Ha Ha - Pennsylvania Tort Reform Declared Unconstitutional

From Business Insurance:

"PHILADELPHIA—Pennsylvania's Commonwealth Court ruled Tuesday that a 2002 tort reform measure that limited joint and several liability was unconstitutional.

The court ruled that the so-called Fair Share Act, which business groups favored because it required greater use of proportional liability in awarding damages, violated a state law that each bill should address a single-subject. The tort reform measure was added to a bill related to DNA testing of offenders, according to the court decision."

It's rare that errors like this benefit the little guy.  I'm sure the legislature will make "fixing" this a top priority, but this still makes me chuckle.  I'd like to think it worked out this way because some tricky legislators agreed to tack it onto the DNA bill, knowing that it would be declared unconstitutional.  But that would require a degree of skill not often seen on the left side of the legislative aisle. 

Comments

[Ted]

The glee that you take in the inevitable injustice that someone held 1% responsible will be liable for 100% of the damages shows that your opposition to tort reform has nothing to do with "justice" or "fairness." What possible justification, other than making the litigation lobby better off, is there for opposing the elimination of joint and several liability? You don't even pretend to have one other than your reflexive opposition to tort reform.

[Justinian Lane]

My "glee" is because of *why* it was declared unconstitutional - an entire state legislature dropped the ball. Neither did the business lobby and its many lawyers didn't catch it. This is a glaringly obvious error, and literally hundreds of legislators and lawyers missed it. And that's funny to me.

My problem with joint and several liability is based upon the law of parties. As you know, the law of parties in some states permits an individual to be convicted of a crime if that person only partially contributed to the commission of the crime. In some states, like Texas, people have even been put on death row due to the law of parties.

If it's ok to put a person in jail (or execute them) for a crime he or she only partially caused to occur, then it's ok to hold a corporation financially responsible for a tort it only partially caused to occur.

By allowing a double standard such as this, it's possible for a situation to occur in which a corporation is held criminally liable for an act it contributed to, but isable to escape civil liability because it wasn't more than x% responsible for the act.

So, my opposition to the elimination of joint and several liability is based on a desire for fairness and justice.

[Ted]

The law was thrown out because of a technicality unique to Pennsylvania law. I suspect 9 out of 10 Pennsylvania residents and a majority of Pennsylvania lawyers weren't even aware of it two months ago. The exact same law will get passed again without the procedural defect that got this one struck down.

Your statement of the criminal and civil law is incorrect. I don't even know where to begin because there's no such thing as the "law of parties." And no corporation under the Pennsylvania reform could "escape civil liability because it wasn't more than x% responsible for the act."

[Ted]

Excuse me, there's a Texas-specific rule called the Law of Parties that states that a person is criminally responsible for an offense committed by the conduct of another if  “acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids or attempts to aid the other persons to commit the offense.”  But that's not analogous to the situations where joint and several liability applies. Under joint and several liability, if Ben & Jerry's is 1% liable for negligently hiring an employee who is held 99% responsible for raping a co-worker, Ben & Jerry's has to pay 100% of the damages. That's much much broader than the law of parties, which would never hold Ben & Jerry's criminally liable in that scenario. Even in states where joint and several liability do not apply, a corporate defendant who directs other persons to commit an offense is fully liable under the principle of respondeat superior.

[Justinian Lane]

If a majority of Pennsylvania lawyers weren't aware of this so-called technicality, then a majority of Pennsylvania lawyers should be disbarred. This technicality has been part of the Pennsylvania Constitution in one form or another since April of 1968, and is posted in no less of a conspicuous location as Article III, Section 3, which reads:

"No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof."

Now, I got curious as to how many people screwed up for this to happen, so I looked it up. The bill in question is Pennsylvania Senate Bill 1089, passed in 2002.

The bill started out in October of 2001 as a bill to establish a state DNA data bank and several other provisions related to DNA testing. It was jointly introduced by a bipartisan group of 17 Senators, at least 7 of whom had been lawyers for 5+ years.

The bill was sent to the Judiciary Committee and the Appropriations Committee, and of course, to the House. On June 4th, a fourth revision of the bill was introduced that included the House's modifications to joint and several liability.

