February 15, 2003
Legislative Black Caucus and Mexican American Legislative Caucus response to HUB Report Press Conference
Senate Press Room, 2E.9, Capitol
2/17/2003 - 12:45 pm
There are 61 committee meetings this week. Scroll through this section if you wish to skip to the main narrative of the newsletter.

House Appropriations
MONDAY - 2/17/03
Subcommittee on Education
7:00 A.M., JHR 140

House Appropriations
MONDAY - 2/17/03
Subcommittee on Health and Human Services
7:30 A.M., JHR 120

House Appropriations
MONDAY - 2/17/03
Subcommittee on Regulatory
8:00 A.M., JHR 110

House Appropriations (PUBLIC HEARING)
MONDAY - 2/17/03
Subcommittee on General Government
8:00 A.M., E1.030

House Pensions and Investments
MONDAY - 2/17/03
9:00 A.M., E1.010

House Government Reform
MONDAY - 2/17/03
10:00 A.M., E1.026

House Land and Resource Management
MONDAY - 2/17/03
10:00 A.M., E2.012

Senate Infrastructure Development & Security
MONDAY - 2/17/03
10:00 A.M., E1.028

House Financial Institutions
MONDAY - 2/17/03
10:30 A.M., E2.016

Senate Education
MONDAY - 2/17/03
Subcommittee on Higher Education
1:30 P.M. or Adj., Betty King Room

Senate State Affairs
MONDAY - 2/17/03
1:30 p.m. or Adj., Senate Chamber

House State Affairs
MONDAY - 2/17/03
2:30 P.M. or final Adj., E2.010

House Higher Education
MONDAY - 2/17/03
2:30 P.M. or Adj., E2.036

House Human Services
MONDAY - 2/17/03
2:30 P.M. or Adj., E2.014

House Law Enforcement
MONDAY - 2/17/03
2:30 P.M., E1.014

House Appropriations
MONDAY - 2/17/03
Subcommittee on Criminal Justice
3:00 P.M., E2.030

Senate Nominations
MONDAY - 2/17/03
3:00 P.M., E1.016

House Appropriations
TUESDAY - 2/18/03
Subcommittee on Education
7:00 A.M., JHR 140

House Appropriations
TUESDAY - 2/18/03
Subcommittee on Health and Human Services
7:30 A.M., JHR 120

House Appropriations
TUESDAY - 2/18/03
Subcommittee on Criminal Justice
8:00 A.M., E2.030

House Appropriations (PUBLIC HEARING)
TUESDAY - 2/18/03
Subcommittee on General Government
8:00 A.M., E1.030

House Corrections
TUESDAY - 2/18/03
8:00 A.M., E2.026

Senate Finance
TUESDAY - 2/18/03
8:00 A.M., E1.036

House Transportation
TUESDAY - 2/18/03
8:00 A.M., E2.012

Senate Education
TUESDAY - 2/18/03
8:30 A.M., E1.028

House Government Reform
TUESDAY - 2/18/03
8:30 A.M., E1.026

Senate Business and Commerce
TUESDAY - 2/18/03
9:00 A.M., Betty King Committee Room

Senate Health and Human Services
TUESDAY - 2/18/03
11:00 a.m., Senate Chamber

Senate Criminal Justice
TUESDAY - 2/18/03
1:00 P.M.

House Business and Industry
TUESDAY - 2/18/03
2:00 P.M., E2.028

House Criminal Jurisprudence
TUESDAY - 2/18/03
2:00 P.M. or Adj., E2.016

House Public Education
TUESDAY - 2/18/03
2:00 P.M., E2.036

House State Health Care Expenses
TUESDAY - 2/18/03
4:00 P.M., E1.010

House Appropriations
WEDNESDAY - 2/19/03
Subcommittee on Education
7:00 A.M., JHR 140

House Appropriations
WEDNESDAY- 2/19/03
Subcommittee on Health and Human Services
7:30 A.M., JHR 120

House Appropriations
WEDNESDAY - 2/19/03
Subcommittee on Criminal Justice
8:00 A.M., E2.030

House Appropriations (PUBLIC HEARING)
WEDNESDAY - 2/19/03
Subcommittee on General Government
8:00 A.M., E1.030

House Border and International Affairs
WEDNESDAY - 2/19/03
8:00 A.M., E1.014

Senate Finance
WEDNESDAY - 2/19/03
8:00 A.M., E1.036

Senate Finance ** POSTING CHANGE **
WEDNESDAY - 2/19/03
8:00 A.M., E1.036

House Economic Development
WEDNESDAY - 2/19/03
8:00 A.M., E2.028

House Public Health
WEDNESDAY - 2/19/03
8:00 A.M., E2.036

House Government Reform
WEDNESDAY - 2/19/03
8:30 A.M., E1.026

Senate Intergovernmental Relations
WEDNESDAY - 2/19/03
9:00 A.M., E1.028

Senate Jurisprudence
WEDNESDAY - 2/19/03
1:30 P.M. or Adj., E1.012

Senate Veteran Affairs/Military Installations
WEDNESDAY - 2/19/03
1:30 P.M. or adj., Betty King Committee Room

