PAJ chief: Fair Share Act isn't fair to victims

Sandusky case points to need for exemptions, PAJ chief contends

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For state legislators opposed to adding exceptions to the newly enacted Fair Share Act, which brought sweeping changes to the state's joint and several liability doctrine last year, the new president of the Pennsylvania Association for Justice said the Penn State sex-abuse scandal is Exhibit A.

The criminal case against Jerry Sandusky -- which is likely to be followed by an array of civil actions against the former assistant coach, the university and other parties -- is a perfect example of why the Fair Share Act should have an exception for victims of sexual abuse, Scott Cooper said.

Mr. Cooper, who took over as the association president on Saturday, noted that all of the allegations against the coach and other university officials played out long before the law was in effect, staging civil battles under the former common-law doctrine of joint and several liability.

But had the crimes taken place after the new law was in place, Mr. Cooper said, the victims could be left in a position of claiming less, little or no relief for their injuries.

"This is the perfect example in the modern day [of] why the change to the law was unfair to basically children who were totally innocent," said Mr. Cooper, a longtime attorney with Harrisburg personal injury firm Schmidt Kramer.

The Fair Share Act, which became law in June 2011, superseded the common-law doctrine of joint and several liability, which holds that all guilty defendants can be liable for 100 percent of any damage award if their co-defendants cannot pay. Under the act, defendants found to be less than 60 percent at fault would not have to pay more than their share of the damages under most circumstances.

According to Mr. Cooper, a defendant such as Penn State would argue that Mr. Sandusky falls under the intentional tort exception and that he was 100 percent responsible.

Referring to a hypothetical civil suit against Mr. Sandusky and another, more solvent, defendant, Mr. Cooper said: "Even if [the jury] found 50-50, the victim is still undercompensated. Sandusky's never going to have any money."

Mr. Cooper said legislative language points to, at the least, a need for a clarification in the law.

According to Mr. Cooper, there was a small push when the act was being drafted to carve out an exception for victims of sexual abuse, but several lawmakers stymied the discussion.

Today, he said, the debate would have at least been fully aired, and the 20-year veteran litigator aims to use his presidency to spur talks of amending the act to include a sexual-abuse victims exception.

Staging such discussions is one of several plans that Mr. Cooper hopes to implement in 2012.

His predecessor as president, Philadelphia attorney Ken Rothweiler, said there is nobody better suited for the job.

"There's probably nobody in Pennsylvania better equipped to lead this organization because of his knowledge of the legislature in Harrisburg and the bills coming forward," Mr. Rothweiler said, describing Mr. Cooper as somebody who keeps his "ear to the ground."

legalnews

Ben Present: 215-557-2315 or bpresent@alm.com. To read more articles like this, visit www.thelegalintelligencer.com. First Published July 2, 2012 12:00 AM


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