Texas House committee hears tort reform measures, including bill to stop abuse of public nuisance

By David Yates

AUSTIN – A number of tort reform measures were heard yesterday by Texas House members, including bills on public nuisance, loser pays and paid or incurred.

The Judiciary & Civil Jurisprudence Committee spent the better part of the day listening to testimony. About forty minutes into the session, House Bill 2144 was discussed.

Authored by Rep. Cody Harris, HB 2144 seeks to ensure that the tort of public nuisance is clearly defined and consistent with its traditional purpose.

“The Texas economic miracle is built on low taxes … and legal reform – the last thing we need to do is return to the day when Texas was the world’s courtroom where money-hungry plaintiff’s attorneys filed one frivolous lawsuit after another,” Harris told committee members. “House Bill 2144 will keep Texas a national leader in legal reform and will stop activist attorneys from abusing public nuisance lawsuits.

Harris said public nuisance has historically been used to clean up spills and highway obstructions, but “profit-motivated” lawyers have been using the legal theory as a “catch all hammer” to extort money from businesses.

“And although they’ve been met with mixed success, it’s clear they won’t stop trying,” Harris said. “They’ve tried suing firearms manufactures and paint companies. And now they are suing mortgage companies … and oil and gas companies for climate change.

“What’s the next baseless claim they’ll make?”

Jonathan Fombonne, first assistant at the Harris County Attorney’s Office, spoke against the bill, saying that municipalities throughout the state use public nuisance law to combat public health crises.

“Public nuisance lawsuits bring in money that has been spent to deal with these public health crises,” Fombonne said, adding that in recent years numerous Texas municipalities have filed public nuisance suits in order to deal with the opioid epidemic.

Elbert Lin, speaking on behalf of the U.S. Chamber’s Institute for Legal Reform, told the committee there is growing trend to transform public nuisance into an all purpose cause of action for any conduct deemed harmful to society.

“This trend creates an ever present threat … of court imposed liability,” said Lin, an attorney for Hunton Andrews Kurth. “The only way to end this treat is by statute, and that’s what HB 2144 would do.”

The committee also heard testimony on:

– HB 3150, a loser pays bill that allows a court to award attorney’s fees to a prevailing party;

– HB 1617, which addresses the abuse of the paid or incurred rule and the process of proving up the reasonableness of medical charges in civil litigation;

– HB 3365, an opioid settlement bill that would manage the distribution of funds from the statewide opioid settlement;

– HB 1794, which relates to the liability of a property owner. If passed, HB 1794 would grant additional protections to land owners who offer the use of their land for recreational enjoyment for free or a nominal cost (i.e. a rancher allowing Boy Scouts to camp on his or her land); and

– HB 1875, which relates to the creation of courts specializing in business disputes.

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