Tuesday, December 23, 2008

Clark Howard and Georgia Watch

Information from the folks at Georgia Watch:

Consumer expert and Georgia Watch board member Clark Howard believes that a donation to Georgia Watch is, “double the bang for your buck because you’re helping a great organization that’s working for you and you get savings back on your income tax.”

To watch Clark ’s special message about Georgia Watch in its entirety, visit our home page at www.GeorgiaWatch.org. While there, you can also meet our staff, view pictures from our recent consumer education programs, get important consumer resource information, and make your secure, online tax-deductible donation.

Your donation will support:

* Consumer workshops: Georgia Watch has participated in over 50 free workshops across the state on popular to pics such as identity theft, personal finance management and predatory loan scams.

* Policy: Credible research helps elected officials craft appropriate consumer protection laws and regulations. This year, Georgia enacted a law authorizing credit freeze for consumers – for one of the lowest fees in the country!

* Awareness: Increasing awareness about consumer issues with our newsletters, reports and frequent work with the media.

Georgia Watch members receive:

* Quarterly newsletters: Eight pages of consumer information and advice.
* Annual legislative reference and report: A rundown of the most important consumer legislation in Georgia every year, with a detailed account of how your elected officials vote.
* Georgia Watch member emails: Updates about events and the highlights of our work with the media.

Georgia Watch depends on member support, tax-deductible donations and volunteer hours. We look forward to continuing our service to Georgia consumers every day, and appreciate all of your dedication and support.

Thursday, December 18, 2008

Being Thankful during this Holiday Season

Having been asked to write something on this Blogpost, I thought that you, the reader, would be interested to know a bit about 'why' those who write and contribute to this cause chose to do so:

First of all, this is a volunteer position, and I feel that is an important aspect for you, the reader, to realize. I say that because, at least in my life, I have only volunteered and/or seen those who have volunteered for worth-while and deserving organizations. Organizations dedicated to helping others...and this organization has the same mission: to help others, most notably, YOU, the consumer by upholding and protecting your legal rights.

I generally try to not speak for others, but, in this particular situation, I do feel quite confident that I can can say, with the greatest of sincerity, that every member of the Georgia Trial Lawyers Associations (GTLA) is devoted to protecting YOU. That's right, every man, woman and child's best interest is at the heart of every aspect of what members of this organization fight for on a daily basis.

Trial lawyers are the ones who have exposed Allstate Insurance company's, well...shall we say, less than honorable practices, which effect everyone who is placed in a position to have to deal with them. A book has been written that has addressed this and I hope you have an opportunity to explore this further (http://www.trialguides.com/allstatebook.htm). In that same vein, the exposure of these types of "profit over people" posturing has lead to the state of Florida banning the allowance of Allstate Insurance selling new automobile insurance at the turn of 2008 until they complied with subpeonas that had been issued about how they had set their rates. ( http://archives.chicagotribune.com/2008/jan/17/business/chi-thu_allstate_0117jan17). This is just one isolated example, but these examples abound: from toxic chemicals used in toys to Drug Manufacturers seeking blanket immunity for hazards related to their drugs which they have failed to warn the consumer about, despite their knowledge of the repercusions (see Wyeth v. Levine, U.S. Supreme Court).

The examples of how trial lawyers are fighting for YOU surround us daily and I hope that when you have an opportunity that you will take notice of the battles that appear on a frequent basis and are being fought for YOU. If you ever want to hear about the plight of trial lawyers as they continually work to uphold and protect your legal rights I encourage you to look at www.gtla.org and type in your town and call one of the attorneys and ask she, or he, about the fight that is going on for YOU.

So, as everyone hopefully enjoys a safe Holiday Season, I hope that YOU know that there are a group of people fighting for your rights on a daily basis, and I know that I am quite thankful to be involved in this noble cause.

Sunday, December 14, 2008

Georgia's Uninsured Ranks Swell

From the ajc.com:

It's getting worse in the state of Georgia for those without insurance.

A new Georgia State University study, released earlier in December of 2008 shows what some say is a "gloomy" health insurance climate last year.

The report notes that the level of those deemed uninsured in Georgia in 2007 stayed roughly the same as the previous year, at 20 percent of Georgians under age 65 without any coverage.

The percentage of those under 65 with private coverage, though, has dropped from 75 percent in 2000 and 2001 —- a two-year average, to increase the statistical accuracy —- to 67 percent in 2006 and 2007, mirroring a national trend.

Georgia residents with public Medicaid and PeachCare coverage has increased, according to the report.

Also from the AJC:

Georgia has 1.6 million people who lack health insurance.

Source here.

In this writer's opinion, this is a looming state budget crisis - millions of dollars will be written off because those without insurance will still continue to go to a local hospital or ER, as opposed to going to a doctor whose visit may be covered on even a basic insurance plan.

Wednesday, December 10, 2008

Georgia's Medical Liability Environment: 4th; Access to Care: 44th (of 50)

The American College of Emergency Physicians this week released a state ranking of best and worst emergency rooms in the country. The “Medical Liability Environment” of each state makes up 20% of the rankings. Each state is ranked according to how their liability environment is (as well as several other factors), and ultimately each state gets an overall ranking.

The full rankings can be found here: http://www.emreportcard.com/statereports.aspx?id=392

The American College of Emergency Physicians press release is here.

Georgia—while ranked 4th in medical liability environment (meaning caps) is ranked 44th in the nation for access to care and only 37th in the nation for quality of care and patient safety.

What does this mean? It means to some that Tort Reform does not protect patients. What it may mean is that the lack of accountability afforded to the ER with caps and the gross negligence standard that exists in this state may actually harm the patients of Georgia.

Friday, December 5, 2008

Survey: 1 in 3 toys have toxic chemicals

Researchers for the JustGreen Partnership -- a coalition of children's safety, public health and environmental groups -- recently tested more than 1,500 toys and found one in three contained medium or high levels of chemicals such as lead, cadmium and arsenic.

Lead was detected in 20 percent of the toys, and the group says levels in some far exceed the 600 parts-per-million standard set by the federal government for a recall.

The group said it selected toys and children's products that attempted to represent a cross section of the most popular items used by U.S. children.

A group representing the toy industry was critical of the report."The Toy Industry Association finds the report from Healthytoys.org is misleading to consumers, at best," according to a statement on the company's Web site.

For more, go here.

Preemption and The Current President

Source: Tresa Baldas who writes for National Law Journal, a Fulton Daily Report affiliate.

The clock is ticking for lawyers specializing in consumer safety litigation as they wait to see what "midnight regulations" the Bush administration squeaks through before leaving office in January.

There are dozens of rules now under review by the administration that affect everything from prescription drug labeling to water quality to auto roof safety, according to the Office of the Federal Register, the government's official daily publication for rules, proposed rules and notices of federal agencies.

Midnight regulations are last-minute federal rules and regulations that a president issues before leaving office, usually in the last three months of his term.

Defense counsel are counting on the Bush administration to leave behind regulations that offer greater liability protection to manufacturers and less regulation. The plaintiffs' bar fears just that, warning that as many as 21 possible regulations could be a "nightmare" for consumer safety and the environment.

"Let's say all 21 pass - that's a worst-case scenario. You will be looking at thousands of consumers who will be left with no recourse and manufacturers who have the ability to walk away with complete immunity," said attorney Gerie Voss, director of regulatory affairs for the American Association for Justice (AAJ), the voice of the plaintiffs' bar, which is tracking the 21 pending consumer safety regulations.

Pre-emption front and center

But corporate defense counsel Matthew Neumeier of the Chicago office of Washington-based Howrey said that the "Bush administration is continuing to generate regulations consistent with its philosophy - that the regulation of business should be minimal.

"And if there is regulation, the regulation should attempt to protect businesses from liability under other state law theories if they're compliant [with federal rules]," he said. "The pre-emption issues are really front and center."

