Trump’s Budget Proposal: Tort Reform is What Really Puts Americans at Risk

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  1. Avatar Saul Degraw
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    Well it is not very clear whether Trump knows anything about what his admin does, Exhibit A:

    Until Tuesday’s meeting at the White House, Mr. Trump had spoken with only a few members of the Senate, according to an administration official. The pace was nothing like the dozens of calls he made to help pass the House’s health bill, aides said.

    A senator who supports the bill left the meeting at the White House with a sense that the president did not have a grasp of some basic elements of the Senate plan — and seemed especially confused when a moderate Republican complained that opponents of the bill would cast it as a massive tax break for the wealthy, according to an aide who received a detailed readout of the exchange.

    Mr. Trump said he planned to tackle tax reform later, ignoring the repeal’s tax implications, the staff member added.

    Disclosure, I am a plaintiff’s lawyer and agree with you (though I don’t do medical malpractice) However, I do pharma litigation (though my firm generally does not like talc cases).

    Some questions though, California has had a 250,000 dollar cap on non-economic damages in Medical Malpractice cases since 1975. Economic damages (lost wages, medical bills) are uncapped. Does the current “healthcare” stalled bill make the same distinction or not.

    Is the law merely targeting true Rule 23 class actions or are they also going against consolidated complaints/MDLs? A lot of the pharma cases I do are not class actions but consolidated complaints with multiple plaintiffs and usually in state court (though BMS v. Superior Court is going to change some of our practice here).

    The thing about plaintiff’s lawyers is that Republicans generally dislike us and the Democrats will gladly take our money but don’t always love us as well. A lot of White Shoe/Corporate Defense lawyers are also strongly affiliated with the Democratic Party and might see themselves as vanguards of liberalism in their personal politics. But they still have notions on the “respectability” of law and the plaintiff’s bar is not it. Though you would eventually figure that tort reform could be so successful that it takes their jobs too.

    A lot of notions on respectability in this country seem to be attached to corporation and pedigree. So to quote someone else from LGM maybe a a mid-level associate who graduated from Boalt and spent a few years as a Judge’s clerk before going to their corporate firm has their first experience with the plaintiff’s bar with someone who attended Golden Gate at night and might not necessarily have been filled with high flying rhetoric on the beauty of law and might just be trying to get a sympathetic plaintiff and unsympathetic defendant in front of a jury with appeals to emotion instead of finely tuned legal arguments filled with precedent.

    I disagree with the stereotype. I think good plaintiff’s lawyers are among the best in the nation but the stereotype exists including among many people who view themselves as liberals.Report

    • Avatar Richard Hershberger in reply to Saul Degraw
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      says:

      Interesting question: who has the worse reputation: personal injury plaintiffs’ attorneys or criminal defense attorneys?Report

      • Avatar Saul Degraw in reply to Richard Hershberger
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        says:

        Hard question. I’d say that among the general public, criminal defense attorneys. Plaintiff’s lawyers can still launch political and judicial careers including at the Federal Level. John Edwards was a plaintiff’s lawyer and so was Tim Kaine.

        I can’t think of a recent criminal defense lawyer who made it into elected politics or the bench.

        But among lawyers, probably plaintiff’s lawyers because we get saddled with the reputation of the most showy and outlandish in our group and because the White Shoe firms do a lot of pro-bono crim defense work. The big firms do a lot of pro-bono work in general because it makes them look good and they have the time and resources.Report

      • Avatar PD Shaw in reply to Richard Hershberger
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        says:

        PI attorneys that advertise a lot.Report

        • Avatar Saul Degraw in reply to PD Shaw
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          says:

          There is a firm here that advertises every way possible but the owner of the firm went to Georgetown which is a good law school. He does brilliant depositions.

          Lief Cabraser does a classify form of advertising which is basically funding our local NPR station.

          I think that there is a lot of snobbiness in the law. A lot of advertisements from plaintiff’s lawyer can be cringe worthy but it is a highly competitive field on the plaintiff’s side. We forget that a lot of the early ethical rules, especially the rules against posting/advertising rates, were out of a desire to keep minorities from practicing law. Drinker (of Drinker Biddle fame) explicitly said that they were designed to those Russian Jewboys out.

          So you have old firms that rest on books of business and reputations that are decades old and steady corporate clients and you have firms that do “real people” law that need a constant stream new clients/cases and the competition is fierce.

          My brief experience in doing intake shows that a good percentage of claims get rejected at intake and that a lot of other people are sent retainers and never return them because they chicken out or really just wanted a brief rant to someone. And then you get that sounded good on the phone initially but further review indicates that they aren’t so good. You can lose clients very quickly to another firm.

          So I’m sympathetic to advertising even when it seems gaudy.

