Trial Magazine

How do you measure a Congress? Not in daylights and sunsets, but in bills. If we measure the 115th U.S. Congress by number of bills, it’s record-breaking. AAJ tracked more than 1,000 bills about tort “reform,” preemption, immunity, and other issues affecting your clients’ rights—at least 250 more bills than the previous Congress.

One bill more. We are extremely grateful for the additional support provided to AAJ Public Affairs through AAJ’s “Hold the Line” campaign to help oppose large, stand-alone tort reform measures in the U.S. House of Representatives. The bills included the “Fairness in Class Action Litigation Act,” which also applied to asbestos and multidistrict litigation; the medical malpractice bill that also applied to nursing homes; and the mandatory Federal Rule of Civil Procedure 11 sanctions bill. These bills quickly passed the House but became stuck in the Senate Judiciary Committee—and by the spring of 2018, the committee was focused instead on judicial nominations, including filling a U.S. Supreme Court vacancy.

The House then focused on other tactics for passing tort reform, such as using smaller, single-issue bills. One bill on Americans with Disabilities Act lawsuits passed the House, but Sen. Tammy Duckworth (D-Ill.), a double amputee from serving in the Iraq War, rallied Democrats to oppose the measure in the Senate.

Another bill drafted to overturn New York’s scaffold law, which protects construction workers, ran into states’ rights concerns after being voted out of committee. The overreach into states’ rights continued into the fall when the House Judiciary Committee considered H.R. 3487, a bill to eliminate complete diversity and replace it with minimal diversity, which would remove thousands of state-based claims to federal court when at least one plaintiff and one defendant are from different states. Several Republican committee members expressed concerns about removing car crash cases to federal court, and the bill stalled.

Anything Congress can do, we can do better. One of the biggest challenges of this Congress was ferreting out and then removing tort reform restrictions in must-pass legislation, such as appropriations and reauthorization of government agency measures. Here are some of the provisions we beat back:

• removed restrictions on longshore and harbor workers’ claims and restrictions on certain cruise vessel worker claims from the National Defense Authorization Act for 2017, and kept them out of the 2018 bill
• removed a provision to preempt 21 states’ meal and rest break laws for truck drivers from the 2018 appropriations bill to fund the federal government and from the Federal Aviation Administration (FAA) Authorization Act
• removed a provision from the House-passed version of the FAA bill that would give immunity to broker-shippers in truck crashes
• kept a driverless car bill that had preemption and forced arbitration issues from being added to the same FAA bill.

Defying gravity. With your support, we even made some affirmative progress. In the budget deal, we secured a permanent and retroactive repeal of the statutory provision that overturned the Supreme Court’s decision in Arkansas Department of Health and Human Services v. Ahlborn. This permanent fix will ensure that Medicaid recipients continue to receive a proportional recovery of jury verdicts and liability settlements.

And AAJ supported a law enacted in April that gives federal and state prosecutors greater power to pursue websites that host sex-trafficking ads and enables victims and state attorneys general to file lawsuits against those sites. The bill also contains a saving clause to preserve state law in these cases.

So long, farewell. We can’t wait to say goodbye to this Congress. AAJ thanks you for your support.

Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.