Trial bar seeks to expand liability, end arbitration clauses

By Chris Rizo | Jan 13, 2010


WASHINGTON - The national trial lawyers group outlined its 2010 legislative agenda Monday, announcing that the group plans to take aim at mandatory arbitration clauses and push to expand civil liability, among other initiatives.

Outlining its political agenda for the year, the American Association for Justice said the group will focus its energies this year on leveling the litigation playing field, which it says currently "tilts too much" in favor of corporate interests.

"During the last decade, we saw a dismantling of regulations and our legal system for the benefit of big corporations and to the severe detriment of patients and consumers," AAJ President Anthony Tarricone said in a statement.

The Washington-based group announced its 2010 legislative agenda as it nears a major victory on Capitol Hill. This year, the trial bar was able to keep tort reform out of the proposed federal health care overhaul being crafted by Congress.

But AAJ did not get all it wanted in 2009. The trial lawyer lobby unsuccessfully sought federal legislation to give a special $1.6 billion tax break to its ranks.

The proposal would have allowed plaintiffs attorneys to deduct fees and expenses up-front on their taxes for filing contingency-fee lawsuits. Legal expenses are currently considered loans to clients that are to be repaid from ultimate awards if they win or deducted on their income filings in the event of a loss.

Amid newspaper editorials and an outcry from legal reformers who said the proposal would be an incentive for lawyers to file more lawsuits, the measure foundered.

2010, however, is a new year ...

On the mandatory arbitration clauses common in many consumer contracts, AAJ said it will push legislation that ensures that the decision to arbitrate a dispute is made voluntarily by a consumer and after a dispute has arisen, particularly in nursing home contracts.

While the trial bar wants plaintiffs lawyers to be able to file lawsuits on behalf of aggrieved consumers right off, proponents of arbitration say the process is fair and is needed to help take pressure off of already bogged-down courtrooms.

On the liability front, the plaintiffs' lawyer lobby is backing the Medical Device Safety Act pending in Congress. The measure would essentially allow trial lawyers to sue manufacturers over approved medical devices in state courts.

The proposal would reverse the 2008 U.S. Supreme Court decision in Riegel v. Medtronic, in which the high court held that federal law bans lawsuits filed against manufacturers of products approved by the U.S. Food and Drug Administration.

The Washington-based American Association for Justice, formerly known as the Association of Trial Lawyers of America, also said Monday it wants its members to be able to file lawsuits on behalf of their clients against foreign manufacturers over unsafe products.

Specifically, the group is calling for passage of the Foreign Manufacturers Legal Accountability Act, which would allow American consumers to seek redress in U.S. courts for damages caused by foreign-produced products.

"Americans simply want safe products, fewer unnecessary injuries and a restoration of checks and balances that give people a fair chance to receive justice," Tarricone said in outlining his group's agenda. "A strong civil justice system is part of this equation, and plays a necessary role in holding wrongdoers accountable."

Tarricone is a a partner at the aviation law firm of Kreindler & Kreindler LLP in Boston.

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