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Jewish World Review Nov. 18, 2002 / 13 Kislev, 5763

Joel Mowbray

Joel Mobray
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Consumer Reports

Trial lawyers vs. homeland security | Giving themselves a second chance to be on the receiving end of another game of Homeland Security whack-a-mole with President Bush, Senate Democrats are suddenly raising new objections to the bill that was supported by most of the House Democratic leadership last week--in what is likely a sly attempt to effectively kill the Homeland Security bill this year without actually voting against it.

After a deal had been reached with several Senate Democrats last week, the House on Wednesday passed a revised Homeland Security bill--not much different form the one it passed before the election--in order to avoid a conference committee, which is required anytime the two chambers have any differences whatsoever between their respective bills. Since conference committees invariably take a long time to complete--particularly during the holiday season when members do a large chunk of their annual globetrotting--any effort to change the Senate bill is simply a cloaked attempt to delay creation of the new department as long as possible, potentially even until the next Congress.

Senate Democrats' 11th-hour objections fall into two categories: 1) special perks for trial lawyers, and 2) minor technical corrections that would have the effect of triggering a much longer road to enactment. Why the two strategies? Knowing full well that favors for slick attorneys will fare no better politically than those for Big Labor, the Democrats want to have the fall-back position of obscure changes that, although substantively meaningless, would nonetheless force the House and Senate leaders to convene a conference committee to work out the "differences."

Goodies in the Democrats' care package for trial lawyers include an open season on manufacturers of vaccines and cutting edge technology used by the new department, as well as on airport screeners.

In the final House bill, which was supported by 87 Democrats, mercury-based vaccines would be treated the same as other vaccines that are already under the Vaccine Act Program--but that's apparently not good enough for Senate Democrats. Why not? Because that act doesn't line trial lawyers ' pockets. The program is simple: vaccines have a surcharge tacked on, and those levies go into a fund administered by the Department of Justice (DOJ). When someone is harmed by a vaccine, he or she goes to DOJ and receives money to cover any actual damages suffered.

The bipartisan House bill also provided protections for producers of cutting-edge technology used by Homeland Security, as a way to ensure that the new department isn't deprived of the latest innovations because of rabid trial lawyers. Although the House bill doesn't grant immunity to companies or cap fees for attorneys, it does afford the following safeguards: 1) lawsuits must be consolidated in federal court--saving companies otherwise wasted legal fees, 2) it limits recovery to compensatory damages, 3) plaintiffs must show that a company's actions or products had some actual connection to the injury suffered--known in legalese as "proximate cause", and 4) a defendant only pays non-economic damages in proportion to that party's liability.

Senate Democrats object to these obstacles placed in the way of ambitious ambulance chasers--even though they only kick in if companies buy the largest available insurance policies, which actually increases the odds of recovery for plaintiffs from companies that otherwise might go belly-up.

Airport screeners are the last object of trial lawyers' "affection". Unlike the rest of the aviation industry, airport screeners were left out of the partial liability shields contained in last year's Aviation Security Act. The House bill allowed the airport screeners, save for the much-maligned Argenbright Security, to receive the same immunity from punitive damages as every other sector of the aviation industry. But Senate Democrats are siding with the trial lawyers--not the 87 House Democrats who voted for the final bill last week.

Perhaps aware that the trial lawyers' wish list doesn't stand a chance in the post-election reality, Senate Democrats are also scrambling to dig up newfound technical changes in the bill--anything to force a time-consuming conference committee. Democrats are even pushing a patently silly idea: Forcing Homeland Security advisory committees to meet out in the open under the same "sunshine" rules that govern advisory committees to, say, the Department of Education.

Senate Democrats, in votes occurring most likely today, face two divergent paths: either they can side with President Bush, public opinion, and the San Francisco liberal-cum House Minority Leader Nancy Pelosi (D-CA), or they can come to the aid of their biggest backers: trial lawyers. If they choose the road less traveled, even fewer voters will likely follow them in 2004.

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© 2002, Joel Mowbray.