Product Liability Reform: Take It to the Hill

Jan. 29, 2007
The prospects for tort reform at the federal level may be more remote with the Democratic Party in control of Congress, but it’s too early to know for sure.

This article is a special Web feature sidebar to the January 2007 feature "Wholesale Liability."

As he has done so many times, Jim Anderson, vice president–government relations for the National Association of Wholesaler-Distributors (NAW), Washington, D.C., will head up to Capitol Hill during the 110th Congress and seek to open conversations with Senators, Representatives and their aides on the subject of product liability and tort reform. This time, he’s going with no preconceptions about how his message will be received.

With the Democratic Party now in control of both chambers of Congress, the general assumption among pro-business interests is that tort reform is no longer a viable subject for legislation. After 14 years of Republican control in which tort-reform measures repeatedly passed in the House of Representatives only to stall in the Senate, it’s easy to assume that tort-reform efforts have missed their window of opportunity.

Anderson isn’t ready to concede. “It’s easy to look at it on the surface and say, ‘it’s out the window,’ and indeed it may be,” he says. “But there are a lot of people left standing up there who want to do something on this issue. I don’t want to write this off until we have a deeper appreciation for where people on both sides of the aisle are coming from. We don’t want to tilt at windmills or waste resources, but we can build a foundation and get a sense of where the real members are in real time.”

Regardless of the change in control of Congress, Anderson says the need to set some kind of limits at the federal level on the liability of non-manufacturer resellers is as urgent as ever. Relying on state laws has created a situation where some distributors must deal with 51 or more different sets of rules determining their exposure to litigation.

One facet of the new Congress that gives Anderson some cause for hope is that the new Democratic majority includes a much larger group of centrist, moderate Democrats. The Senate has always been the more difficult challenge for lobbyists because its rules require 60 votes on most procedural matters, so very little happens there without bipartisan support. Even during the period when Republicans held 54 votes, tort reform was repeatedly defeated in the Senate by a combination of Democrats seeking to preserve plaintiffs’ ability to win large settlements and Republicans concerned about taking more power away from the states.

By his calculations, depending on the issue, there may now be 30-60 votes available in the center that could be swayed to support some sort of reform, Anderson says.

He’s not holding his breath, however. With 14 years of pent-up demand for legislation on causes central to the Democratic Party platform—and with many members drawing strong financial support from organizations of trial lawyers opposed to tort reform—getting product liability onto the agenda would be a feat in itself.

Anderson doesn’t think he’ll have to do much education on the basic issues involved, however. “This issue’s been around a long time. People know the issues—the federalism issues, the need for economic efficiency. It’s more a political question: ‘What’s within the realm of the possible? What are you willing to come to the table on?’ Those are the questions we’re trying to get answered. We want to find out what they want to know to get a conversation started.”