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Civil Justice Reform.
Louisiana’s liability exposure is a major concern to individuals, government, professionals and businesses, both large and small. We know for Louisiana’s economy to improve, it is necessary that its civil justice system improves. We will defend the meaningful reform made in 2020 and continue to fight to further improve Louisiana’s judicial system.
Major Issues.
Government-Sponsored Litigation
LABI Position: Oppose efforts by governmental entities to use litigation to harass businesses when engaged in lawful activities. Support legislation that curbs lawsuits by governmental entities, independently or with others, particularly entrepreneurial outside counsel, which exploit laws to punish businesses acting lawfully.
Judicial Transparency
LABI Position: Support transparency, ethics and efficiency in the budgeting and operations of Louisiana’s courts. The principle of judicial independence as a separate branch of government is an important and historic American tenet, but independence and accountability can be promoted simultaneously. We should expect the same level of accountability and transparency within the judicial branch as we do from the executive and legislative arms of state government.
Judicial Reform
LABI Position: Support programs and legislation to foster judicial excellence, including, but not limited to, consolidating districts and court functions, modernizing our judgeships to reflect the current needs of the state and its population, and creating a centralized electronic filing system for court documents.
Current Issues.
Abrogation of Contracts: Oppose legislation permitting the abrogation of existing contracts.
Appeal Bond Caps: Support legislation setting reasonable limits on suspensive appeal bonds.
Asbestos Bankruptcy Transparency: Support legislation that would require plaintiffs to file with and disclose recovery from asbestos bankruptcy trusts to prevent double recoveries for the same injury and protect defendants’ rights.
Bifurcation of Trials: Support legislation to eliminate the requirement that all parties to a civil suit consent to the separate determination of liability and damages.
Multi-Party Litigation Reform: Support appropriate class action, mass joinder and multi-district litigation legislation.
Civil Justice Reform: Support legislation to improve the fairness and predictability of the civil justice system in Louisiana. Defend the reforms previously enacted to improve Louisiana laws with emphasis on Louisiana’s policy against awarding punitive damages unless authorized by statute, joint and several liability, as well as other reforms, including, but not limited to the limitations placed on products liability and strict liability actions, and the availability of motions for summary judgment. Reforms in the ‘90s were based on the premise that those at fault should only be held responsible for the harm they caused. Additionally, the retroactive application of liability against Louisiana entities and individuals is unacceptable, and directly contravenes the Louisiana Civil Code.
Contingency Fee: Oppose legislation that would authorize state and/or local governments to enter into contingency fee contracts or to employ outside counsel to be paid by the defendants or the state from the proceeds of awards and/or settlements. Support additional legislative oversight.
COVID-19 Liability Protection: Defend the 2020 legislation enacted to prevent liability exposure due to the pandemic.
Deceptive Drug Lawsuit Advertisements: Support legislation to help bring an end to misleading lawsuit advertisements run by plaintiffs’ lawyers and non-attorney advertising firms, seeking potential plaintiffs for lawsuits.
Direct Action: Support legislation to reform or repeal Louisiana’s unique direct-action statute, which permits a plaintiff to sue an insurer for coverage directly and to outlaw presentation of evidence of liability insurance to the jury in a direct action. Support legislation which limits utilization of a direct action against an insurer to an enumerated set of exceptional circumstances.
Discovery: Support legislation limiting “fishing expeditions” for extraneous information in lawsuits and to ensure protections against abusive discovery, including electronic discovery.
Double Recovery: Support legislation to eliminate double recovery of damages and defend 2020 reforms that brought down the excess cost of recoverable medical expenses, as well as support further efforts to limit the recovery of medical expenses to the amount actually paid or to be paid. Support legislation which directs that only medical bills that are actually paid or owed by the claimant are communicated to the jury, such that phantom medical expenses or exorbitant charges are excluded from evidence.
Insurance-Related Reform: Support legislation that seeks to control insurance-related costs while providing market incentives for more insurers to stay in or come to Louisiana, including, but not limited to reforming existing “bad faith” laws governing the good faith and fair dealing requirements for insurance companies; taking measures to reduce inflated property damage claims; and reducing the insurance tax burden to a level consistent with other states in the South. Support a reasonable prescriptive period for the assertion of bad faith claims.
Judicial Activism: Support legislation that will prohibit the judicial creation and/or recognition of a new cause of action for damages. Oppose legislation creating new causes of action in Louisiana.
Jury Trial Threshold: Defend a citizen’s right to a civil jury trial by protecting the 2020 reform lowering the monetary threshold of $10,000 and support the requirement that all elements of an award, including attorney fees, penalties, costs and interest, be included in the existing, or any lower, judicial threshold.
