September 2006

Yet another state Supreme Court has held that an arbitrary cap on damages violates the state constitution. 

In Arrinton v. ER Physicians Group, APMC, the Louisiana Third Circuit Court of Appeals has held that a $500,000.00 cap on medical malpractice damages was unconstitutional as failing to provide the plaintiffs an adequate remedy” as guaranteed under the provisions of La.Const. art. 1, § 22. The court cited a long list of cases in other states holding such caps unconstitutional under state constitutional provisions.

In Georgia, the tort reform lobbyists won passage in 2005 of a $350,000 cap on noneconomic damages in medical malpractice cases. They won with illusory promises that doctors’ malpractice insurance premiums would go down.  The only way premiums will go down is if the legialature passes a law requiring disclosure of insurance company finances and underwriting.

Meanwhile, the folks who hate the civil justice system and can’t stand the idea of little guys having access to justice continue to organize well-funded campaigns to pick off state Supreme Court justice around the country and intimidate the rest of our judges. See Justice for Sale in West Virginia?  In Georgia, we see that in the campaign of Mike Wiggins, who was an associate at two large law firms and a political appointee.  He has never tried a case in a trial court and never argued a case in a Georgia appellate court. However, despite a complete lack of courroom experience, he is waging a campaign with virtually  unlimited  corporate funding to unseat Justice Carol Hunstein.  He apparently picked her because she is "vulnerable," e.g., a one-legged, non-politcal woman judge with a Jewish sounding name.

I certainly have some sympathy for my doctor friends and businessman friends who feel vulnerable in the court system.  However, the answer is not to impose a one-size-fits-all cap on damages, to abrogate state or federal constitutional law, or to terrorize independent, impartial, nonpartisan judges.  Remember, my friends in the business and medical communities, while you may think you are more likely to become a defendant, the reality is that you or a family member may just as likely become a victim of a grievous injury.  If you take away the civil justice system today, it won’t be there for your family tomorrow.

The American Transportation Research Institute, the research arm of the American Trucking Associations, released the results Sept. 12 of its industry analysis of using the recorders to monitor driver hours. The ATRI research does contradict perceptions that the devices would hurt driver morale and retention. A surprising 76 percent of users said the recorders had improved driver morale, and 19 percent said they had improved driver retention. No users said driver retention had been harmed by the devices. The report did not explain why the improvements in morale and driver retention occur.

There was considerable consensus among users, non-users and vendors that recorders are effective at managing and monitoring hours compliance, but more research is needed to document the role that hours compliance plays in fatigue management and safety improvements, ATRI reported.  “As a compliance tool, it appears that EOBRs can meet FMCSA’s need for improved HOS monitoring," said Al Koenig, president of Midwest Specialized Transportation. "But we still need to address certain safety loopholes, such as improved confirmation of who is driving and whether EOBRs will increase speeding to offset potential productivity losses.”

Science magazine recently published a report on a young woman devastated by a car crash in England. For five months after the accident, tests showed no signs of awareness. Doctors declared her vegetative. Then, scientists put her in a Functional Magnetic Resonance Imaging (FMRI) scanner, which tracks blood flow to different parts of the brain. They asked her to imagine playing tennis and walking through her home. The scan lit up with telltale patterns of language, movement, and navigation indistinguishable  from the brains of healthy people.  Something was awake inside that woman’s skull. Without the scanner, no one but her would have known.

The analysis in Science concludes that she has a "rich mental life" but may not be "conscious."   That does that mean? Is she awake inside her skull, though incapable of outward manifestation of awareness?

It is both interesting and horrifying to contemplate the potential ramificaitons of this in brain injury litigation.  In the past doctors have been quite confident in reassuring us that patients in what appeared to be a chronic vegetative state had no awareness of their situation.  Now, with an FMRI test, we may be able to show what appears to be conscious mental activity in the victim of a relatively recent traumatic brain injury.  I’d hate to be on the defense side of a case when that video is played for a jury.

