Gov. Perdue On The Move In Georgia
January 14, 2009
Georgia Governor Sonny Perdue demonstrated why he’s a hero to tort reformers and a bane to trial lawyers yesterday when he pledged to introduce major new tort reform legislation before the end of the month. Gov. Perdue’s new proposals, which will significantly strengthen tort reforms he signed into law four years ago, have two main elements:
1. A proposal that would protect pharmaceutical and health care companies whose products have been tested and approved by the U.S. Food and Drug Administration from state torts. (see my earlier post on FDA preemption of state torts for medical devices)
2. A “loser-pays” provision that would discourage meritless lawsuits by requiring the losing side in cases where a claim is quickly dismissed in court to pay the legal fees of the winning side. (see my post on the new “loser pays” study by Manhattan Institute’s Marie Gryphon)
Gov. Perdue’s plan elicited the usual howls of protest from Georgia trial lawyers who profit from the litigation mill. William Clark, who lobbies for the Georgia Trial Lawyers Association, says a “loser pays” proposal is not needed because the 2005 tort reform legislation included an “offer of settlement” provision that requires the losing side to pay the winning side’s legal fees if it rejects a settlement offer, then receives a similarly-sized judgment at trial.
The “offer of settlement” provision is a good one. But in today’s litigation climate, where every lawsuit is a “bet-the-company” proposition, defendants are often forced to offer big settlements in cases with little or no merit, especially in tort-friendly jurisdictions. Gov. Perdue’s “loser pays” proposal will help prevent frivolous claims from being filed and curb settlement offers made merely as a form of legalized blackmail.
The Atlanta Journal-Constitution has weighed in with an editorial opposing the pharmaceutical provision on the grounds that “FDA approval doesn’t guarantee that a drug will be 100 percent safe.” Earth to the AJC: no drug is 100 percent safe. All drugs, even aspirin, have risks.
The AJC thinks that the FDA and the tort system “should be seen as dual regulators” of the industry. But the fact is that Congress decided that there should be one national agency - the FDA - which has the medical expertise to make difficult decisions balancing concerns on safety and efficiency and ultimately deciding whether a new drug gets approved or not. Does the AJC really believe trial lawyers, arguing before a non-expert jury, should have an equal hand with federal experts in setting scientific standards for the entire country?
Approval of a new drug takes up to 12 years. It includes three separate phases of trials, with boxes of clinical trial data filling rooms once an application is filed. Then an expert committee appointed by FDA reviews all the data before making a recommendation to the agency itself. If the AJC gets its way, then drugmakers will be forced to market their products to the requirements of the trial bar, not the scientists and doctors at FDA. And that not only means that power will shift from scientists to lawyers; it means fewer new drugs for everyone.
There will be time to debate all this as Gov. Perdue makes his case for another round of legal reform in Georgia.
Posted by Dan Pero in the categories: Georgia, Tort Reform, Trial Lawyers
One Response to “Gov. Perdue On The Move In Georgia”
I wanted to comment and thank the author, good stuff