HOUSE OF REPRESENTATIVES COMMONWEALTH OF PENNSYLVANIA ************ Joint and Several Liability ************ House Judiciary Committee Room 140 (Majority Caucus Room) Main Capitol Building Harrisburg, Pennsylvania Tuesday, May 14, 2002 - 10:10 a.m. --0O0-- EFORE: onorable Thomas Gannon, Majority Chairperson onorable Brooks Wallis onorable Patrick Browne onorable Craig Dally onorable Robert Flick onorable Kate Harper onorable Timothy Hennessey onorable Stephen Maitland onorable Mike Turzai onorable Kevin Blaum, Minority Chairperson onorable Frank Dermody onorable Harold James onorable John Pallone onorable Joseph Petrarca onorable James Roebuck onorable Edward Staback -r*«*- *?? ORIGINAL LSO PRESENT: ana Alwine Majority Counsel ichael Schwoyer Majority Counsel udy Sedesse Majority Administrative Assistant ason Klipa Majority Intern ike Rish Minority Executive Director eryl Ruhr Minority Counsel ane Mendlow Minority Research Analyst athy Hudson Minority Administrative Assistant CONTENTS FITNESSES PAGE Thomas P. Gannon, Majority Chairman 5 (Opening Statement) House Judiciary Committee 'rofessor Ellen M. Bublick 6 University of Arizona James E. Rogers College of Law 'rofessor Frank J. Vandall 16 Emory University School of Law •rofessor Vasanthakumar N. Bhat 27 "ames M. Redmond, Senior VP 59 Legislative Services Hospital & Healthsystem Association of PA ames E. Robinson, Senior VP 60 Thomas Jefferson Hospitals Chief Administrative Officer Methodist Hospital Division larol Steinour, Esquire 71 larry Stern, Esquire 89 Pennsylvania Chamber of Business & Industry ay N. Silberblatt 116 Immediate Past Chair, Civil Litigation Section Pennsylvania Bar Association am Marshall, President 130 Pennsylvania Insurance Federation evin Shivers, State Director 146 National Federation of Independent Business CONTENTS (cont'd.) ITNESSES PAGE essie Smith 160 Chief of Torts Litigation Section Office of Attorney General liff Rieders, Esquire 190 avid Lutz, Esquire 208 Pennsylvania Trial Lawyers Association llan Gordon, Esquire 218 Chancellor Philadelphia Bar Association ichard Golomb, Esquire 223 eborah Amoroso 224 ancy P. Oppedal, State Chair 229 MADD, PA avid Wilderman 245 Director of Legislation Pennsylvania AFL-CIO ritten Statements Submitted Bv: ennsylvania Orthopaedic Society ohn M. Ulrich, Jr. Collens Wagner Insurance Agency Representing York County Chamber of Commerce & Independent Insurance Agents of PA rian Landon Landon's Car Wash & Laundry obert Carnathan Smith Staple & Supply Co., Inc. 5 CHAIRPERSON GANNON: The House Judiciary :ommittee will come to order for public hearings concerning :he issue of joint and several liability. I can't tell you low disappointed I am that our friends in the Medical Society declined to testify at this hearing and failed to testify at the hearing yesterday before the Senate rudiciary ,Committee. In addition to that, they failed to testify at iur hearings with respect to frivolous lawsuits that were ield by this committee some time ago. They have seen fit o spend millions of dollars on a public relations campaign o influence the Legislature on these critical issues, but hey declined the opportunity to come before a committee of he Legislature to advance their position and subject hemselves to examination by members of the Legislature. One of our witnesses today has written a book >n medical malpractice, A Comprehensive Analysis. Had the ihysicians in Pennsylvania read that book, they would have ieen picketing their insurance company rather than the tate Capitol. With that said, I would like to ask our first Itnesses, which will be a panel of distinguished rofessors. And I would like them to appear as a panel. nd that would be Professor Bhat --if you could come up to he -- Professor Bublick, and Professor Vandall. JENNIFER P. McGRATH, RPR (570) 622-6850 6 These professors are here at my invitation, md they're here on their own time to give this committee .nd the Legislature an objective analysis and an academic inalysis of this issue of joint and several liability. And rith that, I would invite whichever one among the 3 of you greed to testify first. And I guess it would be Professor Ellen ublick of the University of Arizona, James Rogers College f Law, since we go by ladies first here. Professor ublick, you may proceed when you are ready. PROFESSOR BUBLICK: Thank you very much. Did win the coin toss or lose it? The first thing I'd like o do is to thank the Judiciary Committee for inviting me ere today. Over the last year, I've studied comparative pportionment questions that arise in state courts, often fter comparative apportionment legislation has been nacted. So it's a real pleasure today to be able to alk with you in a proactive way about that legislation. t's a particular pleasure for me to talk about the subject ere in the State of Pennsylvania because I think that some f the best decisions I have seen in some of my