Atlanta Injury Law Blog

As an Atlanta lawyer handling both defective product and motor carrier cases, I have been troubled over the past several years by a trend of federal agencies seeking to block juries from ever getting a chance to consider the evidence  against manufacturers through the doctrine of federal preemption, often beyond anything expressly intended by Congress. Unfortunately, the U.S. Supreme Court has been lending support to that doctrine. Now, however, U. S. District Judge William R. Wilson, Jr., in the Eastern District of Arkansas, has forthrightly "called a spade a spade."  In the case of In re: PREMPRO PRODUCTS LIABILITY LITIGATION, DONNA SCROGGIN  v. WYETH, et. al., MDL Docket No. 4:03CV1507-WRW, 4:04CV01169, Judge Wilson entered the following Order.

SUPPLEMENT TO APRIL 10, 2008 ORDER

As Defendants note, I did state that I was “as confident as a Christian with four aces” with respect to my FDA preemption ruling. In view of the United States Supreme Court’s decision in Riegel v. Medtronic, Inc., 1128 S. Ct. 999 (2008). and other recent appellate decisions, my confidence, while still in place, is at a lower level.

It appears to me that an expansive reading of preemption is a part of the overall “assault upon the citadel of the right to trial by jury” (to paraphrase Cardozo). The finer points of the vice of too much preemption are well presented in Justice Ginsberg’s dissent in Riegel, and by Judge Thomas Ambro in his dissent in Colacicco v. Apotex, 22008 WL 927848, at *18-26 (3d Cir. April 8, 2008).  The thought underlying expansive preemption (“backdoor federalization”, Id. at 25.) is that bureaucratic experts are better at determining what is reasonable, what is too dangerous, etc., than are juries.
Over the past several years I believe all three branches of government have become more and more distrustful of juries. They seem to forget that a jury is a cross section of the citizens who elected them to office (or elected those who appointed them). In political campaigns these citizens are paragons of virtue; but when they are called for jury service, they somehow become
incapable of making important decisions. The language in the decisions favoring preemption is high flown; but, at bottom, it reflects distrust of the randomly selected citizens who sit on juries.

Perhaps our public officials, including judges, have read too much Plato and too little Alexis de Tocqueville. Trial by jury is the essence of government reposed in the people. We should trust this institution in fact, not just in word.

IT IS SO ORDERED this 16th day of April, 2008.
/s/ Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE

In Atlanta, Superior Court Judge Marvin Arrington issued an order on Wednesday that the legislative cap of $350,000 for noneconomic damages such as pain and suffering is unconstitutional because it gave special protections to the medical profession. This meant people injured by doctors had less protection than those injured by any other cause.

The cause arose out of the failure of doctors at the hospital in my hometown, Douglasville, to diagnose a broken neck, resulting is the patient becoming a quadriplegic.

Judge Arrington ruled that limiting the caps meant that in many cases, large jury awards would be issued only to would be issued only to wealthy people who could point to the loss of large incomes. "The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

The Medical Association of Georgia placed primary importance on the damages cap as the centerpiece of its tort "reform" legislation in 2005. I expect this ruling will stir the political pot again, putting renewed pressure on the Georgia Supreme Court. My hunch, for  better or worse, is that even though several other state supreme courts have held such damages caps unconstitutional, Judge Arrington's ruling may be reversed in the Georgia Supreme Court.

It comes as no surprise that the Supreme Court of Georgia rejected constitutional challenges to the Daubert rule on expert testimony in the newly released decision of Mason v. Home Depot.  The text of the decision is copied below. I apologize for formatting errors that may appear.

It appears that Georgia attorneys representing injured people may have to give up on direct attacks on the state adoption of Daubert, and do the harder work in each case of beating defense Daubert motions and making offensive use of Daubert against defense expert. This is a grinding, expensive proposition, and it makes the transaction cost of many legitimate cases prohibitive.

The downturn in world financial markets bodes ill for people injured by the negligence of others, as insurance companies are likely to ramp up new calls for additional "tort reform" in order to make up for their investment losses. We have seen it several times before. 

In the 1970's, 1980's and 1990's, insurance companies raised premiums to cover their investment losses.  Of course rather than admitting that their losses were due to poor investment performance, they blamed the injury victims and evil trial lawyers for filing a mountain of "frivolous" lawsuits, and supported politicians who went along with their campaign for "tort reform." Of course, premiums were never significantly reduced in response to "tort reform" legislation. Premiums come down in response to two things -- laws requiring financial disclosure by insurers, and financial market conditions.

Recently the stock market has fallen by about 15%.  This is the same stock market in which the insurance companies invest their insureds' premiums. No doubt, some insurance companies were invested in subprime mortgages.There is much talk of a coming recession.  Interest rates are falling.  The lower interest rate affects the bond market and other interest paying investments in which the insurance companies invest their insureds' premiums.

If the market does not recover, we can expect increased premiums in 2008 and 2009 to cover the insurance companies'  investment losses. As in the past, distressed financial markets will likely lead to campaigns for "tort reform," as insurers try to mask the real reasons that they are raising premiums for policyholders.       

State Insurance Commissioners, including Commissioner John Oxendine in Georgia, should investigate the investments of  insurance companies when they seek premium increases during 2008 and 2009.  The investigation should involve the insurance companies' investments in the subprime, stock and bond  markets.   If the need for  sought premium increases is the result of lost premium investments, then any increase in premiums should be limited to the rate of inflation.

The public should not be forced to pay increased premiums to cover the investment losses of  insurance companies.  Insurance companies should cover their own investment losses, since they expected to harvest any profit from their investments.  No one is covering my investment losses, or those of the rest of the investing public.

I would be wonderful if our legislators would see through the recurring pattern, but I'm afraid too many of them are just programmed to believe whatever the insurance industry and its lobbyists tell them, and to reject any message from consumer advocates.

Occasionally we get calls from potential clients who are interested in a possible malpractice suit based on alleged malpractice in a hospital emergency room. Even if the medical treatment appears to fall short of an appropriate standard of care, we have to explain to them that as a practical matter there is no case. The Georgia General Assembly chose in 2005 to change the law so that ER staff cannot be held liable for damages "unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence."  The most common definition of "gross negligence" is "reckless disregard for the safety of a patient," which is almost impossible to prove in the emergency room.

The practical effect is virtual immunity from civil liability for any ER physician who cannot be clearly proven to be drunk or on drugs at the time of the incident. Virtually no attorneys are taking ER liability cases in Georgia  because even if it is a legitimate case of malpractice, and even after you invest hundred of hours and $50,000 to $100,000 in out of pocket expense, you still almost have to prove that the doctor was drunk or intended to harm the patient.

Now Senate Bill 286 would replace "showed gross negligence" with "failed to meet the applicable standard of care."  That is still a very tough standard to meet, and the defense would probably still win 80% of the time, but in an egregious case it would be at least possible to bring a case.  It is supported by at least 15 state senators, 10 Republicans and five Democrats, including the Senate majority and minority leaders. However, the Medical Association of Georgia and Georgia Hospital Association strongly oppose it.