And it's the pre-emption language within the proposed rules that have the plaintiffs' bar particularly concerned. These rules include

• A proposed regulation that would require auto manufacturers - for the first time in 35 years - to increase the strength of vehicle roofs. Plaintiffs' lawyers say the roof strength standards are still too low, and that automakers that meet that rule will be granted complete immunity from all lawsuits, according to the AAJ.

• A proposed rule by the U.S. Food and Drug Administration (FDA) to revise warning labels regarding the use of prescription drugs during pregnancy and breast-feeding, and to update them with more detailed information, including clinical trial results.

This rule includes a pre-emption clause, which the AAJ fears will offer drug makers blanket immunity and give injured women no recourse.

• A proposed FDA rule that would shield companies from liability for potentially harmful over-the-counter drug ingredients. The proposed rule changes the status of some ingredients used in over-the-counter drugs, making them subject to additional FDA approval. Once they were approved, manufacturers no longer could be held accountable should the ingredients cause harm, according to the AAJ.

Some lawyers believe the Obama administration will eventually reverse what might slip through before Inauguration Day.

Defense counsel say that Corporate America isn't taking advantage of any regulatory favors, or behaving irresponsibly. Instead, they argue, businesses should be required to follow only one set of rules, and if they do so, they should be immune from state lawsuits.

Read more about this doctrine here.

Thursday, December 4, 2008

State Budget Crisis Threatens Access to Civil Justice System

Budget shortfalls in Georgia have forced superior courts statewide to eliminate the use of senior judges, burdening already overloaded court dockets. Injured plaintiffs that rely on the civil justice system are likely to be victims of these cuts.

Senior judges are retired superior court judges who serve as needed to resolve backlogs of cases and preside over trials. They have been used with increasing frequency as caseloads around the state have increased.

Fulton County Superior Court Judge Melvin Westmoreland criticized the cuts: “It’s unfortunate the State’s mismanagement of funds has brought to a halt the most fiscally responsible way to deal with the shortage of full-time judges available to handle increased civil filings and criminal prosecutions. As a result the county jails will become even more crowded and cases will move slower through the system.”

While criminal litigants can often take advantage of speedy trial demands to move their cases through the court system, civil litigants have no such rights and cases can drag on for years before reaching trial. At least one judicial district has temporarily suspended all civil trials because of crowded dockets.

Injured plaintiffs are placed in a particularly difficult position when they are unable to have their day in court, especially when their injuries have prevented them from working. The insurance companies that are ultimately responsible for paying the plaintiff's damages, on the other hand, are likely to benefit from increasingly desperate injured parties who are willing to settle for less than the true value of their case because they cannot afford to face financial ruin while waiting years to present their case to a jury.

Contributed by John D. Hadden
Turkheimer & Hadden, LLC

GTLA - In Practice: Micah Gravley

Micah Gravley is the Statewide Grassroots Director for GTLA.

In this podcast, Jamie and Micah discuss general issues related to GTLA and the importance of member participation.

GTLA: In Practice - Jay Sadd

In addition to serving as former editor of Calendar Call, the official publication of the General Practice and Trial Section of the Georgia State Bar, Jay has also served as Chairman of the Legal Education Committee for the Young Lawyers Section of the Georgia Bar; board member of Initiative 2000, which commemorated the 10th anniversary of the Americans with Disabilities Act; member of the Communications and Outreach Committee of The Public Justice Foundation; and Chairperson of the Education Committee for the Georgia Trial Lawyers Association. Currently Jay serves as Vice-Chairman of the Board of Director for the American Association of Adapted Sports Programs, Inc., and as an instructor for the Trial Techniques Program, Emory University School of Law.

In this podcast Jay Sadd and Jamie discuss how he came to be involved in GTLA and the impact it has had on his career.

Tuesday, December 2, 2008

The Holiday Season is here

I received my first holiday card over the Thanksgiving day weekend and thought how thankful I am for lawyers. After I opened the card, I checked my email and saw a blurb from my good friend and world renowned Trial Lawyer, Don Keenan. Aside from his exploits as a Trial Lawyer, Don sends out a yearly email noting the top 10 dangerous toys.
I can't speak for Don, but I presume that he would rather you did not give those toys to your children thereby running Mr. Keenan out of his business, too. You see, Don sues manufacturers and doctors that harm children.
Many of my trial lawyer friends do the same. Big business doesn't voluntarily do the right thing and remove dangerous toys and products from the shelves. So trial lawyers sue them, put the manufacturers under the spotlight, and force them to remove the hazardous products by hitting them in their pocket books; the only thing they cherish.
We have seen time and time again where government has failed to regulate big business, too. Yet trial lawyers never fail their cause- the promotion of safety.

That's why I am thankful for lawyers this holiday season.

Friday, November 28, 2008

A thought or two about branding

What is a lawyer's brand? Many of us resort to consultants or marketing professionals to help us address this basic question. In some ways it is an annual problem when it comes time to update a website or renew an ad in the Yellow Pages.

According to this article, it takes more than just frustration with your current situation or a bucket of money to throw at the problem.

"You see it in professional spin-offs all the time… Two or three key architects in an established firm leave with a few clients, just knowing they can do it better on their own. But then they go out and start a company that’s cut from the exact same cloth as the last place they worked. They use the same accounting software, the same processes, the same fee structure, and even the same spiel in their pitches. The only thing that’s changed is the location and the letterhead."

Author Michael Gerber, in his book "The E-Myth," tackles this problem head on.

If you are looking for a holiday gift for a lawyer with a branding issue, consider this easy to read, but thought provoking book.

Monday, November 24, 2008

Receive Levi's Calls by Text

News from Keep Georgia Safe shows how technology helps with alerts like a Levi's call:

What is a Levi's Call? - Georgia's AMBER Alert

A Levi's Call is an emergency bulletin that is issued whenever a child has been abducted and is in imminent danger of harm or death. The goal is simple: To locate the child and the abductor expeditiously before any harm comes to the child. In Georgia, this alert is known as "Levi's Call" in memory of 11 year old Levi Frady.

Get a real-time text of alerts:

To receive real-time notification of Levi's Call, Georgia's AMBER alert, Mattie's Call, elderly or disabled missing person alert, and Kimberly's Call, dangerous fugitive alert, via text on your cell phone, go to their site and enroll. You can read more about the other types of alerts on their site.

With your help, you can become a part of the Keep Georgia Safe wireless network.

Friday, November 14, 2008

Recall Alert: Infant Gas Relief Eye Drops

Johnson & Johnson and Merck Consumer Pharmaceuticals Company announce the voluntarily recall of approximately 12,000 units of Infants' MYLICON® GAS RELIEF DYE FREE drops (simethicone-antigas) non-staining sold in 1 oz. plastic bottles that were distributed after October 5, 2008 nationwide.

The company is taking this action in consultation with the U.S. Food and Drug Administration (FDA). The recall was announced as a precaution after determining that some bottles could include metal fragments that were generated during the manufacturing process. If any medical events were to occur, most are expected to be temporary and resolve without medical treatment. Parents who have given the product to their infant and are concerned should contact their health care provider immediately.

Lot numbers are: SMF007 and SMF008.

Consumers who purchased Infants' MYLICON® GAS RELIEF DYE FREE drops non-staining included in this recall should immediately stop using the product and contact the company at 1-800-222-9435 (Monday – Friday, 8:00 a.m. – 8:00 p.m. EST) or via the internet at www.mylicon.com for instructions regarding how to dispose of the product and request a replacement or refund.


Recall Alert: ReliOn Syringe Recall

The FDA reports this week that ReliOn syringes have been recalled. Here is the report from the FDA site:

The U.S. Food and Drug Administration is notifying health care professionals and patients that Tyco Healthcare Group LP (Covidien) is recalling one lot of ReliOn sterile, single-use, disposable, hypodermic syringes with permanently affixed hypodermic needles due to possible mislabeling. The use of these syringes may lead to patients receiving an overdose of as much as 2.5 times the intended dose, which may lead to hypoglycemia, serious health consequences, and even death.

