procedural matters Archives

Trial lawyers claim to be “for justice” but are really just out for themselves

Back in 2006, the lobbying group for the organized plaintiffs’ bar changed its name from the “Association of Trial Lawyers of America” to the “American Association for Justice” (AAJ) in a bid to claim a monopoly as the ones fighting “for justice” in America. The trial lawyers hoped the name change would help shake public perceptions of greedy, ambulance-chasing lawyers and recast trial lawyers as heroes to take on villainous corporations. This narrative, however, rings hollow when looking at positions AAJ actually takes that do not match up with the public’s interest.

One example is trial lawyer opposition to the Public Readiness & Emergency Preparedness Act or PREP Act, a 2005 law that promotes innovative efforts to develop vaccines and other drug treatments or “countermeasures” in times of a public health emergency. This law is especially relevant now, given the COVID-19 pandemic. The PREP Act’s approach is to establish a mechanism for vaccine manufacturers and other entities to obtain liability protection that mitigates concerns about potentially unbounded liability exposure.

Without the PREP Act, the public might not have the multiple vaccines we do today to combat the COVID-19 pandemic. Vaccines also likely would not be as widely available to the public.

Trial lawyers vigorously opposed the PREP Act. AAJ’s lobbying efforts in the current Congress also seek to limit or eliminate the Act’s liability protections. Hence, the trial lawyers are working to roll back legislation that has proven vital to combatting this pandemic and will be needed to assure the threat of lawsuits does not impede research and development of vaccines to combat future pandemics.

A second indication of trial lawyer malice is AAJ’s opposition to liability protections for health care providers who voluntarily render care, such as in an emergency situation. Legislation has been proposed at the federal and state levels to protect these and other volunteers from unsound liability exposure.

Legislation is needed because liability law has a strange twist that discourages life-saving volunteer efforts. A person generally owes no legal duty to aid a stranger in peril, and is actually best-positioned to avoid liability by simply ignoring another’s cries for help and walking away. Yet, if a person volunteers to render aid and is unsuccessful, that person might be sued.

Many years ago, Congress overcame trial lawyer opposition and enacted the Volunteer Protection Act, which provided some general protections to volunteers in emergency situations. Legislation, though, is still sorely needed in the context of medical professionals to encourage those best able to render aid to do so. Trial lawyers want to keep the door open to lawsuits, even if it creates an environment where would-be saviors feel compelled to think twice before trying to save someone else’s life.

Trial Lawyers have also opposed meaningful sanctions against those who bring frivolous lawsuits. In federal courts and in most states, sanctions against frivolous claims are extremely weak and rarely invoked. Victims of frivolous lawsuits, such as small businesses, often have no clear remedy, which makes them an easy target for shakedown lawsuits. Trial lawyers frequently seek nuisance payments to make baseless claims “go away.”

While the vast majority of trial lawyers do not bring frivolous claims, this fact has not stopped AAJ from protecting those who do. The organization has opposed legislation to strengthen sanctions against frivolous claims, such as the Lawsuit Abuse Reduction Act that has passed the House of Representatives several times. AAJ has done so even though it is plainly against the public interest to allow frivolous lawsuits and legal shakedowns to continue with relative impunity.

Fourth and finally, trial lawyers have opposed restrictions on ads that endanger the public. You have probably seen ads on television or elsewhere that suggest that taking certain medicines could be harmful, and that consumers might be able to bring a lawsuit and collect money. These ads are often the product of lead generators who compile and sell lists of potential plaintiffs to trial lawyers. In many cases, these ads are not only misleading and deceptive, but they can actually endanger lives by frightening patients into reducing or no longer taking needed medications without consulting their doctors.

Trial lawyers keep defending such advertising on free speech grounds, but free speech does not protect ads that deceive patients and cause them harm. The trial lawyers are really interested in protecting a key revenue stream, regardless of how much harm it causes. They have even opposed requirements for a modest caution in such ads, to “see your doctor before you stop taking this medicine.”

These four areas — and this is by no means an exhaustive list — demonstrate trial lawyers’ bad faith. Their goals frequently stand at odds with the public interest. In spite of a name change and many years of trying monopolize the notion of being “for justice,” the reality is trial lawyers are no different from any other self-interested group focused on making money.

Mr. Schwartz is a former law professor and law school dean, and current co-chair of the Public Policy Group of the law firm Shook, Hardy & Bacon, LLP. He is co-author of the most widely used torts casebook in the U.S., Prosser, Wade & Schwartz’s Torts: Cases and Materials (14th ed. 2020).

Kim Ogg accuses Commissioners Court of ‘defunding’ DA’s office, asks for $6M more

Harris County’s budget is less than two months old, but already District Attorney Kim Ogg is fighting for more funding, saying more money in some respects has not abated a crisis in recruiting prosecutors.

