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Guest Articles


PA Needs Legal Reform

by David Patti
 

Governor Tom Corbett and the Pennsylvania General Assembly are unanimous in
their belief that we must deal constructively with the budgetary and fiscal
issues that confront the Commonwealth while we work to create jobs.

True, permanent, and comprehensive legal reform would create jobs and stimulate
investment in the Commonwealth while actually reducing the expenses of state,
municipal, and school district governments.

Philadelphia was recently ranked the nation's number one "judicial hellhole"
for its penchant to allow frivolous lawsuits to go forward while juries give
super-sized damage awards. Pennsylvania's problems however, are not limited to
the confines of the City of Brotherly Love.

Injured parties must be treated fairly, but justice doesn't have to come at a
price that threatens innovation, competition, and profitability. Legal reform
will cut the cost of health care, government services, and doing business in
Pennsylvania.

A package of legislation has been introduced in the Pennsylvania House. The
keystone of the package — the "Fair Share Act" already has a companion bill in
the Senate. Governor Tom Corbett's campaign literature embraced all of these
concepts.

The "Fair Share Act" is a "joint and several" reform bill that has passed the
General Assembly twice before and largely mirrors the law in more than half of
the states in the nation. "Joint and several" is a legal concept that decrees
anyone responsible for any portion of a personal injury or loss can be made to
pay for 100 percent of the award to the injured party. The desire is to
guarantee that injured persons are made whole for their losses. Persons,
government agencies, non-profit charities, and private firms, however,
frequently end-up paying for damages of which they contributed little to the
cause. Often plaintiffs and their attorneys file lawsuits against those they
perceive to be the "deep pockets" — big non-profits, government units,
celebrities, or corporations — in the hopes of a quick settlement or easy trial
with big awards. Justice is lost in the transaction.

Many states have revamped their laws to allow only "proportional liability." If
a defendant is found to have been 10 percent responsible for an injury or loss
they can be forced to pay no more than 10 percent — the proportional share — of
the jury award for damages. In 2002, the Pennsylvania business community, local
governments, medical providers, and others agreed to a compromise: if a
defendant is found to be 60 percent or more responsible for an injury or loss,
they could be found liable for 100 percent of the award. But, if a defendant is
found to be less than 60 percent responsible for the injury or loss, they could
be held liable for only a proportional share of the damage award. The "Fair
Share Act" passed the General Assembly and was signed into law by Governor Mark
Schweiker. The Pennsylvania Supreme Court, however, found in a lawsuit brought
by Pennsylvania state lawmakers H. William DeWeese and Michael Veon the "Fair
Share Act" to be unconstitutional — not because of its content, but because it
was passed by amending the contents of one bill into another.

Candidate Ed Rendell running for Governor that year said he would sign the
Pennsylvania "Fair Share Act" if it was passed again and delivered to his desk.
It was passed again in 2005, but then-Governor Ed Rendell vetoed the bill.

The Pennsylvania Fair Share Act has been re-introduced by Pennsylvania Senator
Jake Corman and Pennsylvania Representative Curt Schroeder. Governor Tom
Corbett has promised to sign it. Quick passage this spring is hoped for.

Joint and several reform, however, is not sufficient to give Pennsylvania a
fair and competitive legal system.

Another bill in the package, and a "must" for making Pennsylvania more
competitive, would provide to all Pennsylvanians a reform that was extended to
the medical community with great success in 2002 — an end to so-called "venue
shopping." Plaintiffs — or more accurately, their attorneys — take advantage of
Pennsylvania law to file their lawsuits in jurisdictions known for more lenient
judges, more sympathetic juries, and bigger awards. Often this means
Philadelphia. The medical community saw a 40 percent reduction in the filing
for frivolous malpractice claims when a rule was adopted requiring that
lawsuits be filed in the county in which the harm allegedly occurred. Similar
success is expected if this rule is extended to all lawsuits.

Pennsylvania has long been a world leader in manufacturing, but much of that
legacy was lost in the last 50 years in part because Pennsylvania's legal
climate provides no boundaries. "Product liability" suits against Pennsylvania
manufacturers often apply modern engineering and science to products that were
made generations earlier alleging the makers of the products should have known
better or should have foresaw future problems — even if the science to do so
had not yet been invented. Many states provide a statute of repose —
essentially a statute of limitations — requiring a suit to be filed within a
certain time after the manufacture of the product.

Another bill related to product liability would protect from lawsuits "innocent
sellers" — retailers who did nothing more than accept payment for a product in
which they played no role in design or manufacture.

Many steps were made to improve the medical liability climate, but still more
must be done. A bill in the package of reforms would tighten rules dealing with
the "certificate of merit" — expert testimony that there is a real chance that
a mistake was made and merits a trial court's time to sift through the facts,
evidence, and testimony.

A simpler piece of legislation in the reform package would allow a medical
professional to express remorse for an outcome to a patient or her family
without that heartfelt expression then being used against the professional in a
medical liability lawsuit. Often all we want is a simple acknowledgement of our
loss. Our lawsuit sensitive culture, however, has trained professionals to
never acknowledge the potential of a mistake — despite their best instincts as
an empathetic person. This legislation simply lets professionals do and say the
right thing, without the expression of the sentiment becoming a
self-indictment.

Pennsylvania's legal climate must be fair and predictable for all. Quick
passage of comprehensive legal reform will invigorate Pennsylvania's economy.

Guest columnist David Patti is President and CEO of the Pennsylvania Business
Council


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