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Tort reform deal launched in House

Both sides claim progress

A Virginia tort reform package has been launched from a House of Delegates subcommittee after trial lawyers and business groups hammered out a compromise on five key bills.

Separately, the bills may look like so much tinkering around the edges of tort reform. But taken together, they recalibrate personal injury practice in Virginia. Given the “global” deal forged among political players and lawmakers, the package is expected to win approval from the full House. Its fate in the Senate is less clear.

There’s been “a lot of heavy lifting,” said Del. Sal Iaquinto, R-Virginia Beach, in introducing the package to the House Courts of Justice civil subcommittee Jan. 23. He commended representatives of the Virginia Trial Lawyers Association, the Virginia Chamber of Commerce and the Medical Society of Virginia, among others, for their hard work to reach an agreement.

Del. Greg Habeeb, R-Salem, previewed highlights of the reform package:

  • Depositions may be used for summary judgment in very limited circumstances – only to test punitive damages claims in non-DUI cases – i.e., for intentional torts or really bad negligence cases.
  • Requests for admission can be based on information derived from depositions
  • New restrictions on permissive venue would prevent forum-shopping for lawsuits against big businesses
  • Defendants would have an easier standard of proof to recover expenses after a plaintiff’s last-minute nonsuit
  • Landowners would enjoy added protection in suits by injured trespassers
  • Judges may privately examine a plaintiff’s certification of a med-mal expert, for good cause shown

The centerpiece of the package is a pair of proposals that amount to a crack in the 40-year wall barring the use of depositions for summary judgment motions in Virginia civil practice. One proposal would allow depositions for summary judgment on claims for punitive damages in non-DUI cases.

Another measure would allow requests for admission derived from deposition testimony to be used for summary judgment.

“That will clearly help in those instances where you have a truly baseless claim,” Robert W. Shinn, a lobbyist for the Virginia Alliance for Tort Reform, told Virginia Lawyers Weekly.

The bills in the package include:

  • HB 1708 – Habeeb’s bill will be amended to provide for depositions only for summary judgment motions aimed at punitive damage claims in non-DUI cases. That provision therefore would be limited primarily to intentional tort cases and “really bad negligence cases,” in Habeeb’s words. The bill also will be amended to allow requests for admissions based on deposition testimony. House Bill 1374 has been rolled into HB 1708.
  • HB 2004 – Clarifies that a landowner ordinarily owes no duty of care to a trespasser except to avoid injury by an intentional, willful or wanton act. This “freezes everything” on the duty of care as of the effective date of the act, Shinn told the subcommittee.
  • HB 1618 – Limits “forum shopping” by allowing a plaintiff to sue a business anywhere it conducts “substantial business activity” only if there is a “practical nexus” to the forum. The bill became the “sticky wicket” in negotiations,  Iaquinto told the subcommittee.
  • HB 1433 – Allows parents’ claims for a child’s medical expenses to be brought within the same time frame as the child’s claim for injuries. “Where there have been two causes of action when a child is injured, one the parents have for the child’s medical expenses, with a five-year statute of limitations and a different statute of limitations for all other damages, now there is just one statute of limitations,” said Charles J. Zauzig III, past president of the VTLA, who helped negotiate the deal.
  • HB 1709 – Removes hurdles for a defendant to seek reimbursement for some expenses incurred when a plaintiff takes a nonsuit within a week of trial.
  • HB 1477 – Clarifies that a health care provider can use entries in a deceased patient’s medical chart to corroborate the provider’s testimony. The bill relaxing Virginia’s “deadman’s statute” would apply to any defendant using business records, not just health care providers.
  •  HB 1545 – A judge would be allowed to privately review a medical malpractice plaintiff’s expert certification upon a showing of good cause. Medical malpractice plaintiffs are required to obtain written expert certification to validate their claims.

Under the negotiated deal, several tort reform bills were allowed to die in this session. They include:

  • HB 1676 and HB 1754 which would have shortened the time period for service of process after the filing of a lawsuit,
  • HB 1773 – Del. David Albo’s bill to increase the defense expenses available for reimbursement when a plaintiff takes a nonsuit within two weeks of trial,
  • HB 1552 to increase the cap on punitive damages from the current $350,000 to $675,000,
  • HB 1434 to create a rebuttable presumption for lost income damages for accident victims who are children or students up to age 23.
  • HB 1551 to start the statute of limitations period for claims involving medical implants, toxic torts and pharmaceuticals at the time the victim knew or should have known of the injury.

“The legislative initiative included in the package of bills is a reasonable compromise that makes common sense changes to civil justice statutes,” Shinn said, adding, “We think there was meaningful progress on some of the key issues.”

“I’m not sure that anybody’s happy,” Habeeb said. “Both sides got a little of what they were looking for.”

“Those who believe the tort system needs reform can legitimately say they have won improvements,” Habeeb said, while others can claim they prevented major change to an already fair process.

Surviving the process were three bills advanced by the Medical Society of Virginia after negotiations with the Virginia Trial Lawyers Association. MSV general counsel W. Scott Johnson said he had reached agreement with the VTLA before the session on those measures.

“We worked mightily to make sure our three bills on expert witnesses, on nonsuits and on the deadman’s statute did not get taken hostage, held up or had anything adverse put upon them,” Johnson said.

There was no pre-session negotiation on the other measures. Participants described an intense effort behind the scenes to work out a compromise during the Assembly short session. “The way the General Assembly works, it forces the parties together to try to resolve their differences. Sometimes that doesn’t work. This time it worked, and that’s a good thing,” Shinn said.

Habeeb emphasized the deal was intended to put the tort reform issue to rest for the time being.

The tort reform effort forced a lot of people to perform a “very critical analysis of the tort system, from top to bottom,” Habeeb said. The study reinforced his belief the system is sound. “I and others will jealously guard that system,” he said.

– Additional reporting by Deborah Elkins

UPDATED: This story was updated on Jan. 24 to clarify descriptions of the bills regarding summary judgment and venue.

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