Insurance Company Profits 24% Higher in States with Severe Restrictions on Patients' Rights

For Immediate Release: December 10, 2009

Contact: Ray De Lorenzi
American Association for Justice
202-965-3500 x8369
AAJ Press Room

Report: State Tort Reforms Don't Lower Premiums
For Doctors or Patients

Insurance company profits 24% higher in states with severe restrictions on patients' rights

Washington, DC—State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.

An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.

The findings also show absolutely no correlation between the cost of malpractice premiums and health insurance premiums. For example, Maine has the ninth lowest malpractice premiums but the fourth highest health insurance premiums. Conversely, Nevada has the third lowest health insurance premiums nationally, but malpractice premiums are the country's ninth highest, despite having a cap in place for eight years.

"The data are clear: tort reform is just another insurance company handout," said American Association for Justice President Anthony Tarricone. "Insurers cried wolf and demanded tort reform, only to pocket the profits and never pass savings onto physicians or patients. While 98,000 people die every year from preventable medical errors, it's nonsensical to limit patients' rights simply to fill insurance company coffers."

The report also shows how medical negligence laws were passed under false pretenses. The medical malpractice insurance industry has seen a 47 percent increase in profitability in the last 10 years. Overblown "reported" losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.

Now that over 30 states have malpractice caps, insurance companies are enjoying extremely high levels of profit. In 2008, the average profit of the 10 largest medical malpractice insurers was higher than 99 percent of Fortune 500 companies and 35 times higher than the Fortune 500 average.

Finally, the report explains the dynamics of the insurance cycle and trends in premium pricing, which are well-known by analysts within the insurance industry. Remarkably, the industry’s leaders are already positioning to claim another “tort crisis” and to lobby for even more severe restrictions on patients’ rights in 2012.

To view a copy of Insurance Company Handout: How the Industry Used Tort Reform to Increase Profits While Americans' Premiums Soared, visit http://www.justice.org/clips/Insurance_Company_Handout.pdf.

AAJ has released a series of reports throughout the health care debate, as well as video tributes to the lives behind medical negligence. To learn more, visit www.98000reasons.org.

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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.

AAJ Statement of JPMorgan Removing Forced Arbirtration Clauses from Credit Card Contracts

Today, JPMorgan Chase & Co., the biggest credit card lender, will remove clauses from its contracts that force consumers into arbitration. Numerous reports and studies have shown these forced arbitrations are largely stacked against consumers.

The following is a statement from American Association for Justice President Anthony Tarricone:

“JP Morgan’s decision is a win for consumers, who previously had no recourse because of rigged forced arbitration proceedings. Unfortunately, other lenders and corporations outside the financial sector still insist on forcing their employees or customers into one-sided arbitrations to escape accountability. Congress must act and pass the Arbitration Fairness Act to prohibit this abusive practice and give Americans a real opportunity to receive justice when facing corporate wrongdoers.”

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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.

AAJ Calls on Congress to Restore Americans' Basic Legal Protections

Bill introduced in U.S. House today – “Open Access to Courts Act of 2009” – will restore standards required to file court cases back to decades-long precedent

Washington, DC—A bill introduced in the U.S. House of Representatives today will restore standards required to file court cases and strengthen Americans’ basic legal protections. The “Open Access to Courts Act of 2009,” introduced by Rep. Jerrold Nadler (D-NY), Rep. Hank Johnson (D-GA), and House Judiciary Chairman John Conyers (D-MI), will address recent U.S. Supreme Court decisions – Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) – which irrationally raised the bar for Americans seeking justice in employment, discrimination, and other civil cases.

Since 1938, individuals and businesses could file suit by submitting a short and plain statement, called a complaint, which described the facts of the case. In Twombly and Iqbal, the Supreme Court created a new interpretation of these rules. With these vague and subjective legal pleading standards, cases are now being dismissed even before the plaintiff can obtain evidence that would confirm the allegations, a process known as discovery. This effectively requires people to know more information than they possibly could have access to.

Since many cases are proven because of documents – such as personnel files and internal company memos – uncovered in discovery, these new standards allow negligent corporations to escape accountability while weakening Americans’ basic legal protections.

“Without this bill, access to justice will be denied before people even reach the starting line,” said American Association for Justice President Anthony Tarricone. “Congress must act to ensure meritorious cases can move forward so wrongdoers won’t escape accountability.”

A bill sponsored by Sen. Arlen Specter (D-PA) has already been introduced in the U.S. Senate (S. 1504) to return these pleading standards to their prior precedent – established in 1957 by the Supreme Court in Conley v. Gibson.

A wide range of groups support the effort to restore legal standards, including: Alliance for Justice, American Antitrust Institute, American Civil Liberties Union, The Brennan Center for Justice at NYU School of Law, Center for Justice & Democracy, Christian Trial Lawyer’s Association, Committee to Support the Antitrust Laws, Community Catalyst, Consumer Federation of America, Consumers Union, Earthjustice, Environment America, Essential Information, The Impact Fund, La Raza Centro Legal, Lawyers’ Committee for Civil Rights Under Law, Leadership Conference on Civil Rights, Mexican American Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, National Association of Consumer Advocates, National Association of Shareholder and Consumer Attorneys, National Consumer Law Center, National Consumers League, National Council of La Raza, National Crime Victims Bar Association, National Employment Lawyers Association, National Senior Citizens Law Center, National Whistleblowers Center, National Women’s Law Center, Neighborhood Economic Development Advocacy Project, Public Citizen, Sierra Club, Southern Poverty Law Center, Taxpayers Against Fraud, and U.S. Public Interest Research Group.

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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/newsroom.

