Who Are These Guys Working For?
September 2, 2009
A couple Georgia trial lawyers strolled out of the courtroom with $1 million in legal fees after settling a class action against Pitney Bowes, while the plaintiffs they represented got … drum roll please … a coupon good for a discount on their next purchase of toner! Who says these guys will throw their “clients” under a bus for a quick buck? (Read the article here).
Pitney Bowes allegedly committed the heinous act of blast faxing advertisements to the customers of another office supply company they bought. The class action legal sharks claimed these faxes ran afoul of the Junk Fax Prevention Act of 2005 (yeah, it really exists – here’s the Wikipedia entry).
Given the awesome responsibility of fighting two wars, balancing the bloated federal budget, reversing global warming, and preventing a meltdown in the financial markets (oops), it’s a wonder Congress had time for such mundane tasks as making annoying faxes illegal. But whatever “wrongs” Congress intended to right with this bill, I’m sure creating another means to enrich rich lawyers wasn’t among them.
Georgia Legal Reform: FYI
February 4, 2009
For those who missed it, yesterday the Atlanta Journal Constitution published an op-ed I wrote on Governor Perdue’s new legal reform proposal. You can find it here.
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.
Keeping An Eye On Georgia
June 9, 2008
Do Georgians face a threat to their right to vote for judges to the state’s highest courts?
The state legislature recently created a House Study Committee on Judicial Election Reform to “undertake a thorough study, assessment, and evaluation of the conduct of judicial campaigns in Georgia to determine if the independence and impartiality of the courts are threatened by the conduct of recent campaigns.”
More troubling, the legislature also established an Advisory Board to the five-member Committee that is heavily stacked with grandees from among the state’s legal elite, including the president of the State Bar and the president of the Georgia Trial Lawyers Association. At least 10 members of the Advisory Board must be lawyers.
Defenders of democratic elections in Georgia need to keep an eye on this committee, which will make recommendations for any “reforms” to the legislature before the 2009 session. May 6, 2008 Better keep an eye on Georgia, where an activist Superior Court Judge known for controversial rulings recently declared Georgia’s stacked cap on non-economic damages – which starts at $350,000 and can increase to $1,050,000 if more than one health care facility is involved – is unfair to the poor and middle class and thus unconstitutional. Apparently, the judge’s concern for the less advantaged doesn’t extend to their medical care, which was in an acute state of crisis when liability reforms were passed in 2005. A year before, the number of physicians practicing in Georgia had dropped to its lowest point in eight years, 1,750 doctors reported they had stopped or planned to stop emergency room services, and the dearth of baby docs had become so acute that the American College of Obstetricians and Gynecologists put the state on “red alert” status. Non-economic damage caps work to bring doctors back into states they used to flee and back into practice. Doctors are flooding back into Texas so fast that the state has a massive licensing backlog, as this New York Times article describes, and doctors are moving to poorer communities and providing medical care that was simply unavailable before. Caps have other positive effects as well. A new report from the Perryman group titled “The Texas Turnaround” determined that the Lone Star State’s 2003 limits on non economic damages in medical liability cases has produced an extra $55 billion in annual spending in the state, 223,000 more jobs, and resulted in 430,000 people having health insurance who wouldn’t have otherwise. The only people who seem to be suffering are the medical malpractice lawyers, who according to this article, have been forced to chase ambulances all the way to Oklahoma to drum up work. April 19, 2008 The Daily Report publishes this editorial letter by Shannon Goessling of the Southeastern Legal Foundation in Monday’s edition, now available online. Goessling argues that despite all the judicial selection reforms under consideration in Georgia, the best option is to stick with free, fair open judicial elections. Here’s an excerpt:Put Georgia On Your Radar
Stick With Georgia’s Open Judicial Elections
“With the advent of open, vigorous judicial campaigns in which various constituencies step forward to make their voices heard, we may not always like what we see. My concern is for the constitutional guarantee of free speech and full participation of the voters. We can have the freedom from being offended (and fully informed), or we can have free speech. We may not be able to have both.”
Well said.