The push by business to get states to rewrite their liability laws has turned into a two-front war.
After two years of success in getting legislatures to make it tougher for accident victims to collect big damage awards for their injuries, the 50 local affiliates of the American Tort Reform Association are gearing up for more lobbying in 31 states this year. But at the same time, says ATRA President James K. Coyne, "this is a year that in many states we have to be on the defensive."
The plaintiff bar, allied with labor and consumer groups, is trying to undo -- or, at least, cut back -- victories the ATRA has chalked up in 1986 and 1987. That counterrevolution is particularly significant because it is focusing on states that have passed the most comprehensive packages of liability law changes. Last year, legislatures in Connecticut and Colorado modified ATRA-backed changes passed by the legislatures in 1986, restoring in some cases joint and several liability.
A prime goal of the group is to wipe out this legal doctrine, which holds that when a number of companies bear some responsibility for an injury, each one can be held responsible for the entire damages due the victim. Colorado restored the concept in cases where the defendants acted together, and Connecticut restored it for all economic damages.
That's especially significant because Connecticut and Colorado are among the seven states that have done "a really good job with a comprehensive reform package," according to Robert Fogle, who oversees liability issues for ACEC.
Coyne expects similar efforts to overturn recent liability law changes to be especially vigorous this year in four of the other states that Fogle rates tops: New Jersey, Ohio, Alabama and Washington state. Of Fogle's seven states, only Georgia -- which last year put a $250,000 limit on punitive damages except in product liability cases and told defense lawyers that they could tell juries about reimbursement victims have collected from insurance companies and other sources -- seems immune from counterattack this year.
The give-and-take of politics also cuts into the impact of tort reform. To round up the necessary votes, backers of such legislation accept exceptions to the reforms. Some state law enforcement officials, for instance, have argued that without joint and several liability, it would be hard to attack pollution problems, where it's particularly hard to pin down just who is responsible for what portion of a problem.
In response, a dozen states have included such exceptions, usually aimed at continuing the old rules for environmental suits, says Lee Nute, a Dow Chemical Co. lawyer specializing in liability issues.
Last year, for instance, Oregon, Nevada and Idaho all wiped out joint and several liability in run-of-the-mill cases, but kept it in toxic torts. Nute points to New Jersey as the state with the most sweeping exception, with language in its tort reform package that could exempt not only suits based on air and water pollution but also on exposure to chemicals in the workplace.
A study done by the Insurance Services Office by the Washington consulting firm Hamilton, Rabinovitz & Alschuler suggests that while total elimination of joint and several liability could make a big difference in the cost to business of tort litigation, the exceptions wipe out virtually all of the effect. "The next question is what the judiciary's going to do," he says, "depending on how this is interpreted, it could really hurt the chemical industry."
But in general Nute rates as slim the chances of getting lawmakers to eliminate the hurdles they have left for defendants in environmental suits. "If we go in as an industry and try to get some special treatment, that's a tough thing to do." That's why business continues to play an active role in state coalitions pushing for broad, exception-free tort law changes.
The hottest issue this year, according to the ATRA survey of individual state coalitions, remains elimination of joint and several liability. In an unusual move, the issue is expected to be on the November ballot as a referendum issue in Alaska. Backers of the change have collected 22,000 signatures on a petition for a referendum, some 20 percent more than the number needed to get the issue before the voters.
Legislatures in a dozen other states are set to vote on the change, with the proposal most likely to pass in Florida, New Hampshire and Mississippi, according to ATRA's Coyne. He sees the measure facing the most staunch opposition in his home state of Pennsylvania.
Moskowitz covers legal affairs for McGraw-Hill World News.