Tort Law Changes Won't Reduce Malpractice Premiums

For Immediate Release: October 29, 2009

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room

New Data Shows Tort Law Changes Won’t Reduce Malpractice Premiums

Insurance companies lobby to limit patients’ legal rights,
yet never pass savings onto physicians or consumers

Washington, DC—Tort law changes have failed to reduce malpractice insurance costs, and states with caps on damages often have higher premiums than states without caps, according to an analysis of just-released liability data.

While insurance companies have claimed tort law changes would lower physicians’ premiums, this has not been the case. There is either no difference in rates between cap and non-cap states, or cap states actually have higher premiums – underscoring how a state’s liability laws play no role in lowering insurance or overall health care costs. Doctors’ premiums rise and fall based on the insurance cycle, totally unrelated to the legal system.

The new data shows:
• Average liability premiums across internists, general surgeons and OB/Gyns are nearly identical for states with or without caps.
• Average liability premiums for OB/Gyns are nearly identical for states with or without caps.
• Average liability premiums for general surgeons are 9.3% higher in states with caps.
• Average liability premiums for internal medicine are 9.9% higher in states with caps.

“Malpractice insurers promised tort law changes would lower premiums, yet it has not happened,” said American Association for Justice President Anthony Tarricone. “While these companies make record profits off the backs of doctors, patients injured through no fault of their own are often unable to seek recourse. This information comes at an important time in the health care debate – providing clear evidence that tort law changes won’t decrease costs.”

The above statistics were derived from data released this month in Medical Liability Monitor. More information and charts on this data can be found at www.justice.org/clips/premiums2009.pdf.

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s Health Care Debate, The Truth About “Defensive Medicine,” and The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers, all of which can be located at www.justice.org/medicalnegligence.

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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.

True Stories of Corporations that Knew their Products were Dangerous-- Even Deadly

The American Association for Justice released an incredible report yesterday--- They all Knew and Failed to.... The report details how lawsuits keep us safe.

Listed in the report are numerous examples of companies that knowingly and willfully released products that harmed or even killed consumers. It describes the case of a company that discovers rat droppings are contaminating its food products but insists that the products be recooked, boxed up, and sold anyway. Then there is the example of a company that discovers its bulletproof vests are defective but still sells them to law enforcement agencies and the military-- putting those that protect us at grave risk.

Toys to Toxic Waste

For Immediate Release: October 28, 2009

Contact: Jennifer Fuson
202-965-3500 x369
AAJ Press Room

Toys to Toxic Waste: New Report Details Corporations that Skirt Responsibility and Shun Consumer Safety to Save Money

Washington, DC—As the U.S. Chamber Institute for Legal Reform holds their annual summit – an event dedicated to championing corporate misconduct and evading accountability – a new report released today details true stories of corporations that knew their products were dangerous, yet failed to act and protect consumers.

“They Knew and Failed To” details numerous examples of medical devices, prescription drugs, and other consumer products that remained on the market after critical safety concerns had been raised within the company, while using all means necessary to avoid being held accountable for their misconduct.

In one example, police officer Tony Zeppetella of Oceanside, Calif. had paid $313 to “upgrade” his standard bullet proof vest. The Ultima body armor Zeppetella had purchased was widely used by law enforcement, military personnel, and even worn by the President and Mrs. Bush. Unfortunately, Zeppetella was shot and killed on a routine traffic stop in June 2003, when a bullet penetrated his vest.

Second Chance, the manufacturer, had known as early as 1998 that heat and sunlight caused the material to degrade, making the vests penetrable. Internal corporate memos from 2001 revealed an executive at the company had recommended notifying customers about the products’ defect, saying, “Lives and our credibility are at stake.” It was not until September 2003 that the company eventually recalled 130,000 vests, three months after Zeppetella was shot. The company had known for five years there were problems with their vests, but failed to notify consumers, putting law enforcement and service members’ lives at risk. Several years later, Second Chance recalled another 98,000 vests.

“While most businesses act in good faith to serve their customers and communities, unfortunately some corporations recklessly put lives at risk for the sake of profit,” said American Association for Justice President Anthony Tarricone. “While front groups like the Chamber stage events practically celebrating corporate misconduct, this new report convincingly illustrates the importance of holding wrongdoers accountable.”

The full report, “They Knew and Failed To,” is available at: www.justice.org/clips/TheyKnewAndFailedTo.pdf.

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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.

Medical malpractice insurers earning more than ever

For Immediate Release: October 6, 2009

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room

Medical Malpractice Insurers Earning More Than Ever

10 biggest malpractice insurers have average profits
higher than 99% of Fortune 500 companies

Washington, DC—As Congress debates nationwide health care reform, a new analysis reveals malpractice insurers have long-played a cruel hoax on legislators and the public. By systematically distorting profits and losses, insurers created phony “financial crises,” so lawmakers would limit the legal rights of injured patients. Today, while premiums and health care costs skyrocket, malpractice insurers have average profits higher than 99 percent of Fortune 500 companies.

The key findings of the report, which analyzes the annual financial statements of the 10 largest U.S. medical malpractice insurers, include:

• The average profit of these insurance companies is higher than 99 percent of all Fortune 500 companies and 35 times higher than the Fortune 500 average for the same time period.
• Malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent.

Medical malpractice insurers have underestimated profits and overestimated losses, creating overblown insurance “crises” to garner support for limiting patients’ legal rights. Then years later after the “crises” abated, revised filings show the companies were never in the financial peril they claimed.

• After overestimating losses, insurers have since reported that losses over the last five years have been approximately 13.5 percent lower than initially reported.
• By overestimating losses, companies have underestimated profits. Insurers averaged about 5.1 percent higher profits last year and 12.4 percent higher profits two years ago; these levels of profits will likely rise as upward revisions are made.
• Medical negligence laws were passed under false pretenses. Overblown reported losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.

