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.” 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. LeBron v. Gottlieb Memorial Hospital, No. 06-L-12109.
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. Vanguard v. Huchon, No. 06-10082 (S.D. Fla.).
Both cases are headed to appellate courts.
Peck’s firm receives the majority of its revenue from the American Association for Justice and 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 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.
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.
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.