Atlanta Injury Law Blog

As an Atlanta trial attorney representing folks who are badly hurt in interstate commercial trucking accidents, and the survivors of those who are killed, I spend a lot of my time flying around the country to take depositions of trucking company executives and truck drivers, and briefing issues under federal motor carrier safety law. It's a specialized practice area that a lot of folks don't even realize exists.

But in the midst of the "pick and ax" work of litigation, sometimes it's good to step back and look at the tort law system in historical perspective. Some folks who push hardest  to cut off the rights of folks who are hurt badly due to someone else's carelessness seem to think that this whole area of law sprung up in the past generation.

But the roots go back 4,000 years.

The story of  tort law begins around 2100 B.C. in ancient Sumeria, the birthplace of Abraham, in the area of the Tigris-Euphrates delta in present day southern Iraq and Kuwait.   Much as later American tort law would emphasize business, insurance, motor vehicles and manufactured products, Sumerian laws focused on their context, including pragmatic rules for orderly compensation supplanting the instinct for uncontrolled revenge.  The Laws of Ur-Nammu (c. 2112–2085 B.C.)  mandated compensation in silver for putting out a man’s eye, and the Code of Lipit-Ishtar (c. 1934-1924 BC) set a negligence standard for property damage to a house.  The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs and  collapsing walls.

A couple of centuries later, upstream in the Tigris-Euphrates river valley,  Sumerian laws become the foundation of the Code of Hammurabi (c. 1700 BC).  Included were early versions of the principal features of tort liability – intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence. 

When Moses led the Hebrews out of Egyptian slavery (circa 1440 B.C. -  1290 B.C.), the Mosaic laws included echoes of Sumeria (father Abraham's hometown) and Hammurabi.  The Torah is filled with what we think of as 'tort' rules, indicating the depth of the roots of tort law in the Judeo-Christian tradition.  Precursors of tort law in the Pentateuch include the spreading fire, the straying livestock, the uncovered pit, the bull goring another bull (property damage), the bull goring humans (personal injury), the injunction to maintain a railing around one’s roof, compensation for  accidental injury of one man by another swinging an ax, and that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.

A thousand years after Hammurabi, the legal system of ancient Greece began to emerge. The emphasis was on  fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrator are chosen today.  However, running through is a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. Principles of corrective justice emerged. 

Plato in The Laws wrote of "little repeated torts between neighbors" for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct.  Aristotle in Nichomachean Ethics taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake” – equivalent to concept of negligence in modern tort law – causes foreseeable injury.  The amount of inequality to be rectified was the the community's valuation the physical injury due to the defendant's wrongful act.  Customary Greek law was first codified by Dracon, circa 622 B.C., with penalties so harsh as to give us the word draconian and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which those who distrust modern juries would surely recoil.

Early Roman law was simple and pragmatic, arising from an agrarian culture thrust into a role of economic and military dominance.  The disparate sources of customary laws were codified initially on ten wooden panels around 889 B.C. by a panel of ten patrician jurists (Decemvirs), into the “Ten Tables,” later expanded by 450 B.C. to the “Twelve Tables.” Private wrongs were called "delicts." The penalty for intentional homicide was blood vengeance at the election of the victim’s family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim’s family.  For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.

The Twelve Tables were replaced by the Lex Aquila, enacted by popular plebiscite circa 286 B.C.  While preserving the general rule of strict liability for one’s actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, willful denial of a meritorious claim could result in doubling of the damages awarded.  The Lex Cornelia ( c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.

Throughout Rome’s thousand year dominance, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one's actions might not apply, such as in the instance of action not voluntarily taken; (3)  transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.

Over thousands of years, these early foundations of tort law led to the development of English common law and our American tort law system.  This body of law has been in the process of reforming to meet the changing needs and conditions of western civilization for 5,000 years.

Sometimes the pendulum swings too far in one direction or another, and when that happens, lawmakers and judges tug it back toward the middle of the path. Fortunately, we have some legislators in both parties who understand the issues in enough depth to make wise choices rather than being consumed in the urgency of political sausage making while struggling with the immediacy of budget problems and the cacophony of interest group demands. Some of  the folks who beat the drums loudest for "tort reform" go too far, sometimes out of a desire to generate political campaign contributions from particular interests. But some ideas in the "tort reform" area can have merit if applied fairly and in moderation.

Over time, despite the excesses on the margins, the path of development of personal injury law tends to be consistent with Georgia's state motto: "Wisdom, Justice, Moderation."

 

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A few days ago the Georgia Supreme Court heard oral arguments on constitutionality of the $350,000 cap on non-economic damages in medical malpractice cases. Both trial attorneys and members of the medical profession are waiting with bated breath for the court's ruling.

Watch the video of the oral argument and tell me how you think the court will rule.

 

 

 

 

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The tort reform legislation that passed the Georgia legislature in 2005 involved an unfortunate clash between the medical and legal professions. Then just a rank and file attorney handling catastrophic personal injury and wrongful death cases in metro Atlanta, and a back row member of the State Bar Board of Governors, I had no real leverage to do anything but join in futile protest. Some of my conservative friends in the legislature said they didn't like the bill either, but were unable to do anything but go along with party discipline.

But I felt at the time that there could have been consensus legislation, on which both sides could have signed off, if the right things could have been done a year or two earlier.  Friends on the other side of the divide expressed the same sentiment. Unfortunately, we had a political train wreck in which the bill that passed was loaded with some provisions that were contradictory or unconstitutional.

One of the provisions is to cap "noneconomic damages" (pain, suffering, loss of quality of life, etc.) at $350,000 in medical malpractice cases. The economic reality is that people who suffer catastrophic noneconomic damages, but without large economic loss, generally cannot hire a lawyer capable of competently handling their case. This is because it takes $50,000 to $100,000 of out of pocket expense, mostly for expert testimony and dealing with the other side's experts, to properly prepare a medical malpractice case for trial. Because few victims of malpractice can fund that kind of expense, lawyers typically have to front the expense. It is not a sane business decision to risk $100,000 of one's own money on a case where the maximum recovery is $350,000, as for the death of a homemaker or retiree due to malpractice.  A 40% contingent fee in a $350,000 recovery would be $140,000. The statistical probability of success at trial in even the most meritorious medical malpractice case is maybe 20%.  Even if a lawyer were willing to take that risk, and were successful, the net benefit to the hypothetical client would be only $110,000 out of $350,000, hardly an attractive proposition for lawyer or client.

Thus, the $350,000 cap on noneconomic damages effectively denies access to justice in cases where a person's life is destroyed or devastated, but the provable economic loss is relatively small.  If the legislature intended to deny justice to victims of catastrophic injury due to medical malpractice who are of modest means, there could have been more straightforward ways to do it. 

