What he did not say is that the study he commissioned compared judicial salaries with base salaries of a narrow slice of in-house corporate counsel, excluding bonuses, stock options, etc.  Perhaps the Governor is too busy to recognize the methodological flaw in the study, and therefore is just seriously misinformed.

Judges with whom I have talked in recent months had expressed concern that there was little or no hope for raises as long as Governor Perdue is in office. Some have speculated that one example of a judge in the Governor's home circuit who retired due to apparently fatal cancer, but then went into remission and became very active as a Senior Judge, may have colored the Governor's thinking about the entire judiciary.

I have been concerned for some time about the crisis in judicial compensation.  Of course it is always possible to get a government lawyer to accept a Superior Court appointment, and it isn't too hard to get a small town general practice lawyer to do so, because the judicial pay is relatively attractive in that setting.  However in the large metro counties, it is rare  for lawyers in a successful private practice to even consider becoming judges.  Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both.  That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm. The fact remains that new graduates straight out of law school are getting starting salaries at large law firms on par with Supeior Court judges with decades of experience making critically important decisions about the lives, property and families of Georgia citizens.

While there are excellent examples of Assistant District Attorneys and Assistant Attorneys General becoming excellent judges, the judicial system loses is the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

Even  when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?"  I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.

What he did not say is that the study he commissioned compared judicial salaries with base salaries of a narrow slice of in-house corporate counsel, excluding bonuses, stock options, etc.  Perhaps the Governor is too busy to recognize the methodological flaw in the study, and therefore is just seriously misinformed.

Judges with whom I have talked in recent months had expressed concern that there was little or no hope for raises as long as Governor Perdue is in office. Some have speculated that one example of a judge in the Governor's home circuit who retired due to apparently fatal cancer, but then went into remission and became very active as a Senior Judge, may have colored the Governor's thinking about the entire judiciary.

I have been concerned for some time about the crisis in judicial compensation.  Of course it is always possible to get a government lawyer to accept a Superior Court appointment, and it isn't too hard to get a small town general practice lawyer to do so, because the judicial pay is relatively attractive in that setting.  However in the large metro counties, it is rare  for lawyers in a successful private practice to even consider becoming judges.  Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both.  That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm. The fact remains that new graduates straight out of law school are getting starting salaries at large law firms on par with Supeior Court judges with decades of experience making critically important decisions about the lives, property and families of Georgia citizens.

While there are examples of Assistant District Attorneys and Assistant Attorneys General becoming excellent judges, the judicial system loses the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.

Even  when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?"  I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.

State laws in most states  require drivers to change lanes or slow down for emergency vehicles stopped on the side of the road. Early Tuesday morning, northbound  on I-81 in Virginia, a tractor trailer driver broke that rule, struck a Virginia State Police car on the shoulder of the road, and injured a trooper who had appeared in a TV spot publicizing that law.

According to a rep rot by Marvin Anderson on Roanoke.com, the trooper had stopped another tractor trailer for speeding. According to state police, the trooper's front and rear emergency lights were activated.  The trooper, who was seated in his patrol car, was transported to a hospital in Roanoke, treated and released. The driver of the truck that he  had stopped also was sitting in the patrol car at the time of the crash but was not hurt.

Virginia State Police were  analyzing footage from the trooper's dashboard camera  searching for the driver of the truck, a dark-colored Freightliner Classic tractor with an extended front.  It has either a white or light gray box trailer and likely has significant damage to the right rear of the trailer. The trailer also may have maroon paint on the side where it hit the cruiser, and it may have broken lights and a cut or gash along the trailer.

Given the early morning hours and inattentiveness of the truck driver, one could speculate about the possibility that the trucker was fatigued and operating well beyond his legal hours of service. However, that's just my "SWAG."

The Virginia police have an unusual advantage in that they at least have dashboard video of the tractor trailer. Perhaps detailed analysis in their state crime lab can tease out of a grainy video a portion of a company name, tag number, or a DOT or motor carrier number.  If not, perhaps a bulletin to law enforcement agencies and truck stops across the country can generate leads. I hope they don't limit the search to truck stops along I-81.  By now it could be halfway across the country.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia and selectively in other states around the Southeast, in strict compliance with the multijurisdictional practice and pro hac vice admission rules in each state.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

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.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  A "lawyers' lawyer" recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

When representing truck drivers injured by the negligence of operators of "four wheelers," we always check to find out if the trucking company's insurance policy includes uninsured / underinsured motorist (UM) coverage for the truck driver. Some carry UM coverage equal to their liability coverage.
 