The recall applies to the following lot number and product information:

-- Lot Number 813900
-- ReliOn 1cc, 31-gauge, 100 units for use with U-100 insulin

Only ReliOn syringes from this lot number and labeled as 100 units for use with U-100 insulin are the subject of the recall.

These syringes are distributed by Can-Am Care Corp and sold only by Wal-Mart at Wal-Mart stores and Sam's Clubs under the ReliOn name. Wal-Mart requests that all users of ReliOn 31-gauge, 1cc syringes return those labeled as 100 units for use with U-100 insulin from Lot Number 813900 to their local Wal-Mart store or Sam's Club pharmacy. Customers will be provided with replacement product.

The FDA urges patients and health care professionals to check their syringe packaging carefully for syringes labeled as 100 units for use with U-100 insulin from Lot Number 813900.

Consumers and health care professionals who suspect they have the recalled product may also contact Covidien at 866-780-5436 or www.relion.com/recall for more information.

ReliOn Insulin Syringes consist of a syringe barrel, a plunger rod, and a hypodermic needle attached to the tip of the syringe.

During the packaging process for this lot, some syringes labeled for use with U-40 insulin were mixed with syringes labeled for use with U-100 insulin, then all packaged individually and in boxes as 100 units for use with U-100 insulin.

The manufacturer has distributed 4,710 boxes in the recalled lot, which equals 471,000 individual syringes. Wal-Mart sold the syringes at Wal-Mart stores and Sam's Clubs from Aug. 1, 2008, until Oct. 8, 2008.

Tyco Healthcare Group LP (Covidien) voluntarily recalled this lot of syringes on Oct. 9, 2008, asking that any units of the affected product be removed from inventory and placed in quarantine. Wal-Mart posted the recall announcement in Wal-Mart stores and Sam's Clubs, as well as on its Web site, and sent letters to more than 16,500 customers notifying them of the recall.

The manufacturer has received one adverse report related to a syringe from this product lot.
Health care professionals and consumers may report serious adverse events (side effects) or product quality problems with the use of this product to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail, fax or phone.

Friday, October 31, 2008

Caps on Damages Case Settles

For Immediate Release
October 31, 2008

Caps on Damages Case Settles in Favor of Mr. Park

Atlanta, Georgia—Yesterday afternoon, the case of Park v WellStar Hospital settled for an undisclosed amount. The case was on appeal to the Georgia Supreme Court following a Fulton Superior Court ruling that Georgia’s statutory limit on damages in a medical malpractice case was unconstitutional. The defendants’ appeal was scheduled for oral argument before the Georgia Supreme Court next Monday.

“We are pleased that the Park family has received justice,” said Rob Roll, an attorney for Park. “This case truly represented the uphill battle facing Georgia’s families since SB 3 became law. While this case was closely watched, we have never lost sight of the paramount importance of the best interest of our clients. It is clear that the defendants did not want the caps provision to be scrutinized by the Georgia Supreme Court. And the Parks deserved and received justice.”

The case was filed by Plaintiff Cheon Park, 59, who fell from a ladder at his home in late 2006. He was taken to WellStar Douglas Hospital by ambulance with complaints of pain in his neck, shoulder, arm and pelvis. Once at the hospital, doctors treated Park for a dislocated shoulder and then released him that same evening. Upon his discharge, Park could not stand on his own and had to be lifted by hospital staffers and his loved ones into his car. Just a few days later Park, still in pain, was taken to Grady Hospital where X-Rays revealed he had a severely damaged spine. Park is a now a C4 quadriplegic and confined to a wheelchair.

The Parks filed suit in Fulton County Superior Court against the Hospital. During that tumultuous time, the Parks learned of SB 3. In 2005, the Georgia Legislature passed a sweeping, so-called “tort reform” measure. Claims of “jack-pot-justice” and “frivolous lawsuits” flooded the halls of the Gold Dome. In one fell swoop, SB 3 drastically compromised the Constitutional Rights of all Georgians. In some aspects SB 3 attempted to limit Georgia citizens’ Constitutional Rights and in other aspects those Rights were completely eradicated.

After receiving the news that a chance for a financial recovery had been destroyed just one year before, the Park family asked the judge for a ruling on the two main components of SB 3— the application of a gross negligence standard in emergency rooms and the cap on ‘non-economic,’ or ‘quality of life,’ damages. Last May, Judge Marvin Arrington ruled that Georgia’s medical malpractice cap on non-economic damages was indeed unconstitutional. He had yet to release his decision on the gross negligence standard.

“Judge Arrington’s decision addressed several aspects of caps on damages that could not pass Constitutional muster,” said Trent Speckhals, an attorney for the Park family. “His ruling addresses this state’s—and this nation’s—fundamental value of a citizen’s right to trial by jury. His commonsense ruling balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth in our Constitution.”

Judge Arrington’s decision may still be used as a persuasive decision in future civil suits.

“This conversation about the unconstitutionality of SB 3 is not over. But what is most important now is that the Park family can try to piece their lives back together,” said GTLA President, Fred Orr. “Trial lawyers are an impressive bunch of people. And this latest case proves that. Our profession knows that there is nothing more important than the client you were hired to obtain justice for. The Park family may have struggled for the next several years while their case played out in court. Instead, now they can put this behind them and start rebuilding their future. I commend the attorneys who represented this deserving family.”

Rob Roll and the attorneys at Watkins, Lourie, Roll & Chance, PC, Trent Speckhals of Speckhals and Cora, Michael Terry and Frank Lowry of Bondurant, Mixson & Elmore, and Ned Miltenberg of the Center for Constitutional Litigation, PC were all instrumental in the representation of the Parks in this case.


The Georgia Trial Lawyers Association
Protecting the Constitutional Promise of Justice for all by
Guaranteeing the Right to Trial by Jury,
Preserving an Independent Judiciary, and
Providing Access to the Courts for all Georgians


Wednesday, September 3, 2008

GTLA Honors Georgia's Judiciary

For Immediate Release
(404) 376-3495, Rebecca DeHart

A Great Escape and a Great Man
Georgia Trial Lawyers Association honors Judge Anthony A. Alaimo

Atlanta, GA—Hailed as what will be the largest gathering of judges and attorneys in the history of the state of Georgia, the Georgia Trial Lawyers Association [GTLA] is hosting The Height of Excellence—an event honoring excellence in Georgia’s judiciary and where Judge Anthony A. Alaimo, a Senior United States District Court Judge of the Southern District of Georgia, will be the first recipient of the inaugural Anthony A. Alaimo Award for Judicial Excellence.

“It is very appropriate that the first award given by the members of GTLA for judicial excellence carries the name of Judge Anthony A. Alaimo and that he will be the very first recipient,” said GTLA President Fred Orr. “Judge Alaimo, at age 88, remains one of the hardest working judges in the entire country. He is among the most beloved and respected judges of the federal judiciary. He is a true American Hero.”

Before beginning his distinguished judicial career, Judge Alaimo served in the U.S. Army Air Corps flying a B26 as a member of the 322nd Bomb Group during WWII. His plane was shot down over the North Sea and Alaimo was captured by the Germans. It was his numerous daring escapes from a German POW camp that inspired the 1963 film, “The Great Escape,” starring Steve McQueen.

An American war hero, Alaimo returned to Georgia, married his high school sweetheart, graduated from Emory Law School and was admitted to the Georgia Bar in 1948. In 1968, Alaimo became the 8th President of GTLA and founded the quarterly magazine, “The Verdict.”

In 1971 President Richard Nixon appointed Judge Alaimo to the U.S. District Court for the Southern District of Georgia where he served as Chief Judge until 1990 and took senior status in 1991.

“Judge Alaimo is highly regarded as one of the most diligent judges in the entire federal judiciary,” stated Orr. “Judge Alaimo is often called to preside over complex cases and lengthy disputes. He is known to conclude cases that were thought to be never-ending in days—if not hours. His judicial skill is simply unmatched.”