Yesterday the Georgia Supreme Court heard oral arguments in the case of Nestlehutt v. Alanta Oculoplastic Surgery, PC,  in which a trial court judge had held the cap unconstitutional.  Mrs. Nestlehutt was a real estate agent who found she was losing business to younger competitors, so she consulted a plastic surgeon about removing bags under her eyes and age lines around her mouth. The surgeon recommended simultaneous CO2 resurfacing and a full facelift. This was particularly risky in a patient of her age and complexion. To make a long story short, her face essentially fell off, leaving her with horrible permanent disfigurement such that she could hardly leave the house. The jury awarded $900,000 for the devastation of her quality of life.

Fulton State Court Judge Diane Bessen held that the $350,000 cap is unconstitutional because it violates right to trial by jury, equal protection of laws, and separation of powers.

At the Supreme Court, attorney Michael Terry argued for Mrs. Nestlehutt that the most egregious aspect of the cap is that it hurts the people who are injured the most. “No frivolous cases are affected by the cap,” said Terry. “This makes no sense. It is not rational.”

Defense attorney argued that, “The Legislature found there was a crisis” that justified the caps, Peters added, referring to lawmakers' findings that limits on medical malpractice awards were needed to help health care providers secure affordable malpractice insurance coverage."

Questions from the members of the Supreme Court gave little clue how they may be leaning, according to Alyson Palmer of the Fulton County Daily Report.

Perhaps the best outcome would be if the court unanimously held the damages cap  unconstitutional, and sent everyone back to the drawing board to come up with a different form of medical liability compensation system involving a genuine tradeoff between the legitimate concerns of doctors and patients.

 

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Every few months for several years, I have received emails about the "Stella Awards." This purports to be a summary of the most frivolous and absurd lawsuits.

The problem is that the stories it tells are false.  It appears to be a collection of the most absurd fictional lawsuit stories that someone could make up for propaganda purposes, with no connection to reality.  However, while the "Stella Awards" list is demonstrably false, it keeps rearing its ugly head.

See the "Stella Awards" and their debunking at snopes.com.

That's not to say there aren't some absurd, frivolous lawsuits.  While I generally represent plaintiffs in this decade, I screen out a lot of cases that would be frivolous.

Occasionally represent defendants to knock out of the system lawsuits that are frivolous.  Just recently I represented a defendant in getting a frivolous lawsuit dismissed under threat of sanctions.

 

 

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The insurance industry always winds up blaming injury victims and their lawyers for premium increases that result from investment losses and hurricanes.  However, there is a revealing article this week in the Atlanta Journal Constitution.

Increases of car and insurance rates of 5% to 11% in Georgia this year are -- accordnig to insurance industry sources and experts -- attributable to:

• the recession
• investment losses by insurance companies
• hurricanes
• rising cost of auto repairs

There is no mention of liability claims losses as a factor in rising premiums.

But I bet by the time of the next legislative session the insurance industry lobbyists will invent a way to blame all premium increases on injury victims, lawyers and juries.

 

 

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My learned colleague and fellow Atlantan, Jonathan Wilson, writing on the Manhattan Institute's PointofLaw.com blog, has responded to my earlier comment about the "stay of discovery" provision of the legislation recently passed as HB 29.

I had commented earlier, in part, that the legislation as passed would prompt a "rash of frivolous motions to dismiss as a stalling tactic" but will eventually become "much ado about nothing." He responded that this was "an outcome that's hard to dispute, although I seem to have missed the plaintiff's bar using that argument in favor of H.B. 29 before it was passed."

In the spirit of friendly discussion, I would point out that no one has less use for frivolous lawsuits that a truly professional plaintiff's lawyer. We have no desire to waste time and resources on trivial claims that we do not believe, at least in the beginning after some due diligence investigation and research, we would be glad to take to trial.

The bill that was eventually passed as HB 29, rolled together with another bill on service by email (which I supported in its final form after addition of appropriate safeguards), started out as Senate Bill 108.  As originally introduced, SB 108 included a vague "loser pays" provision that the party losing on a motion to dismiss would be assessed the defendant's attorney fees.

The point I made in other discussions within the Bar, and that I was prepared to make in some detail at the Senate Special Judiciary Committee, was that SB 108 would not do anything significant that is not already possible under existing law. There are already five “loser pays” provisions in Georgia law, and trial judges can already stay discovery upon motion by a party.  

It appeared to me that the unintended effect of SB 108 could be to add another layer of delay, complexity and expense in litigation. 

The bill as introduced provided for an automatic stay of discovery when a motion to dismiss is filed, but no sanction against parties that exploit the automatic stay without substantial justification merely for purposes of delay.  Moreover, it appeared that many of the cases SB 108 sought  to address are filed by convicts and other unrepresented and sometimes unstable individuals, who would not be deterred by the legislation

When I arrived at the committee hearing, the Governor's floor leader announced that the "loser pays" provision of the bill had been withdrawn on the same grounds that I was prepared to outline for the committee. Those provisions  would not have improved upon the five existing "loser pays" provisions in Georgia law.  Those are:

• O.C.G.A. § 9-11-68, passed in 2005, provides for an award of attorney fees, expenses against a party that refuses to accept a settlement offer and at trial does not improve upon the rejected offer by at least 25%.
• Also under O.C.G.A. § 9-11-68, a jury may award damages against a party whose claim or defense was frivolous.
• O.C.G.A. § 51-7-80 through 51-7-85, passed in 1989, provides liability for making a claim or defense in litigation that is made with malice or without substantial justification.  That includes claims and defenses that are frivolous, groundless in fact or law, or vexatious, unless the claim or defense is withdrawn within 30 days after a demand to do so.
• O.C.G.A. § 9-15-14, passed in 1986, authorizes a court to award attorney fees and expenses of litigation against any party that raises a claim or defense without substantial justification. This covers any “claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.”
• O.C.G.A. § 13-6-11, which was included in the Code of 1863, provides for an award of attorney fees and expenses of litigation against a party who has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense.

The remaining provision of a ninety day stay of discovery when a motion to dismiss is filed was, I thought, also unnecessary. Trial courts inherently have all the authority they need to enter a stay of discovery for a wide range of reasons, including the pendency of a motion to dismiss. 

If I had been a legislator, I might have suggested a compromise provision based loosely on the Anti-SLAPP statute, O.C.G.A. § 9-11-11.1, which provides:

(d) All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to subsection (b) of this Code section. The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing. The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection.

However, the legislature adopted as a compromise a new OCGA Section 9-11-12(j), relating to answers, defenses, and objections in civil practice, to read as follows:

(j)(1) Stay of discovery. If a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. The court shall decide the motion to dismiss within the 90 days provided in this paragraph.

(2) The discovery period and all discovery deadlines shall be extended for a period equal to the duration of the stay imposed by this subsection.

(3) The court may upon its own motion or upon motion of a party terminate or modify the stay imposed by this subsection but shall not extend such stay.

(4) If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), or (7) of subsection (b) of this Code section or if any party needs discovery in order to identify persons who may be joined as parties, limited discovery needed to respond to such defenses or identify such persons shall be permitted until the court rules on such motion.