I'd bet $50 that the staff attorney at the Pennsylvania Legislative Reference Bureau who added the joint and several liability language to SB 1089 notified the requesting Representative(s) that the bill could be declared unconstitutional. If the staff attorney failed to notify the Representative(s), then that staff attorney is incompetent. If the staff attorney did make such a notification, then the Representative(s) knowingly violated the oath of office.

The Pennsylvania Senate made one more revision to the bill before the final vote, which came down as follows: Senate: 40/9; House: 153/43.

That means at least 193 legislators were either ignorant of or willfully ignored the constitution they swore to uphold when they took their oath of office. And upon further reflection, that isn't funny.

[Ted]

Get over yourself. You say "Article III, Section 3," so you surely know that the Pennsylvania Constitution is not a model of concision, and has about 300 sections, some of which have a dozen subsections, others of which deal with matters as inconsequential as the salary to be paid to a justice of the peace. One isn't required to know the Pennsylvania constitution to be a member of the Pennsylvania bar, and I doubt more than a handful of people know more than half of them by heart. Other than three or four provisions that I directly litigated, I couldn't begin to tell you what's in the California constitution; they never tested us on it. Heck, most American lawyers don't even know the American constitution by heart.

[Justinian Lane]

Get over myself? Simply because I expect legislators who swear an oath to uphold their state's constitution to do so?

Are you trying to excuse the behavior of the state's legislators because of the complexity of Pennsylvania's constitution? Here are two reasons not to do so:

1: While Pennsylvania's constitution is indeed overly broad, the passage in question is near the beginning, in clear language, and deals with making laws. What's the primary job of a legislator? Making laws. Any Pennsylvania legislator who doesn't know and understand this provision of the constitution is therefore incompetent. And any legislator that did know and understand that provision but voted in favor of this bill violated his or her oath of office.

2: Ignorantia Juris Non Excusat: Ignorance of the law is no excuse.

Irrespective of my feelings about this bill, the bottom line is that 193 legislators let their constitutents and their state down by making a foolish error. Legislators have a duty to ensure that the bills they enact can withstand constitutional scrutiny.

I currently work for a Democratic Senator that is not a lawyer. Whenever a bill has even the slightest constitutional implications, he consults with staff attorneys and private attorneys to get their opinions about the bill. I've seen many bills scrapped because this Senator (and many of his colleagues) won't vote for a bill they believe will be struck down by the state Supreme Court.

If Pennsylvania's Senators felt the same way, this post never would have been written.

[Atavist]

Why is it that whenever I find a weblog where Ted Frank is participating in the comments, I invariably find at least one thread where Ted is engaged in personal attacks, and rarely find a discussion where he even attempts courtesy?

[Passerby]

I read over at Evan Schaeffer's Legal Underground that Ted Frank edits the wikipedia under the name FRCP11. It sure sounds like him. His comments about this blog led me here. http://en.wikipedia.org/wiki/Talk:Tort_reform

I am not sure whether you should be flattered by FRCP11's characterization of this site or not.

"corpreform appears to be written by a college student with no special expertise in the area, so if someone has a better idea for a site, they should feel free to put it up there. I don't particularly think it belongs as an external link or reference, but don't want to be accused of bias for deleting it unless there's a consensus that it's not appropriate."

[Thesis]

Look, tort reform is either a scam or it leads to lower insurance rates. But some of the states that passed tort reform have the highest insurance rates in the country, so tort reform must be a scam.

[Warren Redlich]

Great blog on a great topic! I have an alternative proposal for tort reform. You can see it in more detail on my congressional campaign's personal injury page: http://www.wredlich.com/personalinjury.html.
In short, eliminate pain and suffering damages for cases of ordinary negligence. That's the only change. You could still get medical bills and lost wages under ordinary negligence, and still get pain and suffering for cases of gross negligence or worse.
The reality is that most of us commit ordinary negligence every day. Going 56 in a 55 is ordinary negligence. Rolling through a stop sign. Etc.
The other point about this, that I think you'll like, is that this is not corporate tort reform. This is tort reform for everyone. And insurance companies would hate it. Why? Because it would eliminate 90+% of the lawsuits and competition would force them to lower their premiums.
How do I know? I was a top trial lawyer for Allstate in 1998 and 1999, and I'm a plaintiff's lawyer now. I make money from personal injury cases and I still support tort reform. And my proposal would do much more to cut back on lawsuits than anything else out there.

Whaddya think of that?
Warren Redlich
http://www.redlichlaw.com/pi/