As a trial attorney handling serious injury and wrongful death cases in  Georgia, I have an intense interest in seeing that my clients are dealt with fairly, that the playing field is relatively level, and that the court system works reasonably well.

Currently there is a proposal in the legislature to impose a sales tax on services, including legal services, as part of a plan to eliminate property taxes for support of education. That proposal arises from deeply held feelings that the tax burden falls unfairly upon property owners. As a homeowner, I share that sentiment every time I receive a property tax bill. But as a parent whose children graduated from excellent public high schools, I know what a bargain that can be compared to private school tuition. Georgia should improve, and not diminish, support for quality public education.

Whatever general revenue measures our legislators may choose to support the quality of public education needed to provide Georgia an economically competitive workforce, it is important to examine the ramifications in detail. Specifically regarding the proposed tax on legal services, our legislators should consider a broad range of potential unintended consequences on our system of justice and the delivery of legal services.

Conflict with duty of confidentiality. Under current enforcement statutes, the Georgia Department of Revenue, under its audit authority, could claim access to detailed client billing records which are confidential under Georgia Rule of Professional Conduct 1.6. This could create a serious conflict between lawyers' confidentiality obligations to clients and the requirement to respond to audit requests.

Burden on individuals but not businesses or governments that litigate against them. Individual Georgia citizens would bear the entire burden of the tax as currently proposed, while governments, corporations and insurance companies who litigate against them would be entirely free from the tax. This would make the playing field even more uneven in favor of corporate and governmental litigants and against individual Georgians.

Economic incentive to shift legal services – and law firms’ work, staff and investment – outside Georgia.  A tax on legal services would encourage sophisticated clients, and those in border communities, to use untaxed legal services outside Georgia. It would also create an incentive for Georgia law firms to perform more services outside Georgia, and to shift investment in facilities, staff and support services to other states. Given the ease of gaining admission in many other states by reciprocity, even the smallest firms might find it advantageous to do so. Determining which services are taxable in Georgia would be an administrative nightmare.

Burden on citizens’ constitutional right of access to courts. A tax on legal services would be a burden on the exercise of Georgia citizens’ basic, constitutional right of access to justice and to the courts.

“Misery tax”. The sales tax on legal services as proposed would amount to a “misery tax” levied on individuals and families in Georgia at times of misfortune and vulnerability. It is generally necessity rather than choice that leads Georgians to seek legal assistance in cases involving death, divorce, domestic abuse, end-of-life decisions, injury, accusation of criminal offenses, or bankruptcy.

 Effect on injury cases. Recovery for bodily injury is not taxable under either federal or state income tax laws, as our lawmakers have long recognized that there is no profit when an injured person involuntarily exchanges good health for a specified amount of money. The tax on legal services would erode the injury victim’s recovery for such injury, thereby making it even more difficult – and potentially more expensive – for corporations and insurance companies to reach reasonable compromise settlements. Moreover, an Georgian injured on the job gets no more than $450 per week in workers compensation indemnity benefits. If an attorney is required to obtain the benefits, a 25% attorney fee of $112.50 per week leaves only $337.50 for the injured worker. (The weekly benefit was recently increased to $500 per week for new claims, but you get the idea.)  A tax on legal services would further erode that meager benefit, thus increasing pressure to raise workers compensation benefits, a cost which eventually would be passed on to Georgia businesses.

Experience of other states. Apparently only Hawaii, New Mexico, and South Dakota currently tax legal services. Florida and Massachusetts enacted such taxes, but promptly repealed the measures when they proved to be unpopular and difficult to administer. Several other states, including Maine, Maryland, Ohio, and Vermont, as well as the District of Columbia, rejected similar proposals.

Constitutional questions.  There are numerous unresolved questions as to the constitutionality of the proposed tax on legal services, which the State of Georgia might well have to litigate over the next several years, including but not limited to the following:

    •    Access to courts. Would the proposed tax on legal services  impermissibly burden  access to and use of the state or federal courts in violation of Art. 1, § 1, ¶ 9 Ga. Const. of 1983, Article III of the U.S. Constitution and the 5th, 6th and 14th      Amendments to the U.S. Constitution?
    •    Equal protection and due process. Would unequal treatment of individuals and corporations, whereby a tax would be imposed on an individuals party’s access to the courts but no tax would be imposed upon a corporate party in the same litigation, be a violation of the Georgia Constitution under Art. 1, § 1, ¶ II  (equal protection) and under Art. 1, § 1, ¶ I (due process of law), and the 14th Amendment to the U.S. Constitution?
    •    Separation of powers.  Would the proposed tax on legal services constitute an unauthorized regulation of the practice of law by the Legislature in violation of the constitutional guarantee of separation of powers under Art. 1, § 2, ¶ III of the Georgia  Constitution?
    •    Tax on litigation in federal courts may violate U.S.  Constitution Supremacy Clause.  Would the proposed tax on legal services, in connection with litigation before the federal courts, violate the Supremacy Clause contained in Article VI of the U.S.  Constitution?
    •    Breach of confidentiality burdening right to counsel. Would the proposed tax on legal services breach the attorney-client privilege and confidentiality, and thus impermissibly burden the right to counsel under both Art. 1, § 1, ¶ I of the Georgia  Constitution and the 6th and 14th Amendments of the U.S. Constitution?
    •    Taxing some professions while exempting others may violate equal protection of law. Would imposing a tax on services performed by the legal, accounting, architectural and other professions, while exempting services rendered by the medical profession, be a violation of equal protection rights under Art. 1, § 1, ¶ II of the Georgia Constitution, and the 14th Amendment to the U.S.  Constitution?
    •    Burden on rights guaranteed in U.S. Constitution. Would the  proposed tax on legal services impermissibly burden the exercise  of rights secured by the 5th, 6th, and 8th Amendments to the U.S. Constitution?

We should encourage efforts to make our system of taxation more fair and efficient. At the same time, we should be careful to avoid the “law of unintended consequences," which could wreak havoc if a tax on legal services were enacted.

As a trial lawyer with something of a conservative streak, I keep up with what the tort reform folks are saying, and occasionally even agree on some point. The American Tort Reform Association is highlighting a study of online information about hazards of pharmaceutical products, published by the New York-based Center for Medicine in the Public Interest, as justification for calling upon State Bar associations to require that lawyers clearly identify themselves on Web sites they sponsor.

We do not use any of those online lawyer referral services, do not participate in any web site that does not fully identify this firm, and have no problem with disclosure of the sponsors of such sites.  On the other hand, it may be impracticable to list all participants in broad-based private or Bar-sponsored lawyer referral services. Both Georgia and the ABA Model Rules cover what is permissible in payment for use of lawyer referral services.  We are in the process of reviewing updates in the Georgia Rules of Professional Conduct, and I am on the Disciplinary Rules & Procedures Committee. I'm sure we will give this issue due consideration and try to strike a fair, realistic balance.

