The House leadership has decided to put its two big “tort reform” bills onto the House floor for votes and will be holding a hearing on another.
The first bill up for a vote, H.R. 2655, the so-called “Lawsuit Abuse Reduction Act (LARA),” would substantially change Rule 11 of the Federal Rules of Civil Procedure, bypassing both the Judicial Conference of the United States and the U.S. Supreme Court in the process. Currently, Rule 11 sensibly provides judges with discretion to impose sanctions as a means to deter abuses in the signing of pleadings, motions, and other court papers. This bill would make sanctions mandatory rather than discretionary.
In 1983, the federal rules were changed along the lines specified by H.R. 2655. As Professor Lonny Hoffman of the University of Houston Law Center testified in 2011, because it increased litigation, costs and was used in a discriminatory fashion, “there is a remarkable degree of agreement among judges, lawyers, legal scholars and litigants across the political spectrum that the 1983 amendment of Rule 11 was one of the most ill-advised procedural experiments ever tried.” In 1993, it was abandoned. Now the House wants to bring it back. So, another swell idea from the “government shutdown” crowd.
The second bill to be voted on, H.R. 982, the so-called “Furthering Asbestos Claim Transparency Act” (FACT Act), does two things: 1) it requires asbestos trusts to disclose on a public web site private, confidential information about every asbestos claimant and their families, including their names, addresses, where they work, how much they make, some medical information, how much they received in compensation and the last four digits of their social security numbers; and 2) it allows any defendant in any asbestos lawsuit the right to demand any information about any asbestos victim from any asbestos trust at any time for any reason.
This was all too much for the New York Times editorial board. In June, the ed board called the bill “misguided,” saying the bill was “rammed through the House Judiciary Committee” supposedly “to root out fraud and abuse” despite the lack of any “persuasive evidence” of this. What the bill would do, said the Times, is “make it harder for plaintiffs injured by asbestos to get fair compensation.” The Times said,
The Republican bill, known as the Furthering Asbestos Claim Transparency Act (FACT) of 2013, would allow asbestos companies to demand information from the trusts for virtually any reason, forcing the trusts to devote limited resources to responding to fishing expeditions that will slow the process of paying claims.
The bill would also increase the burden on claimants to supply information. But it puts virtually no burdens on asbestos companies, like disclosing the settlements they have reached with plaintiffs or requiring them to reveal where their products were used and when, so that workers know which companies or trusts might be liable for their injuries.
Finally, the Subcommittee on the Environment and the Economy is holding a hearing on well-intentioned but deeply flawed Chemical Safety Improvement Act (CSIA), S.1009. This legislation would preempt state efforts to protect the public from harmful chemicals. That means both regulation and tort remedies. Unless this bill is changed to expressly clarify that the law will have no effect on state common-law duties or remedies available under state law, including enforcement of laws by state attorneys general, we have a big problem with this bill.
One bit of good news, however, On Friday, the FDA began the rulemaking process for a rule that would (hopefully) change the outcome of two Supreme Court cases that together, wiped out the legal rights of anyone harmed by an unsafe generic drug. That’s about 80 percent of us who take prescription drugs. (See our earlier coverage here, here.)
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