Tort reform advocates see hope in Republican gains at state level

Business Insurance
Monday, December 8, 2014

Tort reform advocates say the results of last month's state elections will further their cause.

While stressing that tort reform isn't always a partisan issue, they noted that Republicans, who generally favor tort reform more than their Democratic counterparts, made significant gains at the state level in the November balloting.

Republicans won gubernatorial races in such Democratic bastions as Illinois, Maryland and Massachusetts while gaining control of the New York Senate, both houses in Nevada, the Minnesota House and several other legislative bodies.

“I think the elections will have an impact,” said Matt Fullenbaum, director of legislation at the Washington-based American Tort Reform Association. While tort reform is “not a purely partisan issue,” Republicans “on average” tend to support civil justice reforms more than Democrats, he said.

A consumer advocate, however, said a philosophical divide among some Republicans could stymie tort reformers' efforts. “There's a concern, but not an overwhelming concern, about the prospect of tort reform passing at the state level,” said Joanne Doroshow, executive director of the Center for Justice and Democracy at New York Law School in New York.

The elections “have created a very favorable landscape” for reform, said Harold Kim, executive vice president of the U.S. Chamber Institute for Legal Reform in Washington. “If you look at most significant reforms during the past five or so years, the activity has really been in the states,” he said, where at least 15 have enacted some sort of legal reform in the past several years

As a result of the November balloting, Mr. Fullenbaum said Republicans control 30 state legislatures, and are a majority among governors and state attorneys general.

He pointed to West Virginia in particular, where Republicans won control of both houses. “Lawsuit abuse is near the top of the agenda, and we would expect an aggressive push for reform” next year in the state, which often has been cited as one of the more hostile to tort reform, he said.

Mr. Fullenbaum also said concerns about medical liability in Arkansas could lead state lawmakers to examine the issue next year.

“Another state that comes to mind is Minnesota, where the House flipped” to Republican control, he said. “I would expect we would be able to stop” some potentially negative tort reform legislation there.

Mr. Kim pointed to Republican Gov. Rick Scott's re-election in Florida as particularly critical, where he faced Charlie Crist, the state's former governor and Republican-turned-Democrat.

Gov. Scott's victory means Florida will be led by a pro-legal reform chief executive for the next four years. That is “in sharp contrast to Charlie Crist, who is a plaintiffs' lawyer,” Mr. Kim said.

Mr. Fullenbaum also cited the victory of Republican Larry Hogan as Maryland's governor as a plus, if largely for defensive reasons. Gov.-elect Hogan “can serve as a backstop if the (Democrat-dominated) legislature passes some bad things,” he said.

Partisan vs. bipartisan

Mr. Kim cautioned reform advocates, however, to avoid viewing legal reform through a partisan prism.

“It shouldn't be that way. Legal reform should be a bipartisan issue,” Mr. Kim said. “If you look at California, you have assembly members who are Democratic who are strong legal reform proponents.”

Tort reform opponent Ms. Doroshow said the issue does tend to be partisan, but also said there is a split among Republicans.

“There are Republicans interested in protecting corporate misconduct and other types of wrongdoing,” she said. “And there are other Republicans who are more interested in protecting the Constitution from the government.”

For example, Ms. Doroshow said, the right to trial by jury is “entrenched in every state constitution,” although some tort reform proponents want to subject some matters to arbitration.

“I think anybody who respects the power and authority of juries is not going to support tort reform,” Ms. Doroshow said.

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