Some of this was expected, of course. The minute it became clear that “tort reformers” would control both Houses of Congress, the U.S. Chamber of Commerce – representing the largest and most detested industries in the world – announced who qualified for its “first victim” status. Those would be: sick and dying asbestos victims, and anyone who brings a civil rights, employment, environmental or consumer case.
The Chamber’s tort reform wing, the Institute for Legal Reform, says it is hopeful “that a Republican-controlled Congress would move on litigation reform built on bills including the Furthering Asbestos Claim Transparency Act and the Lawsuit Abuse Reduction Act, which both passed the House in 2013.”
The asbestos bill would delay and, in some cases, end up completely denying compensation to people suffering from lethal asbestos-related diseases. The New York Times editorial board called the bill “misguided,” saying it would “make it harder for plaintiffs injured by asbestos to get fair compensation.”
The other Chamber bill would make Rule 11 sanctions mandatory rather than discretionary, taking us backwards to a system that proved to be unworkable, unfair and unnecessary, and was thus abandoned 20 years ago. See more in this 2013 consumer group letter to Congress.
So clearly, we have a fight on our hands, as we will over a few more abominations they will surely try during the next two years. This will likely include proposals for a national $250,000 cap on non-economic damages for medical malpractice, nursing home and drug cases. A bill containing such a cap passed the House in 2012 despite some Tea Party opposition.
Beyond that, we don’t know what to expect, except we know one thing for sure: there’s no limit to the imagination of corporate miscreants when it comes to finding new ways to immunize themselves from civil and criminal wrongdoing.
Take, for example, this new article by W. Kip Viscusi, which Alison Frankel at Reuters headlines, “Blame trial lawyers for GM ignition switch disaster – law prof.” Yup, you read that right. Mr. Viscusi blames GM’s massive cover-up of the ignition switch disaster, which could subject them to punitive damages (not to mention criminal penalties) on things like past discovery of the 1973 Ivey memo, uncovered in litigation. In this memo, GM engineer Edward Ivey evaluated the cost to GM of “burned deaths” from a horrendous fuel tank defect and determined that it was cheaper for GM not to fix the cars and to simply pay for killing people.
In other words, when General Motors engineer Ray DeGeorgio more recently ordered an ignition-switch part change, something which senior management says it didn’t even know about (if you can believe them), that’s the fault of the people who were killed, whose families sued to find out what what happened, and who then uncovered the defect themselves, supposedly alerting senior management for the first time.
As bizarre as Viscusi’s idea sounds, we’re fully aware how companies seeking immunity will use such nonsense to turn corporate wrongdoing on its head and argue for immunity. Mr. Viscusi proposes the following:
To address the inherent challenges proposed by risk analyses and at the same time to encourage companies to think systematically about safety, it is desirable to give company legal protections so that the content of the risk assessments cannot be used against them in trials.…
One might easily envision that over time there might be a rationale for stronger versions of such a proposal. There could, for example, be a regulatory compliance defense against lawsuits alleging negligence for the particular design choice if the company’s analysis met government standards, and the company adopted designs that passed a benefit-cost test.
And when you already own the regulatory agency that's supposed to regulate you, well you know where this is going.
By the way, if you’re a corporate wrongdoer who hates the thought of punitive damages, Vicscusi has definitely established himself as your “go –to” guy. Check out this 1999 article:
In 1998, Exxon funded Harvard Law Professor W. Kip Viscusi to look into the issue of punitive damages. Viscusi obliged, and wrote an article, "The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts," for the Georgetown Law Journal advocating the abolition of punitive damages.
In a footnote to the article, Viscusi discloses that the research for the article was funded in part by "a grant from the Exxon Corporation."
But Viscusi will not say how much Exxon paid him.
Asked how much money he received from Exxon, Viscusi's first reply is, "I don't even know."
"I have several projects," Viscusi says. "This is one paper I did, but I'm working on several other things."
Asked how much he received in total from Exxon, Viscusi replies, "I don't remember that either."
Asked whether he received more than one check from Exxon, Viscusi responds: "Yes, but it was for different projects that overlap the time period."
Asked whether he can give a ballpark figure of how much money he took from Exxon, Viscusi says "no," arguing that the information is not public information.
Viscusi says that he received money from Exxon just in 1998.
Finally, when pressed again as to why he won't reveal the amount of money he took from Exxon for the research on punitive damages, Viscusi responds bluntly -- "It's none of your business."
Time for some new questions for Mr. Viscusi?