Judge Alaimo has been recognized by the Chief Justice of the United States with appointments to most of the leadership positions that exist within the federal judiciary including service on the Judicial Conference on Records Disposition, the Judicial Conference Committee on the Judicial Branch, the Judicial Conference of the United States and the Executive Committee of the Judicial Conference of the United States. He is a member in good standing of the State Bar of Georgia and is a Life Member of GTLA.

The Height of Excellence will take place on Thursday, September 18th at the Ritz Carlton, Buckhead. The black-tie optional gala begins at 6:30 pm. Tickets for members of GTLA and their guests are $35 and $50 for all others. Anyone who would like to pay tribute to this great American Hero and to the entire Georgia judiciary is welcome to attend. Please contact GTLA Headquarters at (404) 522-8487 for more information.


The Georgia Trial Lawyers Association
Protecting the Constitutional Promise of Justice for all by
Guaranteeing the Right to Trial by Jury,
Preserving an Independent Judiciary, and
Providing Access to the Courts for all Georgians


Wednesday, August 27, 2008

FDA Sides with Drug Companies

For Immediate Release
Contact: Cecelia Prewett, Jennifer Fuson
202-965-3500 x369AAJ Press Room

Preemption Clause Would Grant Blanket Immunity
from Lawsuits Involving Drugs Used by Pregnant Women

Washington, DC – Drug and device manufacturers will have immunity from lawsuits even if they fail to update warning labels to include dangerous side effects for pregnant and breast-feeding women if a Food and Drug Administration (FDA) proposed rule is made final. The American Association for Justice (AAJ) today submitted comments on the new label requirements.

“The civil justice system and regulatory authority are meant to complement each other to protect consumers. Instead, we are seeing the same complete immunity preemption language over and over again that would allow manufacturers to escape accountability for hazardous drugs and take away the right of consumers to seek justice in the courts,” said American Association for Justice (AAJ) President Les Weisbrod.

AAJ is asking the final rule eliminate any reference to giving complete immunity to manufacturers. Seven federal agencies have issued over 59 rules with preemption language in the preamble of the rule. Congress has expressed intent to permit consumers to bring state law claims against drug manufacturers in the Food and Drug Administration Amendments of 2007 and in numerous floor statements.

“There is no guarantee the FDA’s new labeling requirements will compel manufacturers to disclose product hazards,” said Weisbrod. “This new policy will only hurt patients and relieve drug manufacturers of the obligation to compensate those that are harmed by their products before ever testing if the new labeling system works properly. The FDA needs shift their focus back to the safety of pregnant women and their children and not protecting the drug companies.”

For a copy of AAJ’s comments, see www.justice.org


As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations.
Visit http://www.justice.org

Friday, August 1, 2008

Lawsuit not 'frivolous' to the one injured

By: Deric Beaudoin
Attorney at Law and GTLA Member

**The following is a response to a guest column printed in the AJC on 7-30.

A grueling mistrial? Perhaps. A frivolous lawsuit? Not a chance.

While I can certainly understand the frustration Mr. Pitfield has felt as a result of his juror experience, I don’t think it is fair to consider the time spent by everyone involved in this case as being anything near frivolous. I am thankful that this jury devoted so much of their time trying to reach a unanimous decision in this case and I am thankful that we have people in our community like Mr. Pitfield that are willing to share their opinions openly. The fact that twelve people that did not know either party to the case spent two days of their lives (after three days of hearing evidence and argument) trying to reach a decision that would have been fair to both parties is a testament that there are indeed plenty of good people left in our society.

At trial, I represented the plaintiff. My client, a married Korean born 20 + year Cobb County resident and stay-at-home mother of two, had incurred over $65,000 in medical bills as a result of the negligent driving of the defendant. There was no question that the defendant caused the accident because at the scene she received a citation from law enforcement which she pled guilty to and never challenged the ticket.

My client’s Ford Taurus wagon had damage to the unibody which is made of steel and takes the place of what has been traditionally referred to as the frame of a car. The accident caused spinal injuries requiring significant medical attention and for which there is essentially no cure. Hurt through no fault of her own, my client cannot be the person that she once was.

The life changing effect of this wreck and the amount of medical bills that Ms. Kim’s family has racked up as a result of this wreck are anything but “frivolous." The pain that Ms. Kim endures on a daily basis as a result of the defendant pulling out in front of her and stopping in the middle of the road is anything but "frivolous."

With the rising costs of gas, an unsteady economy, and everyday financial worries, the idea of being saddled with tens of thousands of dollars in medical expenses for injuries caused in an accident that was undeniably the fault of another is unbearable. Making a mistake that hurts somebody is one thing, but refusing to accept responsibility for hurting somebody the way Bonnie Kim was hurt is an insult.

Our jury system is designed to offer a fair and just decision for the parties involved in a case. Sometimes, they cannot reach agreement. However, that lack of consensus does not indicate a “frivolous” case. My client is a real person—a mother, a wife, a neighbor, a PTA member. Her family has incurred medical costs that would not have been necessary but for the negligence of the defendant. We did not go into that Courtroom and ask for a million dollars, all we asked for was that Ms. Kim’s medical bills be paid and that the jury award whatever they felt fair and reasonable for her other human losses in light of the evidence presented at trial.

Obviously we affected some of the jurors enough to keep them busy for two days trying to reach a unanimous verdict. It would be interesting to see what some of the “unreasonable” jurors would have to say about the experience. I appreciate Mr. Pitfield’s time on our jury and thank him for sharing his thoughts and opinions with us both after the trial and in his comments to the editor.

I regret however, that Mr. Pitfield did not comment on the civility of the trial and the incredible emotion felt by the parties, the attorneys and the jurors at various times of the trial. I personally have never had a better trial experience between opposing counsel and the defendant and perhaps I never will. Everything about our trial was professional and civil and our judge was exceptional.

If cases like this one are "frivolous," then we need to come up with a new word for lawsuits that have absolutely no merit, because this one, I can assure you, was not one of them.

Wednesday, July 30, 2008

Jury System is the fair way to solve a dispute

By: Andy Childers
Atlanta Attorney

** The following is a Letter to the Editor to the AJC in response to a guest column published on July 30, 2008.

If I were blindsided on the highway on the way home from work tonight by a negligent driver, I would much rather have members of my community step inside my shoes and deliberate what equates fairness rather than some insurance company cog who gets bonuses for denying claims. While it may cause frustration to those on the jury, like it did for Tex Pitfield an Oil Company CEO and jury foreman on a recent Cobb County trial, at least I would be getting a fair shake.

Insurance companies are ruthless in denying claims. From the atrocities of Hurricane Katrina to what Mr. Pitfield calls, “a very minor traffic accident,” our fates are controlled by corporations who view us as an inconvenient story on a piece of paper rather than real people with families and jobs who are struggling to make ends meet like nearly everyone else. That is, nearly everyone else but Insurance CEOs who continue to rake in record profits while the rest of us struggle to fill up our gas tanks.

While it sounds like Mr. Pitfield was annoyed by his jury summons, I commend him for fulfilling his civic duty. I commend the other jurors who were as convinced of their verdict as he was. We are blessed to live in a nation that constitutionally protects the rights of people to participate in their government. Without that, we’d all be doomed to existing simply as a blurb on a scrap of paper that corporate insiders with more means, money and power than we have, could just willy-nilly throw away.

Senior move closer to being protected from one-sided mandatory arbitraion in long-term care

For Immediate Release:
202-965-3500 x369
AAJ Press Room

Washington, DC— Seniors and their families who have been harmed by mandatory arbitration in nursing home contracts overcame another hurdle in the fight to seek justice from negligent nursing home corporations as the House Judiciary Committee set to pass the Fairness in Nursing Home Arbitration Act (H.R. 6126) this week.

This bill would stop nursing home corporations from burying mandatory arbitration clauses in the stack of papers that patients must sign in order to be admitted into a nursing home. When families face the tragic neglect of a loved one due to negligent care, these clauses force families into a private system of justice in which the “judge” is picked by the corporation and families are left without any appeal.

