Washington Update - May 2022

Washington Update
By Linda A. Lipsen, CEO, American Association for Justice
Thanks to a deal negotiated by the Consumer Attorneys of California, the California legislature has passed a bill that will raise the state's cap on medical malpractice damages for pain and suffering (known as MICRA) for the first time in 47 years. The bill is now on its way to the governor's desk.

This is a historic achievement and a reversal of one of the first major tort reform attacks on civil justice. I commend the CAOC staff, leaders, members, and their clients who have worked so hard over many decades to get to this point.

The legislation eliminates a costly ballot initiative fight that would have put the caps question to the voters this November. The proposal will raise caps over the next 10 years to $750,000 for personal injury clams and $1 million for wrongful death and then index them annually by 2%.
In addition, the cap will be applied per provider, meaning that patients injured by the negligence of two or three different provider groups will be able to hold each accountable up to the full amount. While legislative caps on pain and suffering damages at any amount are a tragedy that disproportionally impact those who are hurt the most, raising the caps on pain and suffering damages for medical malpractice patients in California is a tremendous step toward correcting this historic injustice.
Caps undermine justice and remove the crucial deterrent factor underpinning the work of trial lawyers. AAJ has worked for nearly 50 years to challenge medical malpractice damage caps in the courts, to oppose caps at the federal level, and to assist state TLAs in their efforts to prevent implementation of caps. We will continue to fight fiercely on this critical issue. Automated Vehicles Legislation Continues to Advance
West Virginia and Oklahoma join the ranks of states with legislation authorizing the deployment of automated vehicles. At this point, twenty-four states have legislation addressing the operation of automated vehicles on the books. While a handful keep automated driving restricted to testing the readiness of this technology, the vast majority have authorized automated driving companies to deploy vehicles on public highways as they see fit. West Virginia and Oklahoma join the latter group while protecting consumers by requiring that any automated vehicle be covered by $1 million dollars in liability insurance prior to being operated.
AAJ State Affairs continues to track this legislation and advise state trial lawyer associations on relevant precedents and talking points regarding this emerging technology. Recent Amicus Briefs
McKnight v. Uber Techs., Inc. (N.D. Cal. 14-cv-05615-JST) (filed Apr. 29, 2022) – At the court's invitation, AAJ filed an amicus brief in this case addressing "whether Rule 23(e)(5)(B) of the Federal Rules of Civil Procedure applies to an objection to Class Counsel's fee request or an appeal of the amount of attorney's fees only." Rule 23(e)(5)(B) was added in 2018 to require that any payment to objectors to a class action settlement in connection with dropping their objection must be reviewed by the district court. AAJ's amicus brief explained that the rule exists to deter "objector blackmail" by requiring judicial review of payments made to objectors in exchange for dropping objections, and there is no reason to carve out an exception to the rule for those objecting only to awards of attorney fees. Update on FRE 702—Expert Witnesses
Once again, thanks so much to our state presidents and trial lawyer association partners and to members who submitted comments! All 50 states plus D.C. and Los Angeles summitted a joint comment on the FRE 702 (expert witnesses) rulemaking. As previously reported, the proposed rule would enhance the gatekeeping function of federal judges and make it more difficult for juries to hear expert testimony. The state letter urged the Advisory Committee on Evidence Rules to consider the impact the rulemaking would have on state courts, especially those that follow FRE 702 and those that may not have a committee note to explain the reason for the textual change.
The public comment period ended with 531 comments on the docket with a majority of filers expressing concerns with the rule change. AAJ submitted a lengthy comment documenting concerns with the proposed rule and offering suggestions to revise the language. In January 2022, AAJ's President Navan Ward and eight other AAJ members testified at the public hearing held on the rule.
The Evidence Rules Committee met on May 6, 2022, to discuss their response to public comments and vote on potential amendments to the draft rule. The committee approved the rule with amendments, which moves the proposed amendment forward for review on June 7, 2022, by the Committee on Rules of Practice and Procedure—the committee that reviews rules changes from all five advisory committees (including the Evidence Rules Committee). The proposed amendment still has several review steps, so stay tuned for more information. Fighting for You and Your Clients
Thank you for your continued support. AAJ remains committed to fighting for access to justice for your clients. We will keep you informed about important developments and welcome your input. You can reach me at advocacy@justice.org.

CONTACT AAJ Advocacy Email: advocacy@justice.org