“Insurance companies are gouging doctors on their premiums to mislead lawmakers. And today, injured patients are often left with no avenue to pursue justice, while health care costs continue to skyrocketing,” said American Association for Justice President Anthony Tarricone, managing partner at Kreindler & Kreindler LLP.

“As Congress looks to overhaul our nation’s health care system, it’s clear that limiting the legal rights of patients won’t lower health care costs or cover the uninsured,” continued Tarricone. “The focus should be on eliminating medical errors that injure or kill tens of thousands of Americans every year. Insurance companies clearly don’t need another handout.”

As part of its ongoing series on the topic, AAJ earlier released Medical Negligence: A Primer for the Nation’s Health Care Debate and The Truth About “Defensive Medicine.” These reports, as well as The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers, can be located at www.justice.org/medicalnegligence.

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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.

New Ad Campaign Tells Congress to "Put Patients First"

For Immediate Release: September 22, 2009

Contact: Ray De Lorenzi, American Association for Justice
202-965-3500 x369
AAJ Press Room

New AAJ Ad Campaign Tells Congress: “Put Patients First”

Calls On Congress to Improve Health Care by Reducing 98,000 Annual Deaths from Preventable Medical Errors - Like Two 727s Crashing Every Day for an Entire Year

Washington, DC—The American Association for Justice (AAJ) today launched the first phase of a nationwide ad campaign to educate lawmakers about the epidemic of preventable medical errors and how tort law changes won’t lower costs or cover the uninsured. The ads are running in opinion-leading Washington publications and influential online news sites.

According to the Institute of Medicine, 98,000 people are killed annually by preventable medical errors. “That’s like two 737s crashing every day for a whole year,” says the ad, which will initially run in Beltway publications and web sites nationwide. The ad concludes by posing the rhetorical question, “Would we blame the passengers or the airlines?”

“Our health care system is clearly broken, and if we are serious about improving it, we need to fix preventable medical errors,” said AAJ President Anthony Tarricone. “This new ad campaign gives Congress 98,000 reasons why they should put patients’ health first – before the profits of insurance companies. If we work to improve our health care system and reduce medical errors – rather than strip people of their rights – there would be far fewer victims that need legal recourse.”

The ads are an extension of AAJ’s efforts to improve the nation’s health care system by addressing preventable medical errors instead of trying to take away long-established Constitutional rights.

The Government Accountability Office and Congressional Budget Office have both said taking away patients’ rights will not significantly lower health care costs and found no evidence of so-called “defensive medicine.” Nonetheless, the insurance industry, political opponents of reform and others members of the health care industrial complex have continued to use patients’ rights as bargaining chips during this debate.

“Americans deserve health care reform that will actually fix our broken system, not force them to give up their legal rights,” said Tarricone. “Let’s focus on preventing errors in the first place, not targeting those injured through no fault of their own.”

To learn more about AAJ’s ad campaign and the role of medical negligence in the health care debate, visit www.98000reasons.org.

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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.

Supreme Court to Hear Oral Arguments on Caps on Damages

Supreme Court to Hear Oral Arguments on Caps on Damages
Statute is challenged after a medical malpractice victim’s face
literally falls off after surgery

Atlanta, GA-- On Tuesday, September 15, 2009, the Georgia Supreme Court will hear oral arguments regarding the constitutionality of the provision that caps the amount of damages a victim of medical malpractice can secure from a jury. The plaintiffs in the case of Betty Nestlehutt and Bruce Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., will argue that the Georgia Supreme Court should uphold the trial court judge’s finding that O.C.G.A. § 51-13-1, as enacted in 2005, is unconstitutional.

The case arose from a medical malpractice claim filed by Adam Malone and Frank Ilardi on behalf of their clients Betty Nestlehutt and her husband Bruce Nestlehutt in the Fulton County State Court in October of 2008. Married for over 50 years, the Nestlehutts raised two children and they shared a real estate business. Bruce handled the behind-the-scenes work, and Betty, a people-person by nature, focused on client and public interaction. Competition was tough and as Betty aged she found that more and more clients seemed to prefer younger agents. So, at seventy-one years of age, Betty Nestlehutt, after much thought and consideration, sought consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. concerning bags under her eyes and lines around her mouth. Dr. Cole recommended she undergo several surgical procedures including a simultaneous CO2 laser resurfacing and full facelift.

Having both the CO2 laser resurfacing and full facelift done together is well-known by practicing cosmetic surgeons to be risky, as the chance of damaging the facial blood supply is greatly increased on a patient of Betty’s age and complexion. However, based on her doctor’s recommendation, Betty went through the combination of procedures and the blood supply to her face was, in fact, severely damaged.

After the surgery, the skin on Betty’s face struggled to live without its usual blood supply and after a 3-week period, died completely, leaving the once fair-skinned wife and mother with huge, gaping wounds from her temple to her jaw line, covering both sides of her face and over both of her cheeks to her chin. Betty Nestlehutt’s face, quite literally, fell off.

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

After hearing the testimony and considering all of the evidence, a jury of 12 returned with a verdict in the Nestlehutts’ favor which included a recovery of money damages for her past and future medical expenses, for damage to her relationship with her husband and $900,000 in “non-economic” damages for the devastation of her quality of life. The verdict exceeded the $350,000 cap on noneconomic damages enacted as part of SB 3 in 2005. Judge Diane Bessen declared unconstitutional the statute capping a jury’s verdict and now her decision, upon the defendant’s appeal, is before the Supreme Court.

