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May 19, 2011

Testimony of Chancellor-Elect John E. Savoth at Senate Judiciary Committee Hearing on Joint and Several Liability, May 19

MAY 19, 2011

Thank you, Senator Greenleaf. On behalf of the 13,000 members of the Philadelphia Bar Association, it’s my pleasure to welcome everyone this afternoon. We’re pleased to host today’s Hearing of the Pennsylvania Senate Judiciary Committee.

The Philadelphia Bar Association is the oldest association of lawyers in the United States. Advancing the development of the law and improving the application of justice are priorities that remain paramount to our Association.

We are pleased to serve as a resource in advancing the dialog on issues surrounding joint and several liability, and offer our full cooperation to the legislature to help preserve the fundamental precepts of justice and fairness for all civil litigants in the Commonwealth.

Historically, the Philadelphia Bar Association has often addressed legislation which affects the administration of justice, to give legislators the benefit of the views of our diverse membership skilled in the field of law. The Association followed that tradition here, and following a process in which there was wide participation by members of the Bar, including attorneys from many different areas of practice, the Board of Governors unanimously resolved to support Senate Bill 500, and to oppose the passage of Senate Bill 2.

Legislation involving joint liability necessarily involves questions of our values as a society, and considerations of public policy. I have heard some refer to these competing bills as a partisan matter, but I respectfully disagree. At issue here is how we as a commonwealth will protect victims of injury who have legitimate claims, where difficult choices are presented by virtue of a lack of resources needed to satisfy a judgment.

Historically, Pennsylvania has followed a clear moral compass in addressing this issue, by providing that where a shortfall exists, the burden of compensating the victim and seeking reimbursement should fall upon a culpable party, rather than the victim. The rule is one of fairness, and consistent with longstanding legal principles that the highest and best purpose of the law is the protection of the innocent.

In 1978, the legislature changed Pennsylvania law, and moved our state from the traditional rule of contributory negligence, to a more balanced system of comparative negligence. Whereas under the common law a plaintiff who was to any degree responsible for causing his or her injuries was totally barred from recovery, under the Comparative Negligence Act, only a plaintiff whose responsibility is greater than 50 percent is barred from recovery.

When the legislature liberalized Pennsylvania law in this way, it did not change the traditional common law rule of joint liability. Critics rightly point out that by failing to further amend the law in 1978, an inequity was created, because a situation now exists where a defendant who is less to blame for causing an injury than the plaintiff can still be held jointly liable for payment of the entire judgment. The Philadelphia Bar Association agrees that this is an inequity, and inconsistent with the principles of fairness on which the doctrine of joint liability is premised. In simple terms, the moral justification for imposing joint liability does not exist where the plaintiff seeking recovery bears greater responsibility than a defendant. Senate Bill 500 appropriately addresses this anomaly in Pennsylvania law, by totally abolishing joint liability as to any defendants against whom any percentage share is less than the plaintiffs. We support this as well founded legal reform.

At the same time, however, the Association opposes enactment of Senate Bill 2, principally on public policy grounds. Necessarily, Senate Bill 2 will give rise to situations where a totally innocent victim is entitled to recover damages under Pennsylvania law, but is unable to do so even where there is a culpable defendant with insurance coverage or resources that are adequate to cover a judgment. Senate Bill 2 abandons the fundamental notion of fairness embodied by joint liability, and in a situation where there is a shortfall, inexplicably places the burden on the victim, rather than the wrongdoer. Senate Bill 2 will have this effect even in cases where a plaintiff is wholly innocent, including cases involving children, the elderly, and the disabled. Proponents of Senate Bill 2 have not articulated the basis on which this represents sound public policy. What conceptual justification is there for shifting the burden to an innocent victim as a matter of public policy? What values do we express when we adopt legislation that favors the economic interest of a wrongdoer over the right of a victim to compensation?

At the same time, proponents of Senate Bill 2 have not articulated how the needs of legitimate victims will be met if joint liability is abrogated. Will the cost fall to the taxpayer? To charitable institutions? To families already struggling with the consequences of injuries? Or, do proponents of Senate Bill 2 maintain that it is acceptable simply to dismiss the needs of such victims?

Because the Philadelphia Bar Association counts among its members some of the most skilled attorneys in the nation, it can fairly be said that its assessment of the impact of Senate Bill 2 in practical terms carries particular weight. Although that legislation has been described as a "compromise," our analysis led to the conclusion that in practical terms its percentage threshold for determining joint liability amounts to an abrogation of the rule. Adjustment of the percentages would not avoid that problem, as the ability of a victim to be compensated would still arbitrarily depend upon the number of parties to a case. Moreover, the experienced litigators among our membership have pointed out that Senate Bill 2 will invite more complex and protracted litigation, creating an incentive to join more parties to actions, rather than fewer.

Because joint liability ultimately goes to the right of a citizen to be compensated for injury where a legal entitlement has been found to exist, the doctrine has particular significance in constitutional terms. The touchstone of the Pennsylvania Constitution is its Declaration of Rights, which is in many respects equivalent to the Bill of Rights under the federal Constitution. Article I, Section 1, recognizes certain inherent rights of citizens, including "defending life" and "protecting property" while "pursuing their own happiness." In furtherance of this inherent right, Article I, Section 11, requires open courts, and specifies that every citizen "for an injury done him and his lands, goods, personal reputation shall have remedy by due course of law, and right and justice administered without sale, denial, or delay."

The Supreme Court of Pennsylvania has interpreted Article I, Section 11, as prohibiting legislation that would eliminate the right to compensation for injury. In Passenger Railway Corporation v. Boudrou, 92 Pa. 475 (1880), the Court struck down an Act that arbitrarily limited recovery of damages against railroads. The court held: The people have withheld power from the legislature and the courts to deprive them of the remedy, or to circumscribe it so that a jury can give only a pitiful fraction of the damage sustained. Nothing less than the full amount of pecuniary damage which a man suffers from an injury to him and his lands, goods, or persons fills the measure secured to him in the Declaration of Rights.... a limitation of recovery to a sum less than actual damage, is palpably in conflict with the right to remedy by the due course of law. 92 Pa. at 481-82.

Joint liability as a legal principle comes into play at the conclusion of a case, when the legal entitlement to damages has been established. In some cases, that does not occur until all appeals have been exhausted, including appeals through the Supreme Court of Pennsylvania. In short, as to a plaintiff seeking to invoke protection of the doctrine, there can be no question as to his or her legal entitlement to compensation. That right to compensation, which the Supreme Court has found embodied in the Declaration of Rights, has always been central to Pennsylvania law.

Senate Bill 500 recognizes and respects that distinction, by providing that innocent victims with a legal entitlement should not to be penalized in their attempts to recover by artificial thresholds. Senate Bill 2 does not.

In the final analysis, the question for this legislature is what do we stand for as a society. Members of the Philadelphia Bar Association, who represent both plaintiffs and defendants, and represent Pennsylvania citizens in all manner of disputes, recognize that protection of innocent victims truly is a core principle of our jurisprudence, and for that reason we urge the legislature to go no further than the enactment of Senate Bill 500 in changing Pennsylvania law. Thank you.
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