Mandatory arbitration in nursing home contracts has a real life impact on American families every day. Wisconsin resident David Kurth witnessed the one-sided system of mandatory arbitration first hand when a nursing home corporation refused to be held accountable for the neglect of his father, William Kurth. David’s father suffered bedsores so severe they lead to his eventual death. The nurse treating David’s father was found guilty of criminal negligence. Even though the nursing home admitted responsibility to the Kurth family, they continue to hide behind a mandatory arbitration agreement.

“Our members speak for families who have been harmed by mandatory arbitration enforced by the very people that they trusted to protect the health and safety of their loved ones,” said American Association for Justice President Les Weisbrod. “We want to ensure that that no other family has to suffer the compounded injustice suffered by the Kurth family and many others.”

“Mandatory arbitration agreements in nursing home contracts place families in an unfair system where corporations pick the players, make all the rules and leave families without any appeal. Most importantly, it allows nursing home corporations to sweep their unlawful and negligent behavior under a rug and out of the public eye.”

For additional examples of how nursing home arbitration harms families please contract the AAJ press shop at 202-965-3500 x. 369.


As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others--even when it means taking on the most powerful corporations. Visit http://www.justice.org.

Sunday, June 15, 2008

Georgia's strong business climate attracts industry and fosters ingenuity

For Immediate Release
(404) 376-3495, Rebecca DeHart

Georgia's strong business climate attracts industry and fosters ingenuity
So why would our Chamber of Commerce tell us differently?

The State of Georgia has reason to celebrate. Last week Georgia was ranked 8th in the nation by financial network CNBC in its “America’s Top States for Business” report,1 and was named third best state in the nation for developing new biomass industry by Forbes Magazine.2

Governor Sonny Perdue issued a press release last Friday stating Georgia has a “strong,” “streamlined,” and “pro-active” business environment and reminded citizens that Georgia is already at the forefront of the nation exploring new avenues for alternative renewable energies.3 Such bioenergy-related business requires ingenuity, the backing of major Universities and other research based institutions and a business climate that fosters the development of new, groundbreaking products. Georgians should be proud of these nationally respected rankings. These accolades are important to remember as politically motivated groups attempt to tell the people of Georgia differently.

In sharp contrast to CNBC’s and Forbes’ independent reports, on April 22 of this year, the U.S. Chamber of Commerce’s Institute for Legal Reform (ILR) released its 2008 report, in which it ranked Georgia’s legal system as 28th in the nation. 4 This report was given to every legislator in Georgia and received national attention. However, the following facts were not given to the Georgia legislature:
  • The ILR is a 30-person board composed of heads of drug, chemical, and insurance corporations with a combined 2007 revenue of $1.4 trillion dollars. 5
  • Only corporate defense lawyers from companies earning at least $100 million or more were surveyed. No local attorneys, judges or media were surveyed. 5
  • The US Chamber’s own pollster stated that there is no way to measure the fairness of a state’s legal system. 6
  • The same pollster confessed to the Charleston Gazette in West Virginia that only a fraction of the corporate lawyers surveyed knew anything about the state’s courts. Yet West Virginia was ranked 49th out of 50 states. 7

“It’s ludicrous. How could Forbes Magazine rank Georgia as 3rd in the nation for groundbreaking industry if what the Chamber says is true?” asked Fred Orr, President of the Georgia Trial Lawyers Association. “The ILR’s Report, and the other reports that are just like it, are nothing more than concocted statistics and imagined stories intended to scare the citizens and the legislatures in great states like Georgia.”

Several weeks prior to the Chamber’s report, the Pacific Research Institute (PRI) ranked Georgia 27th against the other 49 states using their Tort Liability Index.8 This index supposedly judges a state’s Civil Justice System and business climate. The lower a state’s ranking, the lower the status of its business community as shown in “higher prices, lower wages, decreased returns on investments in capital and land, restricted access to health care, and less innovation.”

Since then, the PRI has come under fire for conducting unethical and largely false research. An analysis by three leading academics, Tom Baker of University of Pennsylvania Law School, Herbert Kritzer of William Mitchell College of Law, and Neil Vidmar of Duke Law School, found that PRI’s claims are “without scientific merit and present a very misleading picture of the American tort system and its costs.” The professors took PRI to task on multiple accounts, calling their work “advocacy disguised as science,” “pure fiction,” “lack[ing] scientific merit,” and containing “highly dubious extrapolations.”9

Yet organizations like the Chamber of Commerce and others are still using this information in attempts to forward their extreme corporate agendas. In the June/July 2008 issue of Directorship Magazine, the American Justice Partnership (AJP) ranked Georgia 28th in the nation based on the two reports mentioned above “combined with the experience of the AJP.”10

In the report, Georgia has a big red circle next to its name which, according to AJP, indicates “the liability climate discourages growth and job creation.” The AJP study calls the Georgia Supreme Court on of the nation’s most ‘activist.’

“What we have here is a business front group putting forth two major lies. First, they say that business growth is limited in Georgia at the same time independent national research clearly shows the exact opposite,” said Andy Childers, an attorney in Atlanta. “Second, they say that our Supreme Court is an activist court and suggest that our Justices should be challenged in an election. Yet just this spring, an independent, non-lobbying, academic study was released ranking the Georgia Supreme Court as one of the five best courts in the nation.”

The University of Chicago Law School released a report in May of 2008 entitled, “Which States Have the Best (and Worst) High Courts?”11 The study was done in comparison to the Chamber’s Harris Survey.

The University study differs from the Chamber’s in methodology. While the Chamber surveyed only defense attorneys in $100 million firms, the University uses three measures rather than just one and does not survey lawyers.

“The differences between our approach and the earlier studies are driven partly by a different focus—the quality of the courts rather than (only) their influence—and partly by our different judgments about how to measure influence,” the report states. The University study indicates that not only their research, but that of other leading national and academic institutions, finds the Chamber’s research unreliable and inaccurate. “Our hope is that our study will shift the burden to the Chamber of Commerce to explain and justify their rankings more fully,” the study concludes.

“Basically the Chamber just keeps pouring money into in-house studies that are cooked so as to propel their own misguided legislative agendas forward—at the expense of small business owners and the citizens of Georgia.” said Childers. “As a small business owner I’m completely aware of Georgia’s business climate. It is good—just like the Governor said. With the real energy and economic problems we are facing you would think the Chamber would start focusing its attention on creating new industry, like developing alternative energy sources, rather than wasting its members’ time and money continuing to spew made-up propaganda.”


1. “America’s Top State’s for Business,” http://www.cnbc.com/id/25447603

2. “America’s Best Places for Alternative Energy,” Forbes Magazine, William Pentlend. 7/9/08

3. “Forbes ranks Georgia as third best state for alternative energy from biomass,” Press Release, Office of Governor Sonny Purdue, 7/11/08

4. “2008 US Chamber of Commerce State Liability Systems Ranking Study,” http://www.instituteforlegalreform.com/media/pdf/Harris_Ranking_08.pdf

5. “2006 U.S. Chamber of Commerce State Liability Systems Ranking Study,” U.S. Chamber of Commerce, 3/28/06, http://www.instituteforlegalreform.com/harris/pdf/2006_FULL_Report_FINAL.pdf

6. “Survey says frivolous lawsuits hurt state's reputation,” Copley News Service, 3/8/04

7. “Corporate lawyers rank state's legal climate poor,” The Charleston Gazette, 3/9/05

8. “US Tort Liability Index 2008 Report” http://liberty.pacificresearch.org/docLib/20080222_2008_US_Tort_Liability_Index.pdf

9. “Jackpot Justice and the American Tort System; Thinking Beyond Junk Science,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152306

10. “Dire States,” June/July 2008 Issue, http://www.directorship.com/stuff/contentmgr/files/1/587093ea32eba152454933b12422f4ba/misc/litigation08.pdf

11. “Which states have the best (and worst) high courts?” The Law School of the University of Chicago, May 2008, https://www.law.uchicago.edu/files/405.pdf

Friday, June 13, 2008

GTLA President Fred Orr in the News

GTLA's President, Fred Orr, was featured in today's Atlanta Business Chronicle. The article, "Commitment to law lands Orr at head of GTLA," depicts his personal journey to practicing law.