“Judge Bessen’s order appropriately concluded that a one-size fits all predetermined cap on damages violates several protections guaranteed by the Georgia Constitution,” said Malone. “Her order balances the rights of all Georgians, young and old, rich and poor, and restores the guarantees set forth by our Constitution that were stripped away in 2005.”

Judge Bessen’s order declares the caps on damages provision unconstitutional because it violates three basic constitutional tenets: the right to trial by jury, the separation of powers doctrine and equal protection of the laws.

Under SB 3, the jury’s deliberation regarding the amount of damages to be awarded is preempted by a legislatively imposed cap—no matter how severe or catastrophic the case before them. Historically, a jury had the ability to decide the fate of its peers constrained only by the particular facts of an individual’s case, as the Founding Fathers intended. Thomas Jefferson once 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.”

In her order, Judge Bessen wrote:

A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. If the amount of noneconomic damages awarded by the jury exceeds the statutory cap, this Code section automatically and arbitrarily reduces the verdict, without consideration of the evidence, the record, or any other fact produced at trial and found by the jury. The limitations imposed by O.C.G.A. 51-13-1 render the right of the jury to assess damages meaningless… The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable.

Additionally, Judge Bessen also found that the cap on damages violates the Separation of Powers Doctrine contained in the Georgia Constitution. Three other states’ supreme courts, with similar constitutional provisions, also have struck down caps on damages on this basis. The Georgia Constitution states that: “The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others.” One distinct function of the judicial branch is that judges have the exclusive right to award to a party a “remittitur” – or a new trial – if a judge finds that a verdict is either excessive or inadequate. Judge Bessen’s order declares the cap on damages statute to be a “legislative remittitur” and that the legislature has unconstitutionally invaded the exclusive role of the judiciary to find facts and control judgments.

“Equally important,” the judge writes, “it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law.”

The third violation of the Constitution Judge Bessen found was that a cap on damages violates the Equal Protection provisions of the Georgia Constitution which state: “No persons shall be denied the equal protection of the laws.” To examine this violation, Judge Bessen explored whether there was a “rational relationship” between the government’s purpose and its enacted statute which treats similar parties in very different, unequal ways.

The rational relationship test basically states that a statute may be valid as long as it has a rational relationship to a governmental purpose. In the case of SB 3, the government’s stated purpose was to “promote predictability and improvement in the provision of quality health care services and the resolution of healthcare claims..., assist in promoting the provision of healthcare liability insurance by insurance providers…, [and addressed concerns about] medical providers and facilities leaving the state and the cost of malpractice awards.” For a law to be valid, a rational relationship to those goals must be proven. Judge Bessen found that the cap on damages failed the rational relationship test completely.

In holding the cap on damages provision unconstitutional, Judge Bessen wrote:

After review, this Court finds that there is no rational relationship between statute and the expressed government interest. Most obviously, it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent healthcare providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for healthcare providers and diminishes the deterrent effect of tort law… There is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs… Based on current statistics, limiting noneconomic damage caps is not rationally related to the state purpose of reducing medical malpractice insurance rates… it appears that this statute was enacted arbitrarily, based upon speculation and conjecture rather than empirical data.

Finally, Judge Bessen found that the cap on damages violates Equal Protection because it creates different classes of victims—those injured by healthcare providers and those injured by others and those who are catastrophically injured and those who are less severely injured. Judge Bessen penned, “The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated… Similarly, the noneconomic damages cap discriminates against low-income individuals who are unable to prove large economic damages but nonetheless may sustain large noneconomic damages.”

The President of the Georgia Trial Lawyers Association, Chris Clark, has been following this case closely.

“As a trial lawyer, I represent the person, who, through no fault of their own, has been injured—sometimes severely. They miss work, accrue medical bills and—often most important to them—they suffer a loss of the quality of life that they once had,” said Clark. “Betty Nestlehutt’s severe disfigurement – which she had no part in creating – has diminished her quality of life and, in turn her husband’s and her family’s. Judge Bessen’s order was fair, upheld our Constitution, and reflected the rule of law that has stood firm since the inception of this nation.”

The argument on Tuesday was prepared by Malone and attorneys Darren Summerville of Bird Law Group, P.C. and Michael Terry of Bondurant, Mixson & Elmore, LLP. AARP, Voices for Georgia’s Children, Georgia Women for a Change and Georgia Watch all filed Amicus Briefs in support of Betty and Bruce Nestlehutt.

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Senate Hearing Highlights Victim’s Medical Device Nightmare, Asks Congress to Hold Manufacturer Accountable

Contact: Jennifer Fuson
American Association for Justice
Jennifer.Fuson@justice.org
202-965-3500 x369

Senate Hearing Highlights Victim’s Medical Device Nightmare, Asks Congress to Hold Manufacturer Accountable

Iowa Patient Testifies in Favor of Legislation to Restore Legal Rights
Through Civil Justice System

Washington, DC—Two years ago, Michael Mulvihill of Bettendorf, Iowa, was driving with his wife across the Midwest to visit his son, daughter-in-law, and grandchildren when he saw a blue light flash before his eyes. He felt his body shaking and thought it was from hitting road debris. He soon realized his heart defibrillator was malfunctioning and sending electrical shocks throughout his body while he was driving on the interstate.

His nightmare continues because he cannot hold the manufacturer of his faulty medical device accountable for their faulty product because of a U.S. Supreme Court decision last year that gave the manufacturer complete immunity. Today, Mulvihill will testify before the U.S. Senate Health, Education, Labor, and Pensions Committee, asking for Congress to pass the Medical Device Safety Act (MDSA), legislation that would restore the right of patients to hold manufacturers of medical devices accountable in court when their devices have malfunctioned.