In a landmark decision released August 31, 2006, the Georgia Court of Appeals has resolved in one case two crucial issues on Uninsured Motorist (UM) insurance coverage:

  • A liability umbrella policy that includes automobile liability must include UM coverage equal to the liability limits unless the UM coverage is affirmatively rejected in writing, notwithstanding an exclusion of UM coverage in the policy. 
  • Renewals of auto liability policies that existed before 7/1/01 that did not include UM coverage must include UM coverage equal to the liability coverage unless UM coverage is affirmatively rejected in writing. The statute requiring UM equal to liability coverage exempted renewals of policies existing before 7/1/01.  The plain language of OCGA § 33-7-11(a)(3) simply “provides that an insurer is not required to increase UM coverage in renewal policies for coverage existing prior to July 1, 2001.”  However, while the amount of UM coverage need not be increased on renewal policies, if there was no UM coverage the exemption does not apply. 

Read the full decision below.

The trucker who killed 5 students and injured 4 when he crashed into a Taylor University van in Indiana last April was grossly over the legal hours of service.  Federal Motor Carrier Safety Regulations limit interstate commercial truck drivers operators to no more than 11 hours of driving time following 10 hours off duty and prohibit driving after the 14th hour since starting work. At the time of the collision he was found by investigators to be more than 9 hours in excess of the 11-hour rule and 10 hours in excess of the 14-hour rule. 

He was also talking on his cell phone and driving with the windows open and air conditioning on full blast in cool weather, presumably to try to stay awake. He now faces criminal prosecution on five counts of reckless homicide and four counts of criminal recklessness resulting in bodily injury.

Most trucking companies and truck drivers are reasonably conscientious about safety.  However, too many are not.  We are litigating a case right now in which a truck driver had destroyed log pages for previous days, substituted those with pages falsely showing that he was off duty, and back up the times on the log for the trip he was on in order to "accommodate" the return trip, and eventually confessed to me that he had been driving 20  of the previous 24 hours.  We found that the owners of the trucking company had personally decided to dispatch him to drive from northeastern Ohio to Atlanta as soon as he returned from the same trek, and he began the return trip after sleeping only an hour in a shipper’s parking lot.  However, the company owners who cared so little about safety that they would dispatch a virtually brain dead truck driver across the country to drive an 80,000 pound tractor trailer through the night also chose to cancel their company’s excess liability insurance policy.  There will never be true justice in that case, as we will not be able to reach reach the personal assets of the men who made those deliberate choices.

However, there is a legal theory, which unfortunately the judge in that case did not accept, for personal liability of those who dispatch truckers who cannot possibly make their trips legally. 
I have heard from trucking company safety directors that while their bosses have little concern for safety per se, the possibility of personal liability may inhibit reckless dispatching decisions.

Perhaps if the Indiana prosecutor would also prosecute the trucking company officials who chose to put the truck driver in the position of driving nine hours past the legal limit, it would have a salutory effect on public safety throughout the United States.  That’s what they do in Japan.

The New York Times reports that big New York City law firms have raised the starting salaries for kids just out of law school to $145,000.  (Large Atlanta firms raised starting salaries to $115,000 earlier this year.)  The $145,000 starting salary figure is striking to me because, without adjusting for inflation, it is exactly ten times my starting salary when I graduated from Emory Law School 29 years ago.  It’s difficult to imagine how a new law school graduate could be worth that kind of salary, with the possible exception of a new patent lawyer with a Ph.D. in a particularly hot field of science or engineering. 

A more startling comparison is with judicial salaries: federal appeals court judges, $175,100; federal district court judges, $165,200; federal bankruptcy and magistrate judges, $151,984. Almost all state trial and appellate judges are paid less.  While in a free market compensation levels are not always fair, rational or based on merit, there is something fundamentally offensive about paying new law school graduates about the same as seasoned judges with 30 or 40 years experience.

One effect of spiraling associate salaries may be to increase the tendency of large firms to over-litigate cases that should be resolved, in order to maximize billable hours. But that is nothing new.  I’ve seen platoon billing at big firms for many years.

These absurdly high salaries for new grads with no practical experience in the practice of law necessarily warp the economics of law practice.  While enabling the chosen few to rapidly pay down their tuition loans, I expect the range of unintended consequences for law firm economics and the economics of law practice generally will be largely negative. However, I feed my family by representing ordinary individuals and families, and get paid solely on the basis of productivity, I will watch this pattern with bemused detachment and leave the heavy analysis to others.