Every day we are reminded that the battles are not limited to Sacramento
We all reap tremendous benefits from our CAALA membership. The networking, sharing of information through the List Serves and document bank and the educational programs (many of which are free); are just a few examples. Membership in CAALA makes us better lawyers and our clients benefit through better results.
But our ability to achieve just results for our clients is under constant attack. Now more than ever, we must be vigilant and fight against the tort reform efforts happening both in Sacramento and Washington, D.C.
We are not alone in that fight. For CAALA members, it is imperative that we are united with our state association, the Consumer Attorneys of California (CAOC), and our national association, the American Association for Justice (AAJ). If we are to prevail, we must stand together against these attacks.
Pro-business interests, emboldened by the election of President Donald Trump, are moving ahead with their anti-consumer agenda on both coasts.
In Sacramento, the most notable recent tort reform bill was AB 965. It proposed to apply MICRA non-economic damage limits of $250,000 to claims against CalTrans, and further provided that liability for economic damages in such cases would be several only, not joint and several. Thankfully, through the strong lobbying efforts of CAOC, AB 965 was defeated.
But there are more bad bills on the horizon that CAOC is fighting. The following are a few examples of bills that if passed will:
- Limit claims brought under the Private Attorney General Act (PAGA) (AB 281 – Salas, AB 945 – Melendez, AB 1429 – Fong, AB 1045 – Flora, and AB 1430 – Fong)
- Limit rights of asbestos victims, sponsored by the Civil Justice Association of California (CJAC), (AB 1056 –Kiley)
Limit the use of contingency-fee agreements between attorneys and public entities (AB 1146 – Flora)
- Limit construction-defect claims against architects (AB 1489 – Brough)
- Weaken California’s wage, hour, and employment laws (SB 556 – Nguyen, and SB 662 – Berryhill)
- Eliminate the current 40-hour workweek laws (AB 1173 –Harper)
- Provide immunity to public entities and their service contractors from liability for negligent inspection of tanks or boilers
(AB 1380 – Bigelow)
- Immunize a public entity and its employees for any injury as a result of a fire or the remnants of a fire that arises from the use of a fire pit, fire ring, fire circle or barbecue grill (SB 720 –Allen)
- Award prevailing defendant’s attorney’s fees in specified environmental actions (AB 1623 –Allen).
In addition, several employers are seeking legislative changes to California’s meal and break laws by attempting to overturn the recent favorable California Supreme Court decision in Augustus v. ABM Security Services (2016) 2 Cal.5th 257. There are also attempts to modify the California Supreme Court’s opinion in Borello & Sons, Inc., v. Dept. of Industrial Relations (1989) 48 Cal.3d 341, which set forth a “control-of-work-details” test in order to determine a person’s status as an employee or independent contractor.
Thus far, CAOC has successfully kept these bills from being introduced but we can expect them to surface later this year.
In Washington, D.C.
Every day we are reminded that the battles are not limited to Sacramento.
In Washington, anti-civil-justice leaders introduced six “tort reform” bills in just the first 60 days of the new Congress. In March of this year, AAJ faced votes on three of those bills and enlisted the help of CAALA members and other TLA members across the country, which led to more than 23,000 letters and more than 1,000 calls to Congress in opposition to the legislation on the House Floor. But this is only the beginning. Bad bills keep coming.
One of the worst is H.R. 1215, that targets medical malpractice, nursing homes, drugs and devices, and caps non-economic damages at $250,000 regardless of the number of parties, the number of claims, or the theory of liability; eliminates joint liability for economic loss, caps attorneys’ fees, and prohibits lawsuits against providers in product liability cases. In states with an overall damage cap, these states could also have the $250,000 cap.
There are also bills that would provide immunity to sellers of dangerous and defective products (H.R. 1118), enable medical specialty societies to write their own, preemptive, standards of care (H.R. 1565), impose new expert witness requirements on plaintiffs (H.R. 1704), and prohibit Cy Pres awards if the federal government is a party to a case (H.R. 732).
The following are tort reform bills that have passed the House and are on their way to the Senate:
- H.R. 725, the Innocent Party Protection Act, (would force state cases into federal courts by making it more difficult to remand an improperly removed case; would affect any case in which there is an out-of-state defendant)
- H.R. 720, the Lawsuit Abuse Reduction Act, (would impose mandatory Rule 11 sanctions on lawyers for bringing novel cases and lead to satellite litigation, adding expense and delay)
- H.R. 985, the Fairness in Class Action Litigation Act, and H.R. 906, the Furthering Asbestos Claims Transparency Act, rolled together into H.R. 985, (would affect MDLs and would make it difficult to certify class actions; includes one-sided discovery and fee restrictions for plaintiff attorneys, restrictive joinder provision, and retroactive to pending cases).
Unfortunately, these attacks on consumer rights are just the beginning and we can expect more as we go forward. As trial lawyers, we zealously advocate for our clients’ rights in the courtroom and we need to do the same in the legislature, both in Sacramento and Washington. If we don’t, our clients may never even make it to the courtroom. For these reasons, it is imperative that now, more than ever, we stand united and join in supporting the efforts of both CAOC and AAJ.
Ricardo Echeverria is a trial attorney with Shernoff Bidart Echeverria LLP, where he handles both insurance bad-faith and catastrophic personal-injury cases. He is currently the incoming President of CAALA and was named the 2010 CAALA Trial Lawyer of the Year, the 2011 Jennifer Brooks Lawyer of the Year by the Western San Bernardino County Bar Association, and a 2012 Outstanding Trial Lawyer by the Consumer Attorneys of San Diego. He was also a finalist for the CAOC Consumer Attorney of the Year Award in both 2007 and 2009, and is also a member of ABOTA and the American College of Trial Lawyers.
by the author.
For reprint permission, contact the publisher: Advocate Magazine