Justice Denied: 71 ALEC Bills in 2013 Make It Harder to Hold Corporations Accountable for Causing Injury or Death

At least 71 bills introduced in 2013 that make it harder for average Americans to access the civil justice system resemble "models" from the American Legislative Exchange Council, or "ALEC," according to an analysis by the Center for Media and Democracy, publishers of ALECexposed.org.

ALEC Agenda Tips the Scales of Justice to Help Corporations Win

ALEC scales of justiceFor decades, ALEC has been a conduit for the oil, tobacco, and pharmaceutical industries to push legislation that changes the rules to limit accountability when a corporation's products or actions cause injury or death -- such as when a Koch Industries pipeline explodes and kills teenagers, or when the tobacco or pharmaceutical industries withhold evidence that their products are dangerous. In just the first six months of 2013, seventy-one ALEC bills that advance these "tort reform" goals have been introduced in thirty states (see chart below).

"Each of these bills would weaken the legal rights of everyday people who are wrongfully harmed by a corporation or health care provider," says Joanne Doroshow, Executive Director of the Center for Justice & Democracy, a group that works to protect the civil justice system and fight tort reform. "[The bills] are carefully crafted to provide relief and protections for the industries who wrote them."

A long-standing principle of American law gives a person injured (or whose family member is killed) by the fault of another the right to pursue justice and seek fair compensation in front of a judge and jury. An injury for which a person can sue is known as a "tort." Tort lawsuits are one of the few instances where an average American can stand on equal footing with a global corporation, make their case in front of a citizen jury, and demand justice. On a level playing field, consumers often win -- which is why corporate interests want to rig this centuries-old system to their benefit.

Tort cases are relatively rare -- they make up only six percent of the entire civil court caseload, and are declining -- but they are effective. Tort liability is why U.S. companies have stopped selling dangerous cribs that strangle infants and children's pajamas that catch fire.

The ALEC "tort reform" bills fundamentally alter the tort liability system by making it harder to bring a lawsuit or by limiting a jury's ability to award damages. The bills provide a way for ALEC corporations to escape responsibility for wrongdoing, help ALEC insurance companies limit payouts (and increase profits), and prevent Americans wrongfully injured or killed from receiving just compensation.

ALEC Bills Limit Corporate Accountability, Change Liability Rules

Some ALEC bills limit how much a corporation might have to pay for causing injury.

  • The ALEC "Noneconomic Damage Awards Act" (versions of which were introduced in five states in 2013) limits the amount a jury can award to compensate a person for their diminished quality of life as the result of an injury.
  • The misleadingly-named "Full and Fair Noneconomic Damages Act" (introduced in two states) limits the amount a corporation might have to pay to compensate a person for their pain and suffering.
  • The "Phantom Damages Elimination Act" (introduced in two states) changes the rules so a person who paid health insurance premiums for years would recover less for their medical bills than a person who had no insurance: rather than placing the full cost of paying for medical bills on the wrongdoer, the bill would reduce the amount they must pay if a person's insurance company negotiated a discount.

Other ALEC bills change how liability is apportioned when more than one individual or corporation is at fault.

  • Three states introduced versions of the "Comparative Fault Act," which changes the rules so that "if a company is 49% responsible, they are completely off the hook," Doroshow says.
  • Two states introduced the misleadingly-named "Joint and Several Liability Act," which actually eliminates the Joint and Several rule that has worked for many years and protects victims in situations where it is difficult to pinpoint which defendant is at fault -- such as when multiple companies may have manufactured lead paint -- or where one of the defendants is insolvent. The bill eliminates the rule that had established that after a jury finds a defendant substantially responsible, they can be required to fully reimburse a person for their injury.

Other ALEC "model legislation" would provide immunity for certain forms of lawsuits.

