FELA Under Attack

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Jim VandeHei
Washington Post Staff Writer
washingtonpost.com
Published December 29, 2002; Page A05


Republicans, backed by many corporate executives, are making significant if little-noticed progress in their campaign to strike back at trial lawyers and shield U.S. companies from multimillion-dollar liability lawsuits. Now that the GOP controls both chambers of Congress, they plan deeper pushes in the months ahead.

President Bush and his congressional allies in the past two years have written into federal law new limits on the public's ability to sue airplane manufacturers, drug makers, builders of anti-terrorism devices and teachers for alleged misconduct or gross negligence. Republicans inserted many of the legal protections into legislation during last-minute negotiations with little fanfare or debate.

At the state level, chief executive officers are persuading governors to do the same. Their biggest victory came early this month when Mississippi Gov. Ronnie Musgrove (D) signed a law capping court-awarded punitive damages and protecting retailers from some types of suits. The U.S. Chamber of Commerce and other business groups had targeted Mississippi as the nation's most plaintiff-friendly state, and spent millions of dollars on campaigns to strengthen the hand of corporations there.

When the GOP-controlled Congress convenes next month, Republicans plan to build on their success by pushing new federal protections for physicians, managed care firms, asbestos manufacturers, small businesses and major corporations hit with class-action suits, according to party officials. Most of the industries seeking legal protections are major GOP donors.

Sen. Trent Lott (R-Miss.) -- recently deposed as party leader but still a veteran member of the majority -- said in an interview that trial lawyers, who he likened to a "pack of wolves," are "going to kill the goose that laid the golden egg" if they aren't reined in. To do this, he said, Republicans have settled on a strategy to impose broad liability caps in "small pieces" for "serious problems like medical liability and outlandish class-action lawsuits."

Such piecemeal measures, he said, can attract enough support from pro-business Democrats to pass the Senate and enable proponents to avoid an unwinnable fight over one "big tort reform bill." Tort refers to the body of law allowing injured people to seek compensation for a defendant's alleged recklessness or other serious misconduct.

This strategy has worked well so far. Republican leaders used the wide-ranging education bill to provide new protections to teachers; the airline security bill to protect Boeing from lawsuits stemming from the Sept. 11, 2001, terrorist attacks; and the homeland security bill to protect vaccine makers and companies that build anti-terror products.

"This is what happens when you have people in power willing to stick these things in in the dark of night," said Rep. Steny H. Hoyer (D-Md.), the incoming House minority whip.

Legal protections at the federal level have included caps on punitive damages and requirements that liability suits be heard in federal courts, which are less apt than state courts to accept cases and render large verdicts.

While Democrats and Republicans disagree about the merits of curtailing lawsuits, this much is indisputable: Corporations stand to benefit financially, while individuals may lose the opportunity to win significant jury awards if they are harmed by certain products.

The plaintiff -- the person filing the suit -- often seems overlooked in the broader political clash. Democrats get much of their money and political support from plaintiffs' attorneys, known as trial lawyers. These lawyers typically receive a sizable percentage of any monetary awards given to their clients -- and nothing if the client's case is lost. Therefore, they have an incentive to push for damage awards as high as possible. Some have been known to seek out courts with reputations for quick and easy verdicts against businesses.

Republicans, meanwhile, get most of their donations from the business community, which has sought legal protection from such lawsuits and damage awards for years. This ideological alignment has left little room for compromise and lots of room for sharp debate.

Consumer activists and many Democrats oppose arbitrary caps on civil awards meant to compensate victims for pain and suffering, economic losses or other damages when a defendant has acted unlawfully. In egregious or malicious cases, they say, juries should be free to add "punitive damages" as a way to punish companies for making dangerous products and to repay Americans hurt by them.

Critics say cynical trial lawyers and sympathetic juries have slapped outrageous penalties on companies for regrettable but understandable events, such as a fast-food diner being scalded by spilt coffee. Home Depot, Wal-Mart and other frequent targets of lawsuits have spent tens of millions of dollars on a campaign to curtail punitive damages and limit their liability by demonizing trial lawyers and prodding Bush and congressional Republicans to enact "tort reforms."

Republicans, in general, believe trial lawyers abuse the legal system and drive some companies out of business by filing frivolous lawsuits designed to pad their pockets. Still, it wasn't until Bush's election that Republicans had enough power to start clamping down.

Bush was a champion of limiting lawsuits when he was governor of Texas, but his appetite for change at the federal level seemed to wane after a wave of corporate scandals rocked the country and rattled his administration early this year. White House officials are still drawing up their business agenda for next year, but congressional Republicans are pressing for stronger action on torts.

Lott said congressional Republicans early next year will push for legislation proposed by the president that would dramatically limit the liability of physicians sued for medical malpractice. Under the plan, aggrieved patients could seek no more than $250,000 for pain and suffering, even if their state's law permitted a much higher award. There would be no federal limits on compensation for economic damages, such as lost wages and medical costs.

When Bush announced the plan earlier this year, he said the limit was needed to keep doctors from being forced out of business by escalating malpractice insurance costs. Democrats say the $250,000 limit is much too low, particularly for patients whose lives are changed forever by a physician's wrongdoing.

In the last two years, doctors have given the GOP $7.8 million and Democrats $3.8 million, according to the nonpartisan Center for Responsive Politics.

More important to the chief executives who have bankrolled the anti-trial lawyer campaign through the U.S. Chamber of Commerce and other groups is a broad limit on class-action lawsuits. Such suits allow hundreds or even thousands of similarly situated people to be considered plaintiffs in a liability suit, making them eligible for court-awarded damages if the defendant loses.

Most congressional Republicans want to limit class-action suits against big corporations such as Wal-Mart and Intel by steering the cases into federal court and mandating a speedier appeals process. Democrats characterize this as favor to the some of the GOP's biggest business donors, a charge the White House might want to avoid as the 2004 elections approach.

Republicans also want to provide new protections to asbestos manufacturers -- including a subsidiary of Halliburton Co., which Vice President Cheney used to head -- and to HMOs as part of bigger legislative packages, party officials say. Carleton Carl of the Association of Trial Lawyers of America said Republicans can't muster the 60 votes needed to break a Senate filibuster unless they continue to insert the provisions in bills dealing with homeland security. Yet in a sign that some trial lawyers see an unstoppable train coming, some plaintiffs suing Halliburton and other companies in asbestos-related cases started talking about out-of-court settlements right after the GOP sweep last month, according to the Wall Street Journal.

"Clearly, Republicans are in a better position" to make bigger changes next Congress, Hoyer said.

If you or a loved one have suffered a work injury or wrongful death on the railroad, call an experienced FELA lawyer / railroad injury attorney at Hoey & Farina, P.C. at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.

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