“Every day you delay me in hiring lawyers … is a delay to crime victims,” Ogg told Harris County Commissioners Court on Tuesday.

Delay, however, is exactly what the court opted for, as members — already divided over spending for the district attorney’s office and other law enforcement agencies — failed to agree on the specifics of the budget and whether Ogg had other funds she could tap.

“I am not comfortable hearing two different sets of facts,” Precinct 2 Commissioner Adrian Garcia said.

Seeking $6.17 million for hiring and raises, Ogg lashed out at the county’s budget management department for tightening purse strings and reducing her salary spending, something budget officials disputed.

“Like any business, we have to have a budget and stick with it,” County Administrator David Berry said. “That is Fiscal Responsibility 101.”

Berry and others noted the district attorney’s office has 24 funded, open positions it can hire for, and prosecutors have not lost any money, and, in fact, received additional money as part of the county’s budget, approved Feb. 8.

Ogg’s office, meanwhile, argued it cannot hire staff with temporary jobs — many positions are funded only for two years — especially experienced lawyers ready for trial.

“No one is going to quit their job, close their businesses up to come for two years and try cases,” said Vivian King, chief of staff for the district attorney’s office.

The squabble over spending and salaries is a continuation of an ongoing fight between the court’s two Republican members — Precinct 3 Commissioner Tom Ramsey and Precinct 4’s Jack Cagle — and the majority Democrats — Garcia, Precinct 1 Commissioner Rodney Ellis and County Judge Lina Hidalgo. Ramsey and Cagle have decried what they consider inadequate law enforcement and prosecutor budgets.

“We did not fund what the DA asked for; let’s be clear about that,” Ramsey said of the current budget.

Ellis and Hidalgo have noted the budget plan supported by Cagle and Ramsey wold have gutted other county departments to fulfill everything Ogg and Sheriff Ed Gonzalez had requested.

The effect, however, is a crumbling law enforcement system, Ogg said.

“We have been defunded and it must stop,” she said.

What Crashing Autonomous Cars Tell Us About the Future of Product Liability

Will self-driving cars end up making our roads more dangerous? More importantly, who will be held responsible when the inevitable happens?

By: James Stengel

Welcome to the club, Waymo.

Uber has been there. Tesla has been there. And now a self-driving car from the Google self-driving subsidiary has been involved in an accident on the open road. (Though, to be fair, in Waymo’s case the incident was far less serious than those other deadly crashes, and was caused not by Waymo’s software but instead a human driver who veered into the path of an oncoming motorcyclist.)

But, whatever the cause and severity, all of these cases have raised new questions about autonomous cars and the related liability issues.

This technology was supposed to make driving safer. But, will self-driving cars end up making our roads more dangerous? More importantly, who will be held responsible when the inevitable happens?

As Car and Driver magazine writes: “Who is to blame? Who gets sued in these scenarios? The tire company? The software maker? The drivers who touched ‘Agree’ on their startup screens? In all cases, we appear to be exchanging one set of understood risks for another more opaque sort. And the implications of these new risks will need to be figured out before driverless cars can operate in the real world.”

At its root, these are questions of product liability.

Consider the current situation: In 2017, 40,100 people were killed in vehicle accidents in the U.S., according to National Safety Council estimates, up roughly 6 percent from 2015. Road deaths have been trending higher because distracted driving is rising as a result of smartphone use. This comes even as automakers have improved vehicle safety by adding air bags and collision avoidance systems.

It’s reasonable to assume that autonomous cars will beat current safety benchmarks — human error is responsible for more than 90 percent of crashes. Autonomous cars won’t speed or text while driving, become distracted by their phone, or drive drunk or aggressively.

But, with human error taken out of the picture, automakers and auto suppliers are going to find they become the unwilling participants in a new blame game. It’s as if the car and its components will take on all of the liability borne by the driver in the past. If an accident happens, it’s because of a failure of a car part. That’s a new role for many suppliers.

But, amid all of this change, there are a few key facts about product liability that automakers and suppliers should keep in mind going forward.

This will happen over time.

We’re in a transition phase right now where we don’t have fully autonomous vehicles on the road yet, but that will change over the next 10 to 20 years. We have a collective interest in moving toward fully autonomous vehicles because they will very likely dramatically reduce the number of traffic-related deaths and injuries, but the transition is going to be a process. We’re going from a world where about 95 percent of automobile related liability claims are related to driver error to one where effectively zero are. This won’t happen overnight.

The law is still unsettled.

One of the complexities of tort law is that in the United States we have at least 51 different systems of law, for each of the states and then the federal level. There are some similarities, but they can be quite different. Eventually we’re going to need a federal regulatory solution that would preempt state law claims, so that manufacturers will have one common set of criteria or requirements to meet. That will take time as well, but it should be a key legislative goal.

Software is going to play a key role.

