`Reform' advocates eager to work with Bush.

Tort "reform" advocates are gearing up for a receptive audience with the Bush administration, Rep. Robert Barr (R-Ga.) told the audience at a recent Harvard Law School symposium on punitive damages.

"There is a proper and legitimate role for Congress in addressing punitive damages," Barr said. "I think we have laid the groundwork so we don't have to reinvent the wheel."

"Any attempt by Congress to limit punitive damages is a violation of the Constitution," said ATLAs senior director for Legal Affairs, Robert Peck. "The right to a trial by jury embraces the right of jurors to determine punitive damages."

ATLA staff attorneys are fighting efforts to limit punitive damages, most recently by joining an appeal in North Carolina, Rhyne v. Kmart Corp., that challenges the constitutionality of the state's $250,000 cap on punitive damages. (No. COA00-1516 (N.C. Ct. App. filed Dec. 21, 2000).) After finding Kmart liable for damages stemming from the store's illegal detention of the plaintiffs, a jury had awarded them $11.5 million each in punitive damages. Because of the state punitive damages cap, the trial court had truncated that award.

Barr indicated that lawmakers are eager to seek similar limits on punitive damages at the federal level. At the symposium, Barr said tort "reform" advocates had been "severely limited" by the Clinton administration in their attempts to address what he called "the problem of punitive damages."

The congressman indicated that "reform" advocates will probably try to revive legislation that was passed in the House and Senate but vetoed by then-President Bill Clinton. "I think there would be an amenable president waiting to sign such legislation," said Barr, a member of the House JUdiciary Committee.

Among the specific changes he discussed were capping punitive damage awards and increasing the plaintiff's burden of proof to a "clear and convincing evidence" standard.

Another speaker on the panel, class action litigator Thomas Sobol, of Boston, questioned Congress's right to intervene. Sobol said the responsibility for protecting due process lies with the U.S. Supreme Court, not the legislature.

While the media may highlight multi-million-dollar punitive damages awards, the awards themselves are relatively rare, he said, and if they are ordered, they are rarely paid.

"Any attack on punitive damages awards in our country is implicitly an attack on the jury system," Sobol said. "We shouldn't take away from jurors the power to hold corporate America responsible."

Barr said he would expect to see "reform" efforts over the next two years. Bush has given its advocates momentum, he said, but the Senate remains a "big question mark."

"I look forward to the debate in the Judiciary Committee," he said.

The Republican from Georgia had not introduced such legislation before press time. Barr, a gunfights advocate, has sponsored the Firearms Heritage Protection Act of 2001, which is currently before the House Judiciary Committee. The legislation would prohibit civil actions against manufacturers and sellers of firearms, and it would dismiss those actions pending at the time of its passage.

Despite the debate about Congress's authority to limit punitive damages, Barr defended his stance. "Punitive damages are not a fundamental right," he said. "It's a policy issue."

"I view it as entirely appropriate for Congress to step in if Congress believes something needs to be done," he said. You can't escape the fact there are large punitive damage awards."

ATLA strongly opposes federal tort "reform" proposals and will continue to oppose congressional limits on punitive damages awards.