          Big Firms only seem to get in trouble with their clients when their is a billing scandal or a partner jumps ship and takes his or her book of business with them.Report

          • Avatar PD Shaw in reply to Saul Degraw
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            says:

            The advertising may be necessary or work, but its why I think p.i. lawyers have worse reputations. But the more I think about it, I don’t sense criminal defense layers have a bad reputation. I think you are right that its not well-traveled path to elected office.Report

          • Avatar Richard Hershberger in reply to Saul Degraw
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            says:

            My guy doesn’t advertise. He does some marketing, but it is not in the form of advertising, and it is pretty modest. He also has been doing this for decades. He gets a lot of referrals from former clients, which I suppose is a form of having a book of business. Also relationships with medical providers. The ratio of real to not-real cases that come in these ways is actually surprisingly high. I suspect that the firms with signs on the sides of buses turn away a much higher percentage of inquiries.Report

            • Avatar Saul Degraw in reply to Richard Hershberger
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              says:

              Pharma cases this isn’t always true or there is something that complicates the record.Report

              • Avatar Richard Hershberger in reply to Saul Degraw
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                says:

                I know that med-mal is a strange beast. We don’t do it, but we see the occasional potential case, and pass them to a specialist. Of these, virtually none are real cases. I believe my boss once told me that in two or three decades, only two cases came out of it. These are out of potential cases that a non-specialist but informed lawyer has already looked it. The barriers are counter-intuitively high.

                That likely is the difference. With personal injury the barriers are far lower. Often liability is a non-issue, so really it is a discussion about damages (and available coverage, of course).Report

    • Avatar PD Shaw in reply to Saul Degraw
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      says:

      Illinois passed $500,000 caps on non-economic damages against doctors, which the state Supreme Court invalidated under the state constitution as “special legislation.” A few years later, Illinois had the most expensive judicial election in U.S. history at the time, and the plaintiff’s bar lost. When the caps were passed again, the Court struck them down again because not enough seats had been turned.

      I’d be inclined to support a federal law that “trumped” those court decision because I find their legal basis entirely specious, even though I don’t agree with the policy of hard caps (I think a ratio makes more sense, perhaps with some minimum to make sure the economic damages proven aren’t used to pay attorney fees)

      The one piece of “special legislation” passed that I’ve heard favorable things about was the requirement of a doctor’s affidavit at the outset of a lawsuit that there is evidence of negligence.Report

      • Avatar Saul Degraw in reply to PD Shaw
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        says:

        @pd-shaw

        My concern is not necessarily on the cap in MedMal cases. There are very few jurisdictions that are as plaintiff friendly as California and we have had a cap for years on Med Mal non-economic damages.

        The big concern for me is the further attempts to destroy class action litigation. Everyone likes to joke about class actions and the damages but they are still very useful in a lot of litigation especially wage and hour litigation and fraud litigation.Report

        • Avatar PD Shaw in reply to Saul Degraw
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          says:

          I think Illinois is pretty plaintiff friendly as well, and just looking at the med mal proposals in the link, I’m not sure those would necessarily “Trump” Illinois law except on caps. The limitations period in Illinois is shorter, but its not the length that matters, its when you start the clock.Report

    • Avatar Lyle in reply to Saul Degraw
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      says:

      Listening to the House debate the bill makes the economic non economic distinction. The question is assume a stay at home mom how would you value her wages in the future, would you assume she would go back to work at some time? How about a child what jobs would you assume the child had when grown up?

      Note that the bill only applies to some states as Tx has had a 250k cap on non economic damages for a number of years.Report

  2. Avatar Doctor Jay
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    says:

    The push for tort reform and caps to malpractice awards seems like business as usual for Republicans. It has had more favorable governments in power and failed to be enacted. It’s hard for me to see how it will make it through this particular legislative body.Report

    • Avatar Burt Likko in reply to Doctor Jay
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      says:

      I agree it’s business as usual for Republicans, and IMO there’s very little about Trump that suggests he personally cares about this issue at all. To the extent he does, it’s because he personally has been at the receiving end of a number of threats of litigation. At the same time, his business practices made liberal use of litigation as leverage.

      So my read on Trump is he sees the threat of Big Tort Verdicts as simply part of the landscape. When he hears people like doctors and manufacturers complain that they fear big verdicts, in his heart of heart he thinks they’re being wimps. To him, the threat of litigation is either good or bad based on whether it benefits or harms Donald Trump. Litigation does both, so it’s basically a wash. In the Trumpian world view, the issue is not to blunt the tool, but to pick strategies and people who can use the tool better than the other guy. That’s how you win.

      But I’m not entirely sure that the legislative ground in which this seed has once again been planted has ever been fertile in this way. If Congressional Republicans could get their acts together and address their top-of-the-sheet priorities in a more coherent way than we’ve seen displayed so far, we might really be looking at national scale tort reform on the table right now. As it is, the Republican Caucuses of both houses of Congress appear unable to form a consensus on pizza toppings, much less agree on how to make real the single campaign promise that each and every one of them has used since 2010 to get their jobs. So for the time being, they’re kind of paralyzed. Tort reform opponents can take heart from this.Report

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