House Civil Practices
WEDNESDAY- 2/19/03
2:00 P.M., E2.026

House Natural Resources
WEDNESDAY - 2/19/03
3:00 P.M., E2.014

House Appropriations
THURSDAY - 2/20/03
Subcommittee on Education
7:00 A.M., JHR 140

House Appropriations (PUBLIC HEARING)
THURSDAY - 2/20/03
Subcommittee on Education
7:00 A.M., JHR 140

House Appropriations
THURSDAY - 2/20/03
Subcommittee on Health and Human Services
7:30 A.M., JHR 120

House Agriculture and Livestock
THURSDAY - 2/20/03
8:00 A.M., E2.016

House Appropriations
THURSDAY - 2/20/03
Subcommittee on Criminal Justice
8:00 A.M., E2.030

House Appropriations (PUBLIC HEARING)
THURSDAY - 2/20/03
Subcommittee on General Government
8:00 A.M., E1.030

House Appropriations (PUBLIC HEARING)
THURSDAY - 2/20/03
Subcommittee on Criminal Justice
8:00 A.M., E2.030

Senate Finance
THURSDAY - 2/20/03
8:00 A.M., E1.036

Senate Finance ** POSTING CHANGE **
THURSDAY - 2/20/03
8:00 A.M., E1.036

House General Investigating
THURSDAY - 2/20/03
8:00 A.M., E2.036

Licensing and Administrative Procedures
THURSDAY - 2/20/03
8:00 A.M., E2.012

House Local Government Ways and Means
THURSDAY - 2/20/03
8:00 A.M., E2.026

Defense Affairs and State-Federal Relations
THURSDAY - 2/20/03
8:00 A.M., E2.010

House Government Reform
THURSDAY - 2/20/03
8:30 A.M., E1.026

House State Cultural & Recreational Resources
THURSDAY - 2/20/03
8:30 A.M., E1.010

House Energy Resources
THURSDAY - 2/20/03
9:00 A.M., E2.014

House Juvenile Justice and Family Issues
THURSDAY - 2/20/03
10:30 A.M. or Adj., E2.028

House Appropriations
FRIDAY - 2/21/03
Subcommittee on Education
7:00 A.M., JHR 140

House Appropriations (PUBLIC HEARING)
FRIDAY - 2/21/03

House Appropriations
FRIDAY - 2/21/03
Subcommittee on Health and Human Services
7:30 A.M., JHR 120

House Appropriations
FRIDAY - 2/21/03
Subcommittee on General Government

Finance
FRIDAY - 2/21/03
8:00 A.M.
Liability Reforms at Starting Line

The House Civil Practices Committee, chaired by Rep. Joe Nixon (R-Houston), is set to begin hearings on broad-based liability reforms this week. First up at this Wednesday's hearing is a comprehensive medical liability reform bill (H.B. 3), which will be followed next week by a general liability reform bill (H.B. 4). Asbestos litigation reform (S.B. 496 by Sen. Kyle Janek, R-Houston) will come along after that, although it is still unclear whether that legislation will originate in the House or Senate.

This update attempts to highlight the most significant provisions of the House versions of the legislation, although the Senate companions are expected to be substantially the same, if not identical.

H.B. 3: Medical Liability

As filed, H.B. 709 contains the following major provisions:

*an offer of settlement rule providing that if the claimant rejects a reasonable settlement offer and the damages awarded are less than or equal to the offer, the court shall offset against the judgment the defendant's court costs, expenses, and attorney's fees;

*a prohibition on deposing a health care provider until suit is actually filed;

*admissibility of the claimant's past federal and state income tax payments to determine the amount of lost earnings and lost earning capacity;

*mandated jury instructions regarding the circumstances under which emergency care was provided;

*periodic payment of future damages if the present value of the award is equal to or greater than $100,000;

*a limitation on the recovery of medical expenses to those actually incurred by the claimant;

*admissibility of evidence of collateral sources of payment of the claimant's medical expenses, with abolition of non-federal third party liens and subrogation interests arising from the collateral sources being introduced into evidence;

*removal of a minor's disability to make the minor's limitation period enforceable under case law;

*inclusion of punitive damages under the existing $500,000 cap on damages contained in Art. 4590i, Sec. 11.02;

*a $250,000 cap on non-economic damages if the health care provider maintains required levels of insurance;

*a 33.3% limitation on the claimant's attorney's fees;

