Publications: State Government Relations
Tort Reform: States or Federal?

Tort reform has a curious history. Over the past twenty years steady progress has been made. All but three states (Arkansas, Massachusetts, West Virginia) have enacted substantial reforms; for example, thirty-four states have modified the law of joint and several liability. Thirty-one states have made significant changes in the law of punitive damages. There have been sweeping medical malpractice and product liability reforms. The list goes on and on.

Despite this record of success, there has been a continuing effort to persuade Congress to enact federal product liability reforms. Proponents have been motivated by the obvious appeal of a "quick fix" that would make it unnecessary to slog through 50 states.

The long history of the federal product liability bill has, unfortunately, been one of continuing compromise in an effort to appease the bill's opponents. This process peaked in 1996 when a very modest bill was passed by the 104th Congress but vetoed by President Clinton. This year, in the 105th Congress, Senators Gorton (R-WA) and Rockefeller (D-WV) negotiated an even slimmer bill with the White House, only to see it defeated on the Senate floor.

Press coverage of this anticlimactic event was misleading. It was not the opposition of plaintiff lawyers or consumer activists that ultimately stopped the bill. It was the opposition of a substantial segment of the business community which had decided that what was left was not simply useless but, in several important respects, positively harmful. The harsh truth is that no bill that really levels the playing field is likely to be signed into law by a President of the United States who is beholden to the plaintiff bar for substantial campaign financing.

Because hope springs eternal, it is difficult to predict what the supporters of federal reform will do in the 106th Congress. We can predict with confidence, however, that the tort reform juggernaut will roll on in 1999 in Alabama, Florida, New York, Pennsylvania, Texas, West Virginia and elsewhere. The reform movement is alive and well in the states despite its frustration with Washington.

Stateside Associates monitors all pending civil justice reform legislation and has had unmatched experience managing civil justice issues for corporate and trade association clients. For further information about our civil justice practice, contact Marty Connor, Chairman, or Sam Witt, Senior Vice President and General Counsel.

Published 1998