Just when things were looking up for state reforms aimed at rambunctious litigation, along comes a controversial new lawsuit, filed by one of the newest members of the Pennsylvania Legislature.
State Rep. Marty Flynn, D-Lackawanna County, sworn into office five days ago, has kicked up a fuss over the suit he filed against an elderly Scranton widow after he tripped on her sidewalk.
The details of that case are fascinating, to say the least, and I'll get to that shortly. But first we must note some progress toward tort reform, the effort to put reasonable controls on frivolous and sometimes downright fraudulent lawsuits.
One big change for Pennsylvania followed legislation to reform the vile "joint and several" rule. Under J&S, a defendant in a civil lawsuit could be required to pay an entire award even if only partly to blame.
Let's say your neighbor had a dangerous situation on his property. A jury could say he was 99 percent to blame when someone got hurt, and you were 1 percent to blame because you failed to put up a sign warning of the danger. Under J&S, if the neighbor was broke, the court would stick you with the entire award. That, it was sanctimoniously argued by personal-injury lawyers, was because victims "deserved to be made whole" — even though the lawyers then took up to half of any award.
Thanks to that and other reforms, The Philadelphia-based Legal Intelligencer, America's oldest daily law journal, reported in October that 60 percent fewer "mass tort" lawsuits were projected for 2012 in Philadelphia, notorious for the "jackpot" mentalities of juries in civil cases.
Then, in December, the American Tort Reform Association released a report saying it was removing Philadelphia from its position as America's "worst judicial hellhole" for two straight years. Replacing Philly was the entire state of California.
In another ATRA report, last June, Pennsylvania was still near the bottom of a chart listing the various tort reforms enacted by each state — but we were making progress thanks to the J&S reform and other steps.
And then came the news about Pennsylvania's newest state legislator and what he may be expected to bring to Harrisburg.
Flynn sued Arlene Scarvo, 78, and her husband, Phillip, plus two other residents, although she told me Phillip died 10 years ago and the other two did not live there when Flynn was attacked by her sidewalk.
The lawsuit says the accident caused Flynn "great physical pain and mental anguish … when he was caused to trip and fall on certain irregularities, unevenness and abnormalities." It says he hurt his shoulder and arms, but does not give details, and demands that Scarvo pay him $50,000 "plus costs, interests and any other relief [the] court deems just and appropriate."
That last part, under Pennsylvania's system, means a court could sock it to Scarvo for additional unlimited amounts under "pain and suffering" and "punitive" provisions. Most other states have imposed caps on one or both of those two categories.
I asked Scarvo about her sidewalk abnormalities and she blamed them on what trees, over which she has no control, and their roots do. "Every sidewalk in the neighborhood is uneven because of that," she said, adding that her sidewalk's unevenness "is not even inches."
You may think she nevertheless should keep her sidewalk in perfect shape, and maybe you're right, but that's not the most interesting facet of the Flynn lawsuit.
The most interesting part is not found in the lawsuit itself, but on the Internet, where, if you Google Marty Flynn, you might learn about his colorful career not too long before he was attacked by Scarvo's sidewalk in March of 2011.
The most recent item I found was a video of Flynn's August 2010 "mixed martial arts" bout (that's one of those almost-bare-knuckle punching, kicking, elbowing, wrestling brawls inside a chain-link-fence cage) with an opponent named Bryce Felgenhauer in Wilkes-Barre.
Flynn got warmed up by bouncing around on his toes. Then he did some agile punching and dancing around before he knocked Felgenhauer down and grappled with him on the floor. Finally, Flynn won the bout by vanquishing Felgenhauer with a "guillotine chokehold."
The lawsuit has generated outrage, and not just in Pennsylvania. Darren McKinney, ATRA's director of communications, heard about it in Washington.
"This lawsuit really, really goes beyond tort reform," he told me, noting that Flynn waited until after his election to file it. (It was filed Nov. 13, nearly two years after his sidewalk accident but just one week after the election.) "He should be ashamed," McKinney said. "If he can get thrown around in a [mixed martial arts] cage, he ought to be able to negotiate a sidewalk."
I tried to talk to Rep. Flynn about all this, but his legislative staff in Harrisburg referred me to his lawyer, Anthony Piazza of Scranton, whom I was unable to reach.
Anyway, Harrisburg has a new lawmaker in town, and I'm a little worried about how devoted he will be to tort reform.
Paul Carpenter's commentary appears Sundays, Wednesdays and Fridays.