We’re getting to a world where eventually all accidents are going to be arguably attributable to defects in programming. That’s new. Of course we will still have occasional mechanical failures, but the real issue is going to be how the underlying algorithms that are controlling the vehicle respond in a given situation, with liability falling back on the software developer. Traditional tort law will address this like any other product liability claim, because it’s a product that doesn’t conform to consumer expectations and isn’t safe. But, I don’t expect it to end there. There will likely be a new regulatory regime built up around this, with corresponding changes to tort law that could have wide-reaching impact.

This is a privacy issue.

There have long been stories about security researchers hacking into cruise control systems and other fairly primitive automotive electronics, but that’s worlds away from a third party taking control of a fully autonomous vehicle at, for example, highway speeds. This is another source of liability that is probably going to come back to the manufacturer and the software developer, assuming that they should have anticipated that malicious actors might try to seize control of an autonomous vehicle and protect it against that.

We still don’t know who’s really in charge.

The truth is, if everything is being controlled by the car itself, then liability will be solely a manufacturing concern. But, it likely won’t be that simple. It all depends on where we land in terms of complete autonomy. It’s reasonable to expect that the “driver” will still be able to manually override the system in the event of an emergency. Who takes responsibility for what happens after that point?

Whatever happens around product liability and autonomous vehicles, automakers must work closely with regulators to raise public awareness of the implications of this transition. This isn’t the first time the law has gone through an evolution like this. The question now is whether our legal regime, which is essentially a 19th century construct, can keep up with today’s new and more complicated technology, without getting drowned out by the outsized media coverage that every driverless car accident attracts.

Straight-ticket voting ends in 2020. For some down-ballot Republicans, that wasn’t soon enough.

By: Emma Platoff

As Harris County judge, Ed Emmett led the state’s biggest county — 4.7 million people — through its most devastating natural disaster. That work won the moderate Republican bipartisan support, even in a county that overwhelmingly went blue in 2016.

But last week, Emmett lost his re-election bid in a close race — the closest in the county. And come January, the incumbent will turn his job over to Democrat Lina Hidalgo, a 27-year-old political newcomer who had never attended a meeting of the commissioners court she will now lead (she has, she said, watched them online). At the top of the ticket, U.S. Sen. Ted Cruz lost the county by more than 200,000 votes; Emmett’s race — midway down the longest ballot in the country — was decided by a margin of about 19,000 votes.

That result, strategists say, makes Emmett the latest casualty of straight-ticket voting in Texas. In Harris County, more than half a million voters pulled one lever to support every Democrat on the ballot, and just over 400,000 Republicans did the same. Emmett — a moderate who had focused his campaign on persuading the Democrats who favor him to make their way far enough down the ballot to back him — made up much of that difference, but he couldn’t quite eke out a win.

“Keeping the straight ticket option for 1 more election cycle turned out to be a disaster for all Republicans,” Emmett tweeted the day after the election. “Making up the deficit was just not possible.”

Straight-ticket voting will end before the 2020 elections, bringing Texas into line with the vast majority of states. But the change didn’t come early enough to save Emmett — or a host of other down-ballot Republican candidates like judges, who are disproportionately affected by the practice by virtue of their low profiles and low ballot placement.

Republicans — who lost numerous down-ballot officials, a dozen state House members and scores of judges, particularly in big cities — in some ways brought those losses upon themselves: The law that ended straight-ticket voting was written and approved by GOP lawmakers. It was originally set to go into effect before this year’s elections, but was at the last minute delayed until 2020.

“2018 will not be the same as 2014”

If the top culprit for down-ballot Republican losses last week is a certain El Paso Democrat credited with drawing flocks of new voters to the polls, the second spot might go to straight-ticket voting. Yes, the argument goes, a lot of new Democrats came to the polls to cast their ballots for U.S. Rep. Beto O’Rourke in his campaign for U.S. Senate. In the process, many voted for other Democrats down the ballot who they knew little or nothing about. But without the one-punch option, GOP operatives argue, many of those voters would have walked out before dooming Republicans at the bottom of the ballot.

Straight-party voting “is the story” of this year’s election, said Dallas County GOP Chair Missy Shorey, whose county saw a rout of local Republicans.

Among the casualties: 12 members of the Texas House, many of them in the Dallas area; two state senators representing North Texas districts; down-ballot county officials in a host of purpling regions; and nearly two dozen Republican judges on state appeals courts.

After the 2020 elections, when straight-ticket voting ends, candidates will still appear beside their party affiliations, but most strategists expect fewer voters will make it all the way down to the local races. It’s hard to say what the statewide impact of that will be — many Republicans straight-ticket vote, too, and voters can still choose to select all the candidates in their chosen party manually — but in the wake of a tough election for down-ballot Republicans, especially on the fringes of the state’s biggest cities, some are wishing the option had ended in 2018.