(5) The provisions of this subsection shall not modify or affect the provisions of paragraph (2) of subsection (f) of Code Section 9-11-23 or any other power of the court to stay discovery."

As I wrote earlier, I expect some defense lawyers will file a bunch of frivolous motions to dismiss in order to stall discovery.  Good plaintiff lawyers will modify their initial discovery requests to include some specifically targeted at the basis of any motion to dismiss, and will follow up promptly by noticing depositions sharply focused on the grounds of any such motion and ask the court for the earliest possible hearing on the motion.  In a year or two it will be, as I pointed out earlier, “much ado about nothing.”

The existing “loser pays” provisions of Georgia law listed above allow plenty of room for recovery against parties who pursue truly frivolous claims and defenses in litigation. That they are little used may indicate that truly frivolous lawsuits, though we hear a lot about them, are not as common as some folks would lead us to believe. Or it may indicate that insurers recognize that 9-11-68 is a two-way street, and that to initiate its use is to play with fire.  Someone has suggested a policy of “no first use” regarding 9-11-68, analogous to “no first use” of nuclear weapons.

My hunch is that unfounded claims and unfounded defenses pretty well balance out.  But any seasoned plaintiff’s lawyer has quite a collection of frivolous claims that never made it to a courthouse because sensible plaintiff lawyers screened out of the system  The contingent fee system can be remarkably efficient at screening out cases that lack substantial merit if people go to a legitimate, experienced plaintiffs' attorney who has absolutely no incentive to waste time and resources on frivolous cases. It is largely the "TV and billboard lawyers" who bring the nonsense cases.

 

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As an attorney representing people with serious injury cases in Georgia, I have to keep an eye on the solvency of the insurance companies that are contractually obligated to pay legitimate liability claims against their policyholders.  For most of my career, the solvency of insurers was seldom if ever a big concern.

In today's economy, however, we can't take anything for granted.  With the giants of industry and finance in deep trouble, insurance companies are not immune.  Heavily invested in stocks and commercial real estate, insurers are vulnerable to the downdraft in those sectors.

Reinsurers face similar problems. Reinsurance is a means by which an insurance company can protect itself with other insurance companies against the risk of losses. Insurance companies offset some of their risk exposure by selling it to reinsurers.

Due to the recession, the bear market and the credit crisis, more insurance companies are looking to reinsure more of their books of business in order to free up capital. But the reinsurance companies are facing all of the same problems, plus in some cases poor international currency exchange rates.

Reuters reported on April 1 that reinsurance rates for property catastrophe insurance rose by an average 8% worldwide based on January renewal rates. Reuters also reported in the same news release that reinsurance costs for US catastrophe risks rose by as much as 40% in 2008. So, it is clear that insurers around the world, and especially in the US, are struggling to find ways to reduce their risks in this very bad economic and financial time.

In this highly integrated world economy, everything is intricately interrelated. Problems in financial markets and real estate hurt insurance companies, which in turn hurts anyone who relies upon payments by insurance companies.

And when insurance companies experience financial problems, even in relatively ordinary times, they typically blame people who have been catastrophically injured for running up "frivolous" lawsuits, and push for new rounds of "tort reform."  In other words, bad things roll downhill.

So what are mere mortals to do about this?  I have my own ideas, but don't choose to publish them and give the other side of my cases a window into my mind.

 

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The tort reform legislation in Georgia continues to erode in the face of constitutional challenges. The latest chip in the armor is a ruling from Judge Anthony Alaimo, a legendary federal district judge in Brunswick. featured in The Sicilian Judge: Anthony Alaimo, an American Hero. The son of Sicilian immigrants, he was a bomber pilot who was shot down in the North Sea during WWII, was one of the POWs who inspired The Great Escape, and eventually made his way to Switzerland and Italy.  Speaking fluent Italian, he blended into the population, and at one point attended an opera where he sat next to a Gestapo officer.

With that background, you might guess that he has been a bold federal judge in south Georgia.  Now a Senior Judge well along in years, he remains as active and outspoken as ever.

Last month, Judge Alaimo entered an order holding unconstitutional the Georgia medical malpractice statute of repose, as applied to mentally handicapped plaintiffs.  The case involved alleged dental malpractice that led to a brain infection and severe mental disability. Deen v. Egleston, 2009 WL 368647 (S.D.Ga., 2009).  Here are the nuggets in the case:

•    Under Georgia law, the applicable medical malpractice statute of limitations is two years after the date on which the injury occurred. Ga.Code Ann. § 9-3-71(a).

•    Under Georgia's general statute of limitations rules, “[m]inors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” Ga.Code Ann. § 9-3-90(a).

•    O.C.G.A. §  9-3-91 provides: “If any person suffers a disability specified in Code Section 9-3-90 after his right of action has accrued and the disability is not voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation applicable to his cause of action shall cease to operate during the continuance of the disability.”

•    Georgia has three savings statutes prevent the statute of limitations from running against a person who is incapacitated because of their mental disability. See Lowe v. Pue, 150 Ga.App. 234, 234-35, 257 S.E.2d 209 (1979). Egleston notes that the state legislature has decreed that these general tolling provisions do not apply in cases of medical malpractice. Ga.Code Ann. §§ 9-3-71(a) & 9-3-73(b). An action arising out of the provision of dental services or diagnosis is a medical malpractice action. Ga.Code Ann. § 9-3-70.

•    O.C.G.A. §  9-3-73(b) provides, in pertinent part, that: “Notwithstanding [sections 9-3-90 & 9-3-91], all persons who are legally incompetent because of mental retardation or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article [sections 9-3-70 through 9-3-74].”

 •    Georgia Code section 9-3-73(b) is unconstitutional, in that it treats mentally incompetent individuals differently when they have medical malpractice claims, as opposed to other causes of action.       

•    The legislature may not, consistent with equal protection principles, deny only this class of medical malpractice plaintiffs the projection afforded all other persons by the saving statute.... In doing so, [the statute] does not substantially further the legislative object of containing the costs of the medical injury reparations system because the number of malpractice claims brought by or on behalf of minors or mental incompetents is comparatively small.... At the same time, the statute operates to extinguish a cause of action of which the plaintiff, due to his disability, nay not have learned until after the limitations period has expired.

•    The purpose of tolling provisions for legal disability ... is to protect the rights of those who are not competent to do so themselves. These provisions recognize that the enforcement of an incompetent person's rights should not be `left to the whim or mercy of some self-constituted next friend.' "

•    Courts should undertake a robust, searching form of rational basis review where the challenged law discriminates against the mentally incapacitated.

•    To withstand rational basis review, legislation that discriminates against the mentally incapacitated must be rationally related to a legitimate government purpose.

•    Ensuring access to affordable healthcare is a legitimate legislative objective, but that aim is not reasonably furthered by discriminating against incapacitated adults' medical malpractice claims.

•    “A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.”

