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Washington, DC,
July 27, 2005—A decision yesterday by the Pennsylvania
Commonwealth Court could open the door for more out-of-control
litigation costs, according to the
American
Tort Reform Association (ATRA). The court struck down
the state’s 2002 “Fair Share Act,” which prevented the use of
joint and several liability when deciding damages in a case.
“The rule of joint
and several liability is neither fair, nor rational, because it
inequitably distributes damages among defendants in a case,”
said ATRA President
Sherman
Joyce. “Reintroducing this rule to the civil justice
system will lead to more outrageous litigation costs for
businesses and medical professionals, creating harmful effects
for the state’s economy and access to healthcare.”
Joint and several
liability allows a plaintiff to collect damages from multiple
defendants either collectively or individually, meaning that a
defendant who shares only a small percentage of the liability
could be required to pay 100 percent of the damages, if the
other defendants in the case are unable to pay.
According to the
Commonwealth Court, the 2002 law violated the state’s
constitutional single subject requirement because it was
inserted into legislation amending DNA detection of sexual and
violent offenders. Some state elected officials have indicated
that a new version of the Fair Share Act could be introduced in
the legislature this fall.
“The Court’s decision
represents a set-back in Pennsylvania’s civil justice reform
efforts. We urge state elected officials, along with the
business and medical communities, to continue their push toward
a more fair litigation environment,” Joyce said.
Personal injury
lawyers have employed a national strategy that targets civil
justice reforms for repeal. This strategy, called “judicial
nullification,” undermines the legislative system by enticing
activist judiciaries to use malleable provisions of state
constitutions to undo reasonable public policy decisions dealing
with tort law made by elected representatives. More than 93
civil justice reform statutes have been struck down, in whole or
in part, in at least 28 states since 1983.
“Judicial
nullification undermines the fundamental constitutional
principle of the separation of power among the executive,
legislative and judicial branches of government,” said Joyce.
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