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia and selectively in other states, in strict compliance with the multijurisdictional practice and pro hac vice admission rules in each state.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The North American Fatigue Management Program, which was launched in Alberta, Canada, is designed to determine when truckers should be driving or whether they need to pull over, based on personal differences.  Recognizing some people have sleep disorders that are treatable, the program seeks to put an emphasis on individuals by analyzing the trucker's own circadian rhythm, his scheduling, and lifestyle differences.  For example, some drivers are morning people, while others are not.  Some have sleep disorders; others do not.

The program was conceived in Alberta as a partnership between Alberta Infrastructure and Transportation and the province's trucking association. It was inspired by a joint study on driver fatigue by Transport Canada and the Federal Motor Carrier Safety Administration (FMCSA) in 1999.

The study could provide new insights about nighttime driving, napping and sleep debt, and serve as a framework for modifying hours of service rules in the U.S. and Canada.

"We had a concept and there are all kinds of research out there regarding napping, circadian rhythm and sleep apnea. We put all the known aspects of fatigue together and built a comprehensive fatigue management program.  It includes dispatch guidelines, screening for sleep disorders, medical intervention [so a driver won't lose their job due to treatment], and training," according to Roger Clarke, executive director of Vehicle Safety and Carrier Services with Alberta Infrastructure and Transportation.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

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.

I MAY BE WRONG

Remarks at The University of Georgia

Phi Beta Kappa Induction Ceremony

April 29, 2008

by

C. Ronald Ellington

          If you pass through the doors at the rear of the Chapel, turn right, and follow the sidewalk a few hundred yards, you will come to the main law school building, Hirsh Hall, which was constructed in the 1930’s. Behind the large double wooden doors of Hirsch Hall lies a magnificent Rotunda, with a beautiful spiral staircase. Adorning the walls of the Rotunda, are oil portraits of the three men who started the law school, Joseph Henry Lumpkin, Thomas Reade Rootes Cobb, and William Hope Hull.

          These men were lawyers and among the best educated and most accomplished men of their times. They came from families of influence. They were foremost political, civil and church leaders.

          Alexis de Tocqueville might have been referring to them when he wrote in Democracy in America that:

“In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated circle of society. . . If I were asked where I place the American Aristocracy, I should reply without hesitation, that it is not composed of the rich, who are united by no common tie, but that it occupies the judicial bench and bar.”

          For nearly 40 years, I have walked through that Rotunda and looked at those portraits. I want to share the lesson this has taught me, but first I want to tell you more about Lumpkin and Cobb. They are central to my lesson.

          Joseph Henry Lumpkin grew up in Lexington, Oglethorpe County, 20 miles from Athens. He entered the University (then Franklin College) in 1816. It was a fledging school, but Lumpkin was studious and excelled in his studies. After two years, he transferred to Princeton where he graduated in 1819 second in his class. (Story has it that Lumpkin would have been the first honor graduate had he attended Princeton for a period longer than 18 months.)

          Lumpkin returned to Athens, read law for a year, and was admitted to practice. He built a successful practice, was elected to the legislature, and in 1845 was named as a member of Georgia’s first Supreme Court. He became the Court’s first Chief Justice and served for twenty-two years until his death in 1867. Highly intelligent, extremely hard working and industrious, he wrote more than one-third of the nearly 4,000 opinions in the first 35 volumes of the Georgia Reports.

          In 1859, Lumpkin, Cobb and Hull received a charter from the legislature to open a law school as part of a reorganization of the University. The Lumpkin Law School, as it was called, became the second school in the University, joining the Franklin College.

          Thomas R.R. Cobb, 24 years younger, was a member of a wealthy planter family. By all accounts, Cobb was brilliant. He entered Franklin College at age 14 and graduated first in his class. He read law, married Lumpkin’s daughter and built a successful practice in Athens. He served as the Reporter for the Supreme Court, organizing, indexing and publishing its opinions. Cobb was prodigiously productive. He was the principle drafter of Georgia’s first Code of Laws, a codification of legal principals extracted from the corpus juris of thousands of published common law decisions covering the entire gamut of both civil and criminal law.

          Justice Lumpkin and Cobb were law reformers, championing ideas for the improvement of the law and legal institutions. The Code project was particularly democratic in spirit. It was to condense and simplify the law so as to place it within the reach and comprehension of the citizens of the state generally. Lumpkin argued in sponsoring the project that, “It is right that every man should be enabled to read and understand the law – for himself – and for this purpose it should be divested of all technicality and intricacy, as far as possible.”

