Legislative Policy Issues:
Nationally, trial lawyers and their life's work are under siege and New Hampshire is no different.
We were successful this past year in defeating measures that were introduced to curb the rights of injured plaintiffs. But our lobbyists, Jim Demers and Bob Blaisdell, along with many of our volunteer members spent countless hours attending hearings and legislative meetings. We were nearly always outnumbered by at least 1 to 5, even on our best days. Some quick research at the Secretary of State's Office showed that the insurance and medical lobby spent over one million dollars last session attempting to pass legislation that would: place caps on non-economic damages, shorten statutes of limitations, mandate structured settlements, implement a medical malpractice review panel, and protect insurance companies from rules of discovery, to name only a few.
The good news is that nearly all of these bills were defeated. Despite the categorical animosity heaped on trial lawyers, and in the face of enormous pressure to do otherwise, the legislature rejected most of the proposals and courageously chose to preserve our civil justice system and the Constitution of New Hampshire. In fact, the Legislature not only rejected the arguments of special interest groups that they should be "special" defendants, but it codified the exposure of secret settlements in subsequent medical malpractice cases and expanded to the entire state the successful voir dire pilot program conducted in Cheshire and Rockingham counties.
The insurance and medical lobby is undeniably well-heeled and well-fueled. Many of you are aware of the radio advertisements and orchestrated television segments. We expect the coming year to present an even greater challenge. Many of our members have decided to run for office and we urge you to learn about them; those who share our goals need our support. This past year medical malpractice was the primary target, but every year special interest groups, particularly the insurance industry, continue to grow, seek more immunity, and ask the legislature to protect them from accountability.
Special Interest Bills Opposed by NHTLA
Were Rejected by the Legislature
SB 390 would have amended RSA-A:13, I(b) to include costs of vocational rehabilitation within the list of items an employer’s insurance company can recover in a third-party lien and sought to overturn the recent Supreme Court decision in Knapp v. Tennessee Gas Pipeline, 149 NH 740 (2003) by eliminating the Superior Court’s power to divide expenses and fees between the injured worker and his employers’ insurance carrier in recoveries against third parties in accordance with RSA 281-A:13, IV “as justice may require”. Defeated.
SB 390 will appear in another form next year. Interestingly enough, if this bill is enacted it will ultimately hurt both the injured worker and the insurance companies. Catastrophically injured workers will have no incentive to bring a third party claim if they have to pay for the insurance companies’ portion of the costs up front and then keep every related medical bill to submit to the insurance company in order to be reimbursed. Nevertheless, Acadia, the only insurance company lobbying this bill, managed to convince even the loggers that this law is driving up their insurance rates.
We owe a great debt of gratitude to Mr. Richard and Mrs. Margaret Knapp who traveled more than three hours to testify against this bill.
SB 408 would have granted immunity from civil liability to the food industry for an individual’s weight gain or obesity or for a health condition related to weight gain or obesity. This bill passed in many states and at the federal level however, we were successful in defeating this legislation in NH. See the movie Supersize Me before you dismiss it as silly legislation. Defeated.
SB 460 would have allowed insurance companies to shield damaging information from discovery if the company conducted a “self-audit.” Defeated.
SB 462 would have capped non-economic damages in medical injury actions at $250,000. Defeated.
SB 463 would have limited contingency fees, essentially limiting court access to those who can afford to hire an attorney and making it a practical impossibility for people of ordinary means to present a jury with evidence of wrongdoing by corporations, hospitals, insurance companies, etc. Defeated.
SB 464 would have permitted insurance companies to pay all awards for future damages over time as periodic payments, effectively making a judgment unenforceable for plaintiffs. Defeated.
HB 1413 would have required the evidence of medical malpractice to be screened by a panel of three - a doctor, a lawyer and a retired judge. By requiring a “mini-trial’’ before presenting the evidence to a jury the measure drives up the cost of bringing suit, making it financially impossible to bring a case. Defeated.
HB 1142 would have reduced the damage award for an oil spill from one and half times the actual damages to actual damages. Defeated.
SB 452 would have limited the pool of expert witnesses in medical injury cases to New Hampshire physicians licensed and practicing the specialty related to the claim. Put another way, the only doctors that could be called to testify would be colleagues of the defendant doctor. While the original intent of the bill was defeated, the bill was amended to ostensibly codify Baker Valley Lumber, Inc v. Ingersoll-Rand Co., 148 NH 609 (2000) and the federal expert testimony standard set out in Daubert v. Merrell Dow Phamaceuticals, Inc., 509 U.S. 579 (1993). Effective July 16, 2004. See RSA 516:29-a.
HB 1309 which unfortunately passed and eliminates provisions authorizing local regulation of shooting ranges and grants immunity to both operators and owners of the ranges. Effective May 7, 2004. See RSA 159-B. NHTLA believes that this law is unconstitutional.
The Good News
SB 465 would have shortened the statute of limitations in an action for medical negligence for minors. NHTLA opposed this bill; its original form was defeated and the bill was amended. NHTLA supported the amended version, and it passed. The amended version allows disclosure of secret settlement information from prior medical malpractice suits if relevant to pending litigation. Effective January 1, 2005. See RSA 516:33-a.
HB 1417: We are very excited about the passage of this bill, initiated by NHTLA, which extended the voir dire pilot program from Cheshire and Rockingham counties to the entire state. Those who participated in the pilot program testified the voir dire process created more confidence the impaneled juries are impartial and unbiased. NHTLA has informational materials available and will hold CLEs focusing on voir dire in the coming months. Effective January 1, 2005. See RSA 500-A:12-a.