*a lower sliding scale limitation on the claimant's attorney's fees if the $250,000 cap is struck down, either by the courts or by the voters in a constitutional amendment election;

*a clear and convincing evidence standard for proving negligence in connection with the provision of emergency care;

*a stay on discovery until the claimant files an expert report and the expert's CV (abolishes 90-day cost bond and makes the 180-day deadline for filing the expert report absolute with no discretionary extensions);

*mandatory dismissal of a claim with costs if no expert report is filed;

*a requirement that experts meet specified qualifications, including present practice in the same field, present knowledge, and training and experience standards;

*a requirement that, in a claim against a physician, only a physician may testify regarding causation;

*a $500,000 on damages in a suit against a hospital;

*the inclusion of medical providers under the manufacturer's indemnity provision contained in Sec. 82.002, Civil Practice and Remedies Code;

*immunity for health care providers in a products liability suit if the provider followed accepted standards for the prescription of a drug or device; and

*specific statutory authority for a declaratory judgment action to determine the constitutionality of the Act.

H.B. 4: Omnibus Tort Reform Legislation

The omnibus tort reform bill is equally comprehensive, if not more controversial. The bill contains the following significant components:

*a provision allowing the jury to allocate fault to nonparties exempt from the current joint and several liability scheme, including debtors in bankruptcy, immune employers, and criminal third parties (the so-called "empty chair);

*elimination of the 15% threshold for joint and several liability in toxic tort cases;

*repeal of the sliding scale settlement credit and substitution with a percentage credit;

*an interlocutory appeal to the supreme court of class certification orders and stay all proceedings in the trial court until appeal is determined;

*mandatory exhaustion of administrative remedies prior to filing a class action;

*implement the lodestar method for calculating fees awarded to class counsel (requires attorney's fees to reflect actual work done on the litigation);

*an interlocutory appeal to the court of appeals and supreme court of a trial court's venue ruling in multi-plaintiff cases;

*elimination of all statutory procedural barriers inhibiting trial judges from applying the common law doctrine of forum non conveniens;

*exclusion of evidence of subsequent remedial measures in a products liability action;

*a 15-year statute of repose for all manufactured products;

*statutory immunity for innocent retailers of manufactured products;

*a government standards defense for manufacturers who comply with specific rules or regulations governing product design, manufacture, or warnings;

*a $25 million ceiling on the amount of an appeals bond;

*elimination of the statutory floor on the judgment interest rate and a bar against the award of prejudgment interest on future damages;

*admissibility of seat belt use for purposes of proving causation and allocating fault;

*application of lodestar method to calculating attorney's contingent fees when private attorneys are hired by local governmental entities; and

*an offer of settlement rule that charges the defendant's costs and attorney's fees to a plaintiff who rejects a settlement offer that was more favorable to the plaintiff than the judgment.


SB 496: Asbestos Litigation Reform Act

A third piece of the total package is an asbestos litigation reform bill that will create a statewide inactive docket for unimpaired asbestos claims. Upon filing, a non-malignant asbestos claim will be placed on the inactive docket, where discovery is stayed and the statute of limitations is tolled. To remove the claim to the active docket, the claimant must demonstrate an asbestos-related illness that meets specific medical criteria, including chest x-rays of sufficient ILO grade and PFT testing performed on equipment that meets ATS certification standards and conducted by board-certified Texas physicians. The claimant must also have a detailed occupational history taken by the diagnosing physician. An independent expert will further review the claimant's medical records and tests to determine if the objective criteria have been met and make a recommendation to the trial judge.

Other Issues

Other items that will likely be part of the package, either as part of the omnibus bill or in separate bills include:

*a statutory employer provision protecting contractors and premises owners from third party liability lawsuits where each party maintained workers' compensation insurance (whether this immunity will extend both vertically and horizontally is not yet known);

*a legal ethics bill that requires full disclosure of and consent to referral fees, allows the attorney general to prosecute lawyers for ethical violations, and requires disclosure of relationships between attorneys and judges.

Indications are that H.B. 3 and H.B. 4 will move fairly quickly through the House. The Senate has been slower to get started on liability issues and is generally felt, because of the 21-vote rule, to be a harder nut to crack for the pro-reform groups. Plaintiffs' lawyers will probably make their stand in the Senate, hoping to peel off enough votes on any given issue to stall the entire package. This will undoubtedly raise pressure on the Senate to extremely high levels, as business groups, consumer advocacy organizations, and plaintiff's lawyers launch noisy public appeals through print and broadcast media. In the end, it would not be surprising to see the whole issue-medical liability, the omnibus bill, and the asbestos reform bill-wind up in a highly charged conference committee towards the end of the session, with Governor Perry holding the hammer of a special session over the House-Senate negotiators.