The New Legislative Assault On Pennsylvania Civil Justice

Earlier this week the Pennsylvania Association for Justice sent out a “Legislative Alert” on the six proposed bills in the Pennsylvania state legislature aimed at cheating injured consumers, patients, and citizens out of fair compensation:

HB. 184 Creating specialty courts for Med Mal actions

HB. 301 Capping damages in med mal actions requires amending PA Constitution

HB. 304 15 year statute of repose in all product liability cases

HB. 388 Protecting the “product seller” in product liability actions

HB. 495 Inadmissibility of “benevolent gesture” or admission of fault on med mal professional liability actions

HB. 803 Essentially adopting the third restatement of torts in product cases

HB. 808 Amending Workers Compensation Act: Doubling period of time that an injured worker must be treated by employer designated health care provider from 90 to 180 days

HB. 1419 Requiring a certificate of merit in all professional liability actions

HB. 1495 Limiting liability of landowners who invite public for recreational use

HB. 1552 All personal injury cases may only be filed in the county in which the cause of action arose

SB. 383 Immunity for seller of defective products

SB. 384 Statute of repose in product liability actions

SB. 565 Inadmissibility of benevolent gesture or admission of guilt

SB. 949 Physician immunity for disclosures on controlled substances

SB. 999 Mandatory arbitration for medical negligence cases

SB. 1029 Immunity for hosts inviting public on recreational land

The bills all share two things in common: first, they would remove many of the incentives healthcare providers, manufacturers, and landowners have to ensure the safety of their paying patients, customers and visitors, and, second, they would do diddley-squat to promote the Pennsylvania economy. The proliferation of product liability bills is interesting; I wonder which companies are pushing those. The concentration of pharmaceutical companies in Pennsylvania shouldn’t go unnoticed.

The medical malpractice tort reform ones are all a joke. Health courts? Useless. Caps? Why, just to widen the gap between the damage caused by malpractice and the compensation?

But there’s another aspect worth exploring in depth, i.e., the transfer of responsibility from negligence and reckless businesses onto injured people and the taxpayers. Take a gander at HB 803, one of the product liability bills. It imposes, for example:

Innocent seller.–No product liability action based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user or consumer unless the seller is also the manufacturer of the product or the manufacturer of the part thereof claimed to be defective giving rise to the product liability action. Nothing under this subsection shall be construed to limit any other action from being brought against any seller of a product.

It’s curious they call it an “innocent” seller clause. Why on earth would we want to grant immunity to the sellers of “unreasonably dangerous” products? Shouldn’t a seller stop to consider for a moment if they’re about to make a profit selling something they know or should know to be “unreasonably dangerous?” Is a company that sells an unreasonably dangerous product really innocent?

I’ve seen some academic arguments in favor of that immunity — though even those arguments left open exceptions, not present in the proposed Pennsylvania bill, to ensure injured plaintiffs could recover in the event the manufacturer could not satisfy the judgment — but I’ve never understood them. If a seller believes that a manufacturer should be the one held accountable for making an “unreasonably dangerous” product, and yet the plaintiff has for some reason not also sued the manufacturer, then the seller has a simple remedy available to them: file a cross-claim against the manufacturer. All truly innocent sellers will be relieved of liability while the manufacturer takes the blame.

But let’s be honest. Tort reform bills aren’t about protecting the innocent, they’re about freeing the guilty from accountability.

These sorts of tort immunity bills are often sold to the public under the guise of economic progress, but there’s no evidence that granting special treatment to companies responsible in product liability cases does anything to boost the economy. Indeed, the primary effect of these bills is to slough off guilty companies’ responsibilities on the taxpayers. Let’s consider a hypothetical:

Manufacturer Malfoy LLC makes Wicked Wands for years but, instead of using phoenix tail feather cores, it uses radium dial paint. Manufacturer Malfoy LLC undergoes a Chapter 11 bankruptcy in which all of its assets are sold, coincidentally, to the same investors that owned the company before the bankruptcy. The bankruptcy discharges the new entity from all tort liability.

Seller Slytherin sells Wicked Wands to the public despite knowing why they glow such an unusual green. Seller Slytherin sells to Plaintiff Potter a contaminated wand manufactured prior to Malfoy LLC’s bankruptcy. Plaintiff Potter develops several recurring cancers, requiring several hundred thousand dollars of medical care and forcing him to retire from work early. His life expectancy is significantly reduced.

Under the current Pennsylvania product liability laws, Plaintiff Potter can’t sue the old bankruptcy Manufacturer Malfoy LLC (it has no assets) and can’t sue the new Manufacturer Malfoy LLC (it has been discharged from liability via the bankruptcy, and might not have a duty to recall). Plaintiff Potter (or, if he dies, his estate) can sue Seller Slytherin under claims in strict liability for selling an unreasonably dangerous product. If Plaintiff Potter proves the wands were unreasonably dangerous, and that his cancer was caused by the Wicked Wand, then he can recover for his medical bills, his lost wages, and his non-economic damages.

Under HB 803, Plaintiff Potter can’t sue anybody. Republicans for Voldemort indeed.

And what happens then?

Well, if Plaintiff Potter is privately insured, then his private health insurer covers his medical care and his private disability insurer covers a part of his lost wages (and the insurers both spread the cost out among his fellow insureds) until he reaches retirement age, when Medicare — i.e., taxpayers — covers his medical care. If Plaintiff Potter is not privately insured, then taxpayers pick up the entire tab for medical bills through Medicaid and then Medicare, plus all lost wages he can recover through unemployment insurance and Social Security disability.

Under the current rules, in which Plaintiff Potter can sue Seller Slytherin, then, if Plaintiff Potter wins, many of those insurance and public welfare bills can be subrogated. Plaintiff Potter has to pay back a portion of his care paid for by his insurer or by Medicare/Medicaid. The burden of the cost of medical care and lost wages falls on the party responsible for the injury: Seller Slytherin.

The core question is: why are we trying to change that? Why should innocent injured people and the taxpayers pay for businesses’ negligence and recklessness?

If you’re in Pennsylvania, that’s a good question for your state representatives. Why don’t you drop them a line?

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