At first, that was the plan. Republican state Rep. Ron Simmons’ House Bill 25, which ended straight-ticket voting, was originally set to go into effect before the 2018 midterms; it passed the House with that language, and made it all the way to the Senate floor. Just before the bill passed in the upper chamber, Republican state Sen. Kelly Hancock, of North Richland Hills, tacked on an amendment delaying the effective date to 2020.

The delay, some local GOP officials said, particularly doomed down-ballot Republicans in or near urban areas like Houston, Dallas and Austin.

“I’ve been warning about it for years,” said Harris County GOP Chairman Paul Simpson. “At the last minute, they put it back in for 2018, and I told some legislators then, ‘2018 will not be the same as 2014.’”

Hancock told The Texas Tribune this week that “we waited one election cycle for implementation to allow plenty of notice for everyone, including candidates, election administrators, and voters.”

Many Republicans tout the end of straight-ticket voting as a way of ensuring good governance.

“Eliminating straight-ticket voting has never been about benefiting one party or the other — it is promoting good government by making sure that every voter knows who they are voting for and what their qualifications are,” said Sherry Sylvester, a senior adviser to Republican Lt. Gov. Dan Patrick.

When the bill passed the Texas Senate, it drew most opposition from Democrats, who questioned whether eliminating the one-punch option would disproportionately hurt voters of color. A federal judge found as much in a Michigan lawsuit.

Ultimately, in this election, straight-ticket voting seems to have worked largely to Democrats’ advantage.

Simmons, who was unseated from his Carrollton district on Election Day, said he believes straight-ticket voting played a role in the loss.

“If we had to look at it again, there are people that might have wished we could have [ended] it in 2018,” he said. There are “probably 12 House members” who are regretting the delay, he said.

Many of those House members are, like Simmons, in the Dallas area, where Republicans lost several state House seats, a Democrat picked up a Republican-held congressional seat and an appellate court that hasn’t elected a Democrat since 1992 flipped into Democratic control.

No one predicted the consequences better than the lieutenant governor, who warned of such an outcome during campaign season.

“Their plan was to give all the money, on the Democratic side, to Beto the Irishman O’Rourke,” Patrick warned at a New Braunfels campaign event in October. “Understand their strategy. If they can get to 4 or 5 [percent margin], if they can get a 75 or 80 percent straight-ticket vote on their side, guess what? Beto loses. But then they pick up judges down ballot. They pick up House members down ballot. They pick up state senators down ballot. They pick up local races down ballot.”

Emmett faulted the upper chamber, which Patrick leads, for failing to prevent that possibility.

“When the state Senate decided to keep straight-ticket voting for one more year, a lot of us thought that was a really dumb decision,” Emmett told a Houston TV station shortly after his loss last week. “It turned out to be even dumber than any of us could’ve predicted.”

“Some people that ought not to be there”

Even as Democrats celebrate their victories, some quietly acknowledge that their winning candidates are not all equally prepared to take office. Especially in down-ballot judicial sweeps like those that flipped four state appeals courts last week, some strong, well-funded candidates enter office with years of experience while others are swept in on the top of the ticket’s coattails. Some appellate lawyers are warily looking ahead to courts with new ideological bents and less experienced judges.

On the Austin-based 3rd Court of Appeals, for example, some candidates raised tens of thousands of dollars, while others were largely absent from the campaign trail. In Dallas, the differences were even more stark. Ken Molberg, a longtime judge in the area and a former Dallas County Democratic Party chairman, outraised his fellow Democratic candidates by orders of magnitude. But come Election Day, they won by similar margins — a sign of the little attention paid to down-ballot races.

“I’m old enough to have lived through various party sweeps with the straight party voting, and generally, when you have a sweep, you still will have some good folks that get on the bench and some people that ought not to be there,” said Craig Enoch, a former Texas Supreme Court justice.

Last week, voters in a 20-county district along the Gulf Coast elected to an influential state appeals court Rudy Delgado, who resigned his seat on a lower court earlier this year after he was indicted on federal bribery charges. Prosecutors claim that as a judge, he accepted bribes for favorable rulings.

Delgado’s attorney said in court documents he was “no longer campaigning for office,” and he was absent from the campaign trail — though he did report spending hundreds of campaign dollars on iPads and other goodies at a local Best Buy. Delgado did not return requests for comment.

Delgado may never preside over a case; the State Commission on Judicial Conduct has already suspended him from serving on a lower court, and the commission could suspend him from serving on the court of appeals even as his criminal case proceeds. His Republican opponent, Jaime Tijerina, worked to spread the word about Delgado’s criminal indictment.

But even still, Delgado was a Democrat running in a heavily-Democratic South Texas judicial district; party officials and billboards on the side of the road urged voters to cast straight-ticket Democratic ballots. With that boost, Delgado eked out a victory.

