105th Congress roundup.

The 105th Congress has finally adjourned, and our treasured legal rights remain secure, despite efforts mounted to add tort relief on almost every imaginable issue. In the end, after ATLA confronted challenges big and small, Congress failed to enact any meaningful tort "reform." Here are highlights from this Congress.

Products liability

A lengthy negotiation process that included the White House, Sen. Jay Rockefeller (D- W.Va.), and Sen. Slade Gorton (R-Wash.) finally resulted in a so-called compromise products liability bill, which reached the Senate floor last July. However, the "compromise" generated opposition from all sides and failed when it fell nine votes short of closing debate. As a result, a comprehensive products bill may not return as a serious issue in the next Congress.

Instead, the bill may be divided into a number of narrow bills and considered piecemeal. For example, Congress may consider bills that cap punitive damages for small businesses or eliminate vicarious liability for lessors. This approach was attempted in the closing days of the 105th Congress when an effort to enact the lessor liability relief provisions failed.

Medical malpractice 

The House of Representatives included in the 1997 budget reconciliation bill a broad cap on medical malpractice liability, including a cap on noneconomic damages of $250,000. However, that provision was stripped in the Senate and never reached the president's desk. Also in 1997, the House-passed District of Columbia appropriations measure included a similar provision that applied only to medical malpractice cases in the District. The provision was deleted and replaced by a requirement that the D.C. Control Board analyze and report back to Congress on the need for D.C. malpractice "reform." The requirement backfired when the control board's report found no medical liability problem in the District and concluded that the city council, not the Congress, should address any problems that might arise. Despite this, the fiscal 1999 budget calls for the control board to submit a similar report.

Automobile no-fault

Supporters of the so-called Auto Choice Reform Act set in motion a flurry of activity early in the Congress, holding a series of hearings. ATLA fought back in two Senate hearings and one House hearing, where witnesses opposing the bill (including ATLA President Mark Mandell, testifying on behalf of the association) carried the day. An abortive attempt to circumvent the Senate committee process late in the session by Sen. Mitch McConnell (R-Ky.) backfired by presenting ATLA with an opportunity to motivate groups that had been on the sidelines to take a more active role in opposing the bill.

As a result, although the bill gained attention over the course of the Congress, it never reached the floor of either house. Opponents are organized and have raised serious concerns on Capitol Hill. The 106th Congress will be critical in determining whether this bill gains strength or withers on the vine.

Managed care

At least nine major bills dealing with comprehensive managed care reform were introduced in the 105th Congress, and at one point the issue was gathering momentum. However, in July, the House passed a watered-down bill introduced by Speaker Newt Gingrich (R-Ga.) that would not have given patients significant new protections or modified Employee Retirement Income Security Act (ERISA) pre-emption of state law to permit civil actions against providers.

During the debate on this bill, the House narrowly defeated the "Patients' Bill of Rights," a substitute amendment sponsored by Rep. John Dingell (D-Mich.). The amendment would have fixed the ERISA problem and extended other consumer protections to managed care consumers. Ultimately, the Gingrich bill passed, and no action was taken in the Senate.

This issue is certain to return in the next Congress, and ATLA is working with other groups to enact legislation that would give legal rights to managed care patients.

Tobacco liability

One of the most contentious issues faced by this Congress was the proposed

legislative settlement of the attorneys general litigation against the tobacco companies. As originally drafted, this settlement would have given the industry broad immunity against civil liability in exchange for the companies making payments to state coffers, submitting to new regulations, and agreeing to other concessions.

The bill appeared to have momentum in May when the Universal Tobacco Settlement Act, S. 1415, was voted out of the Senate Commerce Committee on a 19-1 vote. But in the end, the bill was killed in the Senate on a procedural vote. The fight over this issue gave many senators a new awareness of the importance of maintaining civil liability for dangerous products.

Attorney fee caps

One issue that arose during the tobacco debate related to capping plaintiff attorney fees in tobacco cases. Sen. Lauch Faircloth (R-N.C.) offered two amendments--one to cap fees at $250 per hour, and the second to cap them at $1,000 per hour. Both amendments failed, with significant numbers of Republicans opposing their passage. A third fee-cap amendment, offered by Gorton, capped fees at various levels from $500 to $4,000, depending on when a case was filed. The amendment passed by a single vote, just before the Senate killed the bill. These or other caps on fees might well be considered in the next Congress.

The issues faced by ATLA over the last 22 months are too numerous to describe in this column. Other important issues considered in the 105th Congress included a bill to federalize class actions, a Year 2000 liability bill, an asbestos compensation bill, changes to the Death on the High Seas Act, and several others. Regardless of the number and variety of issues thrown at us, ATLA will continue to fight these attempts to limit legal rights.

Philip Buchan is an associate director of ATLA Public Affairs.