Towers Perrin Tillinghast is an insurance consulting firm whose annual Update on U.S. Tort Cost Trends has been a highly controversial source of data for tort reform advocates.  Crtiics have long accused Towers Perrin of bias as a shill for the insurance industry providing biased, contorted numbers to support an advocacy position. 

Now the company has released its 2007 Update on U.S. Tort Costs Trends, which is available here.  "Tort costs" are defined as:  1. benefits paid or expected to be paid to third parties, 2. defense costs, and 3.is  administrative expenses.  Tort costs in 2006 declined by 5.5% from the previous year.  Personal tort costs declined 1.3% while commercial tort costs declined 7.7%, comprising a total of 1.87% of Gross Domestic Product. 

While there are undoubtedly those who resent any portion of GDP going to a system designed compensate those who are injured  by the carelessness of others, my hunch is that most folks wouldn't think 1.87% of GDP is excessive for this purpose. It beats imposing all the economic and human impact of negligence onto the victims.

My good friend Jay Cook from Athens, a former president of the State Bar of Georgia, wrote a stellar guest editorial that appeared on the op/ed page of the AJC this morning.  Acknowledging that plagiarism is the sincerest form of flattery, I'm reproducing the whole thing here:

First it was Vioxx. Then it was poisonous pet food. Now it's toxic toys and chemically enhanced popcorn. Last year alone, unsafe products killed more than 8,000 Americans and sent millions more to emergency rooms. But let's not lay the blame on the crippled regulatory agencies or the Chinese.

For once, let's lay the blame where it really belongs: on the doorstep of those megacorporations that cut corners and break rules to gain unfair advantage over American businesses, big and small, that don't.

Recently, The Wall Street Journal reported that Mattel, which has recalled more than 20 million dangerous toys this summer alone, has delayed reporting product defects because it finds the reporting rules "unreasonable." According to The New York Times, the Consumer Product Safety Commission has fined Mattel twice for such delays since 2001.

The commission collects millions of dollars in penalties every year from U.S. companies that import or sell products that violate mandatory safety standards, fail to report potential hazards and fail to report lawsuits and settlements for product-related injuries.

And those are just the ones that get caught.

Clearly, dangerous goods are slipping past the safety standards set by the many regulatory government agencies that are supposed to be protecting us, including the Food and Drug Administration and the Environmental Protection Agency.

Last year, Dr. David Graham, the senior FDA drug safety researcher who blew the whistle on dangers of the pain-killer Vioxx, told the Senate Finance Committee that "the FDA is incapable of protecting America from unsafe drugs or from another Vioxx."

Now we're learning that the EPA has been suppressing a report on the possible dangers of a chemical used in microwave popcorn. Copies of the report were provided to popcorn producers last July, but kept secret from the public.

But even with potent regulatory enforcement, Americans injured by defective products have only one place to turn for a remedy: our court system. But that, too, is being neutered by the same forces that are muzzling our watchdogs. A multimillion-dollar propaganda machine has convinced many of us (and our elected officials) that tethering our tort system will improve the economy.

It may be just the opposite. A briefing paper published last year by the Economic Policy Institute concluded: "The costs of the tort system have been grossly exaggerated, and its supposed impact on job creation, research and development, productivity, and profits has been exaggerated or simply invented. With respect to job creation in particular, significant tort law change would be more likely to slow employment growth than to promote it."

But the so-called "tort reform" movement marches on in perfect step with government deregulation. We've watched state after state weaken the ability of citizens to seek redress in the courts.

Access to justice for "the little guy" is the real target of these "reforms"— not the "problems" they've trumped up to trick us into giving them what they really want: damage controls that take the teeth out of our juries and the bite out of compensating the victims of their corner-cutting.

Tort law is a small but important facet of our civil justice system. We call it a tort when somebody acts unreasonably and harms another person's body, property, legal rights or reputation. You can't call the police when somebody commits a tort, but you can file a suit in the civil courts to seek an appropriate legal remedy.

The rules of our tort system are roughly the same common-sense principles we all learned as kids: Everybody should play fair. The one who broke the rules of fair play should pay for the damage they caused.

Our Founding Fathers understood that we needed these systems in place to make us safe and regulate the practices of fair play.

Let's cut to the chase: There's nothing wrong with making an honest buck. America was built on hard work and free enterprise. There's nothing wrong with wanting higher profits. The American Dream still lives or dies in the profit margin.

But there is something wrong when profit-making turns into corner-cutting that puts public safety in peril. And there is definitely something wrong when some conscienceless megacorporations engage in "remedy rigging": gaming the system so that even when they cheat and get caught, they get no more than a gentle slap on the hand.

 

The Center for a Just Society is a conservative outfit that seeks to "advance and defend Judeo-Christian principles of human dignity and social justice in law, policy and the public square."  If you read their web site, it's clearly a conservative organization.  In light of that faith-based conservatism, it is enlightening to read what they say about the tort law system:

[W]e want to examine some of the principles that have historically undergirded the tort system.

The tort system affirms basic human dignity and the sanctity of human life. By requiring a wrongdoer to compensate an injured person for the damage caused by a wrongful act, we affirm the worth, value, and dignity of every member of society. We demonstrate that we take human dignity seriously when, as a society, we guard against encroachments (deliberate or unintentional) by anyone on the dignity or humanity of another. No wrongdoer should be permitted to injure or kill another person with impunity. To hold otherwise undermines society's view of the importance of human dignity and the sanctity of human life.

The tort system promotes responsibility by holding wrongdoers accountable for their actions. Personal accountability is the key to responsible human behavior. We cannot expect people to act in a responsible manner unless we hold them accountable for the consequences of their actions. If we remove accountability for wrongdoing, we encourage people to engage in irresponsible and antisocial behavior. The people who will suffer the most from such behavior will be the weakest and most vulnerable members of our society (i.e., the elderly, the handicapped, and the infirm).

The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community—that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors (i.e., improve health care standards, place guards on dangerous products, protect against discharge of toxic pollutants) without the necessity of yet another costly and intrusive governmental bureaucracy.

The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of “welfare” which rewards irresponsible behavior and punishes innocent parties.

It should be apparent from the foregoing that the tort system has played an important and historic role in the ordering of civil society by providing all citizens, both weak and strong, the ability to seek justice. That does not mean that the system can't be improved. But to the extent that reforms of the system occur, we should take care to ensure that they are, in fact, improvements. Not all change equates with progress. To quote the Hippocratic oath, we must ensure that we first do no harm.

Regarding attacks on the jury system, CJS says:

Our Founding Fathers recognized that the collective judgment of ordinary people, while not perfect, is the most reliable means devised by man of resolving conflicts in America's courtrooms. Here are some of the advantages of the jury system:

•  A jury is made up of local citizens, men and women from the community who are in the best position to evaluate how the conduct at issue compares with the standards of the community in which they live.