In the other judicial two races for 13th Court of Appeals, Democrats bested their Republican opponents by about 30,000 votes. Delgado beat Tijerina by about 3,000.

The difference, Tijerina said, was made by voters who heeded calls from Democratic party officials to cast a straight-ticket ballot.

“What role did straight-ticket voting have? It was the single biggest factor in his victory,” Tijerina said. “There’s a lot of unknowns about straight-ticket going away. But I think — all other things being equal — I think I would’ve been elected.”

Analysis: Civil litigation costs Louisiana more than $2 billion, 15,500 lost jobs

By: Bethany Blankley

The staggering cost of civil litigation in Louisiana is one of the leading causes of employment and state and local revenue losses, an analysis produced by the economic and financial analysis firm The Perryman Group states.

In its recently released report, “The Benefits of Tort Reform,” the Perryman Group estimates that excessive civil litigation has cost Louisiana $1.1 billion in annual direct costs, $1.5 billion in annual output costs (gross product), and 15,556 jobs when dynamic effects are considered. The group estimates that the yearly fiscal losses, as of 2018, are $76.4 million in state revenues and $64.3 million to local governments. It states that tort reform could “reduce or eliminate these costs.”

The group has conducted similar reports for several states, arguing that tort reform enhances innovation and increases productivity and employment. It was produced for Citizens Against Lawsuit Abuse, a nonpartisan grassroots movement committed to exposing lawsuit abuse. Its local affiliate, Louisiana Lawsuit Abuse Watch (LLAW), is a statewide watchdog group.

“These findings clearly show that civil justice reform must be a priority in Louisiana,” LLAW Executive Director Lana Venable said. “Frivolous lawsuits and exorbitant plaintiff awards impact all sectors of our economy and hurt Louisiana families, as costs are ultimately passed down to them in the form of higher prices for goods and services.”

Tort lawsuits, those filed by an individual seeking monetary restitution for an alleged intentional or negligent harm suffered, comprise the majority of civil litigation. Tort reform refers to making changes in the civil justice system to limit the ability to file a lawsuit or to cap the amount of damages a plaintiff can receive.

The report states that Louisiana’s lawsuit culture is “imbalanced and unpredictable” and represents a misallocation of resources that “unreasonably constrains economic growth.” It suggests that tort reform can significantly reduce or eliminate these costs, and enable substantial economic benefits to Louisiana residents and businesses.

Daniel Erspamer, CEO of the free market Pelican Institute, agrees. He points to the “legacy” or “coastal” lawsuits filed against oil and gas companies for alleged erosion as the most egregious. He told Watchdog.org that lawsuit abuse is just another reason why “jobs and opportunity are fleeing Louisiana for friendlier states like Texas and Tennessee.

“Whether it’s legacy lawsuits or the legal environment that drove away the Bassmasters fishing tournament, our environment of lawsuit abuse is wreaking havoc on Louisiana working families and job seekers. When you add in a complicated and antiquated tax system and a broken system of state budgeting, you get the result we see today: the worst economy in the country, according to the Bureau of Economic Analysis, and two straight years of economic decline.”

According to the Perryman Group, excessive tort lawsuits have negatively affected the manufacturing industry the most, costing it more than $669 million and 1,335 lost jobs.

“Junk lawsuits,” Louisiana Attorney General Jeff Landry argues, negatively impact the economy. The Attorney General filed an amicus brief in September with 14 other states requesting that public nuisance climate lawsuits filed in California and New York be dismissed.

“Louisiana counts on manufacturing for more than one-fifth of our economic output, employing 136,600 workers,” Landry said. “A significant portion of this manufacturing comes from the energy industry, which remains one of Louisiana’s leaders in economic impact, taxes paid, and people employed.

“Any threat, including misguided lawsuits, that endangers a manufacturing industry employing one in seven Louisiana workers must be opposed.”

The national trend of local governments partnering with for-profit attorneys to file public nuisance lawsuits is troubling, Landry said. Their intent “to score massive paydays from energy manufacturers” would only negatively impact Louisianans, he added.

According to the report, the most job losses (4,865) occurred in the retail trade industry, which experienced more than $163 million in personal income losses. The health services industry experienced the second highest number of job losses of 2,252. In August, state legislators met with state Department of Justice officials to discuss multiple opioid lawsuits.

LLAW argues that frivolous lawsuits also cause higher insurance premiums, increase health care costs and result in less available medical services. Tort reform would still enable fair compensation to plaintiffs who have been legitimately harmed by setting negligence standards and limiting non-economic damages, it adds.

Louisiana was ranked last (50th) by the U.S. Chamber Institute for Legal Reform in its 2017 Lawsuit Abuse Climate Survey. The survey measured the reasonability and balance of each states’ tort liability systems. Louisiana ranked 8th by the American Tort Reform Foundation’s 2017-18 Judicial Hellholes Report, which analyzed states’ systematic application of civil laws and court procedures, identifying Louisiana’s as eighth-worst.

