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THE REFORMER Legislative wrap-up Vol. 9 No. 1 w April 2006 News from the Liability Reform Coalition w 2033 6th Avenue, Suite 1100, Seattle, WA 98121 w 425-868-2698 The good and the bad The 2006 legislative session began with a roar but ended with a whimper in terms of significant liability reform measures. Last December, Attorney General Rob McKenna unveiled legislation aimed at restoring some level of sovereign immunity for state and local governments that Washington waived in the 1960s. According to McKenna, “unlike most states, when we waived sovereign immunity we didn’t hold anything back.” With taxpayers paying out an astonishing $146 million for state liability costs from 2005-2007, the problem has reached an untenable level. Despite the AG’s leadership, and democrat support, SB 6215 ultimately died in the Senate Judiciary Committee. Other promising measures defeated by personal-injury lawyers include the perennial seatbelt defense bill—a simple measure that allows a jury in an auto accident case to know if the parties involved were wearing their seatbelts at the time of the accident. Another missed opportunity was SB 6354, a measure aimed at providing some liability protection for landowners that make their property available for recreational use. Perhaps the best news coming out of the legislative session was that the LRC and its members were able to successfully defeat all personal-injury lawyer bills that would have expanded liability. This includes HB 2004, a measure that would have increased the construction statute of repose (similar to a statute of limitations) from the current 6 years to at least 15 years, and, in many cases, endless. This would have a crippling affect on the already-strained construction liability insurance market. Medical liability update Compromise between doctors and lawyers In February, the governor announced a medical liability compromise had been reached by health care providers and personal-injury lawyers. The final product was encompassed in HB 2292. Following a bruising medical liability reform initiative, I-330, the opposing sides worked with Governor Gregorie in an effort to stem the medical liability crisis; at least for now. HB 2292 addresses the three issues of medical liability: patient safety, insurance reform and liability reform. While patient safety and insurance reform garnered most of the compromise, there was ground made in terms of medical liability reform such as: • Statute of Repose: Re-enacts the eight-year statute of repose (similar to a statute of limitations). • Certificate of Merit: Requires a certificate of merit to be filed by a qualified expert at the time of filing suit that states there is a reasonable probability the defendant’s conduct did not meet the required standard of care. • Arbitration: Establishes a voluntary binding arbitration system where all parties to the suit agree to arbitration after the suit is filed, with arbitration subject to a $1 million limit on damages. • Pre-suit Notice and Mandatory Mediation: Requires 90 days notice before a claim and mandatory mediation. • Collateral Source: Provides that evidence of any collateral source payment (past and current, but not future) is admissible, but the plaintiff may show evidence of an obligation to repay the payments and amounts paid to secure the right to the payments. While HB 2292 cannot be considered comprehensive medical liability reform, it is clearly forward movement. Warning: this article may cause reader to laugh; Wacky Warning Label winners announced Now in its ninth year, the Wacky Warning Label contest is conducted by Michigan Lawsuit Abuse Watch, M-LAW, to reveal how lawsuits, and concern about lawsuits, have created a need for common sense warnings on products. The grand prize was awarded to Tom Brunelle of Holland, Michigan. He receives $500 and a copy of the national bestselling book, “The Death of Common Sense,” by Philip K. Howard. Tom submitted a label on a heat gun and paint remover that produces temperatures of 1,000 degrees and warns users, “Do not use this tool as a hair dryer.” Other winners include: • A label on a kitchen knife that warns: “Never try to catch a falling knife.” • A cocktail napkin has a map of the waterways around Hilton Head, South Carolina, printed on it along with this: “Caution: Not to be used for navigation.” • A warning label found on a bottle of dried bobcat urine made to keep rodents and other pests away from garden plants says: “Not for human consumption.” • A label on a baking pan that warns: “Ovenware will get hot when used in oven.” Greedy personal-injury lawyers at it again Last month the Yakima Herald-Republic reported that personal-injury lawyers are going after the lion’s share of an award against Zirkle Fruit, leaving the plaintiffs with nearly nothing. Attorneys for plaintiffs who sued Zirkle Fruit executives over the Yakima company’s hiring practices are seeking nearly half the settlement amount for their expenses and fees. continues on page 2 THE REFORMER April 2006 Page 2 legislature that legal reform is an urgent priority. The American Justice Partnership (AJP), a national coalition of more than 50 partner organizations, is working with us to coordinate this special effort. To access the Victims Project website on the Internet, go to www.AmericanJusticePartnership.org. Look for the Victims Project logo on the left blue menu column. You will be able to quickly describe how lawsuit abuse has affected your family, your company, your experience as a medical patient, or even your community