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.

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.

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

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."

# # #

Wal-Mart's greed costs employees

By: Timothy Santelli
Atlanta Attorney

Wal-Mart sure had a lot to be thankful for this past Thanksgiving. With stores popping up all over the nation, the franchise continues to grow at an exponential rate. In 2005, The New York Times said that Wal-Mart makes $20,000 in profit every minute. That’s right. Wal-Mart makes $20,000 in every minute of every hour of every day in profit—not revenue—but profit. That profit margin, 3 times that of Target’s and nearly 11 times that of Cosco’s, apparently isn’t enough for super-giant. Now the corporation is going after its own employees.

Last week, The Wall Street Journal ran a cover story about Deborah Shank, a 52-year old woman who had worked for Wal-Mart for eight years. Mrs. Shank was in a catastrophic car accident seven years ago when a semi-trailer truck hit her, leaving her permanently brain-damaged.

Her husband and her three sons went to court and obtained a relatively small amount of money—considering her damages—to assist in paying for the healthcare costs. The settlement, after court expenses, and other costs, left the Shanks with $417,000 to be put in a special trust for the medical needs that the 52-year old woman would depend on for the rest of her life.
Wal-Mart got wind of the settlement and the mega-corporation sued the Shanks for $470,000—to recoup the expenses it had spent on her medical care. Now, the entire trust fund for Deborah Shanks’ healthcare is going back to the multi-billion dollar corporation.

Wal-Mart was able to take this money from a working employee because the mega-corporation includes a provision in their health care plan reserving the right to recoup any money recovered by an employee in a personal injury suit. The Shanks were unaware of this clause.

Making this situation even more outrageously unfair is that Mrs. Shanks paid hefty premiums for the optional health coverage provided by Wal-Mart. While an average full-time employee at Wal-Mart makes $17,114 a year—over 16% of that salary will go back to Wal-Mart for healthcare—healthcare with numerous deductibles. Over 16% is over twice the national average of employee insurance costs.

In Georgia, Wal-Mart is the #1 employer of parents with children enrolled in PeachCare. Every year Georgia’s taxpayers pay nearly $10 million dollars to cover the more than 10,000 children enrolled whose parents work full time at the corporation and still can’t afford insurance.
Yet Wal-Mart profits. At $20,000 a minute.

Six days before Wal-Mart claimed victory, the Shanks 18-year old son was killed while serving in Iraq. Now, with no settlement money, the Shanks’ family, without their son, is relying on Medicaid and Social Security payments for her 24-hour care. Mr. Shanks is working two jobs and barely has time to be with his wife. Her health is declining; she can’t remember that her son was killed in the war, only that he died. A health-care administrator told Mr. Shank that divorcing his wife would benefit the family as she may be eligible for more public aid. The Shanks lost on appeal at the Circuit Court. They hope the US Supreme Court will hear their case.

In just 23 and-a-half minutes, Wal-Mart made the money awarded to the Shanks in profit alone. But it’s not enough for the greedy corporation. They took that money from a working family—a family who lost their son in the war, a family without a mother who can care for her children through no fault of her own.

Wal-Mart sure had a lot to be thankful last Thanksgiving. If only the working families in America, like the Shanks, could say the same.

Mandatory-Binding Arbitration Swindles Consumers and Employees of their Rights

As Congress nears their Holiday break, consumer advocates and GTLA remain hopeful about a bill authored by Georgia’s Congressman Hank Johnson and Wisconsin Senator Russ Feingold amending the Federal Arbitration Act.

Countless corporations and companies put a mandatory-binding arbitration clause into their consumer and employee contracts that disallow a defrauded or abused employee or consumer the right to a jury trial—a right guaranteed by the 7th Amendment of our Constitution.

A recent article in Mother Jones magazine about this consumer issue provides several examples of how this affects consumers. The author of the article and her husband had attempted to a buy a used-car. After finding one to suit their needs, they perused the contract. They were surprised to find out that if they had signed on the dotted-line they would not have only purchased a car, they would have signed their Constitutional Rights away if it turned out that they were defrauded by the dealership. Perhaps the car had been totaled by its previous owner; perhaps the car was a lemon.

