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Home / Washington Business - July/August 2003 / Questions & Answers with the Attorney General -- Part 2 |
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Questions & Answers with the Attorney General -- Part 2 |
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Written On: July/August 2003 |
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Written By: By Don Brunell With Christine Gregoire, Washington State Attorney General |
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Editor’s note: We asked our state’s Attorney General Christine Gregoire for her views on 14 questions dealing with state and federal legal issues. Rather than edit her responses, we run the full text in the two issues of Washington Business Magazine. In the April issue, we carried Part I, which mainly dealt with state issues. In Part II, the Attorney General deals with federal issues currently before Congress. The full text will be posted on our Web site (www.awb.org).
Q: Doctors, hospitals, local governments and employers are pushing tort reform legislation this year. Two of the key issues deal with changing the statutes as they deal with joint and several liability and changing the constitution to allow for a cap on noneconomic damages. What are your views on tort reform and could you support changes to joint and several liability and caps on noneconomic damages?
A: I support an effort to address this whole area by understanding the real problems, as well as consequences, and then crafting solutions that work. I made the offer early on to work with the Medical Association, legislature, governor, insurance industry and trial lawyers to address tort reform legislation this session. It is absolutely essential that the legislature and the interested parties have an open, frank discussion on these issues. There can be significant unintended consequences in tort reform legislation. The devil is truly in the details. In my view, there are a number of legislative proposals this session that simply aren’t going to have the intended result the proponents are seeking. I think the issues can be realistically solved, but not without the parties working together just like we did on risk management. This has not yet happened.
It is important to note that the solutions don’t lie with “tort reform” alone. As I mentioned above, there are actions we can take to prevent tragedies from occurring, improve risk management programs and reduce exposure to tort liability. All of our 2002 proposed legislation passed, the Governor is implementing necessary administrative changes and we are very encouraged by the early results.
Q: Nationally, employers, some from the plaintiffs bar, some victims of asbestos- related diseases and the defense bar are pushing Congress to change federal laws to allow victims and families of victims to collect damages, but disqualify those who show no signs of illness but have had exposure to asbestos. Would you support that approach?
A: I am not an expert in this area, but I am aware there are a number of proposals, one of which is an American Bar Association proposal that merits discussion and consideration. The association voted to support federal legislation (Asbestos Claims Criteria and Compensation Act of 2003) that would allow persons alleging non-malignant asbestos-related disease claims to file in a Federal or State court only if they met certain newly established medical criteria adopted by the ABA in February 2003. These standards are based on the assumption that the vast majority of asbestos claims are currently filed by individuals who have been exposed to asbestos, may have some physical signs of exposure, but suffer no present physical impairment. The proposed legislation does not impact workers’ compensation claims in Federal or State jurisdictions.
This criteria would not allow nonmalignant claims unless the person showed specified signs of exposure to asbestos as well as documented physical impairment. The proposed legislation recognizes that asbestos can lie dormant for periods up to 40 years and does not want those individuals to be without a claim, when and if physical impairment is established.
Therefore, the proposal would toll the statute of limitations on cases until such time as the medial criteria are met.
Unlike other types of asbestosrelated disease, asbestos-caused cancers may have dramatic and fatal consequences. The ABA supports the legislation’s purposes to give priority to cancer claims and to others who can demonstrate actual physical harm or illness. At the same time the legislation would seem to preserve the rights of claimants who were exposed to asbestos to pursue compensation should they become sick in the future.
Another purpose of the legislation claims to be economic in nature. The legislation cites that more than 200,000 pending cases and 50,000 new cases filed each year in Federal and State courts are nonmalignant claims. Over 60 companies have filed for bankruptcy since the beginning of the asbestos litigation in the early 1980s. The legislation purports to bring some rationale to the manner in which these claims hit the court systems.
One issue that should be discussed further about the ABA proposal is whether Washington citizens will be disadvantaged in their access to go to courts. For example, I understand the proposal would have a proof requirement calling for expert witnesses that are B-readers of X-rays.
Washington has only four such experts while Oregon has none.
The overall purpose of the legislation is to preserve the statute of limitations and give those whose health and life are impaired a chance at compensation. It also could provide some predictability in the insurance market for these claims and to manufacturers.
Q: Nationally, doctors, hospitals, defense attorneys and employers are pushing legislation that would require class action lawsuits to be filed in federal court. In Washington, your former boss, Gov. Booth Gardner, is leading that effort. The idea is to stop venue shopping by trial attorneys in favorable state courts, particularly in Louisiana and Mississippi. Do you think class action lawsuit reform is necessary and would you support it?