          And yet, these men of learning, probity and accomplishment, lawyer-educators and public-spirited reformers were Wrong – about the most important issue of their time: slavery and secession.

          In dozens of opinions, Justice Lumpkin justified African slavery as moral and just.

          Cobb published a book on the Law of Slavery, arguing that it as good for both master and slave. Cobb championed and voted for the ordinance of secession to take Georgia out of the Union. He was the principal drafter of the Confederate Constitution. At age 39, Cobb, a Brigadier General, was killed in the Battle of  Fredericksburg.

          When I see the portraits of Lumpkin and Cobb now, I always think, “How could they have been so wrong?” And, that leads me inevitably to the question, “What May I Be That Wrong About?”

          Being wrong neither began nor ended with Lumpkin and Cobb, of course. At present our country is in the fifth year of a war in Iraq – a war initiated to eliminate Saddam Hussein’s Weapons of Mass Destruction, a war in which we would be greeted as liberators by the populace. How could our intelligence community and our political leaders have been so wrong?

          Being smart, energetic, hardworking and earnest are no guarantee against being wrong. Lumpkin and Cobb were all those things.

          There is no sure-fire way to avoid being wrong, but there are, I believe, some good habits that may help.

          First, Be Humble. If history teaches anything, it is that you may be wrong. Always bear this simple and sobering truth in mind. Arrogance, hubris and self-interest distort clear vision and good judgment.

          Second, Be Intellectually Honest and Strive for Objectivity. We have to make decisions in life, usually not as momentous as starting a war, but important in their own right. And, we cannot avoid acting out of the fear that we may be wrong. So what can we do?

Be open-minded to evidence/facts that may challenge or run counter to your initial views. This is very hard to do. In a recent book titled, “True Enough: Learning to Live in a Post-Fact Society,” Farhad Manjoo writes about research findings by Stanford psychologists who showed two groups of students (selected because they reported favoring or opposing capital punishment) contradictory studies about the deterrent effect of capital punishment. Rather than causing either group to doubt or tone down its original view, students on each side accepted the evidence that conformed to their original views while rejecting the contrary evidence. Moreover, Manjoo reports on other studies showing we have a tendency to seek out information that reinforces our initial beliefs while resisting information that does not mesh with our preconceived ideas. Avoiding mistakes requires open-mindedness and the capacity to confront contrary evidence honestly.

          Third, Look out for Anomalies. What a person sees depends both upon what she looks at and also upon what her previous experience has taught her to see. In his seminal work, The Structure of Scientific Revolutions, Thomas Kuhn describes how anomalies that normal science cannot explain can lead to paradigmatic shifts and a gestalt switch in the scientist’s view of the world.

          Kuhn writes that since antiquity people saw one or another heavy bodies swinging back and forth on a string or chain until the body finally came to rest. To the Aristotelians, the swinging body was simply falling with difficulty. Constrained by the chain, it could achieve rest at its low point only after a tortuous motion and considerable time.

          Galileo, on the other hand, looked at the swinging body, and saw a pendulum. How did Galileo see a pendulum with its regular and repeated motion where others for so long saw only constrained fall?  Perhaps it was just an accident of individual genius, but as Kuhn shows, scientific revolutions often stem from the recognition of anomaly, i.e. that reality somehow does not conform to the present paradigm-based expectations. As he wrote, “Novelty ordinarily emerges only for the man who, knowing with precision what he should expect, is able to recognize that something has gone wrong.” (Kuhn at 65)

          The recognition of an anomaly is a powerful force in the world of ideas as well as the world of science. Lumpkin and Cobb managed to close their eyes to the anomaly that they accepted a slave as a person with a soul capable of Christian salvation, while simultaneously justifying the legal order that treated the slave as property. For many others, this anomaly trigged a crisis and raised doubts about the received belief system.

          And so, as you join the company of educated men and women and go about decision making of all sorts, I hope you will remember the lesson that you may be wrong and to strive to avoid that by being humble, being intellectually honest and open-minded and recognizing anomalies. Use the tools of heart and mind that have gained here. Your study of the liberal arts has positioned you to avoid, or at least to minimize, the making of mistakes. The Nineteenth-Century Eton schoolmaster, William Johnson Cory, lastingly articulated the purpose of a liberal arts education this way:

At school you are engaged not so much in acquiring knowledge as in making mental efforts under criticism. A certain amount of knowledge you can indeed with average faculties acquire so as to retain; nor need you regret the hours you spent on much that is forgotten, for the shadow of lost knowledge at least protects you from many illusions. But you go to a great school not so much for knowledge as for arts and habits; for the habit of attention, for the art of expression, for the art of assuming at a moment’s notice a new intellectual position, for the art of entering quickly into another person’s thoughts, for the habit of submitting to censure and refutation, for the art of indicating assent or dissent in graduated terms, for the habit of regarding minute points of accuracy . . . for taste, for  discrimination, for mental courage, and for mental soberness. Above all, for self-knowledge.

