Trial Lawyers Come to Albany

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun
The New York Sun
NEW YORK SUN CONTRIBUTOR

If “West Side Story” is a sanitized version of “Romeo and Juliet,” then the annual legislative standoff between trial lawyers and small business owners tomorrow in Albany promises to be an even less bloody dance routine than the one Jerome Robbins choreographed. Taking history as a guide, the legislative street fight between these two gangs will be long on rhetoric and short on fatal wounds for either side.


Each year, the two groups wage a war of words over proposals that would create new civil justice laws or repeal old ones. On one side are the business owners, municipal leaders, doctors, and others who say current state law makes it too easy not only to sue, but to sue big. On the other side are the lawyers who argue these laws ensure universal protection. They say the insurance industry, not lawyers, are really to blame for high business costs.


This year, trial lawyers are fighting for two legislative changes that would make it easier to sue and against three proposals that would limit the size and frequency of liability suits. According to people who are familiar with the negotiations, the trial lawyers are not likely to win any new concessions this year or to lose any ground. They say the standoff, this year as in years past, is likely to result in a draw.


What changes do lawyers support? The first is a bill that would lift the statute of limitations on medical malpractice claims. New York currently allows patients two and a half years to file suit in such cases. Trial lawyers want that changed to two and a half years from the time a patient becomes aware of a supposed negligent act. The lawyers also support a law that would allow plaintiffs in wrongful-death suits to collect non-economic damages.


Neither law is expected to pass the scrutiny of the majority leader of the state Senate, Senator Joseph Bruno, a Republican from Rensselaer. The Republicans who run the Senate entertained the proposal to allow for non-economic damages in wrongful-death suits about 10 years ago, and the Assembly has passed it once. The proposal to lift the statute of limitations on malpractice suits has a similar legislative history. Mr. Bruno has made it clear to colleagues the proposal will not pass on his watch.


As for the proposals plaintiffs’ lawyers will be fending off, one involves displacing the liability to consumers from manufacturers in accidents involving leased cars. The state Court of Appeals last week cited New York’s so-called vicarious liability law in the case of a car accident involving a diplomat. The court said an injured passenger in cases where the driver claims immunity should be able to sue the automaker instead. Plaintiffs’ lawyers applauded.


Lawyers are also fighting a proposal that would limit suits against obstetricians to $250,000. The bill would also create a separate fund for larger suits up to $2 million and impose penalties on expert witnesses in such malpractice cases whose testimony is later found to be flawed. The Senate, which is thought to be easier to convince on tort reform, has not passed a bill that would cap suits in years. Another obstacle for doctors: The lobbyist for the trial lawyers in the Senate, David Dudley, is a former counsel to Mr. Bruno.


That leaves the Scaffold Law, common shorthand for sections 240 and 241 of the state labor law that dictates responsibility for building site injuries. Under the law, building-site operators are liable even for injuries caused by worker negligence. The building industry has sought for years to have the law repealed. Senator Dale Volker, a Republican from western New York, has made its repeal a personal mission. His colleagues are not likely to support those efforts, however, because support for Republican senators among trade union members is strong.


Money plays a part in whether legislation is advanced, and the trial lawyers know it. Their professional association, the New York State Trial Lawyers Association, claims a membership of 4,500 and routinely spends roughly the same amount on lobbying and the political campaigns of legislative leaders as giant unions like New York State United Teachers. United Teachers, with 525,000 members, reported $1.152 million in lobbying expenses last year. The trial lawyers spent $1.069 million.


Still, a lobbyist for the trial lawyers, Gene DeSantis, said the reason small business owners and the others who promote tort reform are not likely to advance their legislative agenda is that they have failed to marshal evidence that lawsuits, not cycles in the insurance industry, are the reason for high insurance premiums. Mr. DeSantis said his opponents place a higher priority on rhetoric than data. “We don’t deal in rhetoric,” Mr. DeSantis said. “We deal in facts.”


Perhaps. But trial lawyers have also depended on far more than facts in their successful efforts at freezing the legislative changes small business owners have sought for years. By playing what the legislative director of the New York Political Interest Research Group, Blair Horner, called “major league political baseball” and pouring hundreds of thousands of dollars into political campaigns and lobbying, New York’s lawyers are making doubly sure that the data they marshal gets a close look once it reaches a legislator’s desk.



Mr. McGuire is the Albany correspondent of The New York Sun.

The New York Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


The New York Sun

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