•  The composition of the jury is not known in advance of the trial, thus reducing the likelihood of undue influence being exerted on the jurors from either side.

•  Jurors cannot be paid by either side. They can only consider evidence that meets a certain threshold of reliability and can only consider testimony given under oath. They cannot be approached by one party outside the presence of the other party. (Compare this with the legislative process, where access to the decision maker often depends on contributions having been made by an interested party; testimony is frequently not given under oath; no reliability threshold for evidence is required; and interested parties usually lobby the decision maker outside the presence of the other interested parties).

•  Jurors commonly complete their service in just a few days or weeks and then return to their private lives. Judges are often on the bench for many years, and in some cases for life, leaving them vulnerable to ongoing efforts to influence their decisions.

•  It may be easy to find one errant adjudicator who is out of touch with their community (such as a judge). It's much harder to find 12 ordinary citizens who will come to an outrageous result, and even if they do, there are mechanisms in place to correct such a result.

In spite of all of these advantages, there is a widespread effort underway to take away our right to a trial by jury. Those pushing this wrong-headed agenda claim that it will reduce the costs of healthcare and eliminate “frivolous lawsuits.” But what they are really saying is, “We don't trust our fellow citizens to resolve disputes. Lobbyists and politicians know better.” And truth be told, the agenda behind the agenda has less to do with lowering the cost of healthcare and eliminating frivolous suits and more to do with immunizing wrongdoers from the consequences of their behavior. The question is, will we trust our fellow citizens along with the Founders and a thousand of years of history, or will we trust professional politicians and the lobbying corps to look out for our best interests?

Scrapping the jury system will not bring about the lofty goals the tort “reformers” claim to be seeking. The only sure-fire result of such action is that the outcome of disputes will be decided in advance by politicians and the lobbyists of special interest groups that influence them. Is that justice?

I couldn't have said it better myself.  For too long the corporate elitists have succeeded in hijacking conservatism and using it to defeat accountability for harm they do to ordinary people.  Enough is enough.  

Here's an interesting commentary on the presidential race and one putative Republican candidate who opposes national "tort reform" on the basis of conservative principles:

Fred Thompson has not officially entered the race for President of the United States, yet already he is being assailed by Republican bluebloods who want preferential treatment in America's civil justice system.  Thompson's crime?  He was once a (gasp!) trial lawyer who supports equal justice for all. 

The "bluebloods" are Republican business elites who invest in candidates as a cost of doing business, expecting to get a return on their investment if they pick winning candidates.  Usually that "return" comes in the form of tax breaks, financial subsidies, or limited accountability for wrong doing.  Bluebloods advocate imposing "caps" or artificial limits on the amounts that victims can recover for damages suffered at the hands of wrongdoers who engage in negligent or reckless conduct.  While there is no way to limit the extent of the harm that a wrongdoer may inflict, bluebloods want to limit the amount wrongdoers would be required to pay for the damage they cause.  They prefer "caps" rather than being required to pay awards commensurate with the damages actually suffered.  And, rather than letting individual states address these issues within their own borders, they want the federal government to impose a "one-size fits all" approach to dealing with such issues.  In other words, they want federal bureaucrats in Washington, acting at the behest of special interest lobbyists, to decide the upper limits of what innocent victims can recover without regard to the evidence in any particular case and regardless of what a local jury thinks is just and fair under the circumstances.  Bluebloods use the euphemism tort "reform" to conceal the true nature of their agenda.  A more accurate description of what they are seeking is tort "deform." 

The term "tort" means a private or civil wrong, with the added implication that the wrongdoer is required to compensate an innocent party for damages suffered as a result of the wrongdoing.  Derived from the medieval Latin word tortum ("wrong"), the root of the word goes back to the ancient Latin verb torquere, which means to twist (compare our modern use of the word "torque").  At its root, therefore, the word "tort" denotes something that is twisted, and needs to be put straight.  Bluebloods maintain that conservatives should support their efforts to twist the civil justice system in their favor.  In truth, their proposals represent little more than affirmative action programs for wrongdoers.

Conservatives have traditionally respected the rights of the states to identify and address their own problems.  They have typically opposed one-size fits all solutions dictated by Congress, believing that people who have their feet on the ground in their communities are in a better position to deal with their problems than bureaucrats who are far from the scene in Washington, DC.  Nevertheless, bluebloods, who have historically objected to the federal regulation of their businesses, now want to impose draconian federal requirements on the victims of their wrongdoing.  Such attempts should be eschewed by conservatives who believe in the principles of "federalism" and "states rights".

True conservatives understand that accountability and responsibility run hand in hand.  Human nature is such that if wrongdoers are not held fully accountable for their wrongful acts, their wrongdoing will increase.  As Ronald Reagan said, "If you subsidize something you get more of it"; nevertheless, subsidized wrongdoing is exactly what Republican bluebloods seek.  While limitations on liability will likely increase the profitability of businesses engaging in wrongful conduct, such increases will come at the expense of those who are injured by such conduct.

Conservatives should not embrace an agenda that relieves wrongdoers of the consequences of their wrongdoing.  Affirmative action for wrongdoers can hardly be described as a conservative approach to problem solving.  Furthermore, Americans have historically rejected the idea of a "privileged class" that is allowed to operate under a different set of rules from everyone else.  "Equality under the law" is a proud American tradition.  Most Americans understand that when they act irresponsibly and put fellow citizens in harm's way, they will be held accountable for their conduct.  There should be no exceptions for the rich and powerful.  Rich or poor, big or small—accountability for the consequences of one's actions should be the norm for all members of a just society.

We who are advocates for citizens who have been harmed by the wrongdoing of others need not be joined at the hip with liberal politicians.  All we need is for conservatives to be true to their own core values.

The nut case administrative law judge in Washington, DC, who sued a dry cleaner for $65 million for a lost pair of pants has lowered his price to $54 million.  Roy L. Pearson  -- who turned down an offer of $15,000 for his precious pants -- is proving the maxim that he who represents himself has a fool for a client.  And he is professionally incompetent to boot. 

Yes, "Judge" Pearson, I am publicly defaming you in your business or profession because you obviously have no connection with reality, justice or professional competence.  Come on down to Georgia and sue me for $65 million.  Heck, make it $650 million or $65 billion.  Why hold back?

Perhaps he is representing himself because no sane, ethical lawyer would have anything to do with this travesty.  Perhaps he cried in court because of some glimmer of recognition that he has made a complete fool of himself.

Once a dry cleaner in my neighborhood ruined a pair of my suit pants.  Did I sue the dry cleaner? No, I just changed dry cleaners.  One of my lawyer friends in Atlanta mentioned this week that a dry cleaner once lost over 20 pairs of pants he was having altered after losing a lot of weight.  He wrote it off.

Anyway, the whole nation hopes the judge who heard the case will sock "Judge" Pearson with all available sanctions for this travesty.

