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November
18, 2002, 9:40 a.m.
Defending
Trial Lawyers
Democrats
find new objections to the Homeland Security bill.
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 enate
Democrats are suddenly raising new objections to the Homeland Security
bill that was supported by most of the House Democratic leadership last
week. It's a sly move — an attempt to effectively kill the bill for this
session, without having to vote against it.
After a deal had been reached with several Senate Democrats last week,
the House on Wednesday passed a revised Homeland Security bill — not much
different from the one it passed before the election — in order to avoid
a conference committee. Since conference committees invariably take a
long time to complete — particularly during the holiday season when members
do a large chunk of their annual globetrotting — any effort to change the
Senate bill is a try at delaying creation of the new department as long
as possible, potentially even until the next Congress.
Senate Democrats' eleventh-hour
objections fall into two categories: 1) special perks for trial lawyers,
and 2) minor technical corrections that would have the effect of triggering
a much longer road to enactment. Why the two strategies? Knowing that favors
for slick attorneys will fare no better politically than those for labor,
the Democrats want to have the fallback position of obscure changes that,
although substantively meaningless, would nonetheless force the House and
Senate leaders to convene a conference committee to work out the "differences."
Democrats are attempting
to offer trial lawyers an open season on manufacturers of vaccines and
cutting-edge technology used by the new department, as well as on airport
screeners.
In the final House
bill, which was supported by 87 Democrats, mercury-based vaccines would
be treated the same as other vaccines that are already under the Vaccine
Act Program. That's apparently not good enough for Senate Democrats, however
— it won't line trial lawyers' pockets. As a way to reduce costs
associated with litigation, vaccines have a surcharge tacked on, and those
levies go into a fund administered by the Department of Justice (DOJ).
When a vaccine harms someone, the victim goes to DOJ and receives money
to cover any actual damages suffered.
The bipartisan House
bill also provided protections for producers of cutting-edge technology
used by Homeland Security, as a way to ensure that rabid trial lawyers
do not deprive the new department of the latest innovations. Although
the House bill doesn't grant immunity to companies or cap fees for attorneys,
it does afford the following safeguards: 1) lawsuits must be consolidated
in federal court — saving companies otherwise-wasted legal fees,
2) it limits recovery to compensatory damages, 3) plaintiffs must show
that a company's actions or products had some actual connection to the
injury suffered — known in legalese as "proximate cause",
and 4) a defendant only pays non-economic damages in proportion to that
party's liability.
Senate Democrats
object to these obstacles placed in the way of ambitious ambulance chasers
— even though they only kick in if companies buy the largest-available
insurance policies, which actually increases the odds of recovery for
plaintiffs from companies that otherwise might fold.
Democrats are also
trying to keep airport screeners as an available target for trial lawyers.
Unlike the rest of the aviation industry, airport screeners were left
out of the partial-liability shields contained in last year's Aviation
Security Act. The House bill allowed the airport screeners, save for the
much-maligned Argenbright Security (who handled screening at Boston's
Logan Airport), to receive the same immunity from punitive damages as
every other sector of the aviation industry. But Senate Democrats are
siding with the trial lawyers — not the 87 House Democrats who voted
for the final bill last week.
Perhaps aware that
the trial lawyers' wish list doesn't stand a chance in the post-election
reality, Senate Democrats are also scrambling to dig up newfound technical
changes in the bill — anything to force a time-consuming conference
committee. Democrats are even pushing a ridiculous proposal: Forcing Homeland
Security advisory committees to meet out in the open under the same "sunshine"
rules that govern advisory committees to, say, the Department of Education.
Senate Democrats,
in votes occurring most likely Monday, face two divergent paths: Either
they can side with President Bush, public opinion, and the San Francisco
liberal-cum House Minority Leader Nancy Pelosi (D., Calif.), or they can
come to the aid of their biggest backers: trial lawyers. If they choose
the latter, even fewer voters will likely follow them in 2004.
—
Joel Mowbray is an NRO contributor and a Townhall.com
columnist.
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