WASHINGTON (Legal Newsline) - A Washington controlled by Democrats would be a bonanza for the trial bar longing for changes in law and policy that would expand liability law and increase access to the courts, two national experts in tort law told Legal Newsline.
Victor Schwartz, a former law school dean who has taught and practiced tort law for more than 50 years, and Tiger Joyce, President of the American Tort Reform Association, said the list of demands from the trial bar to Democrats running Congress (whom they helped put in power) and the executive agencies under Joe Biden would at minimum include: prohibiting pre-dispute arbitration agreements, overturning a 2005 law shielding gun manufacturers (with implications for other manufacturers), and a change in tax regulations covering the cost of expert witnesses.
The overarching agenda for the trial bar, both experts agreed, is about setting precedent to expand liability law.
“They don’t one-step anything,” Schwartz said referring to the trial bar.
The path for the changes in law would be greased with the elimination of a Senate procedural rule requiring 60 votes to end a filibuster, as promised by leading Democrats should they take the Senate.
Joyce believes that the top priority for the trial bar will be to ban pre-dispute arbitration agreements that restrict workers, individuals and small businesses from participating in joint, class, or collective actions related to employment, consumer, antitrust, or civil rights disputes. This, even though the U.S. Supreme Court has ruled numerous times, citing the Federal Arbitration Act, that such agreements can be enforced.
“Whether they would go at it head on or in targeted areas remains to be seen,” Joyce said.
Last September, the Democratically controlled House took the issue head on when it passed the Forced Arbitration Injustice Repeal Act. Senate Republicans never brought the legislation up for a vote.
Schwartz said that trial lawyers are also eyeballing the repeal of a 2005 law, the Protection of Lawful Commerce in Arms Act, enacted to ensure that courts could not “distort liability law fundamentals” to impose “massive” liability against gun manufacturers merely for making product that is capable of harming others.
“The current understanding is that no one should be liable for making a lawful product that someone else misuses to harm another person,” Schwartz said. “This principle applies especially to the manufacture of guns, particularly where a criminal uses a gun to kill or injure a person. “
Undermining the principle behind the law, he added, could expose other manufacturers to civil action when someone misuses their product.
“General Motors obviously knows that drunk drivers will injure or kill someone driving one of their cars, but that doesn’t make them liable.” Schwartz said. “Opening the door to lawsuits against gun manufacturers would create new precedents that expand liability rules. General Motors could then be targeted not because they are liable but because they have money.”
Finally, Schwartz said that the trial bar is looking to change tax rules covering fees for expert witnesses. Under current rules, lawyers are not permitted to write off the cost of an expert witness – up to 1,000 an hour – until the trial is over, and then only if they lost. Allowing them to write off the cost as soon as it’s paid means that taxpayers are in effect helping fund lawsuits.
Joyce said that regulatory changes at the agency level that expand liability can be especially troublesome for businesses.
“Businesses have to comply with both federal and state regulations pertaining to the same area of the law,” he said. “So it’s especially important to watch out for any changes that expand liability to make litigation and recovery easier.”