Mulvihill had an irregular heartbeat, and was implanted with a defibrillator in 2006 to control his heart rhythm and pulse. The device intended to save his life nearly killed him and his wife when it malfunctioned while he was driving. The anxiety from the episode led Mulvihill into taking early retirement because his job required so much interstate travel.

A representative from Medtronic confirmed the device had shocked Mulvihill 22 times in 53 minutes. The wire that connects the defibrillator to the heart was recalled four months later after over a hundred reports of the lead malfunctioning had been reported to the Food and Drug Administration (FDA). However, because of a U.S. Supreme Court ruling last year, Mulvihill does not have any recourse to hold the manufacturer accountable.

In February 2008, the U.S. Supreme Court ruled in Riegel v. Medtronic that because the Food and Drug Administration (FDA) had approved a medical device through the pre-market approval process, patients injured by medical devices do not have any recourse to hold the manufacturers accountable. The Supreme Court ruled earlier this year in Wyeth v. Levine that patients harmed by prescription drugs can hold manufacturers accountable in state courts, creating a double standard between prescription drugs and medical devices.

“I relied on this medical device to save my life. Instead, the trauma I experienced because the device was not safe cost me my career and crippled my lifestyle,” said Mulvihill. “Medical device companies should be held accountable for the safety of the products they produce and profit from. I am asking Congress to restore my right to seek justice for myself and medical device patients everywhere.”

“Medtronic put profits ahead of patient safety. They were aware the device was failing at abnormally high rates but continued to market it, as alleged in lawsuits filed against the company,” according to Wendy Fleishman, Mulvihill’s attorney with Lieff Cabraser Heimann & Bernstein, LLP. “Medtronic should not receive the benefit of a judicial doctrine granting the company immunity.”

Medtronic’s Sprint Fidelis’ lead, like Mulvihill’s, is the subject of multidistrict litigation in U.S. District Court in Minnesota. In January, U.S. District Court Judge Richard Kyle dismissed over 1,400 patients’ cases, citing the Supreme Court decision in Riegel v. Medtronic. The ruling stated, “The Court recognizes that at least some Plaintiffs have suffered injuries from using Sprint Fidelis leads, and the Court is not unsympathetic to their plight. … Plaintiffs’ remedy, therefore, lies with Congress, and not with this Court.”

MDSA, sponsored by Sen. Edward Kennedy (D-MA), Rep. Frank Pallone (D-NJ) and House Energy and Commerce Committee Chairman Henry Waxman (D-CA), would restore the right to seek justice in state courts for victims of faulty medical devices like heart defibrillators, prosthetic knees, and hips.

“The Medical Device Safety Act is necessary to protect patients from defective devices and make sure manufacturers are held accountable,” said Linda Lipsen, Senior Vice President of Public Affairs at the American Association for Justice. “The Supreme Court has affirmed that state law offers an important layer of consumer protection, and Congress should make clear that this applies not just in cases of pharmaceutical drugs, but also medical devices approved by the FDA that are later faulty or malfunction.”

For copy of Mulvihill’s testimony, please contact kyle.murphy@justice.org.

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NAF Settlement Underscores Need for Congress to Pass Arbitration Fairness Act

For Immediate Release: July 20, 2009
Contact: Kerri Axelrod
202-965-3500 x369
AAJ Press Room

NAF Settlement Underscores Need for Congress to Pass Arbitration Fairness Act

The following is a statement from American Association for Justice President Les Weisbrod regarding the settlement by the Minnesota Attorney General with the National Arbitration Forum:

“The appalling business practices of the National Arbitration Forum (NAF) illustrate how forced arbitration fails to protect consumers from predatory financial lenders and other negligent corporations.

“The NAF operated by creating an economic incentive to rule against consumers in favor of credit card companies and debt collectors; a far cry from the ‘fair’ and ‘unbiased’ forum they marketed.

“While the settlement with the attorney general is a major win for consumers, the NAF is not the only company that uses forced arbitration against consumers. This settlement underscores why Congress must pass legislation that makes arbitration voluntary, not forced upon consumers by slipping it into the fine print of everyday contracts.

“Attorneys have long used voluntary arbitration and mediation as an effective and efficient manner to resolve disputes. But when arbitration is forced upon consumers in a pre-dispute, non-negotiable contract, it becomes an abusive weapon.

“The NAF settlement should convince all skeptics that forced arbitration is biased, one-sided, and operates to accommodate predatory corporations at the expense of consumers. The time has come for Congress to ban forced arbitration once and for all.”

Two bills have been introduced in Congress to stem the abusive practice of forced arbitration. The bipartisan Arbitration Fairness Act (S. 931 / H.R. 1020), sponsored by Sen. Russ Feingold (D-Wis.) and Rep. Hank Johnson (D-Ga.), would ensure that the decision to arbitrate is made voluntarily and after a dispute has arisen, so corporations cannot manipulate the arbitration system in their favor at the expense of consumers and employees. The bipartisan Fairness in Nursing Home Arbitration Act (S. 512 / H.R. 1237), introduced by Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) and Rep. Linda Sanchez (D-Calif.), would eliminate forced arbitration clauses in nursing home contracts.

On Wednesday, a House Oversight and Government Reform subcommittee is scheduled to hold a hearing on the use of forced arbitration in consumer debt collections. Invited to testify is the Minnesota Attorney General and the COO of NAF.

Forced arbitration clauses are hidden in the fine print of everyday consumer contracts from job applications and nursing home agreements to credit card billing inserts and mortgage loans. To learn more, visit www.justice.org/forcedarbitration.

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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/newsroom.