Climate Change: A Plea For Legislation, Not Litigation

By: Richard W. Weekley

For many personal injury trial lawyers, the dream is to one day hit the next big litigation jackpot and land a multi-billion-dollar settlement, deploying lawsuits against one American industry after another in a scheme to strike it big. Now, some attorneys believe they’ve uncovered the City of Gold and are ready to cash in on climate change.

They’ve partnered with mayors, environmental activists and states’ attorneys general to wage a legally dubious crusade against our nation’s oil and gas producers — all on contingency fee contracts for the lawyers, of course.

The legal system has been weaponized for a full-scale attack on a critical player in America’s economy. But this public policy debate is better suited for the halls of Congress and our state capitols, not the halls of justice.

As advocates for eradicating abuse from the legal system and restoring civil litigation to its appropriate role, these lawsuits are alarming to us because they stretch the law far beyond its intentions, ignore critical facts and involve private lawyers in a space meant for democratically elected decision makers.

In the cases filed so far, the plaintiffs allege that a select few American oil and gas companies are single-handedly responsible for causing worldwide climate change and seek to hold them accountable for current and future climate-related damage.

But it is not clear how a court could quantify the possible role of these oil and gas companies in contributing to climate change. How can anyone say with reasonable certainty what impact a single producer allegedly had and will have on our environment?

Using the same logic, shouldn’t everyone be held responsible for their share of climate-wrecking energy consumption? Families and farmers, truckers, manufacturers, businesses of all sizes, airlines — all demand cheap energy to fuel their activities.

And the lawsuits make no mention of massive energy consuming nations, like China, which emit vast amounts of pollution into the atmosphere. Even the cities and counties themselves that have brought the lawsuits emit pollution into the atmosphere every day through municipal services like garbage collection or the police and fire departments. Where exactly do they factor into all of this?

Further, how do you quantify and assign responsibility for damages that are yet to occur, and might never occur? Speculation about the size, cost and cause of a natural disaster or weather event that may (or may not) happen five, 50 or 500 years from now is like incarcerating someone today because they might commit a crime next year. This would create a dangerous legal precedent.

What is clear, however, is that the pot of gold continues to be too tantalizing for some trial lawyers — and revenue-seeking government entities acting as plaintiffs — to resist.

Legislation Needed, Not Litigation

Legislation — not lawsuits — is a more effective avenue to address an issue this complex. Not least of all because with little oversight of private lawyers and no strings attached to the dollars recovered in these climate change cases, there is no rational reason to believe a legal settlement would have any meaningful impact on our nation’s environmental challenges.

Our legal system is not the correct forum for crafting public policy, and our courts were never intended to bypass the legislative process in pursuit of anyone’s personal agenda. Twelve citizens on a jury should never stand in for 535 elected members of Congress or our 50 state legislatures.

Climate change is an intricate issue that requires serious discussion and public deliberation. But enterprising trial attorneys will do us all a tremendous disservice if they succeed in forcing the outcome of these complex considerations through litigation.

That is simply not the role of judges, juries, lawyers and courts in America. We have elected representatives and the legislative process for a reason.

Our global climate, our nation’s energy security, economy and countless American jobs are far too crucial to leave in the hands of a few unelected plaintiff lawyers as they chase after the next big payout. Policy discussions need to happen in the statehouse, not the courthouse.

Signed:

Richard W. Weekley, senior chairman, Texans for Lawsuit Reform.
Thomas B. Stebbins, executive director, Lawsuit Reform Alliance of New York.
John Doherty, president/CEO, Civil Justice Association of California.
Melissa Landry, executive director, Louisiana Lawsuit Abuse Watch.
William W. Large, president, Florida Justice Reform Institute.

Latest Wave Of State Opioid Lawsuits Shows Diverging Strategies And Lawyer Pay Scales

By: Daniel Fisher

The latest wave of state lawsuits over the opioid crisis illustrates sharp differences emerging in how governments litigate these cases, both in whom they choose to sue and whether private lawyers stand to get a piece of the action.

Five of the six states announcing lawsuits earlier this month focused on a single defendant, OxyContin manufacturer Purdue Pharma. They also decided to prosecute the cases with their own attorneys, rather than farming the work out to private lawyers working on contingency.

The sixth state, Florida, added Endo Pharmaceuticals, Johnson & Johnson and the three biggest opioid distributors to its case and hired four outside law firms. But they’re working under a contract that pays them no more than $50 million, far less than the open-ended terms that private lawyers have obtained from most government clients in opioid litigation.

