Dan Walters: 'Tort wars' heating up in California Capitol
06/03/2013 12:00 AM
06/03/2013 7:07 AM
Mention "tort" to someone and he or she may envision a rich, multilayered cake.
The cake, however, is a "torte," while a "tort" is an action that harms someone – a "civil wrong" – and therefore is potential lawsuit fodder, whether it be a routine fender-bender or something as serious as a nuclear reactor meltdown.
The Legislature sets the rules under which injuries are litigated, and that's why one of the Capitol's perennial conflicts is called "tort wars," pitting those who want to expand the ability to sue for damages – especially contingency-fee lawyers – against those who defend such cases, particularly business and insurers.
No legislative session occurs without some new tort war skirmish, but it appears that 2013 is particularly active.
Lawyers, unions and other groups that want to expand litigation helped Democrats swell their legislative majorities and believe that the moment is ripe to move long-stalled agendas. Quite a few such bills have already emerged and others are waiting in the wings.
One of the more significant, Assembly Bill 715, sponsored by the Consumer Attorneys of California, would give appellate courts broader authority to review "summary judgment" dismissals of lawsuits by trial judges, thus weakening a legal tool often used by defendants.
Lawyers also appear to be behind another bill – although they are not listed as sponsors – aimed at curbing private arbitration, which trial lawyers disdain as an alternative to litigation.
Initially, AB 802 would have merely required more reporting by arbitrators, but then its author, Assembly Judiciary Committee Chairman Bob Wieckowski, slipped in steep penalties on the arbitration companies, only to remove them when arbitrators raised a stink.
Lawyers, however, are not the only ones seeking tort law changes. Unions, for example, are backing bills that would prohibit corporations from deducting punitive lawsuit damages from their taxable incomes and bar employers from being awarded attorneys' fees when they win lawsuits over nonpayment of wages and fringe benefits.
The big question is whether plaintiffs' attorneys will try again to overturn the $250,000 cap on pain and suffering damages in medical malpractice cases that Gov. Jerry Brown signed in 1975.
Consumer Attorneys of California has periodically tried to change the cap, but has always lost to the rival medical-insurer lobby, Californians Allied for Patient Protection.
The lawyers have hired some new lobbyists and an allied group, Consumer Watchdog, has launched a lawyer-financed media campaign and is trumpeting a ballot measure to overturn the cap – harbingers of a potential late-session blitz.
If it happens, it implies that the lawyers have a commitment from Brown 38 years after he signed the original cap.
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