The sad thing is that this idiot is not just abusing the Korean immigrant dry cleaners and making a fool of himself.  Worse, he is holding the whole legal system up to public ridicule, doing untold harm to countless people who have real problems, real injuries, real damages.  Predictably, the U.S. Chamber of Commerce lobbyists are blaming trial lawyers (and the people with serious cases that we represent)  for "Judge Pearson's" idiocy. 

Never mind that the CEO of the American Association for Justice (formerly Association of Trial Lawyers of America) filed an ethics complaint with the DC Bar against Judge Pearson.  Never mind that the case is an aberration, that "Judge" Pearson is not a trial lawyer but former legal aid lawyer promoted to a local administrative law judge in DC who has never spent a day in private law practice, or that his claim is based on an absurd interpretation of some obscure local law in DC rather than tort law.  Real lawyers are constrained by common sense and economic reality, none of which appear present in "Judge" Pearson's conduct.

Now every time we strike a jury in a case of wrongful death or serious physical injury, we will have to deal with juror perceptions not only of the McDonald's hot coffee case (which at least involved a significant burn injury) but also the "lost pants" case.  I wonder how many thousands of people will be indirectly harmed by this moron's stupidity.

The Georgia Supreme Court has held that OCGA 9-11-68 is unconstitutional, at least with regard to cases that arose before the effective date of the statute. See the full opinion in Fowler Properties Inc. v. Dowland here.

The opinion is a bit enigmatic in that the Court stated "Our conclusion that OCGA § 9-11-68 is unconstitutional as a retrospective law renders it unnecessary to pass upon the other ground[s] of attack upon the constitutionality of this act."  

In a show of good sense, North Carolina doctors and trial lawyers have  joined to support a bill that would place a $1 million dollar cap on some medical malpractice cases. The bill would limit monetary damages in medical negligence cases for parties who agree to enter into binding arbitration. Lawmakers are hopeful that the bill, supported by the North Carolina Medical Society and the North Carolina Academy of Trial Lawyers, will mark a new era of cooperation in the state. 

We could have done that in Georgia but for the determination of some "tort reform" advocates to shove down our throats the most aggressive and poorly drafted legislation they could cobble together. As a former chair of the Tort & Insurance Practice Section of the State Bar, I tried to get the then-current leadership of that section to offer to mediate the drafting of a compromise bill prior to the 2005 session of the General Assembly.  However, without a lever and a fulcrum there was little I could do at that point but howl in impotent protest. Now the legislation that some legislators have admitted as "written with a crayon" is being picked apart section by section.

The American Association for Justice (formerly Association of Trial Lawyers of America) has  filed an ethics complaint against Washington, D.C., administrative law judge Roy Pearson Jr., the guy who made news with a  $65 million lawsuit against a local dry cleaner for losing a pair of his pants.  Clearly we lawyers need to do something about the idiots whose frivolous lawsuits mess up the system for those with ligitimate claims.

The Supreme Court of Georgia yesterday struck down the provision of SB 3, the omnibus tort reform bill passed in 2005, which required a plaintiff to provide a medical records authorization authorizing ex parte discussions with all treating physicians, upon filing of any medical malpractice suit.  The Supreme Court held that this requirement was preempted by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).  See the full text of the decision below.

An annual nationwide survey of 1,599 in-house attorneys and senior litigators at companies with annual revenues of at least $100 million ranked Georgia #31 of 50 states on criteria such as juries' "fairness " toward corporate defendants (or unfairness to injury victims?),  judges' "impartiality" (or bias against plaintiffs?) and disinclination to award punitive damages against corporations.  Long-time corporate haven Delaware was #1 with a rating score of 75.6.  Alabama, Mississippi, Louisiana and West Virginia were rated the least favorable for corporate defendants. 

Georgia, ranked #31 in receptivity to corporate defendants, had a rating score of 61.2.  Other neighboring states' rankings and scores were: Tennessee (#7, 68.2), North Carolina (# 16, 65.9), Florida (#36, 58.1) and South Carolina (#37, 58.1).

The American Association for Justice, a national trial lawyers group, called the chamber's survey "bogus" and issued its own report, "The Ten Worst States to Get Sick or Injured In." The report highlights states that cap damages in personal injury lawsuits.  Jon Haber, chief executive officer of the AAJ, called the survey "propaganda" spun by "corporate lawyers earning millions of dollars defending their CEOs from being held accountable."

4/15/07.  The  doctrine of respondeat superior has been deeply ingrained in Anglo-American common law tradition since long before the American Revolution.  The origins of respondeat superior are disputed. Compare Holmes, Agency I, 4 HARV.L.REV. 345 (1891) (respondeat superior developed from Roman law) with Wigmore, Responsibility for Tortious Acts: Its History, 7 HARV L.REV. 315 (1894) (respondeat superior developed from Germanic law). It was firmly established as part of the common law by 1725. T. BATY, VICARIOUS LIABILITY 28-29 (1916) (as to negligent acts).

Under this rule, employers have long been responsible for the negligence of employees acting in the course and scope of employment. Thus, if a  truck driver negligently runs over an innocent motorist on the road, for example, the injured person can look to the trucking company for financial accountability.  If an airline pilot were drunk and crashed a plane carrying hundreds of people, the families of the deceased can look to the airline for accountability.

Now, however, some members of the Georgia General Assembly, seeking a compromise between the National Rifle Association and the Georgia Chamber of Commerce to bar employers from prventing employees from carrying concealed guns to work, seek to sweep away many centuries of common law tradition in a week.  In a classic example of legislative logrollng and back room deal making, we have learned that a "committee substitute" for House Bill 89 (the "take your gun to work" bill), will be introduced in the Senate Rules Committee on Monday morning.  Section 5 of that substitute bill includes the following:

SECTION 5.

Said title is further amended by adding a new Code section to Article 1 of Chapter 11, relating to general provisions concerning defenses to tort actions, to read as follows:

.51-11-22.

(a) No employer, company, firm, limited liability company, corporation, or shareholder, director, officer, manager, or supervisor thereof shall be directly or indirectly liable for any illegal act or harm or act of omission of an employee or former employee which occurs without the actual knowledge and authorization of the employer or when the employee´s actions are contrary to company policy unless it is shown by clear and convincing evidence that the actions of an employer, company, shareholder of a company, director, officer, manager, or supervisor of a company itself constituted gross negligence or reckless, willful, and wanton conduct.

(b) Such standard shall apply whether the employee or former employee was wholly or partially engaged in the employer´s business, reasonably appeared to be engaged in the employer´s business, was or was not on the employer´s premises when the alleged act or omission of the employee occurred, or was otherwise under the direction or control of the employer when the act or omission occurred. This presumption may only be rebutted by clear and convincing evidence that the employer´s acts or omissions constituted gross negligence or reckless, willful, and wanton conduct and were a proximate cause of the damage sustained.