Laying down roots inside Atlanta was a natural move for Orr, who not only attended undergraduate and graduate schools at Emory University, but grew up in the public school system of southwest Atlanta, attending then-Brown High School, where he made quite an impact as a student leader and athlete. Although setting up shop in Decatur was the natural choice, pursuing a law degree was not.

"I didn't know any lawyers, had never been in a law office, but I was always interested in politics and law," said Orr.

Orr had been offered scholarships to attend both Emory University and Georgia Tech after graduating from Brown High School. Though a fan of the Yellow Jackets then and today, Orr opted for Emory, where his older brother was already enrolled as a student (and could offer a free daily ride to school). At the suggestion of a fellow student, Orr pursued a law degree.
"I really fell in love with law in law school," said Orr.

Orr speaks of his commitment to GTLA and what it has meant for him to become president.

The recently installed 52nd president of the Georgia Trial Lawyers Association (GTLA) is humbled by his appointment.

"I never expected to be president [of the GTLA]," he said. But when the call came in 2006 telling him he'd been nominated to be fast-tracked into this leadership position, "I couldn't refuse," Orr said. "I was stunned, flattered and honored, and still a little shaken, that I am where I am. So many other people worked long and hard."

Orr built his reputation through hard work and fairness. As president of the GTLA, Orr will direct a 50-year-old membership organization of more than 2,000 Georgia attorneys, all dedicated to protecting the public and ensuring the public's right to the civil justice system.

Orr credits the GTLA for teaching him the skills that not only helped him define his views as a trial lawyer, but served as the foundation from which he built his career.

The article discusses some of Orr's more well-known cases and paints the accurate picture of a fair-minded leader in the legal community.

"I've been know to tilt some windmills," said Orr, who, at nearly 67 years old still plugs away at work seven days a week.

"I'm not sure that I've ever been satisfied with the status quo of anything. I hope to strive for the best at all times, particularly in my practice and my relationships."

Wednesday, May 28, 2008

Federal Rules Gives Railroads Complete Immunity

For Immediate ReleaseContact
202-965-3500 x 369, AAJ Press Room
Federal Rules Give Railroads Complete Immunity
Administrative Action Preempts State Health and Safety Standards
Washington, DC— New rules issued by the Federal Railroad Administration and Pipeline and Hazardous Materials Safety Administration would give negligent corporations complete immunity from lawsuits in railroad injury cases, according to testimony given today before the agencies.

Since January 2005, federal agencies have exceeded Congressional authority by issuing 51 rules that preempt state law. American Association for Justice (AAJ) regulatory counsel Gerie Voss and AAJ member Dan O'Fallon will testify that Congress never intended for federal agency rules to preempt state law claims. Dan O’Fallon will also discuss how negligent railroads tried to use preemption to invalidate claims made by the victims of the Minot, North Dakota derailment.

Federal regulatory preemption allows corporations to receive complete immunity and escape accountability even when they knowingly injure and endanger consumers with unsafe products.

Federal regulation is meant to provide a minimal standard of safety for food, drugs, cars, medical devices and railroads. Under a little known doctrine called preemption, there has been an attempt to erode consumer rights by quietly using federal rules to preempt state lawsuits.

“Preemption is a ‘get out of jail free card’ for corporations which put consumers at risk and try to avoid accountability,” said American Association for Justice President Kathleen Flynn Peterson. “Federal regulations and state law should work together to make consumers safer. States have a right to ensure the safety of their residents when dealing with railroads that transport hazardous and deadly materials.”


As the world's largest trial bar, AAJ (formerly known as the Association of Trial Lawyers of America) promotes justice and fairness for injured persons, defends the constitutional right to trial by jury, and strengthens the civil justice system through education and disclosure of information critical to public health and safety. Serving members worldwide, AAJ provides attorneys with the information and professional assistance they need to serve clients successfully and protect the democratic values of the civil justice system.

Friday, May 2, 2008

Caps on damages unconsitutional

For Immediate Release
(404) 376-3495, Rebecca DeHart

Atlanta—The Superior Court of Fulton County, Georgia this week declared unconstitutional Georgia's medical malpractice cap on non-economic damages. The decision by Judge Marvin Arrington resulted from a case filed by Plaintiff Cheon Park.

Park, 59, fell from a ladder at his home in late 2006. He was taken to WellStar Douglas Hospital by ambulance with complaints of pain in his neck, shoulder, arm and pelvis. Once at the hospital, doctors treated Park for a dislocated shoulder and then released him that same evening. Upon his discharge, Park could not stand on his own and had to be lifted by hospital staffers and his loved ones into his car. Just a few days later Park, still in pain, was taken to Grady Hospital where X-Rays revealed he had a severely damaged spine. Park is a now a C4 quadriplegic.

“Mr. Park is now a C4 quadriplegic and will be in a wheelchair forever. He, Mrs. Park and their son are trying to piece their lives back together,” said Rob Roll, an attorney for Park. “Before 2005, Mr. Park would not have had to fight for his Constitutional Right to a trial by jury. I’m pleased to say that Judge Arrington penned a decision that upholds our Constitution and The Bill of Rights. The Parks are pleased with the decision today.”

In 2005, the Georgia Legislature passed a sweeping so-called “tort reform” measure. Claims of “jack-pot-justice” and “frivolous lawsuits” flooded the halls of the Gold Dome. In one fell swoop, SB 3 drastically changed the Constitutional Rights of all Georgians. In some aspects SB 3 limited one’s Constitutional Rights and in other aspects those Rights were completely eradicated.

The Park Family asked for a ruling on two main components of SB 3—the gross negligence standard and the cap on non-economic, or ‘quality of life,’ damages. Judge Arrington’s decision ruled exclusively on the Constitutionality of caps on damages. In a footnote he indicated that a ruling on the gross negligence standard will follow.

"Judge Arrington’s decision addressed several aspects of caps on damages that could not pass Constitutional muster,” said Trent Speckhals, an attorney for the Park family. “His ruling addresses this state’s—and this nation’s—fundamental value of a citizen’s right to seek trial by jury. His commonsense ruling balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution.”

In the decision Judge Arrington examined medical malpractice caps on damages and the plaintiff’s claim that it violated the Equal Protection Clause in Georgia’s Constitution. Equal Protection essentially states that within a group of like people, it is unconstitutional to treat some of them differently than others. He wrote, “Persons suffering the exact same personal injuries at the hands of other tortfeasors—including other professionals—are not subject to such caps.” In other words, a person hurt by the negligence of another professional—perhaps in a legal malpractice or in a products liability case—has the ability to recover the entirety of a jury’s award of damages, while a person injured by the negligence of a medical professional does not.

And the same can be said for the defendants. Under SB 3 one group of professionals are held to a lower standard of expected conduct than others. Judge Arrington wrote, “…One category of professional defendants have been singled out for special protection, with the result that their victims have been singled out for special disadvantages and limitations.”

Judge Arrington found the Plaintiff’s argument that a cap on damages violates the Constitutional Right to trial by jury to have merit as well. He wrote, “The court agrees with plaintiffs that a fundamental right is involved in this case if for no other reason that the fact that the jury’s authority to award the amount of damages that it concludes to be appropriate for non-economic injury is limited by the caps.”

Under SB 3, the jury’s deliberation regarding the amount of damages to be awarded is pre-empted by a legislatively imposed cap—no matter how severe or catastrophic the case before them is. Historically a jury has had the ability to decide the fate of its peers. Founding Father Thomas Jefferson said, "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its Constitution."

Within the circumstance where the will of the jury is circumvented by the legislative statute enacting a cap on damages, Judge Arrington penned, “…There is no doubt that the caps go to the core of a party’s right to have a jury determine his or her claims…To that extent, the jury’s award is a meaningless exercise.”