•    Experience and experimentation in the states has shown that medical malpractice lawsuits are not a major driver of skyrocketing healthcare costs. The Court doubts whether medical malpractice lawsuits were ever a real part of the healthcare problem, with respect to rising costs, in this country. The impetus behind the special legislation for medical malpractice cases appears to have been based on either misunderstanding of the problem of healthcare expenses, or an outright boondoggle. Although medical malpractice suits have been stifled, healthcare costs continue to soar. If malpractice lawsuits were a problem in limiting affordable, quality healthcare at one time, the facts no longer support the idea that lawsuits remain part of the problem. Study after study shows malpractice costs as averaging around one percent of healthcare costs, but expenses continue to rise at an alarming rate.

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Daubert v. Merrell Dow Pharmaceuticals was a U.S. Supreme Court decision in 1993 that led to a sea change in standards for admitting expert testimony into evidence. Setting out a set of factors to be considered by courts in such decisions, it spread from questions of cutting edge science to the most mundane forms of expertise. 

The Daubert factors include consideration of whether the theory or technique can be and has been tested, whether the theory or technique has been subjected to peer review and publication, the potential rate of error, and general acceptance in the relevant scientific community.

Many federal courts and some state courts around the country have applied Daubert and its progeny in a draconian manner, often to the extreme prejudice of whoever happens to be the "little guy" in the case.  As trial courts are allowed broad discretion in those rulings, plaintiffs are often subject to the virtually unfettered discretion of one judge. Some have applied the Daubert factors in a manner almost obsessively hostile to plaintiffs.

As part of the tort reform legislation passed four years ago, Daubert was imported into Georgia law in OCGA § 24-9-67.1, with some vague direction to look to the way it has been applied in other jurisdictions.

This week, the Georgia Court of Appeals held that it was an abuse of discretion to exclude the testimony of an engineering expert in a highway construction zone accident case, and reversible error to then grant summary judgment due to exclusion of the expert.

A few nuggets from the decision:

- inquiry into an expert's credentials cannot be based on a rigid set of factors.

- while the Daubert factors may bear on a judge's determination regarding the admissibility of an engineering expert's testimony, those factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.”

- “ ‘[D]isputes as to an expert's credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.’ “ 

- “The weight given to expert testimony in negligence cases is for the trier of fact who can, but is not required to give it controlling influence."

See Hamilton-King v. HNTB Georgia, Inc.,  2009 WL 737044 (Ga.App.,2009).

 

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There is an old saying that no one's life or property is safe while the Georgia legislature is in session. As a trucking safety trial attorney in Atlanta, I have often reflected on the truth of that quip.

This week, we have seen some remarkable developments under the Gold Dome, which have been surprisingly benign.

• The "frivolous litigation / loser pays" bill (SB 108) sought to impose attorney fees against anyone whose case was kicked out of court on a motion to dismiss and an indefinite stay of discovery whenever a motion to dismiss was filed.  First the bill was stripped of the incomprehensible definition of"substantial merit"  which was difficult to distinguish from "without substantial justification" in OCGA § 9-15-14 and § 51-7-80(7). Then the "loser pays" attorney fees provision was withdrawn because it was largely duplicative of "loser pays" rules in OCGA §§ 9-15-14, 9-11-68, 13-6-11, and 51-7-80, et seq.  Finally, it was conformed to a committee substitute of HB 414, which provides a stay of discovery for up to 120 days after a motion to dismiss is filed, except that discovery is allowed on the basis of the motion to dismiss.

There is considerable potential for abuse. Some lawyers will initially file a lot of frivolous motions to dismiss just for purposes of delay.  Evidence that had been requested in initial discovery requests will be "lost" through "routine document retention policies" while the automatic stay is in effect.

However, this may turn out to be much ado about nothing.    Once it becomes law, I expect a rash of frivolous motions to dismiss as a stalling tactic.  Good plaintiff lawyers will promptly respond with aggressive discovery on the basis of the motions,  demands under OCGA §§ 9-15-14 and  51-7-80 to withdraw the frivolous motions to dismiss, and will get judges to set prompt hearings on the motions.  After a brief flurry of activity, I expect it will become a rarely utilized curiosity. 

Two years from now, the main effect may be that lawyers who advertise heavily on TV and run plaintiff mills will unilaterally use the specter of this law to browbeat their unsuspecting and ill-served clients into taking cheap settlements before suit is filed even when it is not used by the defense.

• The seatbelt bill (HB 200) would have made evidence of failure to wear a seatbelt admissible as evidence of negligence of the injured party. It was eventually amended to allow such evidence only in mitigation of damages and only if the defendant introduced evidence of the extent to which the failure to wear a seatbelt made the injury worse. It would also require seatbelt use in pickup trucks, which is excluded from evidence now. Then yesterday, the compromise bill went to a vote on the floor of the House of Representatives and was rejected by a vote of 148-15.  Some legislators saying they didn't want to further victimize people injured in accidents and others opposed requiring use of seatbelts in pickup trucks.
• The FDA immunity bill (SB 101) would have granted immunity from civil liability for any pharmaceutical or medical device manufacturer with 200 or more employees in manufacturing or R&D in Georgia, with regard to any product that had been approved by the federal Food & Drug Administration.  Some very conservative legislators argued vehemently against it, pointing out systemic failures of the FDA to screen out drugs that turned out to have catastrophic impacts. Some folks pointed out that it probably would have been held unconstitutional under the Commerce Clause of the U.S. Constitution in that it discriminated between in-state and out-of-state companies. This bill died, at least for now, in the Senate Economic Development Committee.

As I've spent some time at the Capitol this week, I have marveled at the sacrifices required to serve in the legislature. It's amazing that anyone can do that and run a business or professional practice at the same time.  It was probably a good thing that I narrowly lost when I ran for the House of Representatives on year out of law school. I was 27 and looked about 17.

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At the beginning of the current legislative session, the Governor announced plans for a "frivolous litigation" to require that any plaintiff who loses a motion to dismiss to pay the defendant's attorney fee, and to have an automatic and indeterminate stay of discovery while a motion to dismiss is pending.

As of yesterday, the bill was watered down by removing the attorney fee provisions, which are duplicative of not less than five other "loser pays" provisions in existing Georgia law, and to limit the automatic stay to 120 days with earlier discovery permitted regarding the basis of the motion to dismiss.

I testified briefly at the Senate Judiciary subcommittee that took up the bill.  While I expressed appreciation for withdrawal of the attorney fees provision, I pointed out that a defendant may already file a motion for protective order or motion for stay of discovery.  The bill does nothing positive that cannot be done under existing Georgia law.  Current law is not broken on this point, and that the "law of unintended consequences" is in full force and effect. 

The potential for frivolous motions to dismiss being used for purposes of delay, and for "accidental" destruction of evidence during the automatic stay is troubling.

If this bill becomes law, plaintiffs' attorneys faced with a motion to dismiss will need to immediately conduct aggressive discovery about the basis of the motions including exhaustive 30(b)(6) depositions of corporate defendants regarding the basis of their motions,  serve notices to withdraw the frivolous defenses under existing attorney fee statutes, and schedule an expedited hearing to get the court to rule on the motions.  We would do well to have targeted discovery and briefs ready to meet any frivolous motions to dismiss. 