(c) In every civil and criminal action to which this Code section applies, an employer shall have the right, pursuant to a pretrial motion and after opportunity for discovery, to a hearing before the court in which the person asserting a claim against an employer shall establish a reasonable likelihood of proving facts at trial sufficient to support a finding that liability for damages should be apportioned to the employer under the standards set forth in this Code section. If the court finds that this standard is not met, the claim against the employer shall be dismissed.

This is lunacy.  If our legislators pass this, they are no longer conservatives.  To sweep away centuries of common law tradition in a week is revolutionary.  I'm willing to give some of them the benefit of the doubt on the basis that they are merely ignorant of the law and have no idea what they are doing. For those who have even a little legal background however, there is absolutely no excuse.

If their constituents knew what they were up to and understood the broadly sweeping implications, they would toss those politicians out on their ears. However, some politicians make these corrupt bargains in the shadows, trusting that the voters in their districts will never know or understand what they did, and that the special interests they serve will deter opposition candidates and keep them in office.  I hope that anyone who votes to pass this will have strong opposition within their own party primary in the next election.

4/17/07.   The proposal quoted above came out on Friday.  Over the weekend it was distributed by email to members of the Bar, many of whom showed up at the Senate Rules Committee at 8:30 AM on Monday.   I learned about the proposal Friday night in California, flew home, emailed my analysis to all members of the Rules Committee, and was at the Capitol Monday morning.  Five minutes before the committee meeting convened, we learned that the elimination of vicarious liability had been stricken from the bill. While it is comforting that the proposal was killed, it is disturbing that there are people in the Capitol who would seriously propose such a complete revocation of corporate accountability.

OCGA 9-11-68, the rather overbearing version of an offer of judgment / offer of settlement statute that was enacted as part of Senate Bill 3 in 2005, has been held unconstitutional by several trial courts. Now the constitutional challenge is reaching the Georgia Supreme Court.  In light of the fact that a plaintiff won $4 million in attorney fees added to an $11.7 million compensatory verdict in a medical malpractice case last week, I wonder how vigorous the opposition to this constitutional challenge will be.

Following is a copy of the GTLA amicus curiae (friend of the court) brief, minus the table of authorities and extensive footnotes.

Despite the political surge to tort "reform" and the distinctly conservative tone we see in jury panels these days, when serious cases are well tried jurors repeatedly show the willingness to award adequate verdicts.  We experienced it a couple of weeks ago with a $2.3 million verdict in rural Gordon County for a young man with a serious leg injury that limits him to sedentary occupations and eliminates all but a bittersweet his lifelong loves of hunting, fishing and basketball.

This week there were verdicts of $5 million in very conservative Hall County and $11.7 million in Fulton County, which due to demographic shifts is not generally considered as plaintiff-friendly as a few years ago.

In Gainesville (Hall County), there was a $5 million verdict for a worker who had as catastrophic brain injury in a fall from a ladder in an unsafe workplace. As with our recent case in Calhoun, nothing has yet hit the newspapers.

In Atlanta (Fulton County), my downstairs office neighbors, David Boone and Bill Stone, won an $11.7 million medical malpractice verdict for a young man who was a college freshman in 2003 when he underwent a surgery to relive chronic back pain but came out a paraplegic. (Ironically, the surgeon who was then at Resurgens Orthopedics is in many respects a pretty good guy who I have known to get get great results in other operations.)

The great irony of the case in Fulton County is that the plaintiff used provisions of the tort reform legislation passed two years ago to exclude two of the defense experts, and to add on roughly $4 million in attorney fees and expenses in addition to the jury's verdict due to the defense rejection of an offer of settlement under OCGA 9-11-68. Thus, the insurance company that lobbied so hard for tort reform legislation is hoist upon its own pettard.

All these cases underscore the importance of presenting serious cases in a serious, effective manner.  When that is done, it may not matter much where a case is tried. 

On a tangential note, the U.S. Census Bureau announced this week that the 28-county metro area — known officially as the Atlanta-Sandy Springs-Marietta Metropolitan Statistical Area — reached a population of 5,138,223.  I remember when a much more compact metro Atlanta area reached a population of 1 million, provoking much celebration and civic chest-thumping.  The 5 million population mark is just another news story.  Differences between metro Atlanta and most other major American cities are not that huge.  Neither is the potential for serious jury verdicts in serious cases.

When the Georgia General Assembly rushed two years ago to pass Senate Bill 3,  the sponsors could not be bothered with the tedious and time consuming committee work of careful legislative drafting, reflection, discussion and revision.  The result is the legislation is being picked apart piece by piece. The Court of Appeals has dissected a contradiction in the new rule on who may testify as an expert in medical malpractice cases.  

See discussion below.

In the case of Zeier v. Zimmer, Inc.,  2006 Ok. 98 (12/19/06), the Oklahoma Supreme Court has held that a medical malpractice affidavit pleading requirement similar to the one adopted in Georgia violates a "special law" provision of the Oklahoma constitution similar to a provision of the Georgia constitution. The Oklahoma case is summarized by John Day in his great blog.

the Oklahoma Constitution that provides that ""The Legislature shall not except as otherwise provided in this Constitution, pass any local or special law ... Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts."  Similarly, the Georgia Constitution, Art. 3, § 6, ¶ IV, provides in part as follows: " Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, . . . No special law relating to the rights or status of private persons shall be enacted."

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.

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

When the Georgia General Assembly passed Senate Bill 3 -- the "tort reform" conglomeration -- in February 2005, most of the legislators hadn't even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn't understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970's, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar's proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

An article in today's AJC, titled "Tort reform has bizarre consequence," describes the absurd consequences of the "winner pays" rule enacted as part of last year's tort reform legislation. A young woman who was the victim of sexual assault, and whose assailants were criminally convicted, is at risk to be forced to pay her assailants' attorney fees unless a jury awards at least 125% of the paltry offers made by the assailants. While some common sense Republican legislators who actually know how litigation works, labored long and hard on a consensus bill to fix the problems in the offer of judgment rule, the last thing I heard at the Capitol was that the proposed remedy may not make it out of committee, as the hard-line tort reform zealots actually want to take a punitive approach toward injury victims who dare to take their claims to court. Once again we see what can happen when laws are written in crayon by people who are both ignorant and mean-spirited. Fortunately, however, those who write laws with a Crayola disregard such minor concerns as constitutionality. In due course, I expect the Supreme Court will strike down this provision.

A year ago the Georgia legislature passed and the Governor signed a sweeping tort reform bill, motivated in part by intimations -- if not outright promises -- that the result would be lower malpractice insurance premiums for doctors and hospitals. Now, according to the Office of the Insurance Commissioner, five medical malpractice insurance companies filed requests to increase physicians' premiums over the past 12 months. In fact, First Professionals Insurance moved to hike physician's premiums just two days after Governor Perdue's bill signing ceremony at Northside Hospital. Other companies include G.E. Medical Protective, State Volunteer Mutual Insurance Company, Medical Assurance Company of Mississippi and Medical Mutual Insurance Company of North Carolina.

