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In fight against HR 5, AAJ and conservative groups form unusual coalition

As lawmakers prepare to take up the controversial tort reform legislation later this week, the measure is creating a strange coalition of opponents seeking to stop the bill in its tracks.

As we’ve reported in Lawyers USA, the trial lawyers’ group the American Association for Justice has actively opposed H.R. 5, the Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act. The bill, which would cap non-economic damages in medical negligence cases at $250,000 and repeal part of the federal health care law aimed at cutting Medicare costs, is set for a House vote later this week.

But AAJ officials say the bill affects far more than medical malpractice cases. It is a “far-­reaching bill that would affect caps on damages,  limits on attorneys’ fees, medical negligence law, nursing home cases, medical device and pharmaceutical cases, and bad faith cases against health insurers,” according to a message to AAJ’s membership.

AAJ officials tell me that the bill would also thwart suits against doctors who commit intentional torts, such as sexual abuse.

Meanwhile, conservative groups such as the Heritage Foundation and the Tea Party movement have also attacked the measure, saying it infringes upon states’ rights and violates the Commerce Clause, according to the InjuryBoard’s Andrew Cochran.

Cochran quotes the Heritage Foundation’s Hans von Spakovsky’s statement on the group’s blog The Foundry:

“The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5’s reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims,” Spakovsky writes.

Chamber, AAJ battle again over story on proposed tax break

There are a few things in life that one can always rely on  – like death, taxes, and the complete lack of love lost between the U.S. Chamber of Commerce and the trial lawyers group the American Association for Justice.

That lack of love was demonstrated again this week with a story on a Chamber-backed newswire accusing AAJ officials of boasting about a special trial lawyers’ tax break that would be issued by the Treasury Department.

The story in Legal Newsline, which is owned by the Chamber, quoted John Bowman, the Director of Federal Relations for the AAJ, speaking to a delegate at a meeting in Canada. Bowman reportedly said that an administrative order from the Treasury would amend tax law to allow attorneys to deduct certain expenses and costs in contingency fee cases in the year they were incurred. Current law requires lawyers to wait until the case is resolved, which could happen years later.

Legislation introduced by Sen. Arlen Specter that would have done the same thing after being introduced last year.

Last year, Legal Newslaine ran a story about that legislation, citing another AAJ official’s comment that the bill would fail unless it was “tucked into” another larger legislative package.

AAJ shot back, calling that story “inaccurate and purposefully misleading,” and adding that the bill was designed to “treat the trial attorney profession like every other small business in this country, allowing them to deduct their expenses in the year incurred.”

The latest proposed Treasury Department plan has now drawn the scorn the Wall Street Journal‘s editorial board, which ran a piece today citing the Legal Newsline and blasting the proposed tax change. “And Democrats wonder why their performance in office has inspired a tea party revolt,” the editorial says of the plan.

Trial lawyers’ group responds to president’s address on oil spill

Last night President Barack Obama gave his first televised address from the Oval office, vowing to hold BP fully responsible for the ongoing oil leak in the Gulf of Mexico.

“We will make BP pay for the damage that it has caused,” Obama said in the address.

Obama said he is meeting today with BP’s chairman, Carl-Henric Svanberg, to direct him to “set aside whatever resources are required to compensate the workers and business owners who have been harmed as a result of his company’s recklessness.  And this fund will not be controlled by BP.  In order to ensure that all legitimate claims are paid out in a fair and timely manner, the account must and will be administered by an independent third party.”

In response, Anthony Tarricone, president of the trial lawyers’ group the American Association for Justice, said that while such a plan “may quickly and fairly compensate” some victims, others must be allowed to seek recourse in the courts.

“Many questions need to be answered before such a compensation program is formed, and we will be asking them over the days and weeks to come,” Tarricone said in a statement after Obama’s address.  “Ultimately, a claims process must ensure Gulf Coast residents and businesses can be fully compensated, preserve access to the civil justice system, and hold BP and other corporations accountable for their wrongdoing.”

