A Sneak Attack On Access To Justice

This week, the nation’s attention turned to the GOP Senate’s shameful efforts to take away health insurance from millions of Americans. But with the spotlight turned to the upper chamber and the White House’s continuing Russia scandal, the House of Representatives has embarked on its latest stealth attack on our system of civil justice. Paul Ryan and his colleagues continue trying to unfairly tilt the courts in favor of businesses and powerful interests and against workers, consumers, and other victims of wrongdoing.

And although most people have not yet heard of this threat, it’s not too late to stop it.

In recent days, the House passed a medical malpractice “reform” bill that would place severe restrictions on those injured or maimed as a result of a botched medical procedure, a defective drug, or a broken device. Non-economic damages would be capped at $250,000. Because the bill leaves no-carve out for intentional torts, even something as horrific as a rape in a nursing home would be subject to the cap.

Nor is the bill aimed at protecting solo practitioner physicians, a more reasonable concern. Instead, The GOP’s federal bill is a giveaway to Big Pharma and the medical device industry. The bill would also impose a one-year statute of limitations upon a consumer discovering an injury. This would be among the shortest and most stringent limits of any state bill.

Unfortunately, this medical malpractice bill is only the latest in a string of anti-consumer and pro-corporate bills meant to erect new roadblocks to justice. Another especially egregious measure, passed without so much as a hearing, is aimed at the heart of the civil justice system. This bill, disingenuously named the “Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act,” would make it harder for people who are ripped off by a company, injured or poisoned by a product, or victimized by gender or race bias to band together in a class-action lawsuit. At the same time it would shield businesses, government agencies and others accused of harm.

Introduced just a month earlier, the bill was the brainchild of the U.S. Chamber of Commerce. The Chamber, the nation’s largest lobbying group, has pressed for years to limit damage awards and litigation under the misleading banner of “tort reform.”

“We spend half of our time trying to reduce the number of suits by class-action lawyers and the other half of our time suing the hell out of the government,” Chamber President Tom Donohue said in 2015. He has ripped class-action lawsuits as “the single biggest impediment to economic growth and stability.”

But class-action lawsuits are often the only way for individuals who have suffered similar injuries to seek justice by joining together. When a business cheats millions of people out of only a few dollars per person, few of those people can afford to pursue a lengthy legal process to recoup their loss. When thousands face racial or gender discrimination by a corporation or public employer, it’s always difficult to fight on a one-by-one basis.

Consider a few notable cases. In January, then-President-elect Trump chose to pay $25 million to settle fraud claims against Trump University. In 2013, a federal judge put an end to the New York Police Department’s unconstitutional use of a “stop-and-frisk” tactic. And a lawsuit over contaminated California groundwater resulted in a $333 million settlement from Pacific Gas and Electric Co., made famous by the “Erin Brockovich” movie in 2000.

Now, Republican leaders in Congress are seeking to eviscerate Americans’ right to pursue justice in this way, because – and here’s the catch – they would require that every person in a class action lawsuit for monetary damages has suffered “the same type and scope of injury.”

This sneaky turn of phrase attracted bipartisan criticism. Democratic Rep. Jerrold Nadler of New York warned during debate that under the bill, if two consumers are hurt by a defective product, and one suffers first-degree burns and the other third-degree burns, they could not team up in a class-action lawsuit. Other Democrats and dozens of civil rights groups questioned whether class actions over civil rights, discrimination, employment, and even executive-order travel bans could go forward.

From the conservative flank, a letter from the House Liberty Caucus urged opposition, saying class-action lawsuits “are a market-based solution for addressing widespread breaches of contract, violations of property rights, and infringement of other legal rights” and are preferable to government regulation.

But the anti-consumer animus wouldn’t end there. Another bill passed by the House would let corporations move cases that would ordinarily be brought in state court to federal courts, which tend to be more corporate-friendly. A third is designed to intimidate lawyers, by requiring federal judges to sanction lawyers who bring claims that later are found to lack merit.

The question now is what happens next. It’s clear that House GOP leaders, seeking to capitalize on the election of a GOP president to enact an agenda they tried and failed to advance for years, believe this is their moment, their opportunity to take advantage of the broader push by Donald Trump and his special interest allies to run roughshod over everyday Americans. But it’s less clear that the Senate is eager to dismantle the civil justice system, and senators need to hear from the real people who would be hurt.

That’s why it’s important to tell senators now that they should halt these bills on the Senate’s doorstep. It really isn’t too late to stop this assault on the right to a day in court, on behalf of anyone who is or might one day be a consumer, an employee, a patient, or another everyday person seeking justice. In other words, all of us.