Insurance costs for Georgia physicians have risen steadily since 2001. While insurance industry lobbyists and the Medical Association of Georgia have blamed the legal system for recent rate hikes, the Property Casualty Insurers Association of America documented a record-breaking profit increase for the industry from 2002-2004: from $3 billion to over $41 billion. In September, the National Association of Insurance Commissioners (NAIC) announced that "the U.S. property and casualty insurance industry… holds assets in excess of 1.3 trillion dollars."

2/13/06.

Today the Georgia Supreme Court struck down one venue provision of last year's tort reform legislation, but upheld another one.

The Court unanimously affirmed Judge J. Antonio DelCampo of DeKalb County State Court, who in March ruled unconstitutional the section of last year's tort reform legislation requiring judges to transfer a case to a medical malpractice defendant's home county, upon the defendant's request, if the event that prompted the suit occurred in that county. ECHA Cartersville v. Turner, No. S05A1560 (Sup. Ct. Ga. Feb. 13, 2006). The ruling restores the old rule —- in which plaintiffs chose the venue if there were several co-defendants. The decision, written by Chief Justice Leah Ward Sears, found that the venue transfer provision violated a subsection of the Georgia Constitution stating that suits against several co-defendants residing in different counties "may be tried in either county."

In a second case, the Supreme Court affirmed a ruling by then-Fulton County State Court Judge Craig L. Schwall (now on Superior Court) rejecting a constitutional challenge to the provision that allows judges to transfer a case to a different county if the court determines that "the interest of justice" and "the convenience of the parties" warrant transfer, a concept commonly known as "forum non conveniens." Writing for the court, Sears reasoned that the Georgia Constitution gives the courts power to change venue, so the forum non conveniens provision is constitutional. Garland v. Earle, No. No. S05A2066 (Sup. Ct. Ga. Feb. 13, 2006).

Justice Harold D. Melton, who was Gov. Sonny Perdue's executive counsel when the governor signed the tort reform legislatoin into law, recused himself in these cases. Judge Daniel M. Coursey Jr. of DeKalb County Superior Court sat by designation in his place.

In a report published by the Cato Institute's magazine Regulation, professors Katherine Baicker of Dartmouth College and Amitabh Chandra of the Kennedy School of Government at Harvard University studied the impact of medical malpractice payments on medical liability insurance premiums, size of the physician workforce, and the use of "defensive" medicine. In each category, the researchers found little or no relationship between the level of medical malpractice payments and the measures used by the insurance industry to promote limits on individual rights. The report found that:

- There is no significant relationship between increases in medical malpractice payments and medical liability insurance premiums. "We find that when the number or size of malpractice payments rises, there is very little accompanying increase in the malpractice premiums paid by physicians."

- There is little evidence to suggest that malpractice payments lead to a loss of physicians. "... [T]here is little evidence of a mass exodus of physicians in response to increases in malpractice liability."

- There is no clear pattern of increased health care spending in states with higher or more frequent malpractice payments. "… [W]e find little evidence that malpractice payments are driving the dramatic increase in overall health care expenditures."

Since the passage of Senate Bill 3 one year ago, Georgia has experienced the same patterns as those outlined in the Baicker-Chandra report. Malpractice insurance premiums remain high, underserved areas are still underserved, and there has been no relief in the cost of health care for Georgia families.

Patient and physician backlash is causing lawmakers across the country to reconsider anti-patient laws like the one passed in Georgia and similar states. In fact, Georgia lawmakers are already considering an overhaul of the Emergency Room immunity provision of Senate Bill 3 that set up "accountability-free zones" in ERs across the state. Last July, the Wisconsin State Supreme Court ruled unconstitutional that state's arbitrary, one-size-fits all cap of $350,000 - similar to a provision of Georgia's new law.

An editorial in today's Macon Telegraph notes that some Republican legislators who supported the tort reform legislation last year now feel that they went too far. Some now want to roll back the virtual immunity from liability that was granted to emergency room doctors. Judges have held unconstitutional portions of the tort reform bill in 16 cases, and I understand there are Republican legislators working on bills to fix some of the more egregious constitutional flaws in the legislation. The editorial concludes: "Perhaps the Legislature, should it choose to correct earlier inequities, might consider insurance reform as a way of protecting the medical profession from unreasonable as well as irresponsible insurance costs."

In "The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs," published last month in Yale Law Journal, Vanderbilt Law Professor John C.P. Goldberg wrote that a law for the redress of private wrongs forms part of the basic structure of our government. Although the Constitution does not confer on any particular individual a right to a specific version of tort rules, all American citizens have a right to a body of law for the redress of private wrongs that generates meaningful and judicially enforceable limits on tort reform legislation.

The current issue of Atlanta Business Chronicle includes a article by Kelly B. Thrasher, M.D.,, an Atlanta internal medicine specialist, pointing out that tort reform legislation has produced windfall profits for the insurance industry rather than savings for the physicians who were exploited in the political drive to get the legislation passed.

The Medical Association of Georgia, which represents about a third of the state's physicians, "was misinformed about tort reform and malpractice insurance" and "informed physicians that their malpractice insurance would decrease if the legislature passed a tort reform bill."

In September, the National Association of Insurance Commissioners (NAIC) announced that "the U.S. property and casualty insurance industry... holds assets in excess of 1.3 trillion dollars." From 2002-2003, when insurance costs for physicians were skyrocketing, the Property Casualty Insurers Association of America documented a historic, record-breaking 900 percent profit increase for the industry, in which pure profits increased from $3 billion to over $29 billion in one year. Amazingly, industry analysts A.M. Best and Weiss Ratings Inc. reported that the industry almost doubled that profit in 2004, with final profit figures topping $41 billion.

Not surprisingly, the timing of these windfall profit increases for the insurance industry parallels the same time period that the American Medical Association christened the "crisis years" for the medical community. Yet, during hours of hearings held earlier this year at the State Capitol, none of Rep. Rice's friends in the insurance industry were called to answer any questions.

There is no doubt in my mind that wild, unchecked increases in the cost of malpractice insurance drove many good physicians out of business, particularly in rural Georgia. That crisis still rages here in Georgia at the expense of the medical community -- a crisis of accountability in the Goliath insurance industry. Unfortunately, the so-called "reform" in Senate Bill 3 does nothing to hold insurance companies accountable to their policyholders -- or to the state insurance commissioner, for that matter. Without real reform targeting insurance industry greed that is clearly at the root of recent rate hikes, the medical community will never enjoy the "stability in medical costs" that Rice hopes for.

I have always been sympathetic with the doctors who are caught between health insurance and managed care organizations severely limiting what they are paid and malpractice insurance companies gouging them on premiums. However, it amazed me that the medical profession focussed so much energy on lobbying on behalf of the insurance industry rather than loss prevention and financial disclosure in the insurance industry.

A coalition of lawyers who have sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools.