  • Five states introduced the "Emergency Care Immunity Act," which provides immunity to emergency personnel who provide assistance, without compensation, at the scene of an emergency. Providing some legal protections for volunteers in emergency situations may be important, but Doroshow suspects the bill is primarily advanced "for PR purposes" to promote the notion that the tort system is broken.
  • Ten states introduced the "Trespasser Responsibility Act," which would largely absolve landowners from a responsibility to maintain safe premises, and tends to benefit large landowners like railroads, utility companies, and big agriculture. These large corporations would be absolved from their duty to act responsibly, and would be immune if a person accidentally wanders onto their property and are injured by poorly-maintained electrical boxes, dangerous chemicals or farm implements.

ALEC Corporations Reap the Rewards

The Trespasser Responsibility Act was brought to ALEC by Matt Fullenbaum of the American Tort Reform Association and Mark Behrens of Shook Hardy & Bacon, a law firm that has long represented tobacco companies and other industries seeking to avoid tort liability. Behrens is an "advisor" to the ALEC Civil Justice Task Force, as are other Shook Hardy & Bacon attorneys. The head of Shook Hardy & Bacon is Victor Schwartz, the so-called "undisputed king of tort reform" who for many years has chaired the ALEC Civil Justice Task Force.

Others involved with the Civil Justice Task Force include a variety of corporate trade groups that have worked closely with Schwartz and his law firm, such as the U.S. Chamber of Commerce and the National Federation of Independent Business, as well as the American Insurance Industry and others.

"Industries like the tobacco, insurance, oil and chemical industries are pretty detested," Doroshow says, "and trade groups provide a way for these corporations to hide behind a more neutral-sounding entity that will push their agenda. This makes it harder for the public to learn how these detested industries would benefit from tort reform."

ALEC's corporate members are a who's-who of companies that face tort liability. Its corporate board, recently renamed by ALEC as the "Private Enterprise Advisory Board," includes representatives of fossil fuel interests (Koch Industries, Peabody Energy, Exxon Mobil, Energy Future Holdings), the pharmaceutical industry (PhRMA, Pfizer), and big tobacco (Altria, formally known as Phillip Morris). It also includes insurance companies like State Farm, which profits from a rigged tort liability system by paying out less in claims (even while raising premiums).

Average Americans Pay the Price

An increasingly major player in advancing the ALEC tort reform agenda is the U.S. Chamber of Commerce and its Institute for Legal Reform, both of which are members of the ALEC Civil Justice Task Force.

A big priority for the Chamber this year has been legislation narrowing access to the courts for asbestos victims. The ALEC "Asbestos Claims Transparency Act" was first adopted by members of the ALEC Civil Justice Task Force in 2007 and was introduced in four states in 2013, in many cases supported by testimony from Shook Hardy & Bacon attorney Mark Behrens on behalf of the Chamber's Institute for Legal Reform. The effort would benefit corporations like Crown Holdings, a Fortune 500 company with over $8 billion in annual sales that has worked with ALEC for years to legislate its way out of compensating asbestos victims, as well as ALEC member Honeywell International, which has faced significant asbestos liability in recent years.

Asbestos-related diseases kill at least 10,000 Americans every year, in many cases from mesothelioma, an incurable and painful cancer caused by exposure to asbestos. For decades, asbestos was used for insulation and industrial purposes, and the diseases particularly affect veterans, firefighters, construction workers, and individuals who worked in factories with high-heat machinery.

Asbestos company executives knew from at least the 1940s that asbestos was deadly but covered it up for half of a century. For example, an internal memo from a subsidiary of ALEC member Honeywell in 1966 stated, "if you have enjoyed a good life while working with asbestos products why not die from it?" The disease can take between 20 and 50 years to manifest, so individuals exposed decades earlier are only discovering the illness now.

Like the ALEC-supported voter ID laws that spread across the country in recent years, supporters of the Asbestos Claims Transparency Act claim the law is necessary to stop fraud -- despite no persuasive evidence of significant fraud or abuse. The law is couched in terms of "transparency," but is actually designed to save corporations money by delaying justice for asbestos victims and enacting unnecessary procedural hurdles for getting their day in court.