Tarricone said some key questions remain on issues, such as how the value of claims will be decided, whether claimants have access to courts if the compensation efforts are insufficient, and whether BO will be sufficiently punished for wrongdoing.

UPDATE: Following the meeting with Obama, BP executives have agreed to establish a $20 billion fund to satisfy claims over the next three and a half years. “The fund does not represent a cap on BP liabilities, but will be available to satisfy legitimate claims,” BP’s statement reads in part.

Monday status conference: Opinions and interviews

Oral arguments for the term have concluded, but the U.S. Supreme Court still has 44 opinions to release before the term concludes at the end of next month. Expect some of those rulings to be released this morning. The Court could also add new cases to next term’s docket. Updates on newsworthy developments from the Court can be found later on this blog.

As for the search for the news Supreme Court justice, President Obama interviewed the candidate that is currently seen as the frontrunner – Solicitor General Elena Kagan – at the White House Friday. The interview was the third the president has conducted so far in his search. Last month he talked to D.C. Circuit Judge Merrick Garland, and last week he spoke with 9th Circuit Judge Sidney Thomas.

Meanwhile, the White House – which had planned to focus on the message of economic recovery this week while continuing the Supreme Court selection process – instead is focusing on the Golf Coast disaster caused by a massive oil spill and the possible terrorist plot in New York City’s Times Square over the weekend.

In other news:

Change at the top: The top lobbyist for the American Association for Justice, the nation’s largest trial lawyers group, will be named its chief executive officer today. Linda Lipsen helped lead efforts to keep medical malpractice liability caps and other measures out of the law overhauling the nation’s healthcare system. (Washington Post)

Safety suits: Auto design defects – similar to the sudden acceleration problems linked to Toyota vehicles – have been brought to light through civil lawsuits that ultimately led to increased safety standards, according to a new report from the American Association for Justice. (Lawyers USA)

Camera ready? The Senate Judiciary Committee has advanced a bill that would require the U.S. Supreme Court to allow cameras in its courtroom unless the justices vote otherwise in a particular case. (Lawyers USA)

Obama seeks campaign spending cap: Warning of a “potential corporate takeover of our elections,” the president has called on Congress to undo the Supreme Court’s ruling in Citizen’s United v. FEC. (New York Times)

AAJ gives Senate goers some subway reading

As the Senate debates the health care bill this month, many commuters coming to and from Capitol Hill will know just where the country’s largest trial attorney group stands on the issue of medical malpractice tort reform.

The American Association for Justice has bought every inch of ad space inside the busy Union Station Metro station during the month of December. The ads, which are going up today, state that up to 98,000 patients die each year from medical errors, and urges commuters to contact members of the Senate to oppose tort reform measures in the health care bill.

“Tort law changes won’t fix health care,” states one of the bright blue, yellow and white ads that will be seen in the halls, on the platforms and on the light boxes of the Metro station all month. The ads also feature the website for AAJ’s campaign: 98000reasons.org.

Currently, the Senate version of the health care bill does not contain any federal-level medical malpractice reform, but it does call for federal funding for state-level tort reform test projects. Some opponents of the bill have called for tort reform measures to be included as a way to cut costs, but AAJ and other tort reform opponents say the savings will be negligible compared to the potential cost to patients.

Monday status conference: Last quiet days

Washington will remain largely quiet this week as members of Congress and justices of the Supreme Court are out for the last full week of recess before returning after Labor Day. Many lawmakers, as well as President Obama and Supreme Court Justice Stephen Breyer, spent part of this past weekend in Boston to attend the funeral of the late Sen. Edward Kennedy.

The president returned to Washington from Martha’s Vineyard yesterday, but will take a few more days of repose at Camp David starting Wednesday. Everyone should rest while they can: next week brings the return of wrangling over health care reform and Supreme Court oral arguments in a held-over campaign finance case.


