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SUMMER 2007 Our Seventh Session and Counting IN THIS ISSUE Seventh Session & Counting ...... 1 Fight for Maritime Industry ....... 2 We have just finished the 80th legislative session, the seventh in which Buzbee’s Comments ................... 3 TLR has engaged. And while every session is different, some things Venue Choices ............................ 4 don’t change. Our supporters all over the state stay in touch with law- How HB 1602 Became Law ....... 5 makers between sessions. Our Political Action Committee engages in judicial, legislative and statewide elections. Our legal team researches is- Special Thanks ........................... 7 sues extensively and drafts our proposals meticulously. Our consultants Eternal Vigilance ........................ 8 and lobbyists carefully think through strategy and tactics. And the en- Texas FDA Defense Upheld ....... 9 tire TLR team works patiently and persistently throughout the session. Defense Strategy Aids Reform .. 10 Richard W. Weekley As you will read in this Advocate, we had a successful session, with TLR Day .............................11-12 the passage of a critical reform and our active participation in improving good bills and defeating bad ones. Our major disappointment was that the Court Modernization Bill, SB OUR MISSION 1204 by Senator Bob Duncan (R-Lubbock), did not become law. The bill contained several Texans for Lawsuit Reform is proposals recommended by TLR Foundation in its exhaustive paper on the Texas court sys- a volunteer-led organization tem. Senator Duncan and his able general counsel, Lisa Kaufman, worked tirelessly on this working to restore fairness bill and carefully consulted with the stakeholders – TLR, various lawyer organizations, judges, and balance to our civil and legislators. As a result, SB 1204 passed the Senate by a 24-6 margin. It then went to the justice system through politi- House, where it easily passed out of the House Judiciary Committee. There was widespread cal action; legal, academic, bi-partisan support for the bill in the House and it would have passed by a comfortable mar- and market research; and gin, in part because there was no organizational opposition to the bill. grassroots initiatives. The Tragically, this legislation, which would have gone a long way toward making our courts common goal of our more more modern and user friendly, was killed by a point of order raised by Rep. Senfronia than 15,000 supporters is to Thompson (D-Houston) at the request of Rep. Kino Flores (D-Mission). Apparently, the make Texas the Beacon State trial judges of Cameron and Hidalgo counties asked Mr. Flores to kill the bill. It is notewor- for Civil Justice in America. thy that the American Tort Reform Association includes these two counties in their list of “ju- dicial hellholes” in America, where it is difficult for a defendant in a trial to get a fair outcome. It also is telling that Cameron and Hidalgo counties are where a small group of lawyers chose 1701 Brun Street, Suite 100 Houston, Texas 77019 to file abusive lawsuits against dredging companies, as discussed elsewhere in thisAdvocate . www.tortreform.com SB 1204 was just one of many significant bills that fell in the House due to highly [email protected] technical – and often questionable – points of order. Most of the points of order concern a parliamentarian’s construction of language in the often arcane analyses of bills prepared by committee staff. Hopefully, the House will adopt a materiality rule and other checks and bal- ances for points of order so that they can no longer be used routinely by Members who want to kill bills but do not have the votes to defeat them on the merits. Sincerely, Richard W. Weekley Chairman & CEO The Fight for the Texas Maritime Industry: Why HB 1602 is Critical In passing HB 1602, the Texas Legislature moved deci- THE SOUTH TEXAS LAWSUIT sively to curtail abusive litigation by a handful of plain- EXPLOSION : LAWSUITS SOAR AS tiff trial lawyers, based in Houston and Galveston, who SAFETY RECORDS IMPROVE were filing personal injury lawsuits against the dredging companies that are essential to keeping our ports and wa- terways clear and open. The lawyers were using a venue loophole to file their cases in four South Texas counties that the American Tort Reform Association describes as “judicial hellholes.” TEX AS MARITIME INDUSTRY IS KEY TO THE TEX AS ECONOMY Texas has no natural deepwater ports, so dredging is es- sential to keep the waterways open. Texas maritime com- merce accounts for a full ten percent of our state’s gross domestic product. More than 300 million tons of cargo passes through Texas ports each year – automobiles and fuel, agricultural and manufactured products, military equipment and personnel – producing more than $178 billion in business sales. Scores of