The bill could allow corporations like Crown Holdings or Honeywell to delay a lawsuit until a victim files claims with any other asbestos or personal injury "trust funds," which are accounts set up after a company goes bankrupt to pay claims to injured parties. This requirement, advocates say, is intended to drag out a case until after a sick victim dies -- an especially pointed concern given that asbestos cancer victims usually die within a year after being diagnosed.

In December of 2012, Ohio became the first state to pass the ALEC asbestos bill, which the Chamber publicly applauded: "'As Ohio goes, so goes the nation,' and we hope this will result in a domino effect," said Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform. The Wall Street Journal editorial board -- which includes Stephen Moore, an ALEC "advisor" -- published an editorial in support of the legislation.

Consumer and worker advocates expect more states to introduce versions of the Asbestos Claims Transparency Act in 2014. A parallel bill has been introduced on the federal level and recently passed the House Judiciary Committee (prompting a response from the New York Times Editorial Board). Testimony presented to Congress from attorneys at Caplin & Drysdale has identified the ALEC connection.

"Tort Reform" Bills Contradict ALEC's Alleged Free Market Principles

A robust tort liability system advances "free market" goals -- a principle ALEC claims to support -- by providing market pressures that provide a check on corporate misbehavior. The possibility of a lawsuit, and the associated financial liability, provides an economic incentive for manufacturers, hospitals, utility companies, and other corporations to be more safe and responsible, and it advances these goals without government regulation and enforcement.

By pushing these "tort reform" bills, ALEC is not advocating for "free markets" and "limited government," but instead protecting corporate interests from any form of accountability to consumers or the public.

"[The ALEC tort reform bills] offer nothing for consumers and in fact, would do them great harm," Doroshow says. "And they create frameworks, easily amended by future lawmakers, that could result in even worse damage to the public."

View the full list of 2013 ALEC "tort reform" bills here.

ALEC Tort Reform Bills, 2013
State ALEC Bill State Bill
IN Admissibility in Civil Actions of Nonuse of a Seat Belt Act HB 1010
WA Admissibility in Civil Actions of Nonuse of a Seat Belt Act HB 1696
NY Anti-Phishing Act A 1117
IL Asbestos Claims Transparency Act HB 153
LA Asbestos Claims Transparency Act HB 481
OH Asbestos Claims Transparency Act HB 380
WI Asbestos Claims Transparency Act AB 19
UT Asset Forfeiture Process and Private Property Protection Act HB 384
AZ Class Actions Improvements Act SB 1452
OK Class Actions Improvements Act SB 949
NC Commonsense Consumption Act HB 683
RI Comparative Fault Act H 5321
WV Comparative Fault Act SB 450, HB 2843
FL Elimination of Double Recoveries Act SB 1134
WV Elimination of Double Recoveries Act SB 176
AL Emergency Care Immunity Act SB 62
NV Emergency Care Immunity Act AB 132
NJ Emergency Care Immunity Act A 3694
SC Emergency Care Immunity Act H 4145
SD Emergency Care Immunity Act HB 1151
WV Emergency Care Immunity Act HB 2285
WV Forum Non Conveniens Act SB 113
KS Full & Fair Noneconomic Damages Act SB 158
NH Full & Fair Noneconomic Damages Act HB 1180
IL Joint and Several Liability Act SB 1974
TN Joint and Several Liability Act SB 56, HB 1099
OK Jury Patriotism Act SB 484
CT Noneconomic Damage Awards Act SB 452
MO Noneconomic Damage Awards Act HJR 6
NY Noneconomic Damage Awards Act A 321, A 5336
SC Noneconomic Damage Awards Act S 625
MA Notice and Opportunity to Repair Act S 617
OK Prejudgment and Post-Judgment Act HB 1494
RI Prejudgment and Post-Judgment Act HB 5289
OK Private Attorney Retention Sunshine Act HB 1494
AL Product Liability Act HB 617
IL Product Liability Act HB 5808
MO Product Liability Act SB 356
SC Punitive Damages Standards Act S 788
OK Rational Use of a Product Act SB 754
IL Regulatory Compliance Congruity with Liability Act HB 5808
IL Reliability in Expert Testimony Standards Act HB 2221
WV Reliability in Expert Testimony Standards Act SB 113
OK Resolution in Support of Fair Recourse and Effective Deterrence Against Frivolous Claims SB 533
PA Ten-Year Statute of Repose Act SB 446
FL The Common Sense Scientific and Technical Evidence Act SB 1412, H 7015
TN The Phantom Damages Elimination Act SB 1184, HB 978
WI The Phantom Damages Elimination Act SB 22, AB 29
MO The Uninsured Motorist Stipulation of Benefits Act HB 339
GA Trespasser Responsibility Act SB 125, HB 270
IL Trespasser Responsibility Act HB 3407, HB 2216
IN Trespasser Responsibility Act HB 1502
MS Trespasser Responsibility Act SB 2525, HB 1302
NY Trespasser Responsibility Act A 4824
SC Trespasser Responsibility Act HB 788
UT Trespasser Responsibility Act HB 347
VA Trespasser Responsibility Act HB 2285
WV Trespasser Responsibility Act SB 338, HB 2582
WY Trespasser Responsibility Act SF 70
WV Volunteer Immunity and Charitable Organization Liability Limit Act HB 2285
OK Workers' Compensation Fraud Warning Act SB 1062


