Dynamic Business Jan/Feb Edition 2008 - Eckert Seamans

[ SPECIAL SECTION ON TORT REFORM ]
A Primer on Proposed Tort Reform
Legislation in Pennsylvania
by John H. Williams, Jr. , Esq.
JANUARY/FEBRUARY 2008 | DYNAMIC BUSINESS www.smc.org
Pennsylvania tort reform legislation
enacted in 2002, aimed at controlling
litigation and its resultant
costs, was struck down in 2005 as
violative of the Pennsylvania
Constitution’s “single subject” requirement.
In 2005, Governor Rendell
vetoed a bill that would have re-enacted
portions of that legislation.
The Legislature is currently drafting
replacement legislation — largely identical
to the former laws. Following is a
summary of the key thrusts of the currently-proposed
and contemplated tort reform legislation:
Fair Share Provisions — House Bill 850
Most prominently, House Bill 850, as currently drafted,
would change comparative negligence concepts in
favor of “Fair Share” provisions. The bills would eliminate
joint and several liability for civil defendants found less
than 60 percent liable, requiring such defendants be
liable only for his “fair share” of damages. Full joint and
several liability would remain for intentional torts, including
intentional misrepresentation, a release or threatened
release of hazardous substances, and in civil actions in
which a defendant has violated the Liquor Code. The bill
allows contribution claims by defendants held jointly and
severally liable.
Non-Economic Damages Caps — House Bill 860
Also prominent in the proposed legislation is an effort
to cap non-economic damages. House Bill 860 proposes
a constitutional amendment to allow legislative caps on
non-economic damages. Currently, the Constitution provides
that, outside workers’ compensation, the General
Assembly is prohibited from such limitations. The proposed
amendment would reinforce this limit on power,
but would free the Legislature to limit non-economic
damages by statute.
“The Pennsylvania
Legislature is currently
drafting legislation
aimed at controlling
litigation and its
resultant costs.”
– John Williams
Limitations on Punitive Damages
And Recovery — House Bill 1262
Punitive damages are also addressed in
pending legislation. House Bill 1262
proposes that a plaintiff, in order to
recover punitive damages, must establish
liability for such damages “beyond
reasonable doubt.” The legislation does
not identify what aspect of such a claim
is held to such a standard.
The bill also provides that 80 percent of
any punitive damage award shall be
paid, not to the plaintiff, but to the
MCARE Fund. An exception obtains where the defendant
was convicted of a crime subject to imprisonment in relation
to the events.
Venue Selection — House Bill 686
House Bill 686 would statutorily limit plaintiffs’ venue
choices in personal injury actions to the county in which
the action arises. The provision would also allow entry of
a judgment only in that county. The bill does not currently
address the manner in which such a judgment could be
enforced outside the rendering county.
Private Attorney Retention Sunshine Act — House
Bill 1946
House Bill 1946 proposes that, with regard to contracts
for services between Commonwealth agencies and
private attorneys, a competitive bidding process shall be
required, and any contract for such work must be filed of
public record and reviewed by a legislative committee
empowered to recommend changes. In addition to
requiring certain disclosures, including a statement of
hours worked and expenses incurred, the law would limit
fees to $1,000 per hour.
Further, the bill would prohibit in all cases contingent
fee contracts between private counsel and
Commonwealth agencies, declaring such void and unenforceable.
In fact, no contract would be deemed valid
unless it expressly required compliance with the proposed
legislation.
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Statute of Repose — House Bill 1005
A recent bill also proposes a statute of repose on
older products. House bill 1005 creates a statute of
repose of 15 years following delivery of the product to
the original owner on product claims. In the event the
product is repaired or modified, the limitation would
begin anew as of the date of the modification, but for that
modification alone.
An exception exists, apparently to accommodate toxic
torts, which exempts “illness” which did not arise within
15 years after first exposure.
Other Proposals Under Consideration
Two measures have been proposed which, if passed in
their current form, would limit certain attorneys’ fees. House
Bill 1941 would amend the Pennsylvania Constitution to
allow the General Assembly to establish limits on attorney
fees in liability cases. Companion House Bill 1942 would
statutorily establish such limitations, in the form of a progressive
cap on fees in such cases.
One proposal, House Bill 470, would restrict liability
with respect to “innocent sellers,” and provide certain protections
to distributors of products where the product has
been misused.
Other proposed legislation would allow defendants to
reveal that a plaintiff has recovered from a “collateral
source.” House Bill 1943 would precludes claimants in
liability actions from recovering for past medical expenses
and lost earnings up to trial if such loss is covered by a
private or public benefit or gratuity. The proposed legislation
also correspondingly eliminates the right of subrogation.
Finally, House Bill 1945 would preclude admissibility
of a “benevolent gesture” or admission of fault by a
health care provider regarding a patient’s discomfort, pain,
suffering, injury or death resulting from treatment, so long
as such “evidence of liability” was made before commencement
of any medical professional liability action.
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Editor’s Note: John H. Williams, Jr. is a member in Eckert Seamans’ Litigation and
Appellate Practice Groups in Pittsburgh. He focuses his practice on Insurance
Coverage Law, Mass Tort and Class Action Law, Product Liability, and Contracts, as
well as Appellate Practice in many areas of law. He can be reached via phone
(412.566.2037) or e-mail: jwilliams@eckertseamans.com.