The new law, if enacted, will just add another layer of complexity, expense and delay, while accomplishing virtually nothing that the proponents say they want .

 

 

 

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The $350,000 cap on noneconomic damages in medical malpractice cases, which was enacted by the Georgia legislature in 2005 as part of an omnibus tort reform bill  known as SB3, faces another constitutional challenge this week. Yesterday, Fulton County State Court Judge Diane Bessen held the cap unconstitutional in the case of Nestlehutt v. Atlanta Oculoplastic Surgery. 

The grounds for the holding in Judge Bessen's 22-page order include:

• Violates right to trial by jury guaranteed by the Georgia Constitution. The applicable Georgia constitutional provision states: “The right to a trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.” Ga. Const. Art. I, Sec. I, Para. XI.  Where a right to jury trial existed at common law at the time of adoption of the Constitution, the Supreme Court has long held that where the legislature so clogs the right to jury trial with restrictions that it is directly or indirectly abolished, then that act is unconstitutional. The U. S. Supreme Court has recognized, relying upon common law cases back to the 1700's, that it is the sole province of the jury to determine damages. "A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. . . . The imitations imposed by O.C.G.A. § 51-13-1 render the right of the jury to assess damages meaningless when, as here, their determination and award is altered by a legislative determination of what constitutes a “proper” award. The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable."
•  Violates the Separation of Powers Doctrine. The Georgia Constitution provides: “[t]he legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.” Ga. Const., Art. I, Sec. II, Par. III.  Judge Bessen reviewed Supreme Court precedents going back to 1871 upholding the separation of powers doctrine. She found that a statute requiring reduction of jury's verdict to a predetermined damages cap equates to a legislative remittitur, and that "the power to grant a remittitur is vested solely in the judiciary, and must be exercised in conjunction with the power to grant a new trial" and "the noneconomic damages cap operates as a legislative remittitur."  Judge Bessen went on to find: "In effect, the statute completely disregards the jury’s deliberations and findings in determining the amount of damages which, in their sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally importantly, it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law."
• Violates Equal Protection. The Georgia Constitution provides: “No person shall be denied the equal protection of the laws.” Ga. Const. Art. I, Sec. I, Para. II.  Judge Bessen found that there was "no rational relationship between statute and the expressed government interest to “promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims … . it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for health care providers and diminishes the deterrent effect of tort law. . . . While reduction of costs for its constituents is a legitimate legislative objective, there is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs."

There's a lot more to Judge Bessen's lengthy dissection of O.C.G.A. § 51-13-1 but this covers the high points. 

Certainly there are two sides to every argument, and this is far from over. People of good will can and do disagree. In medical malpractice litigation there is inevitably conflict between deeply held and passionately advocated positions of victims of malpractice on one hand and conscientious and economically pressed health care providers on the other.  A ruling like this from a trial court judge is just a starting point.

Now the case will go to the Georgia Supreme Court. When an earlier order from Judge Marvin Arrington holding this statute unconstitutional was on the Supreme Court docket, the insurance company made an offer the plaintiff could not refuse.

The context of Supreme Court consideration of the issue is that Chief Justice Leah Sears recently announced her plan to leave the Supreme Court in June after a distinguished judicial career.  There has been a report she is being considered for the position of dean of the University of Maryland Law School, and her name comes up in speculation about who President Obama might appoint to the U. S. Supreme Court.

With Chief Justice Sears leaving the Supreme Court, Governor Perdue will get his second appointment to the Georgia Supreme Court.  His first appointment to the Court was Justice Harold Melton, who at the time of his elevation to the court was the 39-year-old African American executive counsel to the Governor. Justice Melton has been a delightful addition to the Court who appears to fit seamlessly into that collegial context.

By the time this case reaches the Supreme Court, Governor Perdue's next selection will be on the Supreme Court.  There has been much uninformed speculation about who the Governor might select for this appointment.

It would take a degree of political courage for the members of the Georgia Supreme Court to affirm Judge Bessen's order on the med mal cap.  All state Supreme Court justices in the country these days are acutely aware of the well-funded political campaigns that have been mounted against re-election of state appellate judges by groups with agendas generally perceived to be more favorable to business and insurance interests.  In a number of states, those campaigns have reshaped the state appellate courts.  In Georgia, we saw such a campaign in 2006 against Justice Carol Hunstein fall far short, as the challenger had underestimated the fight in the lady who is set to become our Chief Justice this summer.

All of this drama takes place on a rather intimate stage, as most of the players know each other very well.  I'm by no means a core insider, but I've enjoyed serving on committees or breaking bread with virtually all the players among the lawyers and judges involved over the past few years. They are all good, conscientious people whose jobs involve making a lot of hard choices.

There is much speculation -- much of it uninformed -- about how this will turn out. I expect it will be a close decision by Justices conscientiously trying to do the right thing as they honestly see it.

In the end, we always return to the maxim that the hard choices are never between good and bad, but between good and good, and between bad and bad.

 

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While Russia is cracking down on jury trials, the modernization of the Chinese economy has led to finding that tort law is really a good thing. 

Whatever you may say about the Chinese, you can't say they're stupid.  Maybe they have figured out that our tort law system plays a valuable role in our free market economic system as well as vindicating the  physical and mental well-being  and the property of individuals.They have even translated the Restatement of Torts into Chinese.

 

 

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With the Georgia legislature back in session in Atlanta, I am reminded of how some lobbyists and a few politicians distrust their fellow citizens so much that they keep trying to erode the right to trial by jury in civil cases.

Never mind that the Seventh Amendment to the United States Constitution -- part of the Bill of Rights -- guarantees that right:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Now,  adjustment of the $20 threshold to allow for 220 years of inflation is necessary, but the principle is the same. Rights of citizens to life, liberty and property are just too important to entrust them solely to politicians and bureaucrats.

We are getting a stark reminder of the value of the right to jury trial in the news from Russia.  There, the government is eliminating the right to jury trial for "crimes against the state" while expanding the definition of "treason" to include just about anything the government bosses don't like.

Juries stand as the best bulwark against tyranny and the abuse of other citizens. Jurors with intelligence and common sense who serve on one case and go back to their everyday lives cannot be bullied or bought. The same cannot always be said of all judges, bureaucrats and politicians.  As the former KGB guys in the Kremlin seek to establish a repackaged 21st century version of the tyranny of the Czars and the Commissars, they recognize that they cannot do it if free citizen jurors and independent lawyers are allowed to function.

Our politicians and the lobbyists who manipulate them tend to be more subtle.  Rather than flatly denying the right to jury trial, they create devious procedural and evidentiary hurdles that are practically or economically almost impossible for ordinary citizens to clear.

