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Tort Reform Records

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2020 Tort Reform Records

|2020

2020 Highlights Louisiana 2020 – HB 57 (special session) Provides

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2020 Highlights

Louisiana

2020 – HB 57 (special session)

Provides that in cases where a claimant’s medical expenses have been paid, in whole or in part, by a health insurance issuer or Medicare to a medical provider, the claimant’s recovery of medical expenses is limited to the amount actually paid to the medical provider by the health insurance issuer or Medicare, and any applicable cost sharing amounts paid or owed by the claimant, and not the amount billed.  Provides that the court shall award 40% of the difference between the amount billed and the amount actually paid to the contracted medical provider by a health insurance issuer or Medicare in consideration of the plaintiff’s cost of procurement provided that this amount shall not make the award unreasonable.  Provides that in cases where a claimant’s medical expenses have been paid, in whole or in part, by Medicaid to a medical provider, the claimant’s recovery of medical expenses paid by Medicaid is limited to the amount actually paid to the medical provider by Medicaid, and any applicable cost sharing amounts paid or owed by the claimant, and not the amount billed.  Provides that the recovery of any other past medical expenses shall be limited to amounts paid to a medical provider by or on behalf of the claimant, and amounts remaining owed to a medical provider, including medical expenses secured by a contractual or statutory privilege, lien, or guarantee.  Provides that in cases where a claimant’s medical expenses are paid pursuant to the La. Workers’ Compensation Law (LWC), a claimant’s recovery of medical expenses is limited to the amount paid under the medical payments fee schedule of the LWC.  Provides that in a jury trial, only after a jury verdict is rendered may the court receive evidence related to the limitations of recoverable past medical expenses paid by a health insurance issuer or Medicare.  The jury shall be informed only of the amount billed by a medical provider for medical treatment. Whether any person, health insurance issuer, or Medicare has paid or has agreed to pay, in whole or in part, any of a claimant’s medical expenses shall not be disclosed to the jury. In trial to the court alone, the court may consider such evidence.  The bill does not apply in medical malpractice claims or in claims brought pursuant to the Governmental Claims Act.

 

Missouri

2020 – SB 224

Provides that punitive damages shall only be awarded if the plaintiff proves by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others, and the plaintiff is awarded more than nominal damages.  Punitive damages may be awarded against an employer due to an employee’s conduct in certain situations, as provided in the act.  When an employer admits liability for the actions of an agent in a claim for compensatory damages, the court shall grant limited discovery consisting only of employment records and documents or information related to the agent’s qualifications.

A claim for punitive damages shall not be contained in the initial pleading and may only be filed as a written motion with permission of the court no later than 120 days prior to the final pretrial conference or trial date.  The written motion for punitive damages must be supported by evidence.  The amount of punitive damages shall not be based on harm to nonparties.  A pleading seeking a punitive damage award may be filed only after the court determines that the trier of fact could reasonably conclude that the standards for a punitive damage award, as provided in the act, have been met.  The responsive pleading shall be limited to a response of the newly amended punitive damages claim.

The legislation provides that the defendant may also be credited for punitive damages paid in a federal court.

These provisions shall not apply to claims for unlawful housing practices under the Missouri Human Rights Act.

Modifies the definition of “punitive damages” as it relates to actions for damages against a health care provider for personal injury or death caused by the rendering of health care services.  In order to be awarded punitive damages, the jury must find by clear and convincing evidence that the health care provider intentionally caused damage or demonstrated malicious misconduct. Evidence of negligence, including indifference or conscious disregard for the safety of others, does not constitute intentional conduct or malicious misconduct.


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White Papers & Reports

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Recent White Papers & Reports

The National Association of Attorneys General

|2022

A Nonprofit That Acts Like a Plaintiffs’ Firm

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Executive Summary

The National Association of Attorneys General (NAAG) was founded in 1907 as a nominally independent association as a way for state AGs to coordinate shared antitrust cases.[1] Historically, the Association has played an influential role in managing multistate investigations and lawsuits. Over time, however, NAAG’s focus has shifted from promoting efficiency and coordination to instead promoting entrepreneurial litigation targeting a variety of industries – similar to the mission of the mass torts plaintiffs’ bar.

NAAG has had a significant role in some of the most prominent mass tort litigation over the past few decades. Its targets have included manufacturers of tobacco, and most recently, opioids. The Association fully participates in settlements reached in multistate lawsuits, just as individual states and their for-profit, contingency-fee counsel participate. Interestingly, this places what once was an independent association in a situation in which it now has profit as a main motive to help initiate and settle litigation, just as the trial bar does.

For example, in March 2021, NAAG received $15 million as part of McKinsey’s $600 million settlement for the company’s role in marketing opioid prescriptions.[2] NAAG also received $103 million that grew to $140 million from the landmark Tobacco Master Settlement Agreement.[3]

NAAG essentially acts as a self-sustaining litigation machine, mainly funded by two revenue sources: yearly dues from state attorneys general of approximately $70,000 per state, per year[4]; and carveouts from multistate litigation settlements.