The couple would have been forced into mandatory-binding arbitration, a costly and in some cases, it can be argued, biased process favoring corporations, leaving them stuck with the result. Unlike our modern court system which allows one side or the other to appeal to a higher court if one feels like they did not receive a fair shake, mandatory-binding arbitration is a one-time deal.

The article provides several other examples of this corporate practice. The restaurant Hooters only hires women after they sign a clause that says they cannot go to a jury for a claim of sexual harassment. Halliburton and the pharmaceutical company Pfiser employ a mandatory-binding arbitration clause in their contracts.

Support from both sides of the aisle has been garnered because of a particularly egregious area that mandatory-binding arbitration can be found—nursing homes. Families trust the facilities to care for their aging parents. Sadly, stories abound of nursing home abuse and neglect. To circumvent a family taking the facility to court over abuse, many nursing homes put into their contracts the mandatory-binding arbitration provision, prohibiting a family to seek justice on behalf of an abused loved one.

The amending of the Federal Arbitration Act would get rid of the mandatory-binding arbitration clauses in employment and consumer contracts. Arbitration would still be an option, if both parties agreed, but so would the Constitutional right of a trial by a jury of one’s peers—a right that GTLA supports and acts to preserve as it is a bedrock of this nation’s foundation.

In Georgia, we don't lie and spy in church

Letter to the Editor in response to an article in October 18th's issue of the AJC.

By: Robin Frazer Clark
GTLA Immediate Past President

‘Appalling’ and ‘Reasonable.’ Two completely different words with two completely different meanings. It’s not a coincidence that Progressive Insurance referred to their own conduct as 'appalling,' and then, when faced with accountability Progressive changes its tune to say their conduct was 'reasonable.'

Progressive spied on Bill and Leandra Pitts in church—in their private Bible-Study! Good Georgians trusted these people as fellow worshipers—not undercover agents sent to spy on them so that a greedy corporation could save a buck.

I applaud my colleague for representing this family. Our Civil Justice System was designed for people just like the Pitts. In a time when so many corporations are living large and reporting record-breaking profits, we need the Civil Justice System to ensure that they aren’t expanding their profit margins by swindling families and those in need. This is the only avenue to hold Progressive accountable and to send a message to other insurance companies—Georgia does not tolerate dishonest business practices. Down here, we don’t lie and spy in church.

Drought of Leadership

**Response to an article in the Atlanta Journal Constitution on October 18, 2007.

By: Jamie Bendall
Atlanta Attorney

My patience is drying up like my drinking supply. Commissioner John Oxendine is furiously pumping misinformation from his seemingly still deep reservoir of half-truths regarding the way consumers in Georgia are treated by their insurance companies. It great that he's offended by Progressive's spying on their policy holders in bible study . It would be better if he acted to protect policy holders from these kinds of tactics. Instead he's working right now to prevent policy holders from getting the full benefit of insurance premiums they are already paying for. He's treating insurance companies like they are defenseless, endangered mussels; always seeking to keep them floating on a sea of profits. The people of Georgia are thirsty for Justice and Mr. Oxendine should use his office to see that the benefits of a just insurance industry flow in the right direction. He should support SB 276.

Half-truths and Lies in AJC Letter to the Editor

By: Joe Watkins
President of GTLA

**NOTE** The AJC printed a letter, from an Atlanta area doctor, full of half-truths and lies. Joe Watkins, the President of the Georgia Trial Lawyers Association responded.

Dr. Stephen D. Leonard, who, according to state records, is not on the staff of any hospital and works in the hair replacement field, paints a dishonest picture about the reality of medical malpractice in the Labor and Delivery Room. He states that doctors are performing C-Sections because they are fearful of a malpractice suit. Absent from Dr. Leonard's accusations is the truth. He fails to mention that a lawsuit will never see the light of day without the testimony of a qualified physician who states, under oath, that the physician involved violated the standard of care. Our law also limits the amount of damages which may be recovered in malpractice suits. Perhaps this doctor from New York should familiarize himself with the Georgia Code before politically spouting his views at the expense of real families dealing with real hardships as the result of medical negligence.

