The Federalist Society has released its annual Civil Justice Update. The paper is a must-read for anyone interested in an overview of civil justice trends in 2022 and what to expect in 2023.
The paper begins with a discussion of the landscape for legal reform in 2022 and 2023. The paper describes how the plaintiffs’ bar flexed its political muscle at the federal level and in states with large progressive majorities to expand liability, increase damages, or repeal/modify civil justice reform laws in 2022. These developments demonstrate that the trial bar’s agenda has moved beyond just defending against civil justice legislation advocated by defense interests. In 2023, plaintiff interests will likely pursue liability-expanding proposals in “blue states” such as California, Colorado, New Jersey, and New York that enacted pro-plaintiff laws in 2022, as well as states such as Michigan, Minnesota, Maryland, and Massachusetts that have progressive “trifectas” (House, Senate, Governor) after the November elections. Business interests continue to work on asbestos litigation reforms, third party litigation funding disclosure, curbs on misleading legal services advertisements, reforms to address nuclear verdicts, and legislation to address outlier ALI Restatement provisions, among other issues.
Next, the paper discusses federal legislation enacted in 2022. Most significantly, a new federal law allows anyone who had at least thirty days of exposure to water at Marine Corps Base Camp Lejeune from August 1, 1953, to December 31, 1987, to sue the federal government for harm caused by exposure to contaminants in the water. The law will generate thousands of lawsuits as reflected in the continuous advertisements on television to recruit claimants.
The paper also discusses changes to the Federal Rules of Civil Procedure that took effect in 2022 and to the Federal Rules of Evidence that are under consideration for 2023. These developments include a significant change to Federal Rule of Evidence 702 (expert evidence) that will likely take effect on December 1, 2023, following approval by the United States Supreme Court and Congress.
The paper then provides a state-by-state summary of civil justice enactments (pro-plaintiff and pro-defense) and court rule changes dealing with civil justice issues that were adopted in 2022.
Finally, the paper highlights key cases that addressed the constitutionality of state civil justice reforms, including a recent Ohio Supreme Court decision holding the state’s cap on noneconomic damages in personal injury cases to be unconstitutional as applied to a claim by a victim of childhood sexual assault against the convicted perpetrator.
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