major port facilities are located along a thousand miles of channel maintained by the U.S. Army Corps of Engineers. Texas ports handle al- DREDGING LAWSUITS THRE ATENED TEX AS most 15,000 vessels – 20% of the national total. Marine MARITIME INDUSTRY and related transportation also provides billions of dollars in local and state tax revenue. A million Texas jobs are Only about half a dozen dredging companies have taken tied to the maritime industry. on projects in Texas in recent years. As a result of the explosion of lawsuits against them, several of those com- panies chose not to work in Texas as long as the lawsuit abuse continued. Of the four companies currently dredg- ing in Texas, two are Texas based and faced bankruptcy if the lawsuits continued. Two worldwide companies that dredge in Texas were questioning whether they could continue to hire Texas workers or work on Texas projects. The U.S. Army Corps of Engineers contracts for most of the dredging work on Texas ports and waterways. Law- suits against dredgers kept some of them from bidding on Texas projects and forced those who did bid to include a “lawsuit surcharge” in their cost estimate. When the U.S. Corps’ budget would not cover the cost increases, they began canceling dredging projects continued on page 3 P A G E 2 P A G E 3 continued from page 2 Plaintiffs’ Lawyer Explains Why A PAttERN OF LAWSUIT ABUSE He Files Jones Act Lawsuits in Beginning in 2003, a pattern of lawsuit abuse became ap- parent when almost 60% of the Jones Act personal injury Certain South Texas Counties lawsuits against dredgers nationwide were being filed in Hidalgo, Starr, Zapata and Cameron counties. There was no logical reason for the increased litigation. The compa- Mr. Tony Buzbee, the plaintiffs’ lawyer who has been filing most nies being sued had experienced a much smaller number of the recent Jones Act lawsuits against the maritime industry in of lawsuits in the past. Their safety records had improved Starr, Zapata, Hidalgo and Cameron counties, explained why he during the same period the lawsuits exploded and the chooses those venues in a May 2006 speech at the Annual Marine number of South Texans employed by the dredgers had and Energy Seminar. The complete transcript of his presentation is remained fairly constant. available at TLR’s website, www.tortreform.com. A few of his com- As further evidence of lawsuit abuse, many of these ments are as follows: lawsuits were filed by workers who did not report an “Obviously there is great influence on the case if we file in the injury at the time the incident allegedly occurred. In Valley versus, say, Houston. As a plaintiff’s lawyer I’m going to get many cases, the first time an employer became aware a case probably worth at least 60 to 70 percent more if it is filed that the worker was claiming an injury was the day on in the Valley.” which the company was served with the lawsuit. On “Cases filed in Starr County, which is traditionally the best those occasions when a claimant had reported an injury, venue in the State of Texas. That venue probably adds about 75% it was moderate and did not require a hospital stay or to the value of the case.” lost work days. Yet most of these lawsuits sought dam- “Maybe in Harris County, Galveston County, we need to show ages in excess of $2,000,000. here’s what the company did wrong, all right? But when you’re in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that’s the hurdle: just prove that he A VENUE LOOPHOLE ENCOUR AGED THE wasn’t hurt at Wal-Mart, buying something on his off time, and tra- LAWSUIT ABUSE ditionally, you win the case. That’s how we win those cases.” [In legal Most Texans can file a lawsuit in his or her home coun- terms, Mr. Buzbee is saying that in Starr County he does not have to ty only when the defendant has no place of business in show fault or negligence by the employer, even though the Jones Act does Texas and the accident did not occur within this state. require fault or negligence for there to be a legitimate cause of action.] Unfortunately, a political concession made by a legislative “But generally speaking, Hidalgo County is a more sophisti- leader to plaintiff trial lawyers in 1995 made an exception cated county, for those of you who haven’t spent a lot of time there. for seamen who are covered under the federal Jones Act. Generally you’ll get – and John can correct me if I’m wrong – a lot of school teachers on the jury [i.e., the prospective juror panel]. SOUTH TEX AS EMPLOYMENT REMAINS Most of the people that you are going to get as jurors in Hidalgo STE ADY: L AWSUITS EXPLODE County are people that have some relationship to some government entity; that the biggest employer: schools, I guess hospitals, and it is very easy for me as representative of the plaintiff to knock out all those jurors that will be good for your [defendant’s] interest.