organization. We can ensure your confidentiality if you desire. continues on page 3 Are you a victim of lawsuit abuse? Legislators need to hear your story By Dana Childers LRC Executive Director For more than 40 years, plaintiff lawyers have spent tens of millions of dollars to convince the American public that they are protecting average citizens. In fact, many plaintiff lawyers have manipulated the courts so that they stand to gain millions – and even billions – in legal fees at the expense of people and organizations assaulted by frivolous and unwarranted lawsuits. We must not yield to the predatory tactics of plaintiff lawyers who rake in more than $40 billion every year in fees at everyone’s expense. The Liability Reform Coalition is working with our national network of legal reform partners to collect examples of lawsuit abuse so that we will have stronger arguments with the media and the Greedy personal-injury lawyers at it again continued from page 1 According to the Yakima Herald-Republic, in a notice mailed to potential plaintiffs in the class-action lawsuit, the Seattle law firm of Hagens Berman Sobol Shapiro and the Chicago firm of Johnson & Bell said they will request $600,000 of the $1.3 million settlement. The two firms said they spent $210,000 on travel, copying costs and other expenses. They spent another $1.7 million in attorney and support staff costs billed at “reasonable and customary rates.” They are asking for 25 percent of that, or $390,000, for a total of $600,000. Using federal racketeering laws, the lawyers sued the Zirkle executives in 1999 on behalf of three legal workers, saying the executives conspired to hire illegal immigrants to depress wages. Legal workers who could have had those jobs at a higher wage were injured as a result, the lawsuit said. Lawyers are attempting to contact all members of the class to notify them of the settlement. Individuals could receive a maximum of $2 an hour for hours worked in the class period. But the sum could be substantially less, depending on how many workers are valid class members. Although the workers may get $2/hour or less, there is good news. Their personalinjury lawyers will make hundreds of thousands of dollars. A hearing on the proposed settlement will be held May 11 at 1:30 p.m. before U.S. District Judge Fred Van Sickle in federal court in Yakima. LRC – Bill tracking summary – Sine die Bill Number HB 2004 Issue Extends the construction statute of repose from 6 years to 15 years Health care patient safety, insurance reform and civil dispute measures Mak ing c e r t ain c o mmunic at io n s between fire fighters and peer support group counselors privileged Concerning notice requirements for tort claims against state and local governments Allowing civil penalties for the release of personal information of criminal justice officials. Punitive damages section removed Providing some restoration of government sovereign immunity – AG request legislation Concerning recreational landowners’ liability Providing remedies when limited liability companies dissolve Seatbelt defense—allow juries to know if participants in an auto accident civil lawsuit were wearing their seatbelts at the time of the accident Creating provisions relating to asbestos liability LRC Position Oppose Bill Status House Rules Commit tee (dead) Signed into law HB 2292 Passed the Senate 48-0-0-1 Passed the House 82-15-0-1 Delivered to the Governor Passed the House 98-0 Passed the Senate 47-0-1-1 Signed into law Passed the Senate 46-0-1-2 Passed the House 97-0-0-1 Delivered to the Governor Neutral Passed the House 97-0-0-1 Passed the Senate 48-0-0-1 Senate Judiciary Committee (dead) Senate Rules Committee (dead) Delivered to the Governor HB 2366 HB 3120 SB 5654 SB 6215 Support— working to amend Support SB 6354 SB 6531 Passed the House 97-0-0-1 Passed the Senate 41-0-0-8 Senate Rules Committee (dead) Senate Judiciary Committee (dead) SB 6563 Support SB 6771 Support THE REFORMER April 2006 Page 3 The real Stella Awards LRC Board of Directors Creigh H. Agnew Weyerhaeuser Company For years now, the urban myth of “Stella Awards” have circulated through e-mail inboxes. These so-called “Stella Awards” are purported to be actual outrageous lawsuits when, in fact, they are made-up. But why make up such cases when truth is always stranger than fiction? Toward that end, journalist Randy Cassington has compiled his own list of the real Stella Awards. The name was inspired by Stella Liebeck. In 1992, Stella, then 79, spilled a cup of McDonald’s coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million in damages. It seems only appropriate that other wild, outrageous and ridiculous lawsuits be honored with The Stella Award. Cassington has compiled his 2005 runnersup and winner: #7: Bob Dougherty. A prankster smeared glue on the toilet seat at the Home Depot store in Louisville, Colo., causing Dougherty to stick to it when he sat down. “This is not Home Depot’s fault,” he proclaimed, yet the store graciously offered him $2,000 anyway. Dougherty complained that offer is “insulting” and filed suit demanding $3 million. #6: Barbara Connors of Medfield, Mass. Connors was riding in a car driven by her 70year-old son-in-law when they crashed into the Connecticut River, and Connors sank with the car. Rescue divers arrived within minutes and got her out alive, but Connors suffered brain damage from her near-drowning. She sued the driver and the brave rescue workers who risked their lives to save hers. #5: Michelle Knepper of Vancouver, Wash. Knepper picked a doctor out of the phone book to do her liposuction, and went ahead