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 Post subject: American judicial hellholes
PostPosted: Mon Feb 14, 2005 3:57 am 
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Location: western New York
This is a floor speech from the Senate leading up to a vote on S 5, about class action lawsuits. Very bad bill, but then aren't they all since the Rs took over?
Feb. 8, 2005

   Mr. DURBIN. Mr. President, I say to those of you who are following the Senate in action, welcome to our first substantive bill. That is right, this is the first substantive bill that we are considering. Some might conclude, if it is the first, it must be a very high priority.

   Does it have to do with health care in America, the increasing costs of health care for families and businesses and individuals? No.

   Does it have to do with education in America, how to improve our schools so we can compete in the 21st century? No.

   It must be the Federal Transportation bill then. We know we need that. We are 2 years late in passing that bill, and we need the money spent in America to build our infrastructure. Is this the Federal Transportation bill? No.

   No, it does not have anything to do with health care or education or transportation, despite the fact that every Senator in this Chamber, when they go back to their States and meet with their people, hears about those issues.

   Senator, what are you going to do about the cost of health insurance? It is killing my business. Senator, what are you going to do about the President's No Child Left Behind, an unfunded Federal mandate? We are having trouble with our school districts back in Illinois and Utah and other places. What are you going to do about that? Senator, when are you going to pass the Federal Transportation bill? We need to improve our highways in Illinois.

   Those are the comments we hear. But, no, when it comes to the very first bill, the highest priority of the Republican leadership in this Congress, we are going to deal with what they have characterized as a litigation crisis.

   Richard Milhous Nixon, former President of the United States, wrote a famous book during his public career entitled: ``My Six Crises.'' Well, if you pay close attention to the Bush administration, you will find that they are way beyond six crises. They have told us we had a national security crisis that required the invasion of Iraq; an economic crisis which required tax cuts for the wealthiest people in America; a vacancy crisis in the Federal courts, despite the fact that this Senate had approved 204 of the President's 214 judges he sent to us. We were told we had a moral crisis requiring constitutional amendments. And just last week, the President has told us we have a Social Security crisis.

   It is hard to keep up with this White House and all their crises. And here today, we are told we have a litigation crisis and a sense of urgency to deal with this bill. Yet the facts do not back it up.

   According to the Administrative Office of the U.S. Courts, which is a part of the Federal judiciary, tort actions in Federal district courts from 2002 to 2003 dropped by 28 percent.

   Over the last 5 years, Federal civil filings have not only decreased by 8 percent, the percentage of civil filings that are personal injury cases has declined to a mere 18.2 percent of the total docket.

   The same thing is happening at the State level. So the statistics tell us we are not seeing an onslaught of more and more cases. Just the opposite is true; that is, in cases filed by individuals.

   The study also took a look to find out what American businesses were doing--American businesses suing other businesses. It turns out American businesses were 3 to 5 times more likely to file lawsuits than individuals.

   For example, in Mississippi, the State of the Senator previously addressing the Chamber and one of the States often criticized by tort reform advocates, Public Citizen found that businesses were more than five times more likely to file suits than individuals. In that State, there were 45,891 business lawsuits filed compared to 7,959 lawsuits by individuals. You sure wouldn't know it listening to the comments on the floor about a litigation crisis.

   Along comes the self-styled group called the American Tort Reform Association. I think if you lift the lid on the American Tort Reform Association, you will find a lot of the big business interests in America. They have come forward and decided that they are going to call certain areas of America judicial hellholes. For example, their 2004 report labeled the entire State of West Virginia as the No. 4 judicial hellhole in America. Why? The report states that in one county, Roane County, WV, which in its first 150 years never had a class action lawsuit, actually had two class action lawsuits filed in a year and a half--two in a year and a half, the No. 4 judicial hellhole in America.

   Here is another exaggeration by the same group: the No. 6 judicial hellhole in America, Orleans Parish, LA. According to the report from the American Tort Reform Association, a strong proponent of this bill, this county earned the title because ``plaintiffs attorneys are turning mold into gold'' by representing a class of government attorneys working in buildings containing toxic mold which caused health problems. How many class action lawsuits were filed in Orleans Parish to make them a judicial hellhole? One.

   The Senator from Mississippi spoke a few minutes earlier about abuses in his own State. Take a look at what happened in the State of Mississippi. In 2002 and 2003, this same American Tort Reform Association listed Mississippi, its 22nd judicial district, as a judicial hellhole. In 2004, it didn't make the list. Why? Because the State actually received five pages of praise from the same group for changing its State's laws to deal with class action lawsuits. This Mississippi judicial hellhole became an object of praise and admiration when they fixed their own problem at the State level.