A: State and Federal courts in Washington generally do a good job of handling class action lawsuits. I talk with corporate counsel around the country and they confirm that Washington does not have a reputation nationally as a class action haven. Let me give you a specific example. As you may recall, our lawsuit against tobacco companies actually went to trial here in Washington before a settlement was reached. One corporate attorney told me they decided to go to trial here because of our reputation for fairness in our courts.
As AG, I see this issue from both sides. The state defends class action lawsuits (filed against state agencies) and participates as a plaintiff in cases filed in Washington and elsewhere principally in the area of consumer actions. Having been on both sides, we do not perceive widespread abuses or inequities in our court system that would make this change necessary in Washington state. That is not to say there aren’t significant problems that should be addressed in other states. I am comfortable in state or federal court in Washington state.
Q: Nationally, we are seeing a trend among some prominent trial attorneys to look for new causes of action. Some in the employer community see them as striking gold in the tobacco settlements and now going after fast food companies such as McDonalds, Burger King and Wendy’s. Do you see that trend or are there some legitimate issues we are flat missing?
A: Allow me to first narrow my answer to my role as attorney general. When we filed our tobacco lawsuit, some people claimed that fast food restaurants and beer companies would be next. Nothing could be further from the truth. Our lawsuit against tobacco companies was based on evidence and what we believed were clear violations of our Antitrust and Consumer Protection laws. We do not use the law to set social policy or “strike gold” for government. My role is to enforce the laws, and the lawsuits I have filed against tobacco companies, Enron, Worldcom and Household Finance are based entirely on violations of the law. The vast majority of businesses in Washington work hard to fairly and honestly serve their customers, and my lawsuits should not be seen as a threat, but an effort to level the playing field in favor of all these legitimate businesses.
As far as the private lawsuits, such as the recent one against McDonald’s, I think you will always have some attorneys—and importantly clients—who will pursue these actions. But I believe that a thorough review of this kind of litigation would reveal that the courts do a pretty good job of weeding out lawsuits without merit—just as they did in the recent McDonald’s case.
Q: As state and local governments deal with revenue shortages and budget crisis, in your judgment can they provide adequate police and fire protection? Should the federal government step in and help the states in the name of Homeland Security?
A: As you probably know, criminal justice costs continue to take a growing share of city, county and state budgets. I talk constantly with prosecutors and law enforcement from around the state and I know they are feeling incredible pressure to provide adequate police and fire protection within their budgets. As hard as the budget problems have been, I think one good thing has been the pressure to really look at what we are doing, how we are doing our work, and whether we really need to continue doing that work. In the area of criminal justice, it is time for us to do something government traditionally hasn’t done well, and that is focus on prevention. For example, we are currently working with local law enforcement to prevent predatory acts against our children using the Internet.
As far as Homeland Security funding, yes, the federal government should provide money to state and local law enforcement.
The war on terrorism must be a partnership between the federal, state and local governments. The federal government cannot wage this war alone. Just in sheer numbers, local law enforcement adds thousands of officers to the fight and they are the people who are on the street and closest to the action. Both U.S. attorneys and the agent in charge for the FBI in Washington have been tremendously responsive to my requests to involve state and local law enforcement in terrorism planning efforts.
Q: How do we stop identity theft? Should laws governing identity theft be stiffened? If yes, how?
A: Here in Washington we have taken a good first step by passing the toughest identity theft law in the country. Our law strengthens current law to deter would-be thieves and it allows local prosecutors to seek stiffer sentences.
It importantly gives victims more tools to clear their credit record in a more timely, less expensive way. I sought the new law because I have heard from both consumers and businesses about the terrible toll this fast-growing crime is taking. The Federal Trade Commission (FTC) listed identity theft as its number one consumer complaint. Some estimate that one person a minute has his or her identity stolen.
We need to extend Washington’s program to other states. Currently there is only a patchwork of identity theft laws around the nation. That is why I have supported federal identity theft legislation sponsored by Sen. Maria Cantwell. Maria’s bill mirrors our law and has bipartisan support. It passed the Senate last year and she will co-sponsor the bill this year with Senator Mike Enzi (R-WY).
Christine Gregoire is Washington’s 16th State Attorney General and the first women elected to the position in state history. She is serving her third term. Gregoire graduated from the University of Washington in 1969 with a teaching certificate. In 1977, she received a law degree from Gonzaga University. Gregoire began her legal career in the AG’s Spokane Office in 1976 as a law clerk. Gregoire became the first woman to be appointed Deputy Attorney General proior to being appointed Director of the Dept. of Ecology by Gov. Garner.
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