Monday, October 15, 2012

ARTICLE: Tort Reform and Judicial Selection: Where the 2012 Presidential Candidates Stand

The following article of mine appeared in last week's edition of The Pennsylvania Law Weekly and is reprinted here with permission.  All rights reserved.(c)

Tort Reform and Judicial Selection:
Where the 2012 Presidential Candidates Stand

Daniel E. Cummins

Pennsylvania Law Weekly

With the presidential election set to take place November 6, one of the issues that has not been at the forefront of this election season is the issue of tort reform. As that issue may be important to some of the readers of this column, what follows is a review of the tort reform position advocated by the presidential candidates.

Although the issue of tort reform has traditionally focused on medical malpractice and health insurance issues, changes in those areas could obviously impact other areas of personal injury litigation. In fact, if tort reform is ever passed in its entirety, these changes could drastically impact the way the plaintiffs bar and the defense bar conduct business in civil litigation matters.

Another important issue for attorneys with respect to this presidential election is each candidate's criteria for the potential selection of future members of the U.S. Supreme Court and the federal bench.

Legal Background of the Candidates

Some voters may base their votes, in part, upon the extent of the legal background of the candidates for president.

In that regard, President Barack Obama completed his magna cum laude J.D. degree at Harvard Law School in 1991. According to his biography as contained on his campaign website, following law school, Obama worked as an associate attorney for a Chicago law firm and focused on discrimination claims and voting rights cases. He was also a lecturer of constitutional law at the University of Chicago Law School before leaving the practice of law altogether to focus on his political career.

Republican candidate Mitt Romney has a law degree as well. In his campaign, he has portrayed himself as more of a businessman than a lawyer. According to the biography materials on the Romney campaign website, Romney earned a bachelor of arts degree from Brigham Young University in 1971. In 1975, Romney obtained a joint J.D. and master's of business administration degrees from Harvard University. From Romney's biography, it appears that he then went on to spend a career in the business sector and did not practice law.

The Candidates on Tort Reform

Generally speaking, opinions regarding caps on personal injury damages are split along party lines, with the Republicans usually favoring them and the Democrats generally voting against arbitrary caps on damage awards and other limitations on access to the courts.

Romney has come out publicly in favor of national tort reform. He was recently quoted in the press as saying, "Another burden on our economic future is our out-of-control tort system. Last year, U.S. health care corporations spent more money on tort claims then they did on R&D. If innovation is the key to our long-term leadership, then some tort lawyers are cashing out our country's future."

"I spoke with one member of the plaintiffs bar the other day," Romney was quoted as saying. "He said that the tort lawyers are OK with state reform, but not national reform. You know what state level tort reform means — it means that as long as there is one lawsuit-friendly state, they can sue almost any major, deep-pocket company in America. No thanks. America needs national tort reform."

According to research, from his 1994 Senate race through his campaign for governor of Massachusetts in 2002, as well as throughout his four years as the governor of Massachusetts, Mitt Romney was a strong proponent of tort reform. As governor, he supported proposed legislation for capping personal injury claims in automobile-related cases. Romney also advocated for overhauling Massachusetts' medical malpractice system.

During his campaign for governor, Romney also supported capping punitive damages. In 2003, Romney supported a bill to cap non-economic awards at $500,000. In May 2006, the Romney administration in Massachusetts also issued a tort reform proposal that called for the closing of any loopholes in the $500,000 cap on non-economic damages in Massachusetts.

In contrast to the general position of the Republican party, rather than capping jury awards, the Democrats generally favor efforts to reduce medical errors and steps to increase the reporting of errors as ways to cut the overall number of medical malpractice cases.

As president, Obama has repeatedly confirmed that he is not willing to consider the capping of medical malpractice judgments, a tort reform proposal consistently put forward by Republicans. Some of the alternatives to caps on limits that Obama has suggested he may be willing to consider include having medical experts review malpractice suits before they go to court to ensure that the case meets some threshold of credibility. Obama has also suggested that he may consider, when appropriate, some form of mediation or arbitration in place of lawsuits.

In a 60 Minutes interview, the president conceded that the Democrats and Republicans may not be able to reach an agreement on the specific idea of capping damages. In that regard, Obama stated, "I think there's also been philosophical issues and differences about whether or not patients who really have been subject to negligence, whether it's fair to just say to them, 'You know what? You can only get a certain amount no matter how egregious it is.' So there's been a philosophical difference within the parties."

More recently, while still stopping short of supporting federal caps on damages awards, in his 2011 State of the Union Address, the president said he would be open to "medical malpractice reform to rein in frivolous lawsuits." Based on his prior statements on the issue, it would appear that Obama and the Democrats would not be willing to go as far on the issue of tort reform as desired by the Republicans or Romney.

The Candidates on Selection of Federal Judges

Another consideration in this ?presidential election campaign could ?be the future makeup of the U.S. Supreme Court and the rest of the federal judiciary.

In terms of the Supreme Court, Justice Ruth Bader Ginsburg is 79 years ?old and dealing with health issues, Justice Antonin Scalia is 76 years old, Justice Anthony Kennedy is 76 years ?old and Stephen G. Breyer is 74 years old.

According to reports on the presidential candidates' positions in this regard, Romney has stated he would appoint judges to the Supreme Court and the federal judiciary who strictly follow the constitution and do not make laws from the bench. Romney has asserted he would support judges having philosophies similar to that of Chief Justice John G. Roberts, Justice Samuel A. Alito or Scalia. Romney is on record as having opposed the nomination of Justice Sonia Sotomayor to the Supreme Court.

Sotomayor was nominated to the Supreme Court by Obama during his term as president. Obama also selected solicitor general Elena Kagan to replace Justice John Paul Stevens.

According to his views, Obama seeks the qualities of a high intellect, an appreciation of the limited role of the judiciary and "an understanding of how the world works and how ordinary people live" in judicial appointees.

As such, it is clear that justices nominated by Obama or Romney would have much different ideas of the Supreme Court's role in construing and interpreting the law. As such, it is readily apparent that the future makeup and the philosophy of the Supreme Court as well as the federal bench across the land will be directly impacted by which candidate makes it into the White House in the next election.

Be Heard With Your Vote

Whatever one's politics may be, the most important thing is to get out and exercise your constitutionally protected right to vote. The Democratic and Republican candidates have strong and divergent views on the issues of tort reform and the makeup of the federal bench. If Pennsylvania litigators wish to be heard on these matters and have any say on the future of civil litigation practice as we know it, all it takes is a quick visit to the voting booth on Election Day. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at

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