Leading the litigation effort is Richard A. Daynard, an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to attorneys suing tobacco companies. Joining Daynard is Stephen A. Sheller, a Philadelphia lawyer who came up with the legal theory that tobacco firms deceived consumers into thinking their low-tar and -nicotine cigarettes were safer to smoke than regular cigarettes. Also involved in the prospective lawsuit is the Center for Science in the Public Interest, a consumer advocacy group that has aggressively pressed for more explicit food labels and less fat and sodium in all kinds of food.

Note that these are not the meat-and-potatoes trial lawyers who typically represent individuals and families who have suffered a grievous injury. They are public health crusaders who try to find a client to fit a theory, and use the courts to change public policy and large-scale corporate behavior. Referring to them as "trial lawyers" or "personal injury lawyers" would be misleading, but I am sure the tort reform zealots will do just that.

I have serious reservations about this kind of food and beverage class action litigation. And not just because I went to law school at a univeristy (Emory) that was built on Coca Cola money. Some of my concerns are:

* Unless they can prove the sinister use of toxic or physically addictive additives in food and beverage products, they appear to be complaining about things that are obvious common sense characteristics. We have all known since childhood that too much sugary soda and too much fatty food is likely to make you fat and rot your teeth. We choose to indulge anyway. Just today I decided to skip the low-fat, low-calorie salad at lunch, and indulge in a double hamburger with fries and a full-sugar, non-diet soft drink. I knew exactly what I was doing, but hey, I ran a marathon in October and a half-marathon in November, and I'll run it off tomorrow.

* A massive class action that strikes the average citizen as silly and overreaching will only feed the climate of "tort deform" by which corporate America seeks to strip rights and redress from average citizens. It will enter the litany of "frivolous lawsuits" along with the real but misrepresented (McDonalds hot coffee case) and the merely mythical (guy holding up lawn mower to use as hedge trimmer). It will hurt the system upon which people with real and serious injuries depend.

The change of behavior these crusaders seek -- to stop sales of sugary soft drinks to children at school -- is probably good. I am sure they mean well. But I think their use of tort law for this purpose will hurt more than it helps.

Georgia law requires an affidavit from a qualified expert in order to file a medical malpractice case, and has stringent requirements for qualifications of such experts. It is virtually impossible to get a qualified expert within the state, so lawyers handling such cases generally start with the assumption that they will have to go out of state to find an expert willing to testify. Now, medical specialty boards are taking action to discipline and intimidate doctors who dare to testify against other doctors. While there may be extreme situations in which a professional organization would be justified in disciplining a member who gives completely off-the-wall testimony about malpractice, the potential for abuse is obvious. If an expert witness within an area of practice is required to make a case, and the professional organizations within the area of practice intimidate their members from providing truthful and accurate testimony, then the injured patient is denied access to justice in even the most meritorious cases.

This year the Georgia General Assembly adopted a $350,000 cap on noneconomic damages in medical malpractice cases. Noneconomic damages include physical and mental pain and suffering, permanent impairment, intangible value of life in a wrongful death case, etc. Today the Supreme Court of Wisconsin released a decision holding a similar Wisconsin statute unconstitutional, as there is no objectively rational basis for the cap. The full text of the decison appears below. Key quotes:

"Based on the available evidence, we cannot conclude that a $350,000 cap on noneconomic damages is rationally related to the objective of ensuring quality health care by creating an environment that health care providers are likely to move into, or less likely to move out of, in Wisconsin. The available evidence indicates that health care providers do not decide to practice in a particular state based on the state's cap on noneconomic damages."

"The evidence does not suggest that a $350,000 cap on noneconomic damages is rationally related to the objective of ensuring quality health care by preventing doctors from practicing defensive medicine. We agree with the non-partisan Congressional Budget Office's finding that evidence of the effects of defensive medicine was 'weak or inconclusive.'"

"The court must presume that the legislature's judgment was sound and look for support for the legislative act. But the court cannot accept rationales so broad and speculative that they justify any enactment. '[W]hile the connection between means and ends need not be precise, it, at least, must have some objective basis.'"

The rationale used by the Wisconsin Supreme Court would appear fully applicable in Georgia. We have some strong, principled Supreme Court justices in Georgia. Whether a majority of them will have the political courage to make such a forthright and sensible decision remains to be seen. But since Governor Perdue's House floor leader made an impassioned speech about the unconstitutionality of the cap, maybe we shouldn't expect the worst even from Gov. Perdue's recent appointee to the Supreme Court.

A thoughtful article in RedNova fairly explores the complexity of medical economics that the tort reform advocates in the legislature often overlooked. One quote from an Atlanta physician:

"My problem with [Georgia's tort reform] is doctors have been pitted against lawyers, when it's really a case of insurance companies against patients. If anything, doctors should be teaming up with the lawyers to fight insurance companies. There are plenty of examples of doctors who think they're being screwed by a health care insurance company when it comes to claims, but when a malpractice insurance company raises rates, it's basically the patients' and the lawyers' fault. Sure, I do know there are plenty of frivolous lawsuits, but there must be a better way of keeping them out of the system, something better than a blanket rule to prevent patients who are severely injured from receiving fair compensation."

A new study by Dartmouth College researchers suggests that huge jury awards and financial settlements for injured patients have not caused the explosive increase in doctors' insurance premiums.

The researchers said a more likely explanation for the escalation is that malpractice insurance companies have raised doctors' premiums to compensate for falling investment returns. See article.

"A major new report released...by the Economic Policy Institute (EPI) offers more evidence that the insurance industry is intentionally using faulty data to make claims that the tort system leads to increased economic costs. EPI, a nonprofit, nonpartisan think tank based in Washington, analyzed in detail the alleged cost estimates of the U.S. tort system published by Tillinghast-Towers Perrin (TTP), a consulting firm whose clients include many of the world's largest insurance companies. The 20-page study by economist Lawrence Chimerine and EPI vice president Ross Eisenbrey, entitled Frivolous Case for Tort Law Change, concludes that TTP's cost estimates are one-sided, inflate the impact of the tort system and ignore its benefits, and that corroboration supporting their numbers is weak or nonexistent. Earlier this year, Business Week warned in an editorial that TPP's numbers were 'a wild exaggeration.' 'This authoritative study is just the latest to prove that special interests and the insurance industry are throwing up smokescreens to preserve their rising profits, no matter the cost to doctors and consumers,' said Todd Smith, president of the Association of Trial Lawyers of America....'When a child is injured because Firestone refused to pull defective tires from the market, or a company like Enron decides to cook the books at the expense of shareholders, that's not harming the economy - that's the cost of corporate disregard for consumers. Americans would pay a far more devastating price if we didn't have a strong civil justice system to hold corporations accountable,' said Smith." For the complete study, please go to the Economic Policy Institute's website, "Tillinghast Issues Statement On U.S. Tort Costs."

The Interland Spring 2005 Business Barometer of Small Business Activities reveals a disconnect between the concerns of small business owners and the overheated rhetoric of tort reform lobbyists. The Interland survey found that 66 percent of small businesses "rarely or never" consider the cost of litigation when ma