For state legislators opposed to adding exceptions to the newly enacted Fair Share Act, which brought sweeping changes to the state’s joint and several liability doctrine last year, the new president of the Pennsylvania Association for Justice said the Penn State sex-abuse scandal is Exhibit A.
The criminal case against Jerry Sandusky — which is likely to be followed by an array of civil actions against the former assistant coach, the university and other parties — is a perfect example of why the Fair Share Act should have an exception for victims of sexual abuse, Scott Cooper said last week.
Cooper, who is set to take over as PAJ president on June 30, noted that all of the allegations against the coach and other university officials played out long before the law was in effect, staging civil battles under the former common-law doctrine of joint and several liability.
But had the alleged crimes taken place after the new law was in place, Cooper said, the alleged victims could be left in a position of claiming less, little or no relief for their injuries depending on how courts interpret the law.
“This is the perfect example in the modern day, as we sit here in June of 2012, of why the change to the law was unfair to basically children who were totally innocent,” said Cooper, a longtime attorney with Harrisburg personal injury firm Schmidt Kramer.
While criminal conduct is not viewed in the context of negligence in Pennsylvania, Cooper said the legislative language of the FSA has left non-criminal defendants room to argue for the inclusion of criminal conduct when apportioning liability.
It comes down to the “intentional tort” exception in the law, Cooper said, which would lessen the exposure of more solvent, but potentially less liable defendants.
According to Cooper, a defendant such as Penn State would argue that Sandusky falls under the intentional tort exception and that he was 100 percent responsible. A defense theory of histrionic personality disorder, which Sandusky developed, or insanity would lend further to this defense theory, he said.
Referring to a hypothetical civil suit against Sandusky and another, more solvent, defendant, Cooper said: “Even if [the jury] found 50-50, the victim is still undercompensated. Sandusky’s never going to have any money.”
Cooper said legislative language points to, at the least, a need for a clarification in the law.
According to Cooper, there was a small push when the FSA was being drafted to carve out an exception for victims of sexual abuse, but several lawmakers stymied the discussion.
Today, Cooper said, the debate would have at least been fully aired, and the 20-year veteran litigator aims to use his presidency to spur talks of amending the FSA to include a sexual-abuse victims exception.
Staging such discussions is one of several plans that Cooper, who most recently served as vice president of the PAJ, hopes to implement in 2012.
His predecessor as president, Philadelphia attorney Ken Rothweiler, said there is nobody better suited for the job.
“There’s probably nobody in Pennsylvania better equipped to lead this organization because of his knowledge of the legislature in Harrisburg and the bills coming forward,” Rothweiler said, describing Cooper as somebody who keeps his “ear to the ground.”
In addition to legislative imperatives, Cooper added that the PAJ will look to groom its younger lawyers for leadership positions and keep them involved in the organization’s undertakings.
Under its legislative policy committee, the PAJ will also continue to launch and maintain websites like MedMalFacts.com and ProtectPaDrivers.com.
He will also strive to continue the broadening coalition between the PAJ and other “like-minded” groups such as unions, teachers organizations and environmental groups.
There are also the field trips.
According to Cooper, he and Rothweiler were among several PAJ members to converge on Harrisburg last month to hand out “courtesy copies” of the HBO documentary Hot Coffee to more than 200 legislators.
And the film, a tort-reform commentary done by a veteran plaintiffs lawyer, garnered some feedback that the PAJ members might have hoped for, but probably did not expect.
Without naming names, Cooper said that “a legislator who I would not count on to support a vote for victim rights” wrote the PAJ a letter after watching the movie, conceding that it raised some interesting points about misconceptions.
“People experience real injuries and real losses,” said Cooper, “and going into court is not the easiest thing.”
If Cooper was looking to attack what he sees as misconceptions, the Sandusky trial is center stage.
As Philadelphia plaintiffs attorney Thomas R. Kline noted days into the trial, Sandusky’s lawyer, Joseph L. Amendola, had appeared to take issue with a person’s fundamental right to have a lawyer in attempting to exculpate his client.
The defense’s line of questioning pointed to what he called an “anti-lawyer theme,” said Kline, who is representing Victim 5. He called the questions about the alleged victims having attorneys “probative of nothing” and an “assault on the legal system.”
“People tend to blame the victim when the victim is the one that deserves the compensation,” Cooper said. “Here they’re being attacked because they hired a civil lawyer, which they’re entitled to under any state law.”