NAAG’s programs, operated through these funds, seem to be tailored specifically to promote litigation against business – attorneys in state AGs’ offices are trained under NAAG programming to bring more cases against other industries.[5] These training sessions are designed to help AGs be more effective in litigation. NAAG’s targeted training and support of state AGs offices is similar to that of other activist groups looking to influence and promote litigation in AG offices. For example, the Bloomberg-funded State Energy & Environmental Impact Center at New York University School of Law is designed to further litigation by placing lawyers funded by the Center in the offices of friendly attorneys general across the country, empowering them to bring climate change litigation. However, outside influence, whether it be from NAAG or other activist organizations, creates a concerning lack of accountability and transparency in state attorneys’ general offices.

To promote coordinated mass tort litigation, NAAG members also participate in working groups that focus on potential multi-state lawsuits. Their activities include information sharing agreements between state AG offices as well as monthly phone calls to discuss ongoing investigation. NAAG then offers lead states the opportunity to recruit other states to join specific litigation.

Additionally, plaintiffs’ lawyers often hold training sessions at NAAG conferences in which they discuss best practices for pursuing mass torts. It is an excellent business development opportunity for these plaintiffs’ lawyers because many of them will later look to be hired on a contingency-fee basis once the AGs initiate lawsuits.

In the early stages of litigation, NAAG provides grants to the states to help litigation get off the ground. Currently, NAAG has more than $200 million in assets. States receive grants to fund research and other expenses needed to determine participation in a multistate lawsuit. Any state seeking NAAG funding must submit a detailed memo outlining their legal strategy, expenses, and predicted results. States are required to repay the grant if there is a settlement regardless of whether the settlement terms stipulate reimbursement to NAAG.[6]

Utilizing this sort of funding source for litigation allows AGs to avoid using state-appropriated funds – or having to go to the legislature for more funds. This funding side-step weakens potential checks and balances a legislature may want to exercise in these situations.

NAAG continues to find new targets, from the tobacco litigation of the 1990s to the opioid lawsuits of today. While the opioid lawsuits begin to wind down, NAAG is now forming working groups on climate change and environmental issues like PFAS, eyeing a new generation of potential mass tort lawsuits.[7] Given the new NAAG focus on mass tort profit motive, it’s only a matter of time until they move into new areas of focus.

The following report provides additional information about the innerworkings of NAAG along with supporting background and research.

 

[1] Rachel M. Cohen, “The Hour Of The Attorneys General,” The American Prospect, Spring 2017.

[2] O.H. Skinner, “Payouts To Victims, Not Special-Interest Groups,” Washington Times, 3/3/21; https://www.washingtontimes.com/news/2021/mar/2/payouts-victims-not-special-interest-groups/.

[3] Daniel Fisher, “The House Tobacco Built,” Forbes, 8/14/08.

[4] Sean Ross, “Alabama Becomes First State To Leave National Association Of Attorneys General — ‘Going Further And Further Left’,” Yellowhammer News, 4/26/21.

[5] “Events & Training,” National Association Of Attorneys General, Accessed 1/27/22.

[6] “Janssen Settlement Agreement,” Office Of The Texas Comptroller, 7/21/21.

[7] “Clean Energy Issues Are On The Docket For State Attorneys General,” New York University, 10/3/19.



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From Legal Scholarship to Legal Advocacy: The Evolving Role of the American Law Institute in State Court Jurisprudence

|2022

Several years ago, the American Tort Reform Association (ATRA) began

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Several years ago, the American Tort Reform Association (ATRA) began to take note of a disturbing new trend; the once-esteemed American Law Institute (ALI) was evolving its role. No longer was it content to serve as an educational resource to state courts and the legal profession—rather it has begun to move into a new advocacy role outlining what the law should become.

This short paper outlines and highlights the adverse impact of this new ALI role on state court jurisprudence. The late Supreme Court Justice Antonin Scalia noted that the authors of the ALI’s flagship publications – its restatements – have, “abandoned the mission of describing the law and have chosen instead to set forth their aspirations for what the law ought to be.”

Here we outline the ALI’s agenda and highlight how the ALI’s new advocacy agenda threatens ATRA’s goal of a fair, equitable and predictable civil justice system.


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Recent Amicus Briefs

In re: McKinsey & Co., Inc. National Prescription Opiate Consultant Litigation

California|2022

(N.D. Cal., filed December 30, 2021): Urging the court to

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(N.D. Cal., filed December 30, 2021): Urging the court to dismiss complaints filed by political subdivisions of States that have already resolved the same claims against the same defendant in a global settlement. Arguing that the municipality complaints undermine the state’s sovereign role in protecting the interests of their residents and are precluded by res judicata and by the states’ releases. Also arguing that municipality litigation imperils global settlements and dilutes recovery in public-harm cases.

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Coates v. R.J. Reynolds Tobacco Co.

Florida|2022

(Fla., filed January 7, 2022): Arguing that under well-settled federal

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(Fla., filed January 7, 2022): Arguing that under well-settled federal and Florida law, a punitive damages award that is 106.7 times a substantial compensatory damages award is unlawful on its face.  Well-settled federal and Florida law requires that punitive damages must be tied to the specific harm proved in the case.

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