House Liability Reform Package Critical Step in Countering Lawsuit Abuse
HARRISBURG –Pennsylvania Coalition for Civil Justice Reform (PCCJR) Executive Director Curt Schroder applauded today’s announcement of a liability reform legislative package announced by Representative Torren Ecker and other members of the House Republican Caucus. Pennsylvania’s civil justice climate has been on a downward trend. Judges legislating from the bench coupled with pro-plaintiff legislation have expanded the scope of liability and damages in the state. This litigation reform package will go a long way toward establishing a reasonable litigation climate by reversing the impact of judicial decisions that tilt the scales of justice against employers and health care providers in Pennsylvania. These decisions and laws have impacted Pennsylvania’s economy, costing the state jobs, impacting taxes, and increasing costs for consumers.
The Commonwealth’s reputation as a having a highly damaging litigious legal climate is widely recognized. In fact, over the past several years the state has repeatedly ranked as one of the country’s worst judicial hellholes by the American Tort Reform Association.
“For too long, Pennsylvania’s designation as one of the nation’s top judicial hellholes has served as a red flag – sending jobs and economic opportunities to other states,” Schroder said. “Judicial legislating from the bench coupled with pro-plaintiff attorney legislation have expanded the scope of liability in the Commonwealth at the expense of taxpayers and job creators. This liability reform package addresses some of the Commonwealth’s most pressing liability issues. These bills will help to right-size our civil justice system, bringing greater fairness and predictability.”
The legislative package includes:
- Fair Share Repair Act (HB 2390) – The Fair Share Act ended years of fundamental unfairness which often required a minimally at fault defendant to pay an entire verdict. Under the Fair Share Act, a defendant is only required to pay for the percentage of a verdict corresponding with its percentage of liability, with certain exceptions. Over the years, activist judges have chipped away at the tenants of the Fair Share Act – limiting its scope and expanding liability in the Commonwealth. This bill will restore the Fair Share Act to its original, equitable, and carefully balanced original meaning.
- Cap Contingency Fees – Limiting exorbitant profiteering by plaintiffs’ attorneys will maximize recoveries for truly injured plaintiffs while discouraging frivolous lawsuit filings by less scrupulous attorneys. This proposal would implement a sliding scale of contingency fees: 33.3% of the first $100,000 in verdict; 25% of the subsequent $500,000; 15% the remainder of verdict awards (i.e., above $600,000).
- Constitutional Amendment to remove exclusive jurisdiction of the Pennsylvania Supreme Court over practice of law and related areas (HB 1124) – The Pennsylvania Supreme Court has exercised its vast control over litigation through its assertion of exclusive constitutional authority over all judicial proceedings. This has effectively blocked the policymaking branches of government from establishing policy in many important areas such as venue. This proposed Constitutional Amendment would remove from Article V the exclusive authority of the Supreme Court over power to prescribe general rules governing practice, procedure and the conduct of all courts and the practice of law. While the Supreme Court would retain their powers in the absence of legislation, the General Assembly would gain the power to pass laws governing any of these subjects.
- Regulating third party litigation funding to protect consumers – Third party litigation funding describes circumstances where an investor is given certain rights to the plaintiffs’ recovery. Transparency is needed because the existence of a third-party funder is information not currently available to the defense. This bill requires TPLFs to register with the Department of Insurance in order to do business in Pennsylvania. The bill will require any third-party funding contract to include statements and disclosures so that injured plaintiffs who sell interests in the outcome of their cases are fully informed about the nature of the transaction. The goal is to protect those injured plaintiffs from unfair business practices. Finally, TPLFs will be barred from enforcing a third-party funding contract if the terms of such a contract are not disclosed to all parties in any litigation in which the TPFL has a financial stake.
- Amend the personal jurisdiction consent statute for out-of-state corporations – Under state law, an out-of-state corporation is subject to personal jurisdiction in Pennsylvania for a cause of action that arises completely in another state, simply by registering to do business in the Commonwealth. Pennsylvania is the only state in the nation that has this onerous requirement as a condition of doing business. This legislation amends the statute to omit consent to jurisdiction as a condition of registering to do business.
- Restoring fairness to medical malpractice – In 2022, the Pennsylvania Supreme Court rescinded a nearly 20 year rule to expand the eligible counties in which a medical malpractice action may be filed. As a result, there has been a significant increase in the number of medical malpractice cases filed in plaintiff-friendly counties such as Philadelphia. This bill will propose an amendment to the PA Constitution to restore the limitation of venue in medical malpractice cases to the county where the alleged injury occurred.
- Strengthen statutory confidentiality protections for peer review – This legislation would broaden, simplify, and clarify the confidentiality provisions of the Pennsylvania Peer Review Protection Act (PRPA) and MCARE Act in order to provide healthcare providers and facilities with clear guidance regarding confidentiality. This will encourage more open and incisive communications concerning adverse events, so as to improve the delivery of healthcare to the public.
- Introduction of seat belt evidence – This legislation modifies the existing rule to allow for the introduction into evidence of a lack of seat belt use to establish comparative negligence, assumption of risk, causation or any other defense in an automobile personal injury lawsuit.
- Website accessibility litigation – Under the ADA, businesses open to the public must make themselves accessible to individuals with disabilities. This accessibility extends to websites where consumers with different disabilities may not be able to access website content. The ADA, however, does not have specific requirements for what constitutes an accessible website, and there are no other laws or regulations providing guidance – particularly to small business
owners. Some professional plaintiffs have taken advantage of this situation by finding small websites without certain accessibility features and simply filing lawsuits to force monetary recoveries without ever fixing the accessibility issue. This legislation establishes a process by which a consumer must notify a website owner in writing of a website accessibility barrier prior to filing a lawsuit and give the website a safe harbor of 60 days in which to cure the barrier prior to filing a lawsuit.
“Reforms to Pennsylvania’s legal climate are long overdue,” Schroder added. “I commend the House members – and particularly Rep. Torren Ecker, for spearheading this important effort.”
Curt Schroder
Executive Director
