washingtonpost.com
Bush to Seek Limits on Lawsuits
Fierce Battle Over Curbs Is Expected
By Jim VandeHei and John F. Harris
Washington Post Staff Writers
Wednesday, January 5, 2005; Page A03

http://www.washingtonpost.com/wp-dyn/articles/A48532-2005Jan4.html?sub=AR


Empowered by reelection and a more Republican Congress, President Bush and
his White House aides are betting that 2005 will be the year for big strides
in the longtime conservative crusade to curb lawsuits and bring to heel
trial lawyers who profit at the expense of corporations.

But as Bush heads to Illinois this morning to launch a major campaign to
change the nation's laws on medical-malpractice and class-action lawsuits,
allies on Capitol Hill and top business groups warn that prospects for
change are less favorable than many had assumed after Bush's victory two
months ago.

The recently publicized problems of pharmaceutical companies and a handful
of GOP dissidents spell trouble for one of the most far-reaching proposals
in the Senate -- the same place where Democrats and their trial-lawyer
supporters have managed to kill similar measures in recent years, according
to business lobbyists and Senate leadership aides.

"There is no question there are firmly entrenched interests who will fight
litigation reform every step of the way," said Kristen Silverberg, deputy
domestic policy adviser to Bush. "But I do think the climate is changing."

The House has routinely passed legislation limiting lawsuits. But the
problematic arithmetic of the Senate -- where backers of Bush's agenda on
lawsuits have often shown they can win a majority, but not the 60 votes
needed to end debate and push legislation to passage -- sets up an important
test of a second-term influence and governing strategy.

The issue of curbing lawsuits has been close to Bush's heart for a decade or
more. If all the measures the administration and Senate GOP leaders want
were enacted, they would be among the most extensive changes of the nation's
legal system -- as well as a dramatic repudiation of the trial lawyers who
are a financial pillar of the Democrats.

Yet people on both sides of the issue said in interviews that Bush and
Republicans face the stiffest opposition on their most ambitious proposed
changes, such as a $250,000 cap on "pain and suffering" awards in
malpractice cases.

Other proposals face better prospects, but they will require compromises of
the sort that Bush and the GOP last year were unwilling to make to win
Democrats.

In this category is a significant revision of laws for class-action
lawsuits. A GOP proposal would push more of these cases out of state courts
and into the federal system, which defendants typically prefer because
historically it has higher thresholds for bringing suits and smaller damage
awards. Even though many Democratic senators support this concept, a bill
died last year when Senate leaders were unwilling to consider amendments. A
proposal to limit lawsuits against asbestos manufacturers, a Bush priority,
is stalled over the issue of compensation for victims.

And Republicans do not have a unified front. Sen. Lindsey O. Graham (S.C.)
has called Bush's plan for capping malpractice suffering awards among the
worst bills facing this Congress, and one that appears to unfairly and
unwisely target trial lawyers. "The dirty little secret in Washington is the
trial lawyers have a few Republicans in their pocket," a Republican close to
Bush said.

Many supporters and opponents agree that the best prospects for enacting
legislation rest with the least consequential ideas. The "cheeseburger
bill," for instance, aims to prevent obese people from suing the fast-food
chains that might have helped make them fat. But only seven such suits have
been filed, and none has gone to trial.

Advocates of changing the rules on lawsuits say they believe public opinion
is cresting in their favor, as evidenced by moves in numerous state
legislatures to limit malpractice damages. But in interviews, several
supporters acknowledged to their dismay that the congressional arithmetic
may not have changed as much as they had hoped after the November elections.
Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform,
said: "It's more challenging at the federal level in particular, because you
are dealing with caps on damages, and that's a tough issue in the Senate."

For the coming several months, the debate promises to be a high-profile
battle of anecdotes, with both sides laboring to put a compelling human face
on a policy clash in which the main contestants -- trial lawyers on the
Democratic side, and HMOs, pharmaceutical companies and other big businesses
on the Republican side -- often do not have an easy claim on public
sympathy.

Bush will take this battle of anecdotes on the road today with his trip to
Madison County, Ill., which the president's allies call one of the nation's
"judicial hellholes," because of the number of high-dollar lawsuits filed
and won there.

Bush's visit is no accident. The U.S. Chamber of Commerce Institute for
Legal Reform, which is financed by large contributions from the
most-often-sued corporations in America, has spent millions of dollars
publicizing -- and trying to defeat -- judges such as a few in Madison
County with records of permitting large lawsuits against large companies to
go forward.

Bush will focus on medical malpractice cases in the area, contending that
they have driven scores of doctors out of business and left residents with
no one locally to turn to in times of emergencies.

But the opposition is ready. In an indication of how much it fears Bush's
ability to draw attention to his issues, consumer advocates and trial
lawyers this week began a public relations counteroffensive aimed at
ensuring that beleaguered physicians are not the only faces on display in
Madison County.

At a news conference in the southern Illinois county yesterday, opponents of
malpractice caps highlighted a woman whose family won damages in a settled
case when her mother died after back surgery. Hospital workers kept pumping
the woman with fluids that her body was not expelling, and the surgeon never
responded to pages once nurses recognized a problem.

Linda Lipsen, head of public affairs for the American Trial Lawyers
Association, said the challenge for her side is to make sure Bush does not
set the terms for the debate. "It's not about Marcus Welby," she said. "It's
about HMOs, insurance companies and drug companies who think this is their
day in the sun to evade accountability."

That remark highlighted the opponents strategy: accuse Bush of creating a
false impression of a crisis over malpractice premiums, just as some
Democrats accuse him of inflating the problems of Social Security to promote
his preferred changes to that program. In the case of rising malpractice
insurance rates, most Democrats acknowledge there is a problem, but one that
can be addressed with more limited changes. Bush's proposals, the trial
lawyers and consumer groups maintain, would do little to address the problem
they say is largely caused by profiteering insurance companies.

Although the issue will likely have a higher profile this year than ever,
changing liability law remains a hard issue on which to galvanize public
opinion for any length of time. That is because proposals come as a series
of discrete measures.

Supporters adopted the incremental strategy in the mid-1990s, after
President Bill Clinton vetoed a far-reaching bill that would have given
companies protection from product-liability suits. "Instead of trying to
take the Queen Mary across the river, we take small boats," says Dirk Van
Dongen, president of the National Association of Wholesaler-Distributors.

Since Bush took office, Republicans have written into federal law narrow
limits on the public's ability to sue airplane manufacturers, pharmaceutical
companies, teachers accused of misconduct and producers of anti-terrorism
devices, among others.



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