Insurance Litigation

Tort Reform in Sheep’s Clothing – H.R. 985

The language is clearly meant to inflate and inflame – “unscrupulous lawyers fill classes with hundreds and thousands of unmeritorious claims and use those artificially inflated classes to force defendants to settle the case.”

Written like true tort reform, and that’s what it is.

H.R. 985 is full of the rhetoric fueled by Big Business- insurance, asbestos, tobacco, pharma – those who don’t want to be held accountable to the public.

The bill reports it will rein in so-called unscrupulous lawyers, meritless claims, runaway juries and plaintiffs looking for a winning payday.

Never mind that some defendant companies recklessly pushes products they know can injures consumers.

Even in those cases, House Judiciary Committee Chairman Bob Goodlatte (R- VA), who introduced this act on February 9, has a solution.

Limit the size of the class by making sure everyone suffered the same type and “scope of alleged injury.”

What does that mean?  Consider pelvic mesh.

Some women are injured by mesh erosion, others by mesh migration, repeated UTI’s, chronic pain, mesh shrinkage, adhesions, autoimmune issues, a return of incontinence and/or prolapse and must endure numerous revision surgeries.

It could be argued under HR 985 these are not the same injuries therefore should not belong to the same class filing suit against the healthcare giant manufacturers.

HR 985 attempts to erode the power that comes from amassing hundreds of similar cases to face a powerful corporation. And that’s what it is intended to do.

Courts already provide each side with an avenue to have a meritless lawsuit dismissed. It’s called summary judgment.

Most law firms are not going to waste resources filing a frivolous lawsuit that will be easily dismissed on the first round. It is a waste of time and money.

And despite the fear mongering, there is no litigation explosion with mass “Pay days” for these meritless lawsuits.

Certainly “frivolous” does not come close to describing the horrendous injuries that are contained in thousands of complaints filed by law firms representing the mesh-injured.

Fewer than 5% of members of a class receive any benefit from a class action, says the Congressional summary report on HR 985.

This is referring to the claims from a faulty washing machine. No one was hurt but everyone who ever purchased that machine can join in the class.

HR 985 mixes a defective home appliance with personal injury caused by an implanted defective medical device that the company knew or suspected would injured countless numbers of people and recklessly put it on the market anyway.

Apples and oranges.

Ultimately, this bill offers an extra layer of immunity to corporations that make profits at any cost.

H.R. 985 is opposed by 121 civil rights groups and 37 disability rights groups including, Center for Science in the Public Interest, AFL-CIO, National Consumer Law Center, Southern Poverty Law Center, Consumers Union, Alliance for Justice, Consumer Federation of America, and Public Citizen, among others.

Professor Arthur Miller, a scholar on Federal civil practice and procedure, says an earlier version of this bill violates the central mandate of the class action – to promote judicial efficiency through the use of a class to establish injury on behalf of those similarly injured.

It should be noted that when the committee held a 2015 hearing on a similar bill (H.R. 1927) some lawyers who represent pelvic mesh manufacturers testified on its behalf including Skadden Arps, Slate, Meagher and Flom; Shook Hardy & Bacon; and McGuire Woods.


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