Pennsylvania Record

Monday, October 21, 2019

Legal reform on the mind of GOP gov candidate; Product liability law 'an incoherent mess'

By Carrie Salls | Feb 20, 2018

PITTSBURGH – Republican gubernatorial candidate Laura Ellsworth, of counsel to Jones Day's Pittsburgh office, has several ideas for legal reform and changes to the current civil justice system that she would like to implement if she wins the office.

Product liability law is a particular area of concern for her and has been a target of legal reform groups critical of the state's lawsuit climate. For example, last year Philadelphia was named a "Judicial Hellhole" by the American Tort Reform Association, largely because of how it handles product liability claims in the city's Complex Litigation Center.

“The product liability law of Pennsylvania has been an incoherent mess for years, to the point that the Supreme Court has implored the legislature to provide corrective legislation,” Ellsworth told the Pennsylvania Record

Laura Ellsworth | Jones Day

“That legislation should be developed in consultation with an expert panel – including both plaintiff and defense counsel, academia and experts in safety, manufacturing and insurance  – and their charge should be to devise a standard that is balanced, transparent, clear and fair to both injured individuals and businesses that sell products.”

In addition, Ellsworth said legal reforms should include imposing limits on non-economic damages and elimination of a rule that lets plaintiffs collect damages “even if they already have been reimbursed for that expense by an insurance company.”

Another part of the legal system that Ellsworth feels should be changed is the current practice of allowing out-of-state plaintiffs “with no real connection to our state” to file claims in Pennsylvania.

In Philadelphia's CLC, the percentage of claims belonging to out-of-state plaintiffs has traditionally been in the high 80s. That grew even higher last year as Risperdal claimants flooded the court, and those plaintiffs will now be able to argue for punitive damages.

“As we look across the nation, there is clear correlation between business growth and a clear, predictable and fair legal climate,” Ellsworth said. “Our focus, therefore, should be on developing that kind of climate, but we should focus on the actual facts (as the companies themselves do) rather than characterizations of those facts by any one interest group.”

As for health care, Ellsworth said the MCARE Act should be amended “to allow doctors to use all reasonable means to ensure that a patient receives the information necessary to informed consent, including using trained staff.

She also argued for changes to be made to the Workers' Compensation Act to “clarify the standard to be applied to determine whether a benefit has been rendered for a reasonable time and to a reasonable percentage of impairment and whether the person should return to work.”

In relation to the civil justice system, Ellsworth said the commonwealth should adopt a “hybrid system for the election of judges.” She said this system would result in appointment of “a bipartisan commission that would identify a slate of qualified candidates,” with voters making the ultimate decision on whom the judges should be.

“We also need a clearly delineated process to amend the Constitution of Pennsylvania, which has not been updated since 1968,” Ellsworth said. “We need to disrupt that system that rewards doing nothing, and convert it into one that incentivizes getting things done – and done the right way.”

Ellsworth said changes to the constitution should include adding a “no budget, no pay” provision, appointment of a bipartisan commission to combat gerrymandering, placing “limits on legislative size, term and time,” eliminating pensions for government officials who have been convicted of felonies and stopping “the use of taxpayer funds to settle or resolve a claim of sexual harassment.”

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Commonwealth of Pennsylvania Jones Day