My father-in-law's most affectionate comment about his children and grandchildren is that we are "reasonably adequate" -- stated with a twinkle in his eye. Those who know him realize that this understated compliment is actually the highest praise.

Some of my friends have won "reasonably adequate" jury verdicts this week.

Business fraud case in Dothan, Alabama - $13.8 million jury verdict.
In federal court in Dothan, Alabama, Bill Stone of Baxley, GA, and Harry Hall of Dothan, won a $13.8 million verdict against Nissan North America.  They were representing the Bankruptcy Trustee for Collins Signs, Inc. The Court is expected to make an award of attorney's fees and litigation expenses on top of the verdict. Collins Signs started out as a small, portable sign business and grew to become an international company.  It was one of Dothan’s largest private employers.  Collins Signs was forced into involuntary bankruptcy in 2003, after Nissan falsely claimed Collins Signs had failed to perform a contract for the design, manufacture and installation of new, standardized Nissan brand signs at 1,100 Nissan dealerships all across the United States.  Nissan declared the sign contract in default.

The sign contract arose out of Nissan’s global re-imaging plan to makeover the Nissan brand image at all its dealerships, starting with those in the United States.  Discord arose within the Nissan organization when its Purchasing Department decided to award the sign contract by competitive internet reverse bidding over the objection of the Nissan Brand and Market Research Department.  Although the Nissan Purchasing Department was in charge of awarding the sign contract, the Nissan Brand Department was in charge of performing Nissan’s obligations under the contract.  Nissan Brand manager Peter Bossis did not want the sign contract awarded by competitive bidding, but wanted it to go to Nissan’s exclusive sign supplier, Plasti-Line, Inc. of Knoxville, Tennessee, where one of Bossis’ former subordinates, Ken Williams, had taken a position after he retired from Nissan.  

The scheme to defraud Collins Signs was orchestrated by the Nissan Brand Department.  After Collins Signs won the competitive bid and was awarded the sign contract, Bossis immediately began taking steps to obstruct Collins Signs’ ability to perform it.  Bossis and other Nissan Brand managers deliberately disregarded contract provisions that benefited Collins Signs and refused to allow Collins Signs to have contact with Nissan Dealers to explain the re-imaging program or to make sales presentations and take dealer orders, as the contract required.  They refused to follow Collins Signs’ recommendations concerning sign applications to be in compliance with local laws and ordinances, causing delays and increased dealer costs.  They created unreasonable dealer expectations by providing inaccurate information to dealers, which caused dealers to make unfounded complaints about Collins Signs’ installations of signs at those dealerships.  They imposed obligations on Collins Signs that exceeded the contract terms Nissan Purchasing had negotiated.  They required Collins Signs to build in excess of $4 million in finished goods inventory before dealer sign orders were submitted to trigger the company’s manufacturing obligation.  They did all of this in deliberate disregard of Collins Signs’ manufacturing and inventory plan that was approved by Nissan Purchasing as part of the contract.  They refused to pay Collins Signs’ invoices for sign installations completed as required by the contract.  They created a cash-flow problem for Collins Signs, making it difficult for the company to pay its suppliers, installers and other creditors.  They then used this problem they created deceitfully, to persuade Collins Signs to request a development cost deposit from Nissan.  Once Collins Signs did that, Nissan used the deposit request its Brand Department solicited to declare Collins Signs in default under the sign contract.  Bossis intended all along to prevent Collins Signs’ from performing the sign contract, to persuade Nissan Purchasing to terminate the contract with Collins Signs, and to re-direct the contract to his preferred sign supplier, Plasti-Line.  Ultimately, Nissan Purchasing did exactly that, even though Plasti-Line was not the next-lowest bidder.  After Plasti-Line replaced Collins Signs, Nissan converted and misappropriated tools, dies, molds, and design and manufacturing drawings belonging to Collins Signs, and valued at approximately $300,000.

As a result of Nissan’s fraud, Collins Signs suffered financial losses, was forced out of business, and placed in involuntary bankruptcy.  Substantially all its remaining assets were sold by the bankruptcy court to pay creditors. 