areas of esearch interest come from this state. There's been a lot of media attention given ecently to a Cardinal's defense that a 6-year-old child JENNIFER P. McGRATH, RPR (570) 622-6850 7 rho was sexually assaulted by a priest was himself, the -year-old, guilty of comparative negligence. In my tublished work, I've argued against such defenses. And one of the only court decisions that I've een that rejects that defense and holds that a sexual ssault victim has no duty to prevent his own assault comes rom here in the Superior Court of Pennsylvania just last ear. I think that decision is important. And I hope it ill be just the beginning of more victim supportive law, articularly in state civil actions. It's on that theme of victim supportive law hat I would like to address my deep concerns about roposals to abolish joint and several liability. A olleague of mine likes to say, "Before you can discuss any roposed solution, you need to define the problem to be ddressed." For the legislation being discussed today, 've heard the problem defined as how to reduce tort iability to help business. If you will indulge me, I ould like to redefine the problem in this way: How does a tate ensure adequate compensation to injury victims -- and y particular interest is victims of violent crimes -- in a ay that holds appropriate parties responsible for a fair mount of the damages caused by their fault and no more in he hope of deterring other injuries and acts of violence JENNIFER P. McGRATH, RPR (570) 622-6850 8 rtiile avoiding wasteful expenditures? It's from this vantage point, a concern for fairness, deterrence, fair compensation for injury victims, :hat I'm deeply troubled by the legislation that >ennsylvania is considering. Let me start first by .dentifying my concerns in the context of the 2 questions :hat you've asked me in advance to address. The first -- and I'm going to paraphrase tere --is when does having joint and several liability, as •ennsylvania now does, result in injustice? And I want to •eword this question slightly to ask it in a way that I see t presented in the state supreme court cases that I study. Doesn't fairness require several rather than oint and several liability so that each party pays for mly that portion of the harm that he caused or for only lis portion of the total fault? Among the state supreme :ourts that have chosen to adopt comparative apportionment lystems, this argument is the single most frequently cited udicial rationale for adopting comparative apportionment. If there's only one thing that I can do this lorning, I'd like to help you understand why this fairness xgument is really a red herring. The basic problem with he fairness argument is that it misunderstands the meaning if the percentages assigned through the apportionment irocess. JENNIFER P. McGRATH, RPR (570) 622-6850 9 Those percentage shares do not reflect true jhares of either causation or a fault. In the typical joint and several liability cases that I see, 2 defendants :ause a single indivisible injury. So, for example, in the :olorado Supreme Court's recent decision in the Slack case, i woman was hit by a driver who ran a red light. She filed a claim for medical payments with ter auto insurer. The auto insurer required her to see its Loctor for an independent medical examination. During that ixamination, the insurance company's doctor sexually Lssaulted the plaintiff. She promptly reported the conduct to the tuthorities, and she learned that the insurance company had LOtice of previous sexual assaults by that doctor on other nsureds. She sued the doctor and the insurance company 'or negligence, arguing that had the company taken ippropriate action to previous complaints, investigated hose complaints, had some sort of a system where there rould be a nurse or some other person in the room during he examination, that she would not have been assaulted. Now, in this case, both the doctor and the nsurance company are necessary but not sufficient causes if the full injury. So but for the insurer's failure to nvestigate the previous assaults and take action, the ilaintiff wouldn't have been assaulted by the doctor. JENNIFER P. McGRATH, RPR (570) 622-6850 10 In addition, but. for the doctor's intentional issault, the plaintiff wouldn't have been assaulted by the loctor. So in cases like this, in the large number of :ases like this that would be subject to joint and several .iability, both defendants are the actual cause of all of >laintiff's harm. So the rhetoric that you'll likely hear about sach party being liable only for what he actually caused is really a red herring,. The question isn't about causation. it's about policy. So what's wrong with a policy then that lays we divide responsibility based on a comparison of the >arties * fault? The single biggest logical problem with :omparative apportionment is to see defendants' fault shares as a zero sum gain.