Louisiana legislators, many of whom sling around “trial lawyer” as a pejorative, have launched what has become the largest assault in 20 years on access to the civil court system for individual victims.
The business community and their insurers call the two dozen or so bills “tort reform.” The lawyers, who represent plaintiffs, call the measures “corporate immunity.”
Gov. Bobby Jindal repeatedly places “cracking down on these frivolous lawsuits” as one of his three goals in the 2014 general session of the Louisiana Legislature, which adjourns in eight days. He says changing Louisiana’s “litigious environment” would enhance his efforts to attract corporations — and the jobs they bring — to Louisiana.
Robert E. Kleinpeter, a Baton Rouge lawyer who chairs the legislation committee of the Louisiana Association for Justice, says this session reminds him of the late 1990s when the Louisiana Legislature made sweeping changes to how civil trials are filed and conducted.
“The things we are seeing today are the same things we saw a decade ago,” Kleinpeter said. “It’s like rust never sleeps. Corporations are unrelenting on their attacks on the civil justice system. They don’t want to be fair.”
Quoting a scene from “To Kill a Mockingbird,” Kleinpeter said American courtrooms are supposed to be the one place where a person’s wealth and standing does not have any influence. “The kinds of bills being pushed, they are punitive. They punish people for being poor,” he said.
Stephen Waguespack, who heads the Louisiana Association of Business and Industry, one of the state’s most influential trade groups, counters that these civil justice laws must evolve as other states assess their business environment and legal climate. Louisiana needs to keep up.
“This is the nature of tort reform. This is not a one and done type of issue,” Waguespack said.
What creates jobs is the willingness of companies to invest. “Our legal climate must improve for us to take advantage of this growth potential,” Waguespack said.
LABI and the Association for Justice, which represents plaintiffs’ lawyers, are not involved for all the bills being considered. But they are involved in many and their arguments are repeated by legislators for both sides.
Thomas Cooke, the head of Saratoga Resources Inc., an oil and gas firm based in Houston, says his company organized a roundtable in August 2013 that was attended by business executives, bankers, scholars and trade associations.
“Our time has been more and more occupied by the litigious environment in Louisiana,” said Cooke, whose website includes a photograph of him shaking hands with Jindal. “We don’t want to make investments due to this litigious environment.”
Legislators have considered about two dozen other measures dealing with civil lawsuits. The bills address complex legal issues, often changing only a word or a phrase. But the impact is sweeping.
Most of the attention has focused on bills that would reach back and kill or undermine already filed lawsuits seeking to have courts force the energy industry to pay for cleaning up and repairing damage caused over the decades by prospecting and producing oil and gas.
But those aren’t the only measures the business community and the legal community have fought over.
Efforts to lower the threshold that would require a jury trial, rather than let a judge decide the issues, stalled in committees. So did bills that would limit “uninsured motorist coverage” to relatives and the person who bought the policy, rather than everyone in the car at the time of the accident; as well as “loser pays” measures.
House Bill 118 started out wanting to change state law that would allow a plaintiff without automobile insurance to forego some of the damages they would receive from injuries in a car wreck, plus require the loser to pay attorney fees. The “loser pays” portion of the bill was stripped off, but a plaintiff without insurance is penalized.
HB118 still would keep such a plaintiff from collecting the first $15,000 of damages for bodily injury and the first $25,000 for property damage in a lawsuit arising out of a motor vehicle accident.
Also headed to Jindal is Senate Bill 667, which would clarify how landowners could file “legacy lawsuits” seeking to clean up years-old environmental damage.
One of the changes that both sides approve involves “summary judgments.” Part of the changes made in the late 1990s, allowed a court, early in the case, to decide what evidence and arguments are relevant and substantiated. Often lawsuits are dismissed at this point.
Just how the courts conduct these reviews has evolved over time. Senate Bill 373 would put a lot of these ad hoc developments in the law and thereby ensure that litigants follow roughly the same procedures.
SB373 receives a House committee hearing this week and could be finally passed by week end.
The Senate is expected to take up House Bill 799, which would impose restrictions on how the state attorney general hires outside lawyers to sue on behalf of the state.
Also the full House this week is expected to vote on Senate Bill 469, which would kill the lawsuits filed last year by Southeast Louisiana Flood Protection Authority-East against 97 oil and gas companies claiming environmental damage to the marshes.
Debate is expected to be long and loud.
There will be no legislation that would address lawsuits filed by parish governments against oil and gas companies for damage in the wetlands. Those bills have been sidelined by opposition from local elected officials and won’t likely reemerge in the waning days of the legislative session.
Disappointed by that decision is Denis H. Baillaregeon, president of the Destin Operating Company in Lafayette, one of the energy companies named as a defendant in the lawsuit filed by Jefferson parish.
Destin drilled one 2,500-foot deep well a few years ago in the Hackberry Oyster Seed Ground. The well didn’t produce enough. It was capped, the site cleaned up, everything was fine.
Then his company was sued with no specific allegations. His company was one of many that had a permit to drill in Jefferson Parish.
Eventually, he said, his company will be cleared of the lawsuit. In the meantime Baillaregeon says he will spend innumerable hours and countless dollars dealing with the lawsuit.
“We have no in-house counsel, no staff to handle this,” Baillaregeon said. “It ties up my time. I didn’t do anything wrong. I’m not accused of doing anything wrong.”
“It’s been my experience that when the facts are against the plaintiffs, the plaintiffs will lose,” said Kleinpeter with the Louisiana Association of Justice. “Big business wants to keep people in their place. They don’t want people to have an equal footing the courtroom.”