The differing approaches and fee schedules illustrate the complex nature of these cases, many of which are concentrated in federal court in Ohio but are also scattered in state courthouses around the country. Some states are focusing on opioid manufacturers because they believe it will be relatively easy to prove their cases under state deceptive trade practices laws.

Others are taking a shotgun approach to the industry, suing everyone involved along the chain of production and distribution, from manufacturers to retail pharmacies and prescribing physicians.

The involvement of private attorneys working under different contract terms adds yet another layer of complexity and potential conflicts. Where state attorneys general might press for injunctive relief, under which courts enforce new standards of behavior on the industry, private attorneys only get paid if they win monetary damages.

That difference in emphasis is already spilling out into the open as states fight with municipal plaintiffs over litigation strategy as well as who will reap the spoils if they win or, as is more likely, negotiate a multibillion-dollar settlement. Tennessee’s AG briefly sought to take control of lawsuits by a number of cities and counties, and the Arkansas AG sought to prevent a local district attorney from suing on behalf of the entire state, a dispute that is still unresolved.

The latest states to go it alone without private lawyers are Nevada, North Carolina, North Dakota, Tennessee and Texas. All but North Carolina have Republican AGs, and all named Purdue as sole defendant. Most of these states participated in a $19 million settlement with Purdue in 2007 that included a consent agreement with strict requirements to report suspicious transactions and cease deceptive and off-label marketing practices. The existence of that agreement makes it easier for the states to accuse Purdue of failing to live up to its own commitments.

Florida took the wider approach by suing multiple manufacturers as well as distributors including Amerisource Bergen, Cardinal Health and McKesson. Florida AG Pam Bondi, a Republican, also chose to hire outside attorneys though she was required under state law to use a bidding process with a $50 million cap on total fees. If the state gets into a dispute with its lawyers over fees, an arbitrator will decide with a cap of $50 million or 3.4% of any award.

The fee structure contrasts sharply with the standard contract most private lawyers have negotiated with municipal clients, giving them 25-30% of any award.

Florida was the first of several states to pass fee caps and transparency rules in the wake of the 1998 tobacco settlement, in which politically connected lawyers working under no-bid contracts earned $14 billion in fees. Ohio, another state plaintiff, has a $50 million cap, as do West Virginia and Arkansas. Other states have sliding-scale rates, typically 10% of the first $10 million and lower percentages after that with no limit.

Several law firms with a leading role in the opioid litigation reportedly refused to bid for the Florida work because of its cap, including Morgan and Morgan, which sits on the plaintiffs’ steering committee in the Ohio multidistrict litigation.

While the latest batch of states may add additional defendants later, their strategy appears to more focused than the ones adopted by cities, counties, hospital districts and other plaintiffs represented by private lawyers. Those entities appear to be refining their legal theory to claims the entire industry engaged in a conspiracy to market and distribute addictive drugs with the knowledge they could cause widespread harm.

In a hearing over discovery procedures in Ohio earlier this month, for example, lawyers for the plaintiffs and defendants jousted over whether witnesses could be shown confidential documents from other companies. Plaintiffs want to do this to generate evidence of industry cooperation and conspiracy, while defendants say it is unfair to expose their proprietary information to witnesses from competing companies unless there is some reason to believe they saw the document before or participated in the meeting it references.

State plaintiffs, unlike cities and towns, are not required to participate in the federal MDL process and Judge Dan Aaron Polster, who is overseeing the proceedings in Ohio, has no authority over them. They are betting they can achieve better results with focused lawsuits in state court, where many states already have won large settlements from other drug manufacturers with deceptive marketing claims.

This difference in strategy was exposed last month in Arkansas when Republican AG Leslie Rutledge filed an emergency petition with the Arkansas Supreme Court to prevent Scott Ellington, a district attorney, from suing a number of opioid defendants in the name of an association of county governments as well as the state.

In that filing, Rutledge accused Ellington of associating “with private, out-of-state attorneys” who stood to earn fees exceeding the state’s $50 million cap, money “that would otherwise go to the State to address the opioid epidemic.”

The Arkansas Supreme Court denied the petition and Ellington’s suit is still pending. Rutledge subsequently sued Purdue, Endo Pharmaceuticals and Johnson & Johnson herself, hiring former Mississippi AG Mike Moore and Seattle lawyers Hagens Berman, in seeming contradiction with her earlier criticism of similar litigation against the oil industry.

Rutledge declined comment, but the state’s lawsuit, like those in other states or the Arkansas counties, concentrates on alleged violations of state consumer protection laws by the manufacturers. Adding distributors, pharmacies and physicians could complicate such a case by presenting jurors with additional parties who allegedly contributed to the opioid crisis.

Does driving for a charity carry risks?

By: Paul Premack

Dear Mr. Premack: I am recently retired and am getting involved with an organization as a volunteer. They asked me if I could use my car to collect supplies and distribute brochures around town. The group is a non-profit, but I wonder if I should tell them that driving is too big a liability. What if I’m in an accident while doing volunteer work? Do I have any protection? – A.K.