Lawsuit Lending: Support legislation that would provide for reasonable consumer protections in consumer lawsuit loan transactions, including a limit on the maximum loan finance charges allowed in consumer lawsuit loan transactions. Oppose any legislation or other actions which would weaken such consumer protections.
Legacy Lawsuit Reform: Support legislation that sets forth appropriate damages in lawsuits related to oil field remediation.
Disclosure of Litigation Financing Arrangements: Support legislation that requires plaintiffs to disclose contractual arrangements with third-party financing companies in an effort to ensure transparency and temper the trend in utilizing third-party financing companies to float a plaintiff’s medical and/or litigation-related expenses.
Offer of Judgment: Support legislation to encourage settlements within a reasonable range and to discourage plaintiffs from overvaluing their cases. Because of the wording of the Code of Civil Procedure article that deals with this subject, if the plaintiff does not win a “judgment” (in other words if the defendant wins) then the offer of judgment is not applicable. This language should be changed so that if the defendant is granted a favorable judgment after the offer of judgment is rejected, defendant is entitled to costs.
Piercing the Corporate Veil: Support legislation that prohibits the application of the single business enterprise theory to extend liability beyond a separate entity.
Prescription: Oppose efforts to lengthen the time frame in which lawsuits can be filed. Support legislation to re-establish, expand and strengthen prescription and other traditional defenses.
Product Liability: Support legislation that affords reasonable protection to manufacturers and sellers of legal products. Ensure that manufacturers are not unfairly exposed to liability for products they neither made nor sold.
Professional Liability: Support legislation to reform professional liability. Support health care provider and insurer efforts to refine and improve the medical professional liability system, while opposing judicial attempts and unilateral legislative attempts to remove or raise the medical malpractice cap.
Property and Casualty Insurance: Support measures that improve the availability and affordability of private insurance in a competitive market, revise the onerous and ambiguous laws that make it impossible for policyholders to resolve a claim with their insurer without resorting to litigation, and oppose measures that hinder the stability of the private insurance industry. Oppose any erosion to positive laws that have been enacted, and support measures that further clarify the rights and duties of both policyholders and insurers to encourage a stable and healthy private insurance market.
Subsequent Purchaser: Oppose legislation which would create a right of action to assert claims for environmental damages that were caused or sustained prior to acquisition by a purchaser of the property.
Substance Exposure Liability: Support appropriate legislation that ensures that liability based on exposure to allegedly injurious or hazardous substances including, but not limited to, asbestos, mold and silica, is supported by reliable scientific evidence, and that monetary awards for exposure compensate only to the extent of injuries actually sustained. Support appropriate legislation that would establish medical criteria that separate the sick from those who are not and compensate only those who are sick. This legislation would guarantee those who are healthy have their day in court if, and when, they become ill. Support legislation to require a plaintiff to provide information substantiating the claim against a specific defendant at the time of pleading.
Venue: Support legislation that sets forth appropriate venue rules in lawsuits, including class action, multi-party, and toxic tort cases.
Ongoing Policy.
Contractual Transfer of Tort Liability: Educate LABI members about liability issues and insurance coverage problems associated with contractual transfer of tort liability. Study possible solutions to problems created by contractual transfer of tort liability.
Expert Testimony: Work with appropriate branches of government to resolve problems arising from the admissibility of certain opinion testimony by witnesses presented as experts, and support legislative efforts that require disclosure to the parties and fact finder of the medical experts’ historical rate of medical procedures recommended versus medical procedures actually performed.
Interpretation of Laws: Support efforts to clarify the standard of review of interpretive laws which seek to clarify legislative intent to preserve the separation of powers and support efforts to interpret existing laws consistent with the legislative intent.
Liability Insurance: Support legislation to reduce liability costs.
Personal Responsibility: Support legislation to encourage the use of safety devices by allowing introduction of evidence of their non-use/misuse to establish comparative fault.
Pre-judgment Interest: Support efforts to reform pre-judgment interest.
Tort Defense: Oppose legislation expanding exposure of individuals, professionals and businesses to new causes of action or unreasonable or excessive judicial awards.
Contacts.
Lauren Hadden serves as Director of the Civil Justice Reform Council. In this capacity, she handles liability and tort reform issues, as well as property and casualty insurance-related matters.
Lauren Hadden
Director, Civil Justice Reform Council, LABI
(225) 928-5388
laurenh@labi.org
Harry J. “Skip” Philips, Jr.
Chair, Civil Justice Reform Council
Taylor Porter, LLP
(225) 381-0276
Skip.Philips@taylorporter.com