Consumer Financial Protection Agency Bill is Right to Address Forced Arbitration, Says Coalition

For Immediate Release: July 14, 2009

CONTACT:
Angela Bradbery, Public Citizen
202-588-7741, abradbery@citizen.org
Kerri Axelrod, American Association for Justice
202-965-3500 x740, kerri.axelrod@justice.org


Consumer Financial Protection Agency Bill is Right to Address Forced Arbitration, Says Coalition

Today, the Senate Banking Committee will hear testimony on the proposed Consumer Financial Protection Agency. The following is a statement from David Arkush* of the Fair Arbitration Now Coalition regarding the House draft of the bill (H.R. 3126), sponsored by Rep. Barney Frank (D-Mass):

Washington, DC – “The new Consumer Financial Protection Agency should provide a critical check on the unscrupulous practices of the financial industry that have inflicted economic hardship on American families.

“We are encouraged that the House bill addresses forced arbitration. Ending this predatory practice in consumer financial contracts is critical to protecting consumers and restoring accountability in the financial marketplace.

“Forced arbitration clauses are hidden in the fine print of everyday consumer contracts from job applications and nursing home agreements to credit card billing inserts and mortgage loans. Corporations use these one-sided arbitration clauses as a shield to avoid accountability and a sword to hound consumers for debts they may not even owe.

“We look forward to working with members of Congress in the coming weeks to strengthen the House language and ensure that the legal rights of Americans are safeguarded against predatory financial corporations.”

The Fair Arbitration Now Coalition has over 70 members and supporters, representing consumers, employees, homeowners and franchise holders. The groups range from Public Citizen, the Leadership Conference on Civil Rights, the National Association of Consumer Advocates, the National Employment Lawyers Association and the American Association for Justice to Consumers Union and Consumer Federation of America.

Two other bills have been introduced that would stem the abusive practice of forced arbitration. The bipartisan Arbitration Fairness Act (S. 931 / H.R. 1020), sponsored by Sen. Russ Feingold (D-Wis.) and Rep. Hank Johnson (D-Ga.), would ensure that the decision to arbitrate is made voluntarily and after a dispute has arisen, so corporations cannot manipulate the arbitration system in their favor at the expense of consumers and employees. The bipartisan Fairness in Nursing Home Arbitration Act (S. 512 / H.R. 1237), introduced by Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) and Rep. Linda Sanchez (D-Calif.), would eliminate forced arbitration clauses in nursing home contracts.

* David Arkush is the Director of Public Citizen’s Congress Watch Division.

For more information, visit www.FairArbitrationNow.org.

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Obama Memo on Complete Immunity Preemption Makes Clear Rule of Law Prevails Over Rule of Politics

Contact: Cecelia Prewett or Jen Fuson (202) 834-6209 (Cell)
202-965-3500 x369 (Office)
AAJ Press Room

Obama Memo on Complete Immunity Preemption Makes Clear Rule of Law Prevails Over Rule of Politics

Statement of American Association for Justice President Les Weisbrod

WASHINGTON, DC—“On behalf of the thousands of people whose cases have been affected by complete immunity preemption, we are heartened by the Presidential Memo released today.

The Obama Memo on regulatory preemption makes clear that the rule of law will once again prevail over the rule of politics. The memo overturned actions taken by Bush administration bureaucrats who were influenced by powerful, well-connected corporations who wanted to re-write and re-interpret Congressional legislation, undermine the Constitutional system of checks and balances and put the public at risk and compromise laws designed to give Americans basic rights to hold wrongdoers accountable.

However, horrendous injuries and deaths are still happening from dangerous products. For that, we look to Congress to remedy those wrongs and they can start by passing the Medical Device Safety Act.”

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For background on AAJ’s work on complete immunity preemption visit www.justice.org/newsroom and see the “Get Out of Jail Free” report on the regulations affected by this memo.

Chinese Drywall Highlights Hurdles to Holding Foreign Producers Responsible for their Products

For Immediate Release: May 19, 2009

Contact: Jennifer Fuson
202-965-3500 x609
www.justice.org

Chinese Drywall Highlights Hurdles to Holding Foreign Producers
Responsible for their Products

Hurricane Katrina Victims among Families that Face Further Home Complications

Washington, DC–Chris Whitfield is just one of the families who lost his home to Hurricane Katrina in Louisiana’s St. Bernard Parish. Just a few years later, his family now faces another uncertain future upon finding Chinese drywall in their new Picayune, Mississippi home. The drywall is corroding his appliances, and causing an egg-like smell that he has no idea what effect it will have on his families’ health or home.

Chris is just one of hundreds, if not thousands of families who wonder where they can turn for justice when their unsafe home is made from defective materials manufactured in another country.

Today the U.S. Senate Judiciary’s Administrative Oversight and the Courts Subcommittee will explore the topic of holding foreign manufacturers responsible in a hearing titled, “Leveling the Playing Field and Protecting Americans: Holding Foreign Manufacturers Accountable.”

“Unfortunately, when the product comes from abroad an unfair and unnecessary battle over civil procedure becomes the focus of the litigation instead of focusing on the real issue at hand, the victim’s injuries,” said Tom Gowen, of Locks Law Firm in Philadelphia, Pennsylvania. “It makes no difference whether the product is drywall, tire valves, or toothpaste. Someone has been harmed and someone has to be held responsible for the defective products.” Gowen will be testifying before the subcommittee.

There are four primary hurdles when perusing legal action against a foreign entity: identifying the manufacturer, service of process, jurisdictional issues, and collection of judgment.

Some foreign products do not contain an adequate label with the manufacturer’s proper name and might be labeled, “Made in China,” or have a retailers name like Sears, Walmart or Target. This presents a problem identifying the manufacturer responsible residing within a foreign country.