   I can't avoid the topic of judicial hellholes without speaking for a moment about Madison County, IL. The President was so upset about Madison County, IL, that he flew to Collinsville a couple weeks ago to criticize their court system. Let's take a look at Madison County in terms of real numbers.

   In 2004, Madison County ranked No. 1 by the American Tort Reform Association as the worst judicial hellhole in America. So what do we find about the class action lawsuits that were filed in Madison County? Of the class action lawsuits filed in 2002, four were certified to go forward. All the rest of them languished and did not. Four cases in 2002 went forward. But surely if they are a judicial hellhole, it got worse. But it didn't. In 2003, only one class action lawsuit was certified. One. What happened in 2004? Not a single class action lawsuit has been certified. So when you hear these exaggerations on the floor about judicial hellholes and all of these class action lawsuits, it turns out that the No. 1 example of a judicial hellhole--Madison County, IL--had no class action lawsuits that were certified in 2004.

   We know what this is all about. We should get down to the basics. Why is the U.S. Chamber of Commerce spending over $1 billion to lobby us to pass this bill? This is the largest amount of money ever recorded for lobbying activities and the first time that lobbying spending has passed the $1 billion mark. Why is it so important? According to Senator Lott and others, it is just a simple thing. We are going to take class action lawsuits out of State courts and put them in Federal courts. What is the matter with that? Federal courts are supposed to represent the Nation. These class action lawsuits have plaintiffs from all over the country. It seems reasonable.

   If that is all there is to it, why would these business interests spend such an inordinately large sum of money to lobby us to pass it? Because they know, as we know who have practiced law, that Federal courts are unfriendly to class actions. Federal courts are less likely, by their own rulings, to certify a class. In other words, a class of plaintiffs files a lawsuit in Federal court, it is less likely it will go forward. That is what this is all about. It isn't about class action fairness; this is the class action moratorium act.

   Also, Federal law favors less liability in case after case. Federal law discourages Federal judges from providing remedies under State laws. So the business interests that want to move these cases from State court to Federal court understand what it is all about. Fewer cases will survive. Those that do will pay less. That is what their goal is. That is why they have spent this enormous amount of money lobbying Congress.

   Listen to what the business interests say about the Class Action Fairness Act before us: It would simply allow Federal courts to more easily hear large national class action lawsuits affecting consumers all over the country.

   How harmless. Yet they spent $1 billion lobbying to pass this bill as the first bill of this Congress--before health care, before education, before the Federal transportation bill. They know, as we do, that class action lawsuits in Federal court are much less likely to survive.

   Let me give an example, because the problem with talking about class actions is most people listening say: What in the world is he talking about? Is this a class in school or class of people? Who are you referring to? Let me give a concrete example.

   Charles and Jenny Will live in Granite City, IL, which happens to be in Madison County. They are an older couple. They live in a small blue and white wood-frame house. Their main source of income is Social Security. They are nice people. I am proud to have them as my constituents. On their walls hang pictures of their kids and the Last Supper.

   Mr. Will has 3 years of Active-Duty service in the U.S. Navy and a sign in his front yard that he proudly put there saying ``support our troops.'' He is 71 years old. He is on oxygen, but he moves around pretty well. He has had some major heart problems, including triple bypass in 1989, and problems with his leg where the doctors had to remove a vein for surgery.

   Mr. Will is taking nitro tablets and about 15 different medications daily, two of which are insulin. He was, unfortunately, diagnosed with diabetes 20 years ago, and he has very few complications--thank goodness--but it seems to have affected his vision, which is not very good.

   Mr. Will was prescribed the drug Rezulin by his doctor. He remembers it because the drug was real expensive. He told the doctor he couldn't afford it, so his doctor gave Mr. Will a bunch of samples to take home. Rezulin, a drug prescribed for the treatment of type 2 diabetes, became available in the U.S. in 1997. Warner-Lambert marketed this drug as "safe as a placebo''--in other words, as safe as a sugar pill.

   Three years after Rezulin came to market, the FDA asked Warner-Lambert to voluntarily remove the drug from the market as they started noting too high an incidence of liver failure and deadly side effects. Mr. Will was subsequently taken off Rezulin and prescribed a safer treatment.

   A class action lawsuit was filed in Illinois to protect people living there like Mr. Will. The case alleged that Warner-Lambert violated the New Jersey consumer fraud statute by pricing the drug much more in excess of the price that the drug would have been but for Warner-Lambert's concealment of the drug's deadly side effects.

   This theory is supported by the major insurance companies.

   Last year, the case was certified by the State court as a class action. But it was turned down in Federal Court. That is the problem we are running into.

   Mr. President, I have an amendment I am going to offer. I think I will wait until after lunch to do that. The Senator from Texas is here and wishes to speak. We have about 20 minutes remaining.

   I yield the floor.

The amendment was defeated, the bill, S 5, passed.

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