New border search rules: Responding to concerns that federal law enforcement officials have been poking through travelers’ personal electronic data, the Obama administration has tightened restrictions on laptop searches at border crossings. (Lawyers USA)

Rolling violations: A new report by the American Association for Justice shows that 28,000 motor carrier companies, operating more the 200,000 trucks on American roadways, have violated federal safety regulations. (Lawyers USA)

Chrysler challenge dropped: The Supreme Court has dismissed the challenge to the bankruptcy sale of Chrysler to Fiat after the company agreed to accept liability by cars made by the pre-bankruptcy Chrysler. (SCOTUSblog)

Solons suggests spouse: Some lawmakers are suggesting that the late Sen. Kennedy’s seat be taken by his widow, Vicki, even though she has said she isn’t interested. (AFP)

Religious wrong? Supreme Court Justice Antonin Scalia was reportedly miffed by a law professor who questioned whether the justice’s decisions were influenced by his Catholic faith. (HuffPo via ABA Journal)

The church calls: In an unrelated twist, a Connecticut Roman Catholic diocese is appealing to Scalia to stay the release of documents generated by lawsuits against priests for alleged sexual abuse. Justice Ruth Bader Ginsburg already denied a request to keep the documents sealed, but the diocese wants a second opinion from Scalia. (AP)

When Obama talks med-mal reform, Dems and AAJ don’t listen

For at least the second time since taking office, President Barack Obama has medical malpractice litigation reform could be a part of his overall plan for reforming the nation’s health system.

In March, Obama told members of the business community that reducing med-mal lawsuits is something that has to be considered. “Medical liability issues – I think all those things have to be on the table,” Obama said then.

Now, after meeting with members of the American Medical Association who pressed the idea last month, Obama is again receptive to the idea – so respective that he has begun making the case to lawmakers, although few Democrats are biting, according to The New York Times. The president hopes that including medical lawsuit reform in the mix would keep GOP lawmakers and doctors groups at the table, which is necessary to build a broad consensus on health care reform.

But trial attorneys don’t seem to like the idea one bit.

“According to the Institute of Medicine, 98,000 people die every year because of medical errors. Eliminating these errors, not further hurting the victims of negligence, is where lawmakers should focus their attention,” said American Association for Justice President Les Weisbrod. “By taking away the rights of people to hold wrongdoers accountable, the quality of health care will suffer tremendously.”

Weisbrod said the president’s focus should be on insuring Americans and implementing empirically-based practice guidelines to raise the standard of care and better protect patients.

“Limiting the legal rights of injured patients will do nothing to lower health care costs or aid the uninsured,” Weisbrod. “We will work over the coming weeks and months to educate members of Congress and the administration on how to best protect victims of medical negligence.”

Now playing at your local theater: Tort reform videos!

DC-area moviegoers can expect to get something a little different as they chomp their popcorn waiting for the film to start: a message about tort reform.

That’s right – along with the normal movie trailers, commercials, and reminders to silence cell phones in the theatres, audience members at select Washington-area theatres will see videos lamenting the problem of lawsuit abuse – care of the U.S. Chamber of Commerce.

The Chamber’s Institute for Legal Reform has been featuring a number of videos assailing what it calls the overabundance of tort suits on its website. One video, for example, tells the story of a 7-year-old who was sued after a collision with an adult on the ski slopes. Now, for the next month or so, the ILR it is taking the videos to the big screen.

“Lawsuit abuse and the harm it brings to our citizens and small businesses is one of the great American tragedies today,” explained ILR President Lisa Rickard. “That’s why the silver screen is the perfect venue for the Faces of Lawsuit Abuse trailers. The only difference between the feature presentation and these short films is that the damage, the costs, the winners and losers that are featured aren’t fiction-they’re true stories.”

What does the trial lawyer group the American Association for Justice think about the Chamber’s theatrical move? Spokesman Ray DeLorenzi told the Wall Street Journal’s Law Blog: “With U.S. Chamber’s core membership receiving all those taxpayer bailouts, they must be flush with cash to waste on PR stunts like this. Like their lobbying agenda, these ads are rated NC – not suitable for consumers.”