Volunteering for the benefit of the community is something that the state deems to be worthy of protection. The Texas Charitable Immunity and Liability Act was enacted years ago to encourage volunteerism. People who are worried that their volunteer actions will be repaid with a lawsuit and liability find relief in this law.

The act protects volunteers at a non-profit agency from liability if something goes wrong – but only if the agency and volunteer meet all the legal qualifications.

Under the law, a “volunteer” is someone who works for an organization without being paid (except for expense reimbursement). Anyone who is paid, like an employee of the organization, is not a volunteer. For example, if an officer or director is paid, that person is an employee; if unpaid, that person is a volunteer.

Volunteers are legally protected and immune from civil liability for any act or omission, even if it results in someone’s death, or injury, or in property damage so long as a) the mishap occurred while the volunteer was acting in the course and scope of her duties for the organization; and b) the volunteer was acting in good faith. Good faith means honest pursuit of the activities the organization was created to provide.

The act also covers volunteer medical services. If the volunteer is a licensed medical professional, and if the patient signs an agreement acknowledging that the medical care is being provided for free and waiving any recovery for damages if something goes wrong, then the medical volunteer is protected from liability.

Volunteers are not protected from liability if a) an injury results from a volunteer’s intentional, willful, or wantonly negligent act; or b) an injury results from an act done with conscious disregard for the safety of others.

If the mishap occurs while the volunteer is operating a motor vehicle then the volunteer is legally liable, but only up to the level covered by existing insurance. Texas law requires all vehicle operators to have liability insurance with the following limits: $30,000 for injury or death of one person, $60,000 for injury or death of two people, and $25,000 for property damage arising out of any one accident. If you are going to drive for the non-profit, you must be certain that you have at least the minimum required insurance coverage. Consequently, if there is an auto accident you may be sued and will have to invoke the protections of the act as a defense against liability.

One warning: these protections apply only for volunteers at an agency that meets certain criteria. Most tax-exempt organizations under the Internal Revenue Code qualify (though the law does specifically exclude fraternities, sororities, and secret societies). Further, the organization itself must also have adequate liability insurance. Texas law requires the organization to carry liability insurance that covers $1,000,000 for personal injury and $100,000 for property damage. If it fails to do so, then the organization and its employees do not have immunity (but you, as a volunteer, are still immune).

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

Sessions announces end of DOJ guidance memos

By: Kathryn Watson

The Department of Justice will no longer issue guidance documents that cement new regulatory requirements or change current law, Attorney General Jeff Sessions announced Friday at the Federalist Society National Lawyers Convention in Washington, D.C., and in a new memo.

“The Department of Justice is duty-bound to defend laws as they are written,” Sessions said at the Federalist Society event, describing his broad intent to stick only to the laws Congress has passed.

In the past, the DOJ and other federal agencies have “blurred” the distinction between regulations and guidance documents. Sessions hopes to clear that up by no longer issuing any such DOJ documents that could create new rights or obligations, beyond what is prescribed by law. Sessions’ Regulatory Reform Task Force, led by Associate Attorney General Rachel Brand, will also review existing DOJ documents to see if they need to be rescinded or modified.

“It has come to my attention that the department has in the past published guidance documents — or similar instruments of future effect by other names, such as letters to regulated entities — that effectively bind private parties without undergoing the rule-making process,” Sessions said in the memo. “The department will no longer engage in this practice. Effective immediately, department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the executive branch (including state, local and tribal governments.) To avoid circumventing the rule-making process, department components should adhere to the following principles when issuing guidance documents.”

But Sessions’ address on Friday as he announced the Justice Department’s new stance and other recent achievements got off to an awkward start.

The attorney general began his speech with a joke.

“Is Ambassador Kislyak in the room? Before I get started here, any Russians? Anybody been to Russia?” a smiling Sessions asked, to some laughter.

Sessions has come under scrutiny lately for his congressional testimony related to Russia and any ties to Trump associates. Sessions testified before the Senate Judiciary Committee last month that neither he nor anyone else was in contact with Russian operatives during the 2016 election cycle. But, as CBS News’ Jeff Pegues has reported, recently unsealed court documents claim George Papadopoulos, the former Trump campaign aide who pleaded guilty to lying to the FBI, offered to set up a meeting with then-candidate Donald Trump and Russian President Vladimir Putin. Papadopoulos made the offer during a meeting that both Sessions and Mr. Trump attended in March 2016.

In testimony he gave earlier this week on Capitol Hill, Sessions at first said he had “no recollection” of meetings on the campaign with Papadopoulos and another adviser, Carter Page, until he saw news reports, but that he now does recall a March 2016 meeting that included Papadopoulos.