Another point of contention was the defendant’s argument—the very same argument used to hasten the passage of SB 3 in 2005—that caps on damages has become a legislative necessity to maintain a functioning medical community allegedly facing skyrocketing malpractice insurance premiums. Judge Arrington wrote in response to this claim, “At the outset, the court finds unconvincing the defendants’ contention that non-economic damages had to be limited, as they contend, in order to allow the medical profession to function effectively.”

Scare tactics claiming Georgia was losing its doctors—particularly OB/GYNs and other specialists—were at the heart of the debate in 2005. Indeed, the cost of medical malpractice insurance was on the rise. However, the supposed correlation that damages awarded to citizens harmed by the insured doctors and the increasing cost of insurance remains unfounded. Price-gouging by the insurance industry—not litigation—was the cause.

A 2005 study conducted by former Missouri Insurance Commissioner, Jay Angoff, found that the insurance companies have been price-gouging doctors by drastically raising their insurance premiums, even though claims payments have been flat, or, in many cases, decreasing. According to the annual statements of the 15 largest insurance companies, the amount malpractice insurers collected in premiums increased by 120.2% between 2000 and 2004, while their claims payouts rose by only 5.7%.1

Furthermore, a 2008 study by researchers at the Harvard School of Public Health and George Mason University has found that the supply of OB/GYNs is unaffected by both medical malpractice insurance premiums and the presence of tort reforms in a state. “We found that the supply of OB/GYNs had no statistically significant association with premiums or tort reforms. Our results suggest that most OB/GYNs do not respond to liability risk by relocating out of state or discontinuing their practice, and that tort reforms such as caps on noneconomic damages do not help states attract and retain high-risk specialists.” 2

“The arguments used in 2005 were suspect then—and have been proven to be false now,” said Speckhals. “The spin on statistics used to protect large corporations and the insurance industry has steered us away from reality—the reality of real people, right here in Georgia, who are struggling to regain their lives after they were harmed by someone else’s negligence.”

Speckhals praised Judge Arrington’s ruling as it addressed the economic circumstances faced not by multi-billion dollar corporations but those faced by the families in this state.

Judge Arrington ruled that even if there was a way to make caps on damages constitutional, it had to be done in a way that did not have a largely disparate impact on wealthy individuals compared to poor individuals. “..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… The limitation on non-economic damages falls, instead, on the poor, the unemployed, the elderly, the homemaker who does not work outside the home, and others with little earnings,” wrote Judge Arrington.

Judge Arrington cited another reason why caps on damages are unconstitutional. A person who has a minimal injury may receive complete compensation of economic and non-economic damages because they will total less than the cap. A person, like Mr. Park, who was catastrophically injured by the negligence of another will not have the ability to receive full compensation. Wrote Judge Arrington, “Someone who is profoundly injured, as the plaintiff here, will receive, if he prevails, compensation for only a small percentage of his actual non-economic injury.”

“It always breaks my heart when I hear of families like the Parks who are the victims of someone else’s negligent conduct and they are unable to seek justice because our the law passed in 2005 [SB 3] prohibits them from doing so,” said Fred Orr, President of the Georgia Trial Lawyers Association. “The ruling shines a light on the challenges that real people in this state face when they are harmed by acts of negligence. To eradicate a certain class of people’s rights is not only immoral, it’s unjust, and Judge Arrington recognized this.

“I expect this decision to be appealed and that the discussion surrounding this important issue will continue,”
stated Orr. “Judge Arrington obviously put a tremendous amount of scholarship and research into his decision. And I hope the coming discussions and debates surrounding this case will continue with the same levels of respect for our Constitution and for the families who live with the consequences of negligent acts by others.”

1. “Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry,” Jay Angoff, 7/05, http://www.centerjd.org/ANGOFFReport.pdf.

2. “A Longitudinal Analysis of the Impact of Liability Pressure on the Supply of Obstetrician-Gynecologists,” Y. Tony Yang, David M. Studdert, S. V. Subramanian, and Michelle M. Mello, Journal of Empirical Legal Studies, Volume 5, Issue 1, 21–53, March 2008

Thursday, May 1, 2008

Caps On Damages Ruled Unconstitutional

For Immediate Release
(404) 376-3495, Rebecca DeHart

Atlanta-- The Superior Court of Fulton County, Georgia today declared unconstitutional Georgia's medical malpractice cap on non-economic damages. The decision by Judge Marvin Arrington resulted from a case filed by Plaintiff Cheon Park.

Park, 59, fell from a ladder at his home in late 2006. He was taken to WellStar Douglas Hospital by ambulance with complaints of pain in his neck, shoulder, arm and pelvis. The ambulance attendants secured Parks to a backboard and immobilized his back and neck.

Once at the hospital, doctors treated Park for a dislocated shoulder and other injuries and then released him that same evening. Upon his discharge, Park could not stand on his own and had to be lifted by hospital staffers and his loved ones into his car. Just a few days later Park, still in pain, was taken to Grady Hospital where X-Rays revealed he had a severely damaged spine. Park is a now a C4 quadriplegic.

Faced with medical bills, costs pertaining to disability, economic damages, and quality of life damages arising from medical malpractice, Park—who will remain in a wheelchair for the rest of his life-- and his family pursued justice in our Courts. Upon filing his case, Park learned that Georgia’s law had recently changed regarding the definition of negligence in medical care with the Legislature’s passage of SB 3 in 2005. He learned that because he received treatment in the Emergency Room, his doctors were allowed to provide a much lower standard of care than doctors practicing in other locations. Parks then learned that his right to a jury trial was predetermined by a cap on the damages that a jury could award.

“Mr. Park is now a C4 quadriplegic and will be in a wheelchair forever. He and Mrs. Park are trying to piece their lives back together,” said Rob Roll, an attorney for Park. “Before 2005, Mr. Park would not have had to fight for his Constitutional Right to a trial by jury. I’m pleased to say that Judge Arrington penned a decision that upholds our Constitution and The Bill of Rights. The Parks are pleased with the decision today.”

Today’s decision ruled exclusively on the Constitutionality of caps on damages. The decision will likely be challenged and will move to a higher court.

Fred Orr, President of the Georgia Trial Lawyers Association said of the decision, “It always breaks my heart when I hear of families like the Parks who are the victims of someone else’s negligent conduct and they are unable to seek justice because our law prohibits them from doing so. Today’s decision shines a light on the challenges that real people in this state face when they are harmed by acts of negligence. To eradicate a certain class of people’s rights is not only immoral, it’s unjust, and Judge Arrington recognized this.

“I expect this decision to be appealed and that the discussion surrounding this important issue will continue,” stated Orr. “Judge Arrington obviously put a tremendous amount of scholarship and research into his decision. And I hope the coming discussions and debates surrounding this case will continue with the same levels of respect for our Constitution and for the families who live with the consequences of negligent acts by others.”

# # #

Monday, March 3, 2008

Georgians don't always get what they pay for

For Immediate Release
(404)376-3495, Rebecca DeHart

SB 276, a bill ensuring fairness for auto-insurance policy holders passes the House Non-Civil Judiciary Committee unanimously and heads to House Rules.

Atlanta-- Insurance companies in Georgia collect premiums on Uninsured/Underinsured Motorist (UM) Coverage but may never pay out—even after a catastrophic accident. Following a year in which Insurance Companies raked in record profits (“Insurers’ profits skyrocket”, AJC, 3-27-2007) consumers continue to pay for elective UM Coverage (UM is not required by law), thinking that if they were a victim in an accident they may need to access that money, and often, they cannot.