The Civil Justice System Works

Georgia Trial Lawyers Association
Media Release
(404) 376-3495, Rebecca DeHart

Atlanta-- The administrative law judge, Roy Pearson of Washington DC, who sued a drycleaners over a pair of lost pants—lost in court today. He was ordered to pay all of the court costs that the owners of the drycleaners incurred throughout the ordeal.

This news comes as no surprise to the President of the Georgia Trial Lawyers Association (GTLA), Joe Watkins. “Just as we anticipated, the Civil Justice System worked. The Judge presiding over the case ruled in favor of the drycleaners—and against the man at the center of this ridiculous business dispute.”

Pearson filed suit against the drycleaners for $54 million after alleging that they lost a pair of his pants. “The suit itself was ludicrous. As an attorney for 30 years, I am aware of the dangers that this type of sensationalism can generate. The general public cannot help but be engrossed in its details. Now that the decision has been reached, the general public can bask in what is just another example of the Civil Justice System accurately and fairly working for us all,” said Watkins.

The attorney representing the drycleaners was Chris Manning, a member of the American Association for Justice (AAJ), the national affiliate of GTLA. AAJ has been sharply critical of Judge Pearson’s lawsuit. In April, AAJ CEO Jon Haber called on the District of Columbia Bar Association to conduct a disciplinary investigation of Judge Pearson for his conduct in this matter. Haber and AAJ President Lewis “Mike” Eidson pledged to support the defendant’s defense fund and encouraged the AAJ membership to also contribute.

Judge Bartnoff, who presided over the case, ordered Pearson to pay the court costs of defendants Soo Chung, Jin Nam Chung and Ki Y. Chung, the owners of the drycleaners.

“It is our hope that the resolution of this case garners as much media attention as it did when it was filed. The public deserves to know how the Civil Justice System works on their behalf,” said Watkins.

# # #

A Lost Pair of Pants

By: Joe Watkins
President of the Georgia Trial Lawyers Association

Reading and hearing about the D.C. Administrative Law Judge who is suing his dry cleaners over a pair of lost pants is distressing, to say the least. It's obviously ridiculous, but this lawsuit is not only silly -- it's dangerous.

Cases like this give lawyers a bad name. Big Business and others who are out to dismantle the Civil Justice System jump all over these tabloid-like stories as proof of why we need to eliminate corporate accountability. They say our legal system is out of control. One lawsuit like this one automatically makes every lawsuit "frivolous." And nothing could be farther from the truth.

As an attorney for 30 years and as President of the Georgia Trial Lawyers Association, I am aware of the dangers that this type of sensationalism can generate. The story is so far-fetched that the general public cannot help but be engrossed in its details.

What the public does not get to hear enough about are the everyday cases that go in front of judges and juries that uphold the Constitution's promise of justice for all. More truly newsworthy are cases that have assisted in pulling dangerous pharmaceuticals off the shelves of drugstores, cases that have forced clothing manufacturers to discontinue flammable children's pajamas, and cases that led to greater ingenuity in auto manufacturing when side-saddle gas tanks were found to be explosive. These are just a few instances among many where the Civil Justice System protects us all.

The public also rarely sees stories about the lawyers who are compassionate and generous community leaders. For example, Scott Delius, an Atlanta trial lawyer, is voluntarily serving in Afghanistan and assisting in the building of a criminal justice system there. He also has begun a charitable donation effort to collect clothes and toys for the Afghan children he has met. Gary Hays, another Atlanta trial lawyer, has done incredible fundraising for cancer research through his "I Will Make A Difference Campaign." Giving back to the community -- wherever that may be -- is a proud tradition of our profession.

The case of the missing pants most likely will continue to get press in the weeks to come as it awaits a hearing. When this ridiculous case gets before a judge, I am confident it will be dealt with in a manner that will make us proud of our Civil Justice System. Let's hope the media fully reports the result in this case, so that all can see, accurately and fairly, how our Civil Justice System truly works for us all.