Mutant Tort Bills; Damages, Awards to Be Capped in Lieu of Senate Tactics

Article excerpt

Byline: Gary J. Andres, THE WASHINGTON TIMES

A little over 200 years ago, possibly on a muggy July morning, Thomas Jefferson expressed frustration with the slow pace of legislation in the Senate. At breakfast with President George Washington, Jefferson, who was in Paris during the Constitutional Convention, asked why the Founders created an upper body. Washington answered with a question, "Why did you pour that coffee into your saucer?" "To cool it," Jefferson replied. "Even so," responded the president, "we pour legislation into the senatorial saucer to cool it."

Washington and Jefferson's legislative china cabinet never contemplated repeated partisan filibusters as a procedural delaying tool, but they would have found a way to turn the opposition to their advantage. Over the next few months, Republicans can do just that in their ongoing battle with the trial bar.

Lawmakers poured tort reform into the senatorial saucer this month, and the momentum to pass critically needed legislation chilled considerably. Yet, do not confuse cooling the legislative brew with pouring it down the drain. Despite reform efforts hitting some bumps after two major tort bills (medical liability and class action) passed the House earlier this year, persistent and creative advocates can use the Senate's more deliberative pace and the Republicans majority's procedural advantages to remain on the offensive.

Two important litigation reform efforts suffered setbacks earlier this month, and a third's fate is questionable when Congress reconvenes after the August recess. Senate Democrats successfully blocked consideration of medical liability reform through a filibuster two weeks ago. Moreover, legislation on asbestos lawsuits appears mired in the muck of labor and industry opposition. Finally, class-action reform, scheduled for Senate consideration in September, also appears a few votes short of overcoming still another Democratic filibuster.

Despite these challenges, tort reform advocates possess some powerful weapons - even in the Senate. By creating different versions of tort reform - what some are calling the "mutation" strategy - and exercising their scheduling power, Republicans can force Democrats to cast repeated tough political votes. This will yield positive results, both on the policy and the politics of tort reform, if advocates are patient.

The "mutation" strategy started earlier this year, segmenting the tort reform issue into separate battles on issues such as asbestos, malpractice and class-action reform. Fighting three separate battles on different fronts stretched the resources and energy of the trial bar to its limits. Victor Schwartz, a well-known Washington attorney in the tort reform debate, told the National Journal last week that, with three bills moving through Congress, "trial lawyers are facing a hurricane, a tidal wave, and a tornado. …