously considered for removal to federal court. “What you have is people being forced into federal court in quite normal state court cases,” he says. “That’s really problematic.”

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