Tort `reformers' turn to federal court.

The effort to pass legislation that would restrict civil justice for plaintiffs is intensifying on Capitol Hill. And there's a new twist.

Tort "reformers" have attempted to pass bills that would preempt state tort law by imposing new restrictive federal legal standards. Although these attempts have largely failed, "reformers" have hardly been discouraged. Now, they have come up with an alternative approach. They are proposing to expand the jurisdiction of the federal courts, taking more and more tort cases out of the state systems.

One reason corporations and other defendant constituencies may be looking to the federal system is a perception that federal judges are now more conservative and less plaintiff-friendly. That impression may or may not be true. Presidents Ronald Reagan and George Bush filled federal courts with more than 550 appointees of their choice. In comparison, as of January 1999, President Bill Clinton had appointed 296 judges.

Delay in hearings

Moreover, in 1992 the Democrat-controlled Senate took an average of 92 days to hold hearings on Bush's district judge nominations, while in 1998 the GOP-controlled Senate took an average of 160 days to hold hearings on Clinton's nominees, according to a study published in Judicature. (Sheldon Goldman et al., Clinton's Second Term Judiciary: Picking Judges Under Fire, 82 Judicature 264 (1999).)

The delay in Senate confirmation of Clinton's federal court appointees has led not only to a philosophical and political imbalance but also to a backlog of cases. If cases are forced into congested federal courts, justice is delayed for plaintiffs.

The most visible attempt to undermine the civil justice system by federalizing cases is found in the proposed Class Action Fairness Act (S. 353) and the Interstate Class Action Jurisdiction Act (H.R. 1875). This legislation is a brazen attempt to alter a system that has been in place since 1789 by creating new "minimal diversity" requirements. The requirements would give jurisdiction to federal district courts if any member of a proposed class is a citizen of a different state than any defendant.

While there are approximately 4,700 counties and independent cities in the United States, there are only 96 federal districts. Forcing these cases into federal courts means increasing stress and expense for plaintiffs who would have to travel, in some cases, hundreds of miles to participate in courtroom proceedings.

Unfortunately, the concept of minimizing diversity requirements also surfaced last July when Clinton signed into law the Year 2000 Readiness and Responsibility Act. Under that law, plaintiffs pursuing a Y2K-related action can file suit as individuals in state court, but if cases are consolidated or the plaintiffs are part of a class action, a defendant can remove the suit to federal court based on new minimal diversity requirements similar to those proposed in the class action bills. The president did not sign this bill until a provision was added that will sunset the law out of existence after 2002.

Similarly, the proposed Multidistrict, Multiparty, Multiforum Trial Jurisdiction Act of 1999 (H.R. 2112) would establish a new minimal diversity jurisdiction that would give federal district courts original jurisdiction over nearly all personal injury and property damage actions arising from a single accident in which at least 25 people die or incur injuries resulting in damages exceeding $75,000 per person. The bill would also establish a procedure for consolidating these cases. Proposals of this type have passed the House several times but have never passed in the Senate.

Finally, proposed new jurisdiction for the federal courts has found its way into the pending asbestos bills (H.R. 1283 and S. 758), which would also create numerous procedural hurdles for claimants. Under the bill, before a claimant could get into any court or have a jury trial, he or she would have to navigate a complicated administrative compensation system.

The system involves highly restrictive medical criteria that would screen out and leave uncompensated between 50 percent and 80 percent of presently valid claims. However, if a claimant does meet the criteria and earns a medical certificate, he or she could accept a mediated or arbitrated settlement offer or choose instead to file suit as an individual in state or federal court. But if the plaintiff's claim is consolidated--or if he or she is part of a class action--any defendant could remove the case to federal court without regard to diversity of citizenship or amount in controversy. Judicial review of determinations made through the administrative system would be vested exclusively in the federal district courts.

Objections

Tort "reformers" have been lobbying for these removal bills despite objections from the federal bench. In November 1994, the Judicial Conference of the United States issued its Proposed Long Range Plan for the Federal Courts, which proposed shifting cases out of the federal system. Under the proposal, nearly all cases involving citizens from different states would be shifted from federal to state courts--exactly the opposite of what the two current class action bills propose.

Even Chief Justice William Rehnquist has commented on the trend of moving cases to federal court: "I ... criticized Congress and the president for their propensity to enact more and more legislation that brings more and more cases into the federal court system."

The latest crop of bills moving through Congress makes it clear that tort "reformers" intend to do away with the long-standing concept that federal courts are courts of limited jurisdiction.

Delayed justice

The delay in Senate confirmation of Clinton's federal court appointees has led to a backlog of cases.

Kristin Loiacono is media relations coordinator for ATLA.