Pa. Court Strikes Down ‘Deep Pockets’ Tort Reform

July 27, 2005

A Pennsylvania court has ruled unconstitutional a key component of tort reforms enacted in 2002. Commonwealth Court ruled that a measure that abolished joint and several liability is invalid because it was not germane to the DNA testing legislation it was attached to.

The tort reform part of the law, Act 57, was challenged by Democratic House Minority Leader H. William DeWeese and Democratic Whip Mike Veon, who hailed the decision.

Act 57 repealed the state’s joint and several liability rule under which each defendant can be held responsible for the full amount of damages, even if found responsible for just a small percentage of the damage. Under the reform, defendants could be held responsible for damages only in proportion to their share of the blame.

Pennsylvania law requires that legislative acts address a single subject. The court noted that, in order to pass muster, each subject in an act must be “germane” or bear a “proper legislative relation” to the other subjects in the act. While the court agreed that this standard is not a strict one, Senior Judge James R. Kelley also said that the tort reform Act 57 did not satisfy it when it was included as part of a bill (Chapter 47) whose main purpose was to require DNA testing of sex offenders.

The July 27 order reaffirmed what the court said in May 2003 when it first addressed the issue:

“We cannot say that requiring DNA samples from incarcerated felony sex offenders bears a ‘proper relation’ to joint and several liability for acts of negligence. While the expungement of a DNA record may arguably relate to the ‘business of the courts,’ Chapter 47’s main purpose is to assist in the investigation and apprehension of criminals. The germane standard is not a high one, but Act 57 does not satisfy it.”

The tort reform measure, also known as the Fair Share Act, was inserted into the bill dealing with DNA sampling of sex offenders that easily passed both the House and Senate, and was then signed into law by then-Gov. Mark Schweiker in June 2002.

The joint and several liability law that was targeted by the reform has become known as the “deep pocket” rule because critics say it has turned lawsuits into searches to find the most financially lucrative defendants.

In Harrisburg, Democratic leaders DeWeese and Veon praised the decision, maintaining that the issue was never properly discussed in the legislature.

“This law was one of the worst examples of what one-party rule can do to the rights of Pennsylvania’s citizens, and we are very pleased that the court agreed and overturned this unjust law,” they said in a statement.

DeWeese said Republicans used “legislative tricks to prevent a real debate on the merits of the bill to change the joint and severability law in the Commonwealth. They arrogantly shut out Democratic attempts to amend their bill. This time their arrogance caught up with them.”

Veon said the joint and several liability law was unfair. “We argued in the legislature that unfairly preventing citizens from suing corporations that cause injuries to the public has nothing to do with defending the rights of crime victims through DNA testing, yet the Republican House joined with the Republican Senate to knowingly endanger those rights, and they pushed their bill through where it was signed by a Republican governor. Thankfully, the court stood up and joined us in defending the state constitution,” Veon said.

Democrats said they do not expect this is the end of the matter, and they are probably right as Republicans promised to raise the issue again, positioning it as a jobs-saving measure.

House Majority Leader Sam Smith (R-Jefferson) vowed that the House would consider new legislation this fall.

“The Fair Share Act or joint and several liability is commonsense legislation aimed at saving jobs. Our intent was and is to protect every citizen’s right to sue, while preserving the concept of ‘responsibility matches fault,’ ” Smith said.

He said the House would work with the Senate and Gov. Edward Rendell, a Democrat, to “protect the rights of those who can be dragged into court by lawyers searching for ‘deep pockets’ and bringing lawsuits against those minimally responsible, or not responsible at all.”

Smith argued that that these lawsuits cost jobs. “Employers become afraid to expand or introduce new products for fear of being sued,” he maintained.

Senate Majority Whip Jeff Piccola, R-Susquehanna Twp., expressed his disappointment in the court’s ruling. “This law represented the first meaningful tort reform in more than 30 years, which is why it was considered a major element in dealing with lawsuit abuse,” he said. “Striking this law down is a major obstacle for lawsuit-abuse reform efforts in Pennsylvania, including addressing the current medical-malpractice crisis. The court’s ruling is yet another setback for all Pennsylvanians.”

Gov. Rendell, a Democrat, has said he supports some changes in joint and several liability.

To date, the 37 states have enacted some form of joint and several liability reform legislation.

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