Turzai seeks changes in how damage awards are made in suits
February 13, 2011 5:00 AM
State House Majority Leader Mike Turzai, R-Bradford Woods, is pushing for the "Fair Share Act."
By Tom Barnes Pittsburgh Post-Gazette
HARRISBURG -- Two groups with political muscle are wrestling over a proposal that would lessen large damage awards in some personal injury or product liability lawsuits.
State House Majority Leader Mike Turzai, R-Bradford Woods, is pushing what he calls the "Fair Share Act," also known as House Bill 1, so numbered because Republicans have put it at the top of their to-do list in the new legislative session. It's also a top priority for trial lawyers, who are strongly opposed.
Under current law, if two different firms provide a product or service, either one can be held 100 percent responsible financially if something goes wrong and a user is injured.
Mr. Turzai said that's not fair. He said that if a firm made only 10 percent of a defective product or service, its liability should be 10 percent, not 100 percent.
Mr. Turzai argues that the bill, which he considers long overdue, will make Pennsylvania more business-friendly, attract new companies and keep existing ones, thus increasing private sector jobs in the state.
The Fair Share Act was almost enacted twice in recent years and is now closer to reality than ever before, with pro-business Republicans running the House and Senate and GOP Gov. Tom Corbett in office. Many business and hospital lobbyists have lined up behind the bill, which could soon face its first test, a vote in the House Judiciary Committee.
"The political climate is right for this now," said Gene Barr of the state Chamber of Business and Industry. "We have a window of opportunity, but I'm not sure how long this window will stay open."
Trying to slam the window shut is Tim Conboy, a Pittsburgh attorney who heads the Pennsylvania Association for Justice, formerly known as the state Trial Lawyers Association. He contends the bill will make it harder for victims of defective products and services to get "full and fair reimbursement" for their pain and injuries.
He said that tort lawyers, those who represent clients "harmed by an act of negligence," will press legislators to oppose the bill. The lawyers group has clout because it's always among the top campaign contributors to lawmakers.
Mr. Turzai describes the bill as "tort reform," but Mr. Conboy calls it "wrongdoer protection."
"We are fighting for the rights of future victims of negligence," people who will be injured in the future and will find it hard to sue the makers of defective products if the law is changed, he said.
The actual name for the current policy is complicated -- "joint and several liability." It means that if two (or more) firms contributed to making a product, they can be held jointly responsible for the damages. If one company can't pay, then the other(s) can be made to pay 100 percent of a court verdict. Mr. Conboy said "joint and several" is centuries old, dating back to English common law, and has been the standard in Pennsylvania for more than 200 years.
Mr. Turzai said many other states have eliminated what he sees as an anti-business policy. Mr. Conboy said the "joint and several" policy is nowhere near the top of a company's reasons for locating in a particular state, adding that weather, transportation costs and workforce competence are much more important.
Current law would mean that if ABC Co. and XYZ Ltd. made a product together, but ABC has gone out of business by the time a jury verdict is handed down, XYZ is on the hook for all the court-ordered damages, even if it had only a small role in making the flawed product.
Mr. Conboy counters that changing existing law would deny an injured plaintiff "full and just compensation" for injuries. He used the example of a case where two men drive up to rob a bank. The getaway driver keeps the car running outside while his partner goes in and kills a bank teller. Both men can be held liable for murder because both were involved in the crime, he said.
A pro-business group, the Pennsylvania Business Council, has put on a push for the Fair Share Act, including a recent seminar where Mr. Turzai, state Sen. Jake Corman, R-Centre, and others spoke on behalf of it.
"We lost nearly a decade in getting this common-sense law enacted, and it's time to get it on the books," said David Taylor, president of the Manufacturers Association. He urged an end to "a 'lawsuit lottery' mentality."
That referred to claims that some plaintiffs and personal injury lawyers file "frivolous" suits, hoping to get large jury verdicts or large out-of-court settlements from defendants.
"These frivolous suits cost Pennsylvanians in the form of higher costs for products and higher taxes," contended Kevin Shivers of the National Federation of Independent Businesses, which represents smaller firms.
The "joint and several" policy has led some companies and doctors to move out of state to avoid getting hit with large verdicts, Mr. Turzai said.
Another problem with "nuisance suits," as corporations call them, is the need to put "wacky warning labels" on products, said Mr. Taylor. For example, he said, a paint-peeling tool, with temperatures of several hundred degrees, needed a warning label that said, "Don't use as a hair dryer."
It may sound funny, he said, but it's sad that manufacturers have to resort to such labels to keep a person from misusing a product and then suing for damages.
Mr. Turzai has a second weapon in his pro-business arsenal, a bill to cap "non-economic damages" in suits, meaning amounts given for a defendant's "pain and suffering."
Someone hurt by a defective product or service is entitled to "economic damages" to compensate for lost wages and hospital costs. But many juries also tack on thousands or even millions of additional dollars for "pain and suffering."
Critics consider such damages to often be a subjective or nebulous concept. Corporations, hospitals and doctors would like to limit non-economic damages, perhaps to $250,000 or $350,000 per case.
But Mr. Conboy said such caps are unfair. He called them "nothing more than a bailout for big business" and said they would "harm those who are severely maimed or killed by wrongdoers."