Once a manufacturer can be identified, service of process, is simply actually servicing the legal papers to pursue further legal action. The process has been made easier by a Hague Convention treaty signed by about 70 countries, but still requires the complaint to be translated in to the company’s home language, transmitted to the authority in the foreign country, and delivered to the defendant according to rules of service in the country. India, for example, has not signed the Hague Convention, so servicing the legal documents requires going through the U.S. Department of State.

Also testifying before the subcommittee, Chuck Stefan is one of the owners of The Mitchell Company which builds homes in Alabama, Florida, and Mississippi that had unknowingly used the defective drywall in manufacturing about 45 homes. “Foreign manufacturers should not be allowed off the hook for harming U.S. consumers and businesses like ours, especially if they are conducting substantial business here in the U.S.,” said Stefan. “If American businesses can’t hold foreign manufacturers accountable, it hurts their bottom line in addition to harming U.S. consumers and homeowners. It also puts U.S. businesses like Mitchell Homes at a competitive disadvantage.”

To set up interviews with Tom Gowen, Chuck Stefan, or any other consumer affected by Chinese drywall, please contact AAJ Communications.
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John "Chris" Clark becomes GTLA's 53rd President

Media Release

Atlanta, Georgia—On Friday, April 17th, John “Chris” Clark of Macon, Georgia, will become the Georgia Trial Lawyer Association’s (GTLA) 53rd President during the Association’s Annual Convention.

“It has been one of the greatest honors of my life to serve as the President of GTLA,” said outgoing President, Fred Orr, whose one-year term expires this Friday. “I will be handing over the reins of the GTLA Presidency to one of my dear friends and one of GTLA's finest trial lawyers, Chris Clark of Macon, Georgia. He will be an outstanding President of GTLA.”

Clark, a native Georgian, has been practicing law for 20 years. As a partner in O’Neal, Brown and Clark, his practice focuses on representing severely injured individuals or the families of persons killed through negligence.

Clark graduated summa cum laude from The Citadel and was a former officer in the United States Army. He then attended Mercer Law School where he was a Mercer Law Review editor and member of the Brainerd Currie Honor Society before graduating cum laude. Now, Clark is an adjunct professor at Mercer Law School and he regularly lectures at various Continuing Legal Education seminars. Clark is married to Elizabeth Clark and together they have raised two sons, John and Robert.

“I am humbled and proud to be the next President of the Georgia Trial Lawyers Association because without GTLA, the Constitutional promise of justice for all would be significantly endangered,” said Clark. “Protecting and preserving the promise of justice for all Georgians, from all walks of life—remains the essential mission of GTLA. GTLA’s vision of fairness and justice for all is needed now more than ever.”

Clark will be voted in as President at the business meeting during the GTLA Annual Convention at the Four Seasons Hotel. The Annual Convention culminates Friday night with a President’s Gala featuring keynote speaker Congressman Bruce Braley from Iowa. The Gala will celebrate outgoing President Orr and welcome incoming President Clark.

“President Fred Orr did an outstanding job leading GTLA over the past year. I am honored to be following behind such a strong and charismatic leader,” said Clark.

Said Orr, “Chris brings a personal passion to all he does and has a unique understanding of the needs of our members - particularly those outside the metro-Atlanta area. Chris is a true Champion of the Civil Justice System.”

In addition to his leadership in GTLA, Clark is named in the “Best Lawyers in America,” is a member of the American Board of Trial Advocates and a Master in the Bootle Inn of Court. He is President of the Macon Bar Association and he is a member of the President’s Club of the American Associate of Justice. Clark has been repeatedly named as a “Super Lawyer” by Atlanta Magazine.

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Governor Perdue wants to place the safety of Georgia’s citizens in the hands of a mismanaged federal bureaucracy

SB 101 seeks to rely on the federal Food and Drug Administration (FDA) amidst grave controversy while giving large pharmaceutical companies who harm Georgians a “Get out of Jail Free” card

Atlanta, GA-- With the introduction of SB 101, Governor Perdue suggests that a federal bureaucracy embroiled in heavy controversy, the FDA, should have all the power in deciding the safety of pharmaceuticals and medical devices. SB 101 bars any Georgia citizen from bringing a products liability claim against a pharmaceutical corporation so long as it is headquartered or has 200 employees in Georgia and the product in question, either a drug or a medical device, is FDA approved.

“Vioxx was an FDA approved drug that harmed at least 139,000 people. If there were to be a drug or medical device made here in Georgia that injured or killed people like Vioxx did, Georgia residents would have absolutely no recourse. A person in Phenix City, Alabama could pursue justice; a person in Columbus could not,” said Fred Orr, President of the Georgia Trial Lawyers Association. “The Governor believes SB 101 will bring corporations to Georgia. But I don’t think we want the kind of business this legislation would attract as this bill says, “Move to Georgia! You can harm or kill our citizens and you will not be held accountable!”

The Governor stated early in the session that FDA approval “should mean something” and that it should protect corporations from lawsuits.

“The FDA can’t protect us from peanut butter. How can we possibly rely on the FDA to protect us from dangerous drugs and medical devices?” said Orr. “If a pharmaceutical corporation manufactures a drug or medical device that seriously harms or kills an innocent person, that corporation should not, under any circumstance, be shielded from accountability. The Governor has simply gone too far with this proposal.”

On February 2, 2009 President Obama had harsh words for the FDA and he urged Congress to conduct a complete review of the FDA after the agency failed to protect the public from contaminated peanut butter. At this time the contaminated peanut butter has killed 8 people and sickened over 500 people.

