Most of us are members of the American Bar Association. Some of us are more active than others. At one extreme, Bexis has been in what the ABA calls “leadership,” as editor of the Mass Torts Newsletter, for some 15 years. While some ABA committees, such as Bexis’ Mass Torts, pursue a consensus approach to plaintiff/defendant issues, evidently others do not.
In particular, we’re concerned about blatant pro-plaintiff bias in an ABA committee we frankly hadn’t heard of before the other day, called the Standing Committee on Medical Professional Liability. We looked it up. That Committee’s “responsibilities” are stated in §37.1 of the ABA’s Constitution & Bylaws:
(a) To review pending and future proposals relating to medical professional liability in
light of existing ABA policies;(b) To identify policy areas, if any, as to which new policy is needed; and(c) To serve as a focal point for activity within the ABA on issues relating to medical
Id. page 40.
That seems neutral enough, but that is not how the nine members of this Committee views its mandate. Simply look at that Committee’s webpage, where it describes itself as “devoted to preserving and protecting the legal rights and remedies of persons injured while obtaining medical treatment.” If this Committee gives a damn about the “rights” of defendants in such litigation, or about the system itself, it doesn’t appear on the website, which is limited to a diatribe (read it yourself – it’s under “malpractice resources” of all things) against medical malpractice tort reform. Ordinarily we would shake our heads, but not care that much, but for that Committee’s latest frolic and detour – a draft resolution (#105) seeking to put the ABA on record as supporting unlimited punitive damages against our clients in products liability actions. We quote the Committee’s current proposal in full:
RESOLVED, That the American Bar Association urges the federal government to adopt laws that protect patients and promote patient safety from defective medical products.FURTHER RESOLVED, That the American Bar Association opposes legislation that limits and/or bans punitive damages for claims of patient harm allegedly caused by manufacturers of FDA-approved medical products or devices.
ABA Draft Resolution 105 (emphasis added). Once this Standing Committee opted to exceed its explicit “medical professional liability” mandate and start offering its views about “FDA-approved medical products,” we here at DDLaw stood up and took notice.
We think our readers should stand up and take notice, too. As of this point, this one-sided piece of malarkey will be on the agenda for consideration by the ABA House of Delegates at its meeting in Chicago on August 3 or 4, 2015. That’s right, a 9-member standing committee can propose something extremely biased to the House of Delegates that would never pass muster in the much larger and more diverse ABA organs, such as the Sections on Litigation or Torts & Insurance Practice. But that doesn’t mean it will pass, and that’s where our readers come in.
It doesn’t take a rocket scientist to figure out how this happened. We googled the Medical Professional Liability Committee’s membership. Almost half (4) appear to be plaintiff-side malpractice litigators. Two appear to be defense-side malpractice litigators. The other three are harder to classify, but they all share one thing in common – none of them represents our clients in product liability actions. Not one, that we could tell. The result, draft Resolution #105, could well be (depending Committee voting rules, which we don’t know) the ABA version of what all too often happens in the litigation of medical malpractice actions. The plaintiff gets together with the malpractice defendant(s) to point the finger at the manufacturer of a prescription medical product that the plaintiff originally claimed was mishandled by his/her new defense-side collaborators.
As of the last time we looked, several states (AZ (A.R.S. §12-7010, NJ (N.J.S.A. §2A:58C-4), and UT (U.C.A. §78B-8-203(1)) as well as the federal Vaccine Act (42 U.S.C. §300aa-23(d)(2)) statutorily bar punitive damages where the product has obtained FDA approval. Many other states either reach the same result through the common law, or have other statutory provisions that include prescription medical products within more broadly phrased protections against punitive damages, such as mandatory caps or ratios. These statutes are eminently necessary to protect our clients from unconstitutional excesses. See, e.g., In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 5461859, at *54-55 (W.D. La. Oct. 27, 2014) (absent any statute, reducing an absurd ($9 billion) punitive damages award to a still-ridiculous 25-1 ratio).
Thus, we urge our readers to take action. If you know either your state ABA delegates, urge them – strongly – to vote against this biased resolution. Better yet, if you know people who are active in more diverse ABA entities, such as Litigation, TIPS or the open-to-all membership committees, urge them to put their organizations on record in opposition to Resolution #105. If that happens, it is possible that this one-sided resolution will never get to the point of being voted on at all.