No Rush to Tackle Torts
November 10, 2008
One early policy battle in the Obama years will probably be the question of “tort reform”: the business community’s effort to curtail personal injury claims and other lawsuits that result in big judgments against businesses. Plaintiffs’ attorneys are keen to reverse Bush-era restrictions on tort litigation, while business groups fear that a Democrat-dominated federal government will do the bidding of the Democrats’ influential trial-lawyer base of donors and expand plaintiffs’ rights in tort cases.
But as president, Barack Obama may well disappoint both advocacy factions. During his final debate last month with his Republican opponent, John McCain, Obama touted his own 2005 Senate vote for a law shifting class action lawsuits to federal courts — a major business community priority — as an example of how he has sometimes parted ways with his own party. “The first major bill that I voted on in the Senate was in support of tort reform, which wasn’t very popular with trial lawyers, a major constituency in the Democratic Party,” Obama said.
Of the 41 Senate votes tallied by CQ between 2005 and 2007 as key votes, it was the only one where Obama parted with the majority of his fellow Democrats. Arizona’s McCain was on the same side.
But that one vote, apparently, isn’t enough to persuade business interests to count on support from the new White House. Lisa Rickard, the president of the U.S. Chamber of Commerce’s Institute for Legal Reform, warned Democrats the day after the election that their overwhelming victory at the polls does not mean voters “want Congress to give the plaintiffs’ bar more ways to sue.”
Darren McKinney, a spokesman for the American Tort Reform Association, a business group, noted that Obama’s backing of the 2005 law was less than it seemed: He also supported some key Democrat-sponsored poison-pill amendments to undercut the legislation. “He voted for any number of Democratic amendments that essentially sought to gut the bill,” McKinney says. “We tort reformers would love to believe he would govern more moderately vis-a -vis legal issues than he campaigned, but the proof will be in the pudding.”
Meanwhile, the trial bar’s chief advocacy group in Washington, the American Association for Justice, plans to press for a list of litigation-related wishes in the next Congress, including broad rights to sue for injuries related to faulty medical devices and legislation barring companies from requiring their customers to go to arbitration rather than court.
Obama’s 2005 vote is “a concern,” says Linda Lipsen, senior vice president for public affairs with the trial lawyer group. But overall, she says, “we are comfortable with our new president’s priorities.”