Lawsuit Abuse Reduction Act Stifles Victims Right To Justice

In early 2013, Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, and Sen. Charles Grassley (R-IA), ranking member of the Senate Judiciary Committee announced the introduction of the Lawsuit Abuse Reduction Act (LARA), which if enacted, would amend Rule 11(c) of the Federal Rules of Civil Procedure by basically making sanctions mandatory for violations of Rule 11(b) certifications. In addition, the amendment would mandate that any sanctions compensate the reasonable expenses of the opposing side and also permit additional monetary and non-monetary sanctions as appropriate. Specifically, the legislation:

• Reinstates the requirement that if there is a violation of Rule 11, there are sanctions (Rule 11 of the Federal Rules of Civil Procedure was originally intended to deter frivolous lawsuits by sanctioning the offending party).
• Requires that judges impose monetary sanctions against lawyers who file frivolous lawsuits. Those monetary sanctions will include the attorney’s fees and costs incurred by the victim of the frivolous lawsuit.
• Reverses the 1993 amendments to Rule 11 that allow parties and their attorneys to avoid sanctions for making frivolous claims by withdrawing them within 21 days after a motion for sanctions has been served.

How Does This Law Affect Victims?

While the law is purportedly intended to impact all litigants, it will affect injured victims much more than corporations and insurance companies, which can afford monetary sanctions if ordered. Injured victims, on the other hand, will suffer undue burden if they are risking sanctions by simply filing a complaint or tendering discovery to the defendants. In asbestos cases, for example, a mesothelioma plaintiff’s claims often rely on information obtained from the defendants during the discovery process.

A growing trend in asbestos litigation, as well as well as other matters involving exposure to chemicals and other carcinogens, is for the defendants to refuse to participate in discovery; instead proclaiming that they are being harassed by the plaintiffs. LARA, if passed, is going to be used as a sword by big companies to avoid their obligation to produce information to which plaintiffs are entitled. A person dying from mesothelioma is already suffering from tremendous hardship as a result of a disease, which is painful, costly to treat and universally fatal. LARA further burdens the victim by increasing their costs and risks of litigation, which is contrary to the letter or spirit of the United States Constitution.

On November 13, 2013, the United States House of Representatives passed LARA by a vote of 228-195. However, the low pass margin will likely discourage the United States Senate from taking any action on this Bill. Furthermore, it appears that President Obama will veto LARA if passed by the Senate. However, the battle is not over. Proponents of LARA will continue to pursue this or similar legislation until their constituents make it clear they do not want it.

What You Can Do To Help Asbestos Victims

Furthermore, while LARA only would amend the Federal Rules of Civil Procedure, its passage would encourage states to attempt to enact similar legislation. Thus, I encourage everyone to contact their representatives in the House and the Senate to let them know that they oppose any bill which limits access to the courts and makes it more expensive to recover for injuries suffered by the negligence and/or intentional conduct of others. Contact us if you have any questions or concerns about asbestos exposure