Consider this scenario if it were to occur under current law:

You are in a bad car accident—and you are not at fault. Your overall damages are $100,000.
The at-fault driver has $50,000 in liability insurance—which you collect. You had purchased the optional UM Coverage for $50,000 and paid a monthly premium. You may think that you could access that $50,000 to cover the rest of the damages. Under current law you cannot access the UM Coverage that you have wisely paid for every month. You can only access the difference of the coverage if your UM is more than the at-fault driver’s liability coverage. Where does that leave you in this scenario? It leaves you with $50,000 in damages that have gone unpaid for and a policy that you have paid premiums on that you thought would help you out in just such a situation.

“Not many people are aware that they are paying premiums on a policy, every month, that they may not be able to access when they need it most,” said Buck Rogers, an Atlanta attorney. “SB 276 will change that. It will allow consumers to purchase Stacking UM Insurance and get exactly what they pay for.”

Under current law in Georgia, consumers can only choose Non-Stacking UM Coverage or no UM Coverage at all. SB 276, authored by Senator Cecil Staton, provides consumers a third choice—Stacking UM Coverage.

Stacking UM Coverage allows you to stack your coverage on top of the at-fault driver’s to the extent of the damages. In the scenario above, if you had Stacking UM Coverage, you would no longer be $50,000 in debt. SB 276 ensures that Georgians get what they pay for. Twenty-three other states, including our neighbors Alabama, Florida and South Carolina all have similar measures that allow stacking.

“Sadly most people don’t know that they can’t access this coverage until they are in a bad wreck,” said Chan Caudell an attorney in Cornelia. “Often I get calls from people who are injured, missing work, and don’t know how to cover their bills and feed their families. They thought the insurance they had chosen to purchase would help them. Unfortunately, I have to tell them it won’t. SB 276 would change that.”

Not surprisingly, the big insurance companies oppose SB 276, they say that it would increase premiums for UM Coverage. Insurance Commissioner John Oxendine also publicly opposed the bill last year. He said that SB 276 would have minimal benefits (Morris News Service, 4-11-2007). Consumers should not be fooled by this wealthy industry rhetoric. The industry’s own numbers show that SB 276 would increase the premium for $25k in UM Coverage no more than $3.70 a month. And UM Coverage is NOT mandatory under GA law, so no one will be forced to pay higher premiums under SB 276.

“For roughly the cost of a gallon of milk a month, families who choose to purchase Stacking UM will finally get what they have paid for—and when they need it most,” said Rogers. “SB 276 is the wisest piece of public policy legislation for every Georgian that I know of. Passing this bill will allow every insured in Georgia to decide what is right for themselves and for their families, will help doctors get paid and will help to keep families out of debt. It’s just the right thing to do.”

Georgians deserve to get what they have paid for. SB 276 brings fairness back to consumers.

*SB 276 was introduced in the ’07 session. It passed the Senate Insurance and Labor Committee, the Senate Floor and the House Non-Civil Judiciary Committee in ‘07. Time ran out and SB 276 was recommitted to the House Non-Civil Judiciary Committee. On March 3, 2008, SB 276 passed both the subcommittee and the full House Non-Civil Judiciary Committee unanimously. SB 276 now heads to House Rules before heading to the House Floor, and then, assuming passage, the Governor’s Office.

# # #

Tuesday, February 26, 2008

Agritourism may be a dangerous pastime

For Immediate Release
(404) 376-3495, Rebecca DeHart

Senate is considering legalizing irresponsible behavior
Kids taking field trips to ‘The Country’ should beware

Atlanta- The Georgia State Senate is considering a bill that eradicates personal responsibility and puts Georgia’s children and families at great risk. Senate Bill 449 (SB 449), ‘The Landowners Protection Act of 2008,’ may sound innocuous but it is riddled with danger. The bill is sold as a great deal for Georgia’s landowners—yet it ignores the inherent risks it creates for the citizens of Georgia who are paying visitors on the land.

Since the inception of the state of Georgia, and of the United States of America, there has been a basic law concerning premises liability that requires property owners, who charge money for visitors to come onto their land, to act with ‘reasonable care’ for another’s safety. If the landowner should act carelessly or negligently there could be repercussions if someone gets hurt. The ‘reasonable care’ standard basically equates to whatever action or responsibility a hypothetical, reasonable person would exercise in a similar situation and may include certain responsibilities such as the owner performing a routine inspection of his or her land.

Members of the Georgia Senate are attempting to throw that standard—and the protections it offers the citizens of Georgia—right out the window. SB 449 lowers the ‘reasonable care’ standard to a ‘gross negligence’ standard for two business owners: a landowner who takes payment for those who hunt on his or her land, and a landowner who runs an ‘agritourism’ business.

“Gross negligence is nearly criminal behavior. It’s just a tiny bit better than intentionally hurting someone,” said Georgia Attorney Jay Sadd. “This means that a property owner can act with excessive carelessness and can still legitimately operate a business. And if a paying customer gets hurt by such negligence? Well, that’s too bad. Their Constitutional right of redress has been stripped.”

Concerns were raised by Sadd and the Georgia Trial Lawyers Association (GTLA) over SB 449’s blatant disregard for the safety of children, families and other paying customers who visit such properties. For example, under the proposed law, a landowner need not inspect his land for live bear traps before taking money from people who come to hunt on it. It would be completely legal for him to negligently, recklessly and carelessly leave hazards on his land. And if the twelve-year-old son of a hunter gets hurt by the trap, neither he, nor his father can hold the property owner liable for the injury.

GTLA adamantly believes that lawmakers should not relieve property owners of the duty to exercise reasonable care for children or any others who come onto their property.

“We firmly believe in personal responsibility. It’s common sense that a landowner is in the best position to know the hazards of his land. A visitor has never been there before. A child from the city would not know what is hazardous,” said Joe Watkins, President of GTLA. “That’s why our law always has placed the duty to simply exercise ordinary and reasonable care for a patron’s well-being on the landowner. SB 449 destroys this universally accepted principle—to the detriment of the citizens of this state who visit such properties. SB 449 is bad and dangerous public policy.”

Sadd’s testimony clearly pointed out that the Senate Economic Development Committee, in debating passage of SB 449, was actually debating whether to legalize irresponsible behavior that could cause injury or death to the children and families of Georgia and simultaneously leave them with no recourse.

“I just don’t think our great state should go in this direction—the direction of utter disregard for the safety and well-being of its citizens,” said Sadd. “I’ve heard about being thrown under a bus before—now, this bill would throw Georgia’s citizens under a tractor.”

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Thursday, February 14, 2008

GTLA Condmens the practice of 'Trolling for Victims'

Immediate Release
(404) 376-3495, Rebecca Bukant

Atlanta-The tragedy resulting from the Imperial Sugar Refinery has been made worse by the solicitation by unprincipled lawyers vying for the victims' cases. The news has reported that TV ads, print advertisements and even visits to the Augusta Burn Center by lawyers have occurred. Members and leadership of the Georgia Trial Lawyers Association are outraged by this reprehensible behavior.

"The Georgia Trial Lawyers Association unequivocally condemns these unconscionable acts by attorneys," said the President of the Georgia Trial Lawyers Association, Joe Watkins. "We are shocked that attorneys from Georgia and other states are attempting to solicit the families while they are mourning the loss of loved ones and praying at bedsides at the Augusta Burn Facility."

The State Bar of Georgia Rules prohibit attorneys from contacting victims immediately following a tragedy. “This is not the time for lawyers from Georgia or any other state to harass families and victims of a tragedy. To say that is in 'poor taste' is putting it mildly," said Watkins. "The families and survivors will decide if and when they will seek legal advice."

The Georgia Trial Lawyers Association, and its leadership, strongly believes that the Rules governing Georgia’s State Bar regarding such solicitation should be strengthened and the Association urges the State Bar to take appropriate action regarding this matter.

"Unfortunately, it is the unscrupulous behavior of a few attorneys, often from out of state, that reflects poorly on the image of all attorneys. That conduct is in no way a reflection of the principles, ethics and the integrity of the members of the Georgia Trial Lawyers Association,” said Watkins. “I speak for not only myself, but for our entire Association when I say that my thoughts and prayers are with the workers of the Imperial Sugar Refinery and their loved ones."

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