You could at least get my name right --- it's Matt Fullenbaum of the American Tort Reform Association, not Mark Fullenbaum as you have referenced me in your article. Thank you.

Command-and-control communists, marginally less radical nanny staters, and the plaintiffs' lawyers who tactically fund their respective propaganda operations would, presumably, prefer to have state lawmakers influenced only by the Natural Resources Defense Council, SEIU, AFSCME, AAJ and other outfits that support continued expansion of government and civil liability. Well, tough luck, comrades. Because the First Amendment empowers Americans all along the political spectrum to freely associate and petition their government for redress of grievances. And one of the biggest grievances of those of us who prefer free markets and personal responsibility to crony capitalism and an all-powerful regulatory state is the extortionate transfer of wealth from productive businesses to parasitic personal injury lawyers and law firms. So we're going to use any constitutional means necessary to pursue civil justice reforms at state and federal levels, just as the far left relentlessly pursues its anti-growth, anti-jobs and anti-U.S. competitiveness agenda. Whine and cry all you want, folks, and pretend that what we tort reformers do is somehow different than what the environmental radicals, thieving union bosses, and lying trial lawyers do every day. But you won’t persuade anyone who isn’t already a fellow traveler to join your cause, no matter how sinister you try to make the exercise of First Amendment rights sound. Darren McKinney Director of Communications American Tort Reform Association

How do you know who is freely associating? Disclosure laws are a joke, easily gotten around. Corporations are often multinationals and/or have headquarters in the Caymans or some other haven. Corporations may be owned by other corporations. They may be owned by people who are not Americans. They may be owned foreign nations. Do you not mind if your politicians are owned by say... the government of Iran, China, or even worse Canadians? Right now, we don't get to know. It's time to reign in the power of all artificial entities. They don't have inalienable rights. The rights were purchased from corrupt courts.

The Clinton's don't mind taking campaign contributions from foreigners, Brad, so why should it bother you? Besides, there are laws against that sort of thing. And just because a tax-exempt entity isn't obliged to make its donors list available to radical crackpots, that doesn't mean that investigative authorities can be denied access when they have probable cause.

The fact that you would make that comment in the manner you did while being the head of this organization without losing your job really says it all about the organization you represent. You and your organization are a disgrace to humanity.

The fact that you would make that comment in the manner you did while being the head of this organization without losing your job really says it all about the organization you represent. You and your organization are a disgrace to humanity.