So, when our legislators consider proposals to preempt claims against drug companies when the drug or device was approved in a politically manipulated regulatory process, or throw out cases as "frivolous" prior to conducting essential discovery to bring to light evidence that is hidden in the defendant's records,  I hope they will see the similarities of these subtle efforts to the more flagrant abuses in Russia today. 

As a conservative who believes in the sanctity of the United States Constitution, I hope they understand that denial of access to justice through the procedural "death of a thousand cuts" is no less fatal to the rights of citizens than what Putin and Medvedev are doing in Moscow.

 

 

NOTE: This post was listed first among the top blog posts of the week of 1/19/09 in Lexblogosphere.

 

 

 

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In Atlanta this week, Georgia Governor Perdue made a surprise announcement that he will seek another round of tort reform  legislation, including a bill to stop "frivolous litigation."  I deplore  truly frivolous lawsuits  as much as the Governor does.

The language of the Governor’s proposal remains a closely guarded secret at this time. I look forward to reading it whenever it is released.

While safeguarding against frivolous suits that abuse the court system, it is also important to protect the right of access to the justice system for Georgia citizens who seek to uphold their legal rights.

Apparently there have been no objective studies quantifying a significant problem of frivolous lawsuits clogging the court system or burdening Georgia’s economy, which could be deterred by the proposed legislation. Without a clear picture of the extent of the problem to be solved, or how the proposed solution would actually work, lawmakers should be cautious.

A lot of the really frivolous lawsuits I hear about are filed by convicts and unstable unrepresented individuals. I don't know how the threat of an attorney fees sanction, when those sanctions already exist, would deter such litigants.

As the proposed legislation has not been made public, it is unclear how it would improve upon Georgia's four existing  "loser pays" statutes under which courts may now impose attorney fees and expenses upon parties who raise frivolous claims and defenses.  

O.C.G.A. § 9-11-68, passed in 2005, provides for an award of attorney fees, expenses against a party that refuses to accept a settlement offer, and at trial does not improve upon the rejected offer by at least 25%. The jury may also award damages against a party whose claim or defense was frivolous.

O.C.G.A. § 51-7-80 through 51-7-85, passed in 1989, provides liability for making a claim or defense in litigation that is made with malice or without substantial justification.  That includes claims and defenses that are frivolous, groundless in fact or law, or vexatious, unless the claim or defense is withdrawn within 30 days after a demand to do so.

O.C.G.A. § 9-15-14, passed in 1986, provides for a court to award attorney fees and expenses of litigation against any party that raises a claim or defense without substantial justification. This covers any "claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position."

O.C.G.A. § 13-6-11, which was included in the Code of 1863, provides for an award of attorney fees and expenses of litigation against a party who has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense.

The last time I checked, the law of unintended consequences was still in effect.  I am eagerly waiting to see the Governor's proposal, to see whether it adds anything constructive to the existing "loser pays" rules in Georgia, whether it solves a problem that needs solving, or whether it simply adds another layer of expense, complexity and delay to the litigation process.

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The U. S. Supreme Court may use a dispute over punitive damages awarded to a smoker's widow for a broad review of when punitive damages are unconstitutionally high.  The jury awarded Mayola Williams $821,000 in actual damages and $79.5 million in punitive damages.

The U. S. Supreme Court had previously sent the case back to the Oregon Supreme Court, which refused on procedural grounds to reconsider the punitive award  — 97 times actual damages — was unconstitutional.

In Georgia, punitive damages are limited to $250,000, except where there was intent to harm, driving while intoxicated, or the first product liability verdict involving a particular product. 

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Georgia is one of the states that has adopted a hard cap ($350,000 here) on noneconomic damages in medical malpractice lawsuits.  Noneconomic damages include pain, suffering, loss of enjoyment of life, etc.

However, a catastrophic medical malpractice case with substantial economic loss may still result in a large recovery.  The death of a high income individual due to medical malpractice is still of substantial value in court, while the wrongful death of a homemaker or retiree may be treated in court as if the person's life had no value. That is because the cost of prosecuting is malpractice case is no high ($50,000 to $100,000 or more) that it is not economically feasible to pursue a case where the damages are capped at $350,000.

A recent Maryland case, which like Georgia has a cap on noneconomic damages, illustrates how a medical malpractice case may still hold substantial value even after tort reform.

In that case, a 47 year old man visited a dermatologist for a checkup in 1998. The doctor found a mole on his lower back and wrote a letter to the man's primary care physician recommending it be removed. But it was not removed.

It was noted again in September 2004 when the patient  returned to have boils on his upper back examined. He saw a new, part-time doctor in the same dermatology office, who suggested that two cysts and an atypical mole on the upper back be removed, but  that the mole on the lower back be monitored, although it had doubled in size since 1998. The second doctor in the dermatology office was unaware of the size increase because the first dermatologist had purged his old records, as is allowed under state law for records more than five years old.

The patient returned to the dermatology office in August  2006 when his wife noticed the mole on his lower back had changed color. It was removed, but shortly afterward it was found the cancer had traveled to dozens of lymph nodes in his 's groin and lower abdomen. The cancer traveled to Semsker's brain and he died in October 2007.

At  trial, the lawyer for the patient's family called as an expert witness a  melanoma researcher, who testified the patient would have had a 95 percent chance of a complete cure if the mole had been removed in 2004, but  the delay allowed the cancer to travel into the bloodstream and become incurable.

The first dermatologist's insurance will pay the lawsuit, allowing his practice to continue.

The jury returned a wrongful death verdict for $5.8 million, but it was reduced to $3.6 million due to a Maryland cap on non-economic damages in medical malpractice cases similar to the current Georgia malpractice law.

 

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As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005.   It was as if the political power structure had done everything it possibly could to kill victims of negligence -- and the lawyers who represent them.  Some thought it was the death knell for personal injury tort litgation in our state.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven't heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The "loser pays" provision of S.B. 3 -- an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side's attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer -- was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs' lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society -- a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case -- serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it's a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.


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Last Friday,  an Atlanta jury returned a verdict of $54.4 million in a truck wreck case involving the death of a a Jamaican immigrant. It was a great verdict resulting from great trial advocacy.

Of the $54.4 million in the verdict, $44.4 million was punitive damages. In my post about the verdict, I wondered how the plaintiff could avoid reduction of the punitive award to $250,000 under the tort reform law that has been on the books since 1987.

Well, on Monday, the judge did judge that, cutting the punitive award from $44.4 million to $250,000, and the total verdict from $54.4 million to $10,250,000.

Meanwhile, we are waiting on a Court of Appeals ruling in a case case year where we got a $2.3 million judgment in a trucking case involving a broken leg. No issue of punitive damages went to the jury, but we did include a claim for attorney fees and expenses of litigation based on "bad faith" conduct in violation of mandatory safety rules, specificially the Federal Motor Carrier Safety Regulations.  The jury was able to use that to add one-third of compensatory damages for attorney fees, plus all of our expenses of litigation. The Court of Appeals has until the end of July to rule in the case. 

