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Over the current six-year senatorial election cycle, four of the top seven donors to the campaign committee and leadership PAC of Senate Majority Leader Harry Reid (D., Nev.) were plaintiffs firms. Plaintiffs firms were the top two donors to Senate Majority Whip Dick Durbin (D., Ill.).

The first piece of legislation signed by President Obama—the Lilly Ledbetter Fair Pay Act of 2009 — gutted statutes of limitation in employment lawsuits. The first legislative triumph for new Sen. Al Franken (D., Minn.), an amendment to the defense appropriations bill, foreclosed employment arbitration clauses for federal contractors.

More from Jim at Point of Law, including a mention of Trial Lawyers, Inc.: K Street–A Report on the Litigation Lobby 2010, the newest installment in the Trial Lawyers, Inc. series, which will be available later today here.

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The “tort reform” section of Senator Reid’s substitute amendment is not merely meaningless, but is actually a significant giveaway to the trial lawyers. It is essentially a 5-year, 50-million dollar grant program to encourage states to develop more plaintiff-friendly alternatives to the current medical liability system.

Section 10607 (p.344 of the Manager’s) establishes a 5-year grant program. The program is administered by the HHS Secretary (Sebelius), in consultation with a review panel. The review panel is structured to ensure that trial lawyers are amply represented, with seats specifically reserved for “patient advocates,” “attorneys with expertise in representing patients,” and “patient safety experts.”

Grantee states will merely be required to “develop an alternative to current tort litigation” that:

(A) allows for the resolution of disputes over injuries allegedly caused by health care providers or health care organizations; and

(B) promotes a reduction of health care errors by encouraging the collection and analysis of patient safety data related to disputes resolved under subparagraph (A) by organizations that engage in efforts to improve patient safety and the quality of health care.

Nothing about this language requires that the “alternative to litigation” decreases litigation costs. And many of the “patient safety” organizations who will collect data under subsection (B) will likely be trial lawyer ["consumer" or "patient-safety"] front groups…

The conditions tied to the grants ensure that the “alternative to litigation” established under the grants will, in practice, increase doctors’ liability and trial lawyers’ paydays. Most importantly, the grantee-State is required to “provide[] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time and to pursue other options, including litigation, outside the alternative . . . .” If the plaintiff has a unilateral right, at any time, to pull out of the “alternative” and pursue litigation, then the “alternative” will only be used when the plaintiff’s lawyer believes that the “alternative” is more plaintiff-friendly than the litigation system.

The demonstration project also cannot “limit or curtail a patient’s existing legal rights, ability to file a claim in or access a State’s legal system, or otherwise abrogate a patient’s ability to file a medical malpractice claim.” This language means that damage caps and statute of limitations reforms would likely be off the table in any “alternative to litigation” established under the grants.

The closest that the bill comes to implying that these “reforms” reduce rather than increase litigation costs is by listing “encouraging the efficient resolution of disputes” and “improv[ing] access to liability insurance” among the goals that grantee-States are supposed to advance. But other goals include “increasing the availability” of dispute resolution, and “the disclosure of health care errors.”

In conclusion, Sen. Reid’s bill spends 50-million taxpayer dollars on a grant program run by trial lawyers for the benefit of trial lawyers. The money will be spent to establish “alternatives to litigation” that are even more lucrative for trial lawyers and costly for doctors than the current broken system.

More: Point of Law. And welcome Coyote, For What It’s Worth, Darleen Click/Protein Wisdom, TigerHawk, ShopFloor, Point of Law, Cultural Offering readers.

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• Virginia Postrel, who understands both the world of design and the world of ideas, has one of the best pieces yet on the law at her Dynamist blog. “Not since the early 1970s, has ‘regulation’–the general idea, not a specific proposal–seemed so alluring.” And this particular regulation? “It’s completely nuts”. Deploring the general blackout on the story across large sectors of the media, she also has kind words for the “exemplary” coverage found in certain other places. (Thanks!) Read the whole thing.
• “We stopped selling over 1,000 items today because of CPSIA. No other online Catholic stores appear to be aware of the law.” [proprietor of Aquinas and More; earlier]
• Dilemma for overseas makers of children’s items: find tactful way to announce ban on sales to U.S. customers [Etsy thread]
• Trust us, they said: per columnist Glenn Cook with the Las Vegas Review-Journal, Majority Leader Harry Reid’s staff assured constituent Molly Orr “that some sort of broader fix is forthcoming”. Oh, well, then we can all relax. In the mean time, Congress refused to consider the reform proposal by Sen. Jim DeMint (R-S.C.) during the stimulus debate, and Public Citizen gloats.
• State attorneys general and CPSIA: they’ve got wide powers.
• To understand how we could wind up with a law as bad as this, it helps to keep an eye on the pronouncements of CPSC Commissioner Thomas Moore — you know, the one whose resignation Congressional leaders are not demanding. Rick Woldenberg nicely skewers some of the vacuities in Moore’s public statements, including an expression of irritation that compliance with the law by February 10 was proving unfeasible given that “certain Hill staffers were assured by various segments of the children’s product industry, that there would NOT BE A PROBLEM with meeting the 600ppm standard”. (For sure, that should have settled it! It’s not as if anyone deals in children’s products who didn’t have a lobbyist present.) And in the comments section on our vintage-books post, Valerie Jacobsen points to a Moore letter of Feb. 3 (PDF) in which he proposes that some undetermined proportion of children’s books printed before 1985 “should be sequestered” until more is learned about their possible health effects. Wow.
• Where do reporters Jayne O’Donnell and Liz Szabo of USA Today get the idea that foes of CPSIA “have given up fighting the need for” the law and instead are now just begging exemptions? I agree with Deputy Headmistress, the newspaper seems just to be “pulling this claim out of thin air“.
• Okay, so phthalates are going to be taken out of the mix for playthings and child care goods, just to be on the safe side. What’s going to replace them, and are those replacements going to be more or less safe than phthalates were? For more on the tendency to substitute one risk for another, Google “MTBE” or “Tris” “sleepwear” or “cyclamates” “saccharin” “comparative risk”;
• Per Carrie Lundell, the new CPSC guidelines will permit crafters of kids’ clothing to pursue their dream freely so long as the garments have no closures or embellishments of any kind. Caftans all around! More comic relief, if you call it that: Jon Stewart “Daily Show” forum, “Fenrislorsrai” and commenters (”If your 12 year old is eating lightbulbs out of a microscope, you have more serious issues.”); Smothering Parents of America Association video, DollarMovies at YouTube;
• Blog treatment includes more from John Holbo at Crooked Timber, several posts at Popehat, Wacky Hermit on Thoreau and unjust laws, Charles Kuffner/Off the Kuff, Scholars and Rogues, Executive Pagan, Scott Greenfield;
• A reminder: if you’re just catching up with the story, our full archive of CPSIA coverage is here. If you’d rather listen — and don’t mind something a couple of weeks old, which therefore doesn’t take into account some newer developments like the last-minute stay on enforcement of testing — With Love Designs recommends a “great podcast about the CPSIA – explains it in terms I understand.” (Aw.)

Image courtesy ShopFloor.

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