President's Message

by John J. Kennedy, Jr.

As I write this column, we are in the midst of the legislative session.  As you know, CTLA is supporting bills related to the Certificate of Merit (SB243); Admissibility of Medical Bills (SB 5545), and Nursing Home Insurance (SB419).  CTLA also supported the creation of a commission on judicial compensation (SB31). One additional bill brought by CTLA’s Workers’ Compensation Section, (SB 151) which if passed would have reduced delay in obtaining medical treatment for injured workers’ became mired with an extensive state fiscal note did not come up for a vote in the legislatures Labor Committee. 

At least as important are the bills that CTLA is opposing.  Most prominent was HB 5434.  This bill would require a “clear and convincing” burden of proof in all medical malpractice cases.  It would also set the standard of care for providers who see patients in an emergency room setting as “reckless disregard ... for the life or health of another”.

While it is still too early to tell what will become law, some observations can be made.  Our opposition is well funded, organized and zealous.  There seems to be no end to the “tort deformers” quest to take away the rights of Connecticut citizens to full and fair redress in our civil courts.

On other fronts, CTLA has also opposed the creation of rule requiring mandatory continuing legal education.  CTLA has always supported continuing legal education for its members.  In fact, it can be argued that CTLA runs the best programs for continuing legal education for the trial bar.  That said, our membership when surveyed came out against mandatory CLE by a 68-32 percent margin.  It is the position of CTLA that mandatory CLE will not measurably improve the quality of the practice of law in Connecticut.  Further, the creation of the apparatus currently being advocated will also take substantial funds (estimated at $500,000) whose source is not clear.  CTLA is also concerned that outside providers will actually dilute the quality of legal education in Connecticut.

CTLA has had a busy year on the amicus front.  CTLA appeared (through James Bergenn and Paul Bailin) in the Jacoby & Meyers v. Judges of the Superior Court, (Pending in U.S. District Court 3:11-cv-00817 (RNC)).  This action brought by Jacoby and Meyers is an attempt to invalidate Rule 5.4 of the Rules of Professional Conduct which requires that members of law firms in Connecticut be admitted to the Bar.  There are a number of legal issues (ripeness, justiciability etc.) that are involved in the case.  CTLA entered the case as Amicus and took a position that Jacoby & Meyers justification that the rule needed to be struck down to afford access to legal services by middle and lower income consumers was invalid and that the contingency system already adequately addresses those concerns.

CTLA has also filed an Amicus brief (written by Stephanie Z. Roberge and Christine K. Lassen) in the case of Rawls v. Progressive, (SC 18855). The case involves what measure of proof is required in a rear end collision to support a verdict in favor of the plaintiff.  The case was a plaintiff’s verdict at trial that was overruled at the Appellate Court level and is now on cert at the Supreme Court.

CTLA (through David Bernard and Bill Bloss) has also appeared and filed a brief in the case of O’Dell v. Kozee, (SC18851).  The case involves the issue of whether a dram shop plaintiff must prove “visible intoxication” in order to establish liability under the statute.  The case is scheduled for argument before the court on 4/18/12.

To review copies of the briefs in these matters filed by CTLA, go to our website.  I personally want to thank the Amicus Committee headed by Cindy Bott, Kathy Calibey and Karen Clark for their hard work this year, as well as the lawyers who have generously volunteered their time and abilities to write the briefs.

The annual meeting will be held on June 4, 2012.  This year’s meeting is shaping up quite well.  We will, of course, have our usual outstanding review of the case law in civil and workers’ compensation.  As a lunch speaker, we will have U.S. Representative (5th District) Chris Murphy who is a candidate for the U.S. Senate to replace Joe Lieberman.  The afternoon session will include Bruce Braley, U.S. Representative from Iowa.  Representative Braley, a former trial lawyer has been a stalwart against tort reform in the U.S. Congress.

Finally, at dinner, we will have Susan Saladoff speak.  As many of you know Ms. Saladoff is the director and producer of the “Hot Coffee” movie which so effectively takes on the media inaccuracies in the reporting of the McDonald’s coffee case and other issues. 

Is it me or have there been more favorable plaintiffs’ verdicts recently than in the last several years?  I wonder whether the “attitude” of the “Occupy” movement has had some effect on the juries.  People (and jurors) seem less reluctant to hold wrongdoers (both individual and corporate) accountable for their wrongful conduct.  The notion of “personal responsibility” that those advocating for tort reform often cite, seems to be backfiring.  Jurors now seem to feel that “personal responsibility” includes making wrongdoers responsible and accountable for their acts or omissions. 

Let’s hope this continues...

Addendum of May 11, 2012

Just a quick update . . . CTLA is gratified that HB5545 concerning the admissibility of medical bills was passed this week by the state senate and is off to the Governor for signature.  This was made possible by our lobbying efforts, and, very significantly, by the grassroots participation of CTLA members.  CTLA members made calls and sent emails in support of the bill to their state senators once the bill had been approved by the House.  On behalf of CTLA, I would like to thank all the many members who helped get this bill over the goal line.

Unfortunately, after days of intense negotiation, the certificate of Merit Bill went down to defeat by a narrow margin.  CTLA, in conjunction with Senate Leadership, had negotiated a compromise bill that was expected to be passed.  The Senate approved the bill 32-3.  In the days between the Senate vote and the House vote, the “deal” that had been put in place was not honored by certain portions of the medical community, who continued to intensely lobby the House.  As a result, the bill was defeated 69-74 in the House.

CTLA also came close on the bill to require mandatory insurance on nursing homes.  The bill passed the House, but was not voted on in the Senate due to the large volume of bills being heard in the final days.  Jean Rexford of the Connecticut Center for Patient Safety assisted CTLA in lobbying for the bill, which, hopefully, will be reconsidered and passed next year.

If there is a lesson to be learned from this year’s efforts, it is that CTLA needs to couple its lobbying efforts with grassroots lobbying from its members to maximize the likelihood of success.