In addition to the agency’s failure to protect the public from peanut butter, as recently as the last month, the FDA has been at the center of three other nationally publicized controversies concerning alleged corruption, mismanagement, and claims of serious financial conflicts of interest. First the federal Government Accountability Office (GAO) released a report revealing that the FDA has failed to comply with a congressional mandate set nineteen years ago that requires manufacturers of medical devices to provide proof of rigorous testing and safety analysis to the FDA for all Tier 3 medical devices (classified as those devices that are implanted or that a person relies on for life) prior to approval.

Second, a group of FDA scientists went public with their allegations of corruption, mismanagement and coercion within the FDA. The scientists stated that the scientific review process for medical devices “has been corrupted and distorted by current FDA managers, thereby placing the American people at risk.” They allege that managers at the FDA lacked scientific knowledge and clinical expertise regarding medical devices and that they have ignored the experts and scientists within the FDA. The authors stated that they had been ordered to modify their findings and evaluations of medical devices—allowing for the approval of products that may not be safe.

And third, the Inspector General of the Department of Health and Human Services (HHS) issued a report uncovering a troublesome conflict of interest inherent in the FDA approval system. The FDA failed to collect information on financial ties between those that perform clinical tests and the pharmaceutical companies that manufacture the product being tested in an alarming 42% of the cases. HHS claims that such financial ties may compromise the safety of the people in the clinical trials and the authenticity and integrity of the final research data.

“The scientists working at the FDA think that Americans are in danger. Other governmental entities report that the FDA is inept at keeping the American public safe. Yet Governor Perdue inexplicably thinks we should trust a corrupt federal bureaucracy to keep Georgians safe,” said Andy Childers, an Atlanta attorney.

National leaders in medicine don’t think that FDA approval is enough to keep people safe either. In a friend-of-the-court brief filed in association with the case of Wyeth v Levine, multiple editors of the New England Journal of Medicine stated, “The FDA alone simply lacks the ability to serve as the sole guarantor of drug safety." The doctors went on to say that without civil lawsuits and the discovery they produce, "the FDA would be stripped of an essential source of information that the agency has consistently relied on when making its regulatory decisions, and the American public would be deprived of a vital deterrent against pharmaceutical company misconduct."

“SB 101 gives negligent companies, who hurt or harm citizens of this state a ‘Get out of Jail Free’ card for the real world,” said Childers. “It’s clear to me where the Governor’s priorities are. He’d rather grant favors to big corporations than ensure the Constitutional Rights of the people of Georgia. Let’s hope the Legislature doesn’t agree.”

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NOTE: For more information on the FDA approval process and other Government reports, please contact Rebecca DeHart at GTLA.

MEDIA RELEASE: Enacting ‘Victim Pays’ would be like taking away David’s Slingshot

SB 108 would allow intimidation and fear to rule our court of law

Atlanta, GA—SB 108, a component of Governor Perdue’s so-called “tort reform” package, seeks to enact a ‘Victim Pays’ provision in Georgia law. Current law dictates that each party in a lawsuit pays its own attorney fees unless specific authority is granted by statute or contract allowing for the assessment of those fees against the other party. This provision is known as the ‘American Rule.’ This uniquely American method distinguishes our Civil Justice System from that of much of Europe which still operates under ‘The English Rule.’

The American Civil Justice System was based on the premise that individuals and small businesses, regardless of their financial means, have the right to seek justice for wrongdoing in a court of law that views each party as completely equal. As our Civil Justice System has matured, the American Rule has been championed as a unique equalizer — it does not discourage a person of little-to-no means from pursuing a meritorious claim — whereas ‘Victim Pays’ acts as a deterrent to individuals harmed through no fault of their own by the negligence of others.

“Governor Perdue has used the term ‘Loser Pays’ to label this provision. Yet nothing could be further from the truth” said Fred Orr, President of the Georgia Trial Lawyers Association. “This provision only affects one party in the suit — the plaintiff. If a large corporate defendant loses a claim, they will never have to pay for the victim’s legal fees under this bill, despite how baseless their defenses were.”

“SB 108 as it is written will harm middle class Georgians and small businesses the most,” said Atlanta attorney Darren Penn. “The very rich can afford legal fees and poor plaintiffs, as a practical matter, will not have to pay either. But, your traditional ‘mom and pop’ businesses and regular middle class Georgians could be bankrupted by the steep fees corporate defense attorneys charge.”

Besides creating real fear and intimidation for Georgians who wish to file suit, SB 108 fails to do much else that isn’t already covered by Georgia law. Besides having sanctions against “frivolous” lawsuits in both state and federal courts already in place, our current ‘American Rule’ operates under a contingency fee system — a natural deterrent against claims with little-to-no merit. Under the contingency fee system, the plaintiff’s lawyer carefully reviews a potential case to decide if he or she will take the case. The attorney fronts the entire cost of pursuing the case out of his or her own pocket — receiving no payment from the client. Both the client and the attorney only get paid if they win in court. In the business world, such expenditures are called ‘research and development.” Just as no business is going to spend money researching and developing a product they know to be worthless, no wise attorney would risk their money and their practice by pursuing a “frivolous” claim in court. The personal financial risk would be too high. SB 108 does nothing to improve that situation and is not needed.

“SB 108 is a procedural “gotcha” that will discourage attempts to resolve technical deficiencies in legitimate claims and will encourage gamesmanship and manipulation of the legal system by corporate defendants, rather than facilitating appropriate resolution of disputes between parties,” stated Penn. “Enacting SB 108 is like taking away David’s slingshot. The party with more money, more power and more control will have the ability to scare David into not taking a shot at all, even when David has a righteous cause.”

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Caps on Damages Case Settles

For Immediate Release
October 31, 2008
rdehart@gtla.org

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.

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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

www.gtla.org

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

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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

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.

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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.