Insight

Challenges to Legal Practitioners in the Trump Era

In the case of tort laws and legal reform, for instance, Trump seems to side with "the little guy.”

Tort Reform in Trump Era
Sean M. Cleary

Sean M. Cleary

March 7, 2017 01:09 PM

Donald Trump’s campaign offered scant details on some of the most important positions his presidency would assume; for more information, the public and press had to turn to his published books, whose assertions, however, could be, and sometimes were, contradicted by later positions.

In the case of tort laws and legal reform, for instance, he seemed to side with "the little guy." However, there is insufficient evidence that this would be translated into action anytime soon. On the contrary, recent developments are causing some concern for plaintiffs.

It seems that President Trump’s legislative reform agenda would likely include an overhaul of the litigation requirements and procedures for class actions and asbestos exposure, attempts to restrict the transfer of federal cases to state courts and stricter procedures to reduce the number of frivolous litigations. Advocates of consumer protection are worried that these reforms might mean, in fact, less protection for the proverbial "little guy."

Frivolous Litigation

As early as 2011, Donald Trump suggested that "defensive medicine," i.e. doctors’ habit of preempting litigation by ordering unnecessary tests and procedures, is forcing a 10% cost increase on the health care system. He also suggested that frivolous lawsuits should be discouraged by a "loser pays" practice and that damages for pain and suffering should be capped at $100,000.

The Lawsuit Abuse Reduction Act of 2015 replaces current legislation allowing judges to impose discretionary sanctions and instead forces them to impose sanctions as prescribed by Congress. The new law would impose mandatory minimum punishments on the sanctioned party and remove the safe harbor practice allowing a party to withdraw or correct a claim or contention within 21 days.

Malpractice Cases

With the confirmation in February of Tom Price as President Trump’s Secretary of Health and Human Services, his stance on these issues is becoming clearer. For almost ten years now, Price himself has been leading an incisive fight against what he deems to be "medical malpractice abuse," a practice which he intended to curb by restricting procedures and attorney fees and by a list of guidelines for medical treatment which, if followed through, would preclude malpractice litigation. Administrative health care tribunals would be set up to review lawsuits before going to the tribunal, thus further decreasing malpractice claims.

Class Actions

A Republican bill from 2016 would "prohibit federal courts from certifying any proposed class seeking monetary relief for personal injury or economic loss unless the party trying to maintain such a class action affirmatively demonstrates that each proposed class member suffered an injury of the same type and scope as the injury of the named class representatives." In other words, unless plaintiffs can all show they suffered the same kind of injury, they are precluded from joining in a class action lawsuit.

Moreover, trusts set up after bankruptcy to fulfill the debtor's liability concerning claims of "personal injury, wrongful death, or property damage allegedly caused by the presence of, or exposure to, asbestos or asbestos-containing products" would have to report, upon request, any payments made to plaintiffs.

Federal to State Court Transfers

The initial Fraudulent Joinder law allowed federal courts to keep a lawsuit in federal court in certain cases. However, standards for fraudulent joinder are notoriously difficult to meet, and if the case goes to state court, it usually cannot be transferred again. The Fraudulent Joinder Prevention Act aims to make it harder for plaintiffs to transfer cases from federal to state courts. This goal will be achieved by determining fraudulent joinder grounds such as "actual fraud in the pleading of jurisdictional facts, state law not being able to impose liability on that defendant, no good faith intention to prosecute the action against that defendant," etc. (summary for bill H.R.725).

The underlying idea behind this proposed change is that damage claims may get a more lenient treatment in state courts; the new law would make plaintiffs face what is deemed to be the harshest court instead.

Conclusion

The current administration seems to support overhauls on all these four issues; however, legislation is slow to pass through both houses, and notoriously fickle even at more predictable times. Also, it remains to be seen where President Trump himself chooses to stand on these issues that appear to be more or less important to his appointees. As things stand now, many obstacles could come up; the more probable outcome, however, is that soon we will have to double-check legislation and avenues of attack for our clients, especially in medical malpractice cases.


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