Meanwhile, in another case a trial judge in Macon reviewing the same legal authorities, said he thought it would be reversible error not to include the "bad faith" attorneys fee claim in jury instructions.

If the plaintiff in the trial last week had emphasized the claim for bad faith attorney fees based on violation of Federal Motor Carrier Safety Regulations, a claim  which is not subject to a statutory cap, in addition to the claim for  punitive damages which is capped, the net result would be a judgment for about $13,583,333 plus expenses, rather than $10,250,000.  In effect, $3,333,333 may have been left on the table.  In such a case, the claim for attorney fees and expenses under Georgia law is potentially worth a great deal more than the "sexier" claim for punitive damages.

This is one of the points I am prepared to cover in a seminar presentation in St. Louis later this month for the Association of Interstate Trucking Lawyers of America, an organization for which I am on the National Advisory Board.




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This morning I got a call from a man in ICU at one of our local hospitals. He said he has hit by a tractor trailer yesterday, and that he had two fractured femurs, a ruptured spleen, ruptured discs, crushed vertebra, etc., and asked if I could meet him at the hospital.  I agreed to see him this afternoon at the hospital, which is near my home.

When I arrived a little early at ICU, I found another lawyer at the nurses' station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.

The lawyer who was at the nurse's station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request.  Apparently the guy was trying to shake down lawyers for "advances" on his great case.

Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam.  One admitted he had signed up the case before he figured out it was a scam.  None acknowledged having made any advances, which would be highly improper.

One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.

I must say that 99.9% of all potential clients with whom I have met in person over the past 30 years have been pretty sincere folks who honestly believed they had a case. While I decline most proposed cases because I see less legal or economic merit than they perceive, most are pretty decent folks. Often when I don't accept a case, I try to make an appropriate referral or give some free advice.

However, when a lawyer finds himself or herself in an interview with a potential client and "smells a rat," one should:

1. Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
   (2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client."
2. Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others).   In the unlikely event that you're on "Sixty Minutes," make it a speech that would make both your mother and your legal ethics professor proud.
   

Remember the example of South Dakota Republican Senator Larry Presler who, when being secretly taped in the Abscam sting investigation, responded, "Wait a minute, what you are suggesting may be illegal," and reported the incident to the FBI. 




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Ron Ellington, a professor at the University of Georgia Law School, recently spoke to the inductees of Phi Beta Kappa at UGA. His remarks deserve wider distribution.  He points out how the smartest and wisest leaders of a previous generation were dead wrong on one big issue, and suggests how to recognize when we are wrong.

1. Be humble.
2. Be intellectually honest and strive for objectivity. Be open minded to evidence / facts that may challenge or run counter to your initial views.
3. Look for anomalies.

The full text of Professor Ellington's remarks appears below. Continue Reading Questions & comments 0

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

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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.

 

 

 

 

 

 

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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.
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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.

 

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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.

Due to the power of the lobbying forces arrayed against it, however, I will be utterly astonished if it passes.



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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.
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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.




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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.

 

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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.

 

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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.  

 

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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.

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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.


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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."  
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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.


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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.

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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.


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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.

My understanding is that the National Rifle Association proposed the "take your guns to work" bill but the Chamber of Commerce opposed it.  Then the Chamber lobbyists apparently agreed to support the NRA's bill if they got this sweeping abrogation of centuries of tort law development in the bargain.

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.
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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. Continue Reading Questions & comments 0

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.
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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.


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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."



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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.





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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.
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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.

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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.

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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."

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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.

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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.

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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."

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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.

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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.

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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.

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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.

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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.

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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."

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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.

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"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."

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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 making decisions. Forty-five percent of the respondents were "uncertain" whether giving special legal protections to businesses that knowingly endanger their customers would benefit them, and 22 percent said it would not.

-- Ken Shigley, Shigley Law Firm, Atlanta, GA http://shigleylaw.com, http://atlantainjurylawyer.com

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A new study by Washington D.C.-based think tank Economic Policy Institute undermines the economic arguments for "tort reform." The report by Economist Lawrence Chimerine and Ross Eisenbrey shows there is no evidence that lawsuits brought by consumers harmed by dangerous products and services have had any negative effect on the economy or on insurance rates. Instead, their analysis shows that lobbyists have simply manufactured a "crisis" based on wildly overstated cost estimates that have been widely cited by lawmakers and the media to suit the agenda of special interest groups. See the full report, "The Frivolous Case for Tort Law Change."

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Senate Bill 3 says that the offer of judgment rule should apply to pending cases. However, a Florida case found that similar "loser pays" rule was substantive rather than merely procedural. See Timmons v. Combs, 608 So.2d 1 (Fla.1992) If followed in Georgia, that would exclude retroactive application in cases arising before the effective date of SB 3. See Polito v. Holland, 365 S.E.2d 273, 258 Ga. 54, (1988).

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At least two trial judges have declined to apply the newly enacted Daubert rules for expert witnesses retroactively. Both Judge Melody Clayton in the State Court of Cobb County (Marietta) and Judge Hermann Coolidge in the State Court of Chatham County (Savannah) reached the same conclusion. Applying the new standards for expert testimony in an old case, in which the parties have a substantial investment in trial preparation under the old rules, violates rights of due process and meaningful access to the courts.

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Arguments have been raised to the effect that the enactment of Daubert standards in Senate Bill 3 is unconstitutional on grounds of violation of separation of powers, equal protection and due process. The constitutional arguments set forth below are from a brief filed by David E. Tuszynski in the case of Mason v. Home Depot, et al, in the State Court of Cobb County (Civil Action No. 97A5105-1).

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A.M. Best reported on 4/25/05 that "the U.S. property/casualty industry reported improved operating results in 2004 for the second straight year," and that "for the first time since 1978, underwriting results were profitable, with a combined ratio of 97.9."

Invested assets were up 17% from 2003, and surplus grew at a 13.5% rate, and return on equity reached 10.8%. The 2004 results reflect growth of earned premiums derived from peak pricing in 2003. However, A.M. Best projects that increasing price competition may slow growth to 4.7% in the coming year. "Strong pricing and restrictive policy terms and conditions over the past two years have played a major role in the industry's outstanding underwriting performance, and insurers will need to continue their prudent underwriting practices as rates soften."

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The Fulton County Daily Report (subscription required, $) published an article on 4/20/05, reporting that the tort reform lobby isn't finished in Georgia. According to the article, there are plans to come back in 2006 with proposals to limit contingent attorney fees with some sort of sliding scale, and to make "collateral sources" (payments that the plaintiff received from her own insurance company) admissible in evidence.

Arbitrary limits on contingent attorney fees sound consumer-friendly to the uninformed at first blush. However, the intent is to make it economically impossible for attorneys to handle big, complex injury cases, and thereby deprive injury victims of competent representation. Lawyers representing plaintiffs in complex tort cases -- especially products liability and medical malpractice cases -- generally have to devote hundreds of hours of their time with substantial risk of never getting paid, and spend $50,000 to $100,000 or more of their own money on expenses with no chance of repayment if they lose. That is a significant entrepreneurial risk that cannot be taken without the hope of a corresponding significant profit if the case is successful. If contingent attorney fees are capped at a level that makes that investment of time and money prohibitive, trial lawyers will not take those cases, but will migrate to other kinds of legal work, and injury victims will go unrepresented. But of course that is the goal of those who promote such ideas.