Stone summed up the case as follows:  “An American dream became an un-American nightmare for Collins Signs and the entire Dothan community.

Thee Trustee’s lawsuit asked the court to rescind the sign contract due to Nissan’s promissory fraud, and assess damages against Nissan.  After a 3-week trial, the federal jury found against Nissan on all the Trustee’s claims, and awarded $3.8 million in compensatory damages and $10 million as punitive damages.

Trucking wrongful death case in Atlanta - $54.4 million jury verdict.
Friday evening, a Fulton County State Court jury returned a $54.4 million verdict in a trucking case for the wrongful death of a 50 year old woman against PFG-Milton Food Service.

The decedent was a Certified Nursing Assistant,  an immigrant from Jamaica who had been a US citizen for only 10 years. The plaintiff was her husband who was not a US citizen and was not present at trial. She was also survived by four adult kids, who will share in the recovery under Georgia law. As I understand it, the truck driver had a poor driving records and hours of service violations. 

The breakdown was $10,420,000 compensatory and $44,000,000 in punitive damages against PFG.  AIG had $150,000,000 in insurance.  During jury deliberations the plaintiff  turned down a $4,000,000 offer. Anything that holds up on post-trial motions and appeal is fully insured, as the defendant had $150 million insurance coverage with AIG. The plaintiff's attorneys were Pete Law and Mike Moran.

I have not yet heard how the plaintiffs may get around the $250,000 cap on punitive damages under Georgia law.  In a wrongful death suit in Georgia, because the statute itself is punitive, punitive damages are not permitted in addition to the statutory damages. However, punitive damages may be awarded in the executor or administrator's suit for medical expense, funeral expense and conscious pain and suffering before death. However, under OCGA Section 51-12-5.1, punitive damages are capped at $250,000, unless the defendant acted with specific intent to cause harm, or was under the influence of alcohol or drugs.

It is interesting that in the wake of the tort reform campaign and legislation, significant jury verdicts seem to have gotten larger and more frequent, even though it has become harder to get a plaintiff's verdict in small personal injury cases.  I have not yet seen an in depth analysis of the reasons for the increase in large verdicts.

While I congratulate my friends, I am concerned that headline verdicts could add fuel to another round of tort reform proposals.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Chair of the Southeastern Motor Carrier Liability Institute and Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

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

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  A "lawyers' lawyer" recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The truck driver had less than the required amount of rest the night before, according to subpoenaed cell phone records, and  was on eight prescribed medications that warned of possible drowsiness.   Witnesses said he was falling asleep at the wheel before he sped past warning signs and a flagman, slammed into a long line of cars, crossed the median and jackknifed on the opposite side of the highway.

According to a report by Joe Meyer of the Columbia Tribune, a family member said, "The money wasn’t something that we were after.  It was just a way to give a message in this part of town that the truckers should not be out there like that."

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of the Chair of the Southeastern Motor Carrier Liability Institute and Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

Types of Out-Of-Service Violations in Arizona in 2006:
False Report of Driver Record of Duty Status - 2,818
Inspection/Repair & Maintenance - 2,674
Driver Fail to Retain Previous 7 Days Logs - 1,500
No Driver's Record of Duty Status - 1,396
15 Hour Rule Violation - 1,357
Brake Out of Adjustment - 1,194
Inoperative/Defective Brakes - 980
10 Hour Rule Violation - 921
No or Improper Load Securement - 717
Flat Tire or Fabric Exposed - 708
Stop Lamp Violations - 706
No/Improper Breakaway/Emergency Braking - 684
Tire Flat/Audible Air Leak - 590
Brakes-General - 582
Failing to Secure Vehicle Equipment - 546

Companies with Most Out-Of-Service Violations in 2006:
Swift Transportation Company Inc - 148 (out of 611 total violations)
Knight Transportation Inc - 51 (of out 137 total violations)
San Luis International Freight Services LLC - 50 (out of 259 total violations)

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

A study by the Federal Motor Carrier Safety Administration showed 13% of large truck drivers were fatigued at the time of an accident. Of the 141,000 estimated crashes, that's 18,000 fatigued truck drivers causing crashes. According to a report by Brian Shapleigh at KJCT television in Grand Junction, Colorado, the Colorado Motor Carriers Association supports installation of on-board computers to track driving hours. Many in the trucking industry, however, oppose any such requirement. 

The spokesman for the CMCA was quoted as saying truckers "need to go above and beyond actually what most drivers are" because of the size of the vehicle their driving.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.