with the procedure even though the doctor was only a dermatologist, not a plastic surgeon. After having complications, she complained she never would have chosen that doctor had she known he wasn’t Board Certified in the procedure. So she sued ... the phone company! She won $1.2 million PLUS $375,000 for her husband for “loss of spousal services and companionship.” #4: Rhonda Nichols. She says a wild bird “attacked” her outside a home improvement store in Fairview Heights, Ill., causing head injuries. Nichols held the Lowe’s store responsible for “allowing” wild birds to fly around free in the air. She never reported the incident to the store, but still sued for “at least” $100,000 in damages. In January 2006, the case was thrown out of court. #3: Barnard Lorence of Stuart, Fla. Lorence managed to overdraw his own bank account. When the bank charged him a service fee for the overdraft, he filed a $2 million suit over his “stress and pain” and loss of sleep over the fee. #2: Wanita “Renea” Young of Durango, Colo. Two neighborhood teens baked cookies for their neighbors as an anonymous gesture of good will, but Young got scared when she heard them on her front porch. They apologized, in writing, but Young sued them anyway for causing her distress, demanding $3,000. She prevailed in court winning $900. AND THE WINNER of the 2005 Stella Award: Christopher Roller of Burnsville, Minn. Roller is mystified by professional magicians, so he sued David Blaine and David Copperfield to demand they reveal their secrets to them – or else pay him 10 percent of their lifelong earnings, which he figures amounts to $50 million for Copperfield and $2 million for Blaine. The basis for his suit: Roller claims that the magicians defy the laws of physics, and thus must be using “godly powers” – and since Roller is god (according to him), they’re “somehow” stealing that power from him. John Bishop State Farm Susan Hahn Cascade Diesel & Truck Repair Rick Linneweh Yakima Valley Memorial Hospital Jud Marquardt LMN Architects Len Eddinger Washington State Medical Association Tom Paine Avista Corporation John Maldon Group Health Cooperative Roger Stark, M.D. Retired Cardiac Surgeon Gary Strannigan SAFECO Corporation Cliff Webster Carney Badley Spellman Are you a victim of lawsuit abuse? Legislators need to hear your story continued from page 2 While on the AJP website, please also take 90 seconds to watch a brief web video featuring AutoNation General Counsel Jon Ferrando. He explains how his company was forced to settle for more than $1.5 million – including $1 million paid to plaintiff lawyers – in a frivolous lawsuit in which no one was harmed. State lawmakers across the U.S. need to hear the truth about abusive litigation, and your experiences can make a difference in the battle for legal reform! Thank you for taking a few minutes to tell your story. You will be making an important difference in standing up to personal-injury lawyers in the battle for legal reform. Dana Childers LRC Executive Director Where You Can Find Us: Liability Reform Coalition 2033 6th Avenue, Suite 1100 Seattle, WA 98121 425-868-2698 425-868-8427 fax website: www.walrc.org THE REFORMER April 2006 As we do each election cycle, the LRC will interview all Supreme Court candidates and make recommendations to our members. This year we may also consider getting involved in targeted Court of Appeals races. The LRC is committed to making our legal system balanced and providing certainty for all partied involved. To accomplish this goal it is imperative we elect judges who are fair, impartial and understand their job is not to legislate from the bench. The terms judicial activist are judicial restraint are used regularly and it’s important that we all understand what each means. A judicial activist judge is one who creates new law from the bench. It is one who makes a ruling to achieve an outcome despite the fact that law does not provide for that outcome. Some judges will tell Page 4 you this is a noble cause and therefore is justified. But the affect of judicial activism is an unpredictable, and therefore unfair, legal system. Judicial restraint is a judicial philosophy which endorses the limited exercise of power by the judiciary. In deciding questions of constitutional law, judicially restrained jurists go to great lengths to defer to the framers of the Constitution. Judicial restraint requires the judge to look first to the Constitution. If the meaning cannot be discerned, the judge is then permitted to look to the intent of the framers. Only when neither the Constitution nor the intent clarifies an issue may a judge invoke his/her own understanding of the issue. The LRC is committed to electing judicially restrained judges. Then, and only then, will our courts be fair, balanced and predictable for all parties. Message from the Chairman Cliff Webster With the legislative session behind us, the LRC is turning its focus to judiciary. Early this summer you can expect to see the third installment of the LRC’s Judicial Scorecard. This scorecard will review the significant Supreme Court rulings over the past two years and provide a “score” for each of the nine sitting justices. The timing of the Scorecard is deliberate, as it is a lead-in to the 2006 judicial elections where three Supreme Court justices—Susan Owens, Gerry Alexander and Tom Chambers—are up for election along with eight Court of Appeals judges. THE REFORMER A Publication of the Liability Reform Coalition 2033 6th Avenue, Suite 1100 Seattle, WA 98121 PRSRT STD US POSTAGE OLYMPIA, WA PERMIT NO. 78 PAID COMMITTED TO ENDING LAWSUIT ABUSE