The tort reformers claim that the "collateral source rule" under which payments to or on behalf of the injury victim by her own insurer or other sources promote a "double recovery." The basis of the rule is the highly prejudicial effect on a jury of learning that the plaintiff has already received some money, or that bills have already been paid. Proponents of changing the rule disregard the fact that the victim has generally exercised the prudence to purchase insurance, the benefits of which flow from contract rights.

A big problem with both of these proposals is that they are almost certainly unconstitutional. Unfortunately, some of those who call most loudly for "tort reform" worry about the constitution only when their own rights are impacted.

- Contingent fee caps. Section 10 of the U. S. Constitution provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ." This is simply a matter of imposing wage and price controls in order to arbitrarily deny injury victims the right of competent legal representation by fixing unreasonably low fees for services rendered by attorneys. Moreover, to limit the fees to which a plaintiff can contract in order to obtain competent, vigorous representation, without also placing a low cap on the fees a manufacturer or insurance company can agree to pay its law firms, would be a violation of Equal Protection under both state and federal constitutions.

- Collateral Source Rule. In 1987, the legislature passed a "tort reform" bill that included admissibility of collateral sources in evidence. The Supreme Court held it unconstitutional. In the case of Denton v. Con-Way Southern Exp., Inc., 261 Ga. 41, 402 S.E.2d 269 (1991), the Supreme Court of Georgia held that provision unconstitutional under the Equal Protection provision of the Georgia Constitution. It is a violation of Equal Protection to inform the jury of the plaintiff's medical or disability insurance without also informing the jury of the defendant's liability insurance. What's sauce for the goose is sauce for the gander.

Conservative. strict construction adherence to the Constitution would bar both of these "tort reform" proposals.

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In an article published in the Savannah Business Report, House Judiciary Committee Chairman Wendell Willard (R-Sandy Springs) gave an overview of some of the deficiencies in Senate Bill 3, the tort reform bill that was railroaded through the legislature this winter. Hasty draftsmanship, confused wording, ambiguous language, half-baked provisions, and goals that seem to conflict left the legislation vulnerable to constitutional attacks and conflicting judicial interpretations. See article below.

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Last week Judge Tony DelCampo in the State Court of DeKalb County held unconstitutional a provision of Georgia's new tort reform statute affecting venue in medical malpractice cases. Section 9-10-31(c) provides for a medical malpractice defendant to transfer venue to the county where a negligent act occurred. Judge DelCampo held that this provision violates the provision of the Georgia constitution that joint tortfeasors can be sued in the county of any one of the defendants. See Fulton County Daily Report (subscription) article as follows:

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Senate Bill 3 amended 9-10-31 to bring back a "vanishing venue" rule as follows:

(d) If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper. If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.

However, this does not say that a verdict obtained in the first county is a nullity, or that the case must be retried. The plaintiff's attorney may simply move to enter judgment on that verdict in the second county. Of course, the defendant who is a resident of the second county may move for a new trial or for judgment notwithstanding the verdict, and with defendants who are pillars of the community in smaller counties the potential for judicial "home cooking" by locally elected judges is obvious.

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We've never said there weren't abuses on both sides of the tort system, or that there wasn't room for improvement, but a lot of the "crisis" arguments for trashing the civil justice system seemed clearly overstated insurance industry propaganda. Now, a study of Texas Department of Insurance records dating back to 1988 debunks the argument that medical costs were soaring because of too many malpractice lawsuits. "We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states," said the study, conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools. The only thing that jumped, they said, was the cost of malpractice insurance, which rose 135 percent from 1999 to 2003 likely because of financial pressures that had nothing to do with litigation. See article.

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In "False Alarm: How the media helps the insurance industry and the GOP promote the myth of America's "lawsuit crisis," Stephanie Mencimer reveals the role of corporate media outlets in the propoganda campaign to strip citizens of rights through "tort reform." She concludes:

"The news coverage may be creating some unexpected consequences: Some academic researchers suspect that all the hype about the litigation crisis might actually be making Americans more litigious by giving them the erroneous impression that compensation is available through the courts for most injuries. . . . "Tort reformers may have produced more frivolous claims while making legitimate claims harder to bring."

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According to an article in the New York Times on 3/6/05, lawyers in states with caps on noneconomic damages have been largely successful in recasting damages to fit the available categories. The article is titled "Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages." It cites a new study by Catherine M. Sharkey, a law professor at Columbia, to be published in the New York University Law Review in May. Prof. Sharkey analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.

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Nineteen years ago, the Georgia Supreme Court decided the case of Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), holding that any party who brings or defends an action, or any part thereof, that lacks substantial justification or is imposed for delay or harassment, could be liable for a common law tort of abusive litigation to the opposing party who suffers damage thereby, as a counterlaim in the same civil action.

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In the current issue of Business Week magazine there is an article on "How to Fix the Tort System," which urges pragmatic and limited reforms that would attack abuses while preserving benefits of the system. The approach suggested by Business Week would curb excesses in class actions and frivolous claims, punish those on both sides that truly abuse the system, and move some problem areas of claims into more of a no-fault style claims administration system, but would leave most of the day to day work of the tort system unscathed. If only our Georgia legislators had read more objective, business oriented articles that pointed out the societal benefits of the tort system as an alternative to the heavier hand of governmental regulation and socialistic programs. Unfortunately, both sides of the national debate on the tort system engage in hyperbole and show too little willingness to consider each other's legitimate concerns.

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Following is the full text of Senate Bill 3, the "tort reform" bill that Governor Perdue signed into law on 2/16/05.

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Senate Bill 3 includes the following provision in OCGA 51-13-1(f):
"In any medical malpractice action, if an award of future damages equaling or exceeding $350,000.00 is made against any party in the action, the trial court shall, upon the request of any party, issue an order providing that such damages be paid by periodic payments. Such periodic payments shall be funded through an annuity policy with the premium for such annuity equal to the amount of the award for future damages."

Structuring of future damages is often a good idea, to limit the investment risk and management burden, and to make the entire stream of income tax free. Particularly for plaintiffs with disabling injuries and who lack financial sophistication, it is essential. However, one size does not fit all.

However, this statute is silent as to who chooses the annuity broker, who chooses the annuity payment schedule, whether self-dealing by insurance companies will be tolerated, and whether kickbacks from annuity companies or brokers to liability insurance companies are prohibited.

There may also be some concerns as to whether the tax-free nature of payments would be preserved if the full amount of a verdict is paid in purchasing an annuity contract, or whether that would constitute constructive receipt and defeat the tax benefits of a structure. Our guess is that the tax benefits would be preserved, but sophisticated tax counsel must review how to structure the transaction.

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