This op-ed was written by ATRA’s president Tiger Joyce and was originally published by DC Journal.
President Donald Trump has doubled down on his support for tort reform, casting himself as a champion against America’s “lawsuit culture.” Bolstered by longstanding Republican support, his super PAC has been running ads echoing this position.
Trump’s Justice Department also rightfully recognizes that runaway litigation stifles businesses and costs jobs, while putting large sums in the pockets of trial lawyers, one of the Democratic Party’s most reliable sources of fundraising.
But an unexpected political fault line has emerged within his own administration with a long-time friend of the trial bar nestled into the highest ranks of the Trump administration —Health and Human Services Secretary Robert F. Kennedy Jr., a veteran trial lawyer who has supported liberal Democrats for decades. Kennedy holds views that clash sharply with the president’s legal reform agenda and should appall anyone who supports the President and his administration’s goal of reforming America’s legal system.
One of the reforms Trump has advocated for is “loser pays,” a standard that most countries already have. If enacted, this reform would require the party who loses a lawsuit be responsible for covering the legal expenses and awards of the winning party.
America’s love of meritless lawsuits hurts our small businesses and costs jobs. A study from Citizens Against Lawsuit Abuse estimated the total cost of the tort system for U.S. businesses is more than $557 billion annually in gross product and costs over 4.8 million jobs. As the study notes, these costs must either be passed onto consumers, or absorbed by companies, forcing some to shutter entirely and others to shed staff to remain afloat.
It’s worth noting that Kennedy is not a public proponent of loser pays and, as it relates to the Vaccine Injury Compensation Program, he has called the model inefficient and full of corruption. Kennedy has said the program disadvantages claimants because the Department of Health and Human Services is the defendant, as opposed to vaccine makers.