Constitutional litigation team battles tort `reform'.

The lawyers who make up the constitutional litigation team in ATLA's Legal Affairs Department can't be accused of resting on their laurels. Fresh from victories in tort "reform" battles in Ohio, Oregon, and Indiana last year, association lawyers are working with plaintiff attorneys across the country to defeat similar laws in other states.

Legal Affairs lawyers have joined ranks with Jacksonville, Florida, lawyers W.C. Gentry and Wayne Hogan to file a declaratory judgment action challenging the sweeping "reform" law that went into effect in that state last fall. Under the lead of Senior Director Robert Peck, the department is cocounsel to a coalition of 10 organizations and an individual taxpayer calling themselves "The People First." (Florida Consumer Action Network v. Bush, No. 99-6689 (Fla., Leon County Cir. Ct. filed Dec. 8, 1999).)

The plaintiffs claim the new law violates multiple provisions of the Florida constitution. Among other things, the "reform" measure caps punitive damages, comes close to eliminating joint and several liability, mandates arbitration in certain cases, and bans lawsuits in most cases involving defective products that are more than 10 years old. (Constitutional Challenge Filed to Florida Tort `Reform' Statute, TRIAL, Jan. 2000, at 16.)

The court will likely hear arguments on the defendant's motion to dismiss in late April. In its motion, the defendant asserts the plaintiffs lack standing to bring the action. In response, Peck said, the plaintiffs claim they have each suffered an injury sufficient to meet the state's standing requirements.

ATLA's Legal Affairs department is also cocounsel in a Nebraska case challenging the constitutionality of a $1.25 million cap on noneconomic damages in medical negligence cases. (Gourley v. Nebraska Methodist Health System, Inc., No. 944-250 (Neb., Douglas County Dist. Ct. Sept. 24, 1999).)

Last year, a jury awarded $5.65 million to the plaintiffs, a six-year-old boy with cerebral palsy and his parents. Their complaint alleged that the boy suffered severe neurological injuries at birth because of the negligence of the obstetrician who delivered him.

The court cut the award to $1.25 million pursuant to Nebraska's damages cap. In a motion for a new trial, the plaintiffs claim the award should not have been reduced because the cap violates several provisions of the state constitution.

ATLA's point person on the case, Senior Counsel John Vail, has teamed up with plaintiff lawyers Daniel Cullan and Paul Madgett of Omaha. The court held a hearing on the constitutional issues on February 14.

A similar "reform" statute is under attack in Colorado. In Scharrel v. Wal-Mart Stores, Inc., a jury awarded $825,000 for noneconomic damages related to injuries the plaintiff suffered when 80 pounds of merchandise fell on his head in a Wal-Mart store. (No. 94 CV 2734 (Colo., Denver County Dist. Ct. Oct. 18, 1999).)

The court reduced the award to the statutory maximum of $500,000, and the plaintiff filed a motion challenging the cap under several provisions of the state constitution. The motion was effectively denied when the court failed to rule on it by March 7. ATLA lawyer Ned Miltenberg is working on an appeal with Denver lawyers Jeffrey Hyman and Molly Homan.

Another Colorado "reform" measure, which abolished joint and several liability, is at the center of a case currently under review by that state's court of appeals. Plaintiff Betty Salazar was awarded more than $2 million for injuries she claimed she sustained from exposure to poisonous gas that leaked from sterilizing equipment at her job. At trial, the equipment manufacturer was able to cut the award to $700,000 by invoking the statute--known as the "empty chair" act--and claiming the plaintiff's employer, who was not a party to the suit, was partially responsible.

In her appeal, the plaintiff argued the legislature had no authority to abrogate the long-standing doctrine of joint and several liability and that doing so violated the state constitutional guarantee of a right to a complete remedy. ATLA joined the Colorado Trial Lawyers Association in filing an amicus brief. (Salazar v. American Sterilizer Co., No. 95-CV-27 (Colo. Ct. App. filed Apr. 27, 1999).) Miltenberg said the court's decision is expected soon.

A Maryland damages cap was in the constitutional litigation team's crosshairs until early this year when the case on which the challenge was based, which was still at the trial court level, settled. (Shampaine v. Cummins Power Systems, Inc., No. 24-C98-093026 OT CC2899 (Md., Baltimore City Cir. Ct. Jan. 18, 2000).)

ATLA Senior Counsel Vail, who was working with Rockville, Maryland, lawyer Robert Michael on the case, had submitted briefs and evidence countering a request by the defendants to reduce a jury verdict from $4 million to the statutory limit of $500,000. Vail said the Legal Affairs team is looking for another vehicle to mount a challenge to the cap.

ATLA is also assisting with challenges to "reform" measures in Alaska, Idaho, Indiana, Missouri, and Wisconsin, said Miltenberg. It's clear the year 2000 is going to be a busy and--if the recent past is prologue--successful one for the constitutional litigation team.