A small firm wages a '100 year war' on tort reform

Center is engaged in 40 cases challenging limits on tort claims.

Lynne Marek / Staff reporter
December 10, 2007

Attorney Robert Peck and his nine law firm partners at the Center for Constitutional Litigation in Washington look like average plaintiffs' lawyers when they walk into courtrooms around the country, but they're not.

They are the lawyers to trial lawyers nationwide, fighting "tort reform," or what their clients might call "tort deform." The center's attorneys are on retainer for the trial lawyers' trade group, the American Association for Justice (formerly the Association of Trial Lawyers of America), and pursue cases to overturn state and federal laws that they allege rob Americans of legal redress.

The center's attorneys have 40 cases pending across the United States in which they are helping plaintiffs challenge government limits on tort claims, such as state caps on medical malpractice damages and federal legal immunity for rental car companies and gun manufacturers.

"We are often in a case because there's some impediment to having your day in court," Peck said.

For instance, the center's attorneys are currently representing the mother of a brain-damaged baby in Illinois who is seeking damages for pain and suffering that exceed a state cap on such awards. In another case, a center attorney is representing an injured motorcyclist trying to sue a rental car company over a car accident in spite of the industry's legal immunity in such cases. Both cases are headed to appellate courts.

Peck's firm gets the majority of its revenue from the AJJ and the state trial lawyer associations, but it is "entirely separate" from those organizations and does serve other clients, he said.

A '100 years war'

While organizations such as the American Tort Reform Association (ATRA) have spent the past 20 years backing state and federal legislation to rein in tort claims, Peck and his colleagues have been in court trying to knock the laws down nearly as long.

"The pendulum is moving more pro-defendant, but it's not a dramatic shift," said Richard Epstein, a visiting law professor at New York University School of Law and a professor at University of Chicago Law School.

While Peck said his center is winning the majority of its cases, Professor Ronen Avraham of Northwestern University School of Law, who has done research in the area, estimates that, overall, about a third of cases challenging tort-limiting laws are successful.

It's a battle that will ebb and flow over time, depending on politics such as the upcoming presidential election, said George Mason University School of Law Professor Michael Krauss. "It's a 100 years war," he said.

Victor Schwartz, ATRA's general counsel, who has helped lead the effort to reduce defendants' exposure to litigation and damages, claims that his side has won 277 of 400 cases in which tort reforms were challenged in court since 1983, but concedes that Peck's team is taking some significant wins. ATRA mainly participates in the legal battles by filing amicus briefs at the appellate level, but rarely works directly on cases, he said.

For instance, ATRA filed such a brief in a case before the Ohio Supreme Court that will determine whether state tort law limitations on damages will apply in a federal case in which Peck is representing women suing Johnson & Johnson over injuries allegedly linked to birth-control patches. Arbino v. Johnson & Johnson, No. 2006-1212.

An ATRA brief also recently preceded a ruling favorable to its position in which a Florida state appellate court said DaimlerChrysler Corp. wasn't liable for an asbestos injury because the lawsuit hadn't followed filing procedures imposed retroactively by a new state law. DaimlerChrysler v. Hurst, No. 06-2593.

State precedent

When the center's attorneys win on the state level, the cases often set new state precedent that can't be challenged in the federal court, said Schwartz, who also chairs Kansas City, Mo.-based Shook, Hardy & Bacon's public policy group from the firm's Washington office.

"When we lose, we lose the whole enchilada," Schwartz said.

Peck's clients in the Illinois medical malpractice case won a favorable ruling from a state trial court last month when the judge said the 2005 Illinois law capping so-called noneconomic damages violated the state's constitutional separation of powers. The law could be struck down if the Illinois Supreme Court agrees with the lower court. Peck will be angling for a repeat of his 1997 victory when the top state court struck down a prior Illinois law that also limited such damages. LeBron v. Gottlieb Memorial Hospital, No. 06-L-12109.

Peck's team is also representing plaintiffs in challenging various limitations on medical malpractice damages in Ohio and Nevada.

Peck and four other attorneys created the firm in 2001 after they had a trifecta of courtroom victories in the span of one month in late 1999, overturning state tort reform laws in Oregon, Indiana and Ohio. The success led to a barrage of requests for their services, Peck said. In addition to being on retainer for the American Association for Justice, the center does work for about 15 state trial lawyer associations, Peck said.

Prior to hanging out the center's shingle, Peck was the director of legal affairs for the Association of Trial Lawyers of America, the name the American Association for Justice had until 2006.

The center's lawyers fashion themselves as "legal archeologists," reaching as far back as necessary in legal history, even to the English charter Magna Carta, to build their cases in support of liberal access to the courts and the justice system. For instance, in a 1999 case, Peck once spent 10 pages of a 50-page brief explaining the history of the Ohio's 1851 Constitutional Convention, he said.

Given the role that state legislatures have played in creating tort reform laws, Peck's team of attorneys have often rooted their cases in principles of a given state's constitution. That approach has worked with some sympathetic state judges since the early 1990s, Schwartz acknowledges.

"I credit Bob with being a pioneer, an innovator and probably a pretty good fundraiser," said Schwartz, noting the cost of waging such legal battles.

In the U.S. District Court for the Southern District of Florida, center attorney Andre Mura is representing the injured motorcyclist who is fighting Vanguard Car Rental USA Inc. and a 2005 federal law that granted legal immunity to rental car companies in cases where a renter caused injury in an accident to another vehicle or its passengers.

Mura and other attorneys for the client in September won a favorable ruling from U.S. District Judge Michael Moore who called the law unconstitutional, but other courts have ruled the other way and the issue is slated to be taken up by the 11th U.S. Circuit Court of Appeals in January 2008, Mura said. Vanguard v. Huchon, No. 06-10082. The center's attorneys are working on similar cases in Connecticut, Florida and New York state courts.

The center's team is also taking aim at the 2005 federal law that gave legal immunity to gun manufacturers in the face of lawsuits by cities such as Washington, New York and Gary, Ind., that are seeking to hold companies liable for their products falling into the hands of criminals. An Indiana Court of Appeals panel recently sided with Gary, leading to a pending appeal with the state Supreme Court. Gary v. Wesson, No. 612-754.

Link to NLJ