April 2010


According to the AJC.com website, the Georgia Supreme Court handed down a case striking down the $350,000 cap on non-economic damages enacted by a tort reform law passed in 2005.  The ruling upheld the jury’s award to a woman who was injured by a doctor who performed a bad facelift operation on her.  The victim’s face was covered in gaping wounds, and required extensive painful treatments to prevent the wounds from becoming infected.  The wounds left the victim permanently disfigured.

 The Supreme Court ruling was based on basic guarantees provided to the citizens of Georgia through their constitution.  The Georgia constitution guarantees the right to a jury trial to every citizen.  The cap on damages nullifies the jury’s findings of fact regarding damages and undermines the jury’s basic function.  The court states “the very existence of the caps, in any amount, is violative of the right to trial by jury.”    

This ruling follows a ruling in Illinois last month where the Illinois Supreme Court declared a medical malpractice cap in that state unconstitutional.  That bill, passed in 2005 and signed into law by former Gov. Rod Blagojevich, created a $500,000 cap in medical malpractice cases against doctors and a $1 million cap in cases against hospitals.

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An editorial in the Oklahoman talks about a tort reform bill passed last year in Oklahoma.  The bill is of the sort contemplated by the article I talked about yesterday.  The 2009 reform bill passed in Oklahoma put a cap of $400,000 on non-economic damages, and was supposed to create a taxpayer financed indemnity fund so that the state could pay the amounts above the cap when the cap is waived. 

Like the article yesterday stated, reformers are looking to shift their burden, the burden of personal responsibility to the state and thus to the taxpayers.  The editorial states that if the taxpayers of Oklahoma don’t have $20 million to seed the fund with, then the law will not go into effect.  Big business must have some good lobbyists up in Joklahoma, becuase I can’t imagine how a legislator is going to explain this one to his constituents.

There is an article in the Detroit Free Press by Jim Marcinkowski titled “Tort Reform Made Simple” that does a good job of breaking down the workings of the legal system and what it is that tort reform seeks to do.

Marcinkowski explains the concept of tort law and the reform movement as follows: 1. Accident happens; 2. Injury does not go away; 3. The injury costs money (medical, lost wage, etc.); 4. Compensation – either the responsible party pays or the government pays; 5. Tort reform seeks to lower the costs of doing business by shifting the burden of these costs on to the public.  He summarizes the analysis by making the statement, “Tort reform is.. just another mechanism to increase private profit by socializing any cost or loss.”

Marcinkowski goes on to examine certain tort reform myths.  The article is well thought out and certainly worth a read.

According to a report on LAW.COM, a New Jersey appellate court upheld a verdict of $30.3 million, awarded to a mesothelioma victim.  Mesothelioma is a cancer of the lining around the lung caused by exposure to asbestos. 

The suit was brought by the wife of Mark Buttitta, who died from mesothelioma in 2002.  Buttitta’s father worked at a GM warehouse where he came into contact with asbestos containing products, such as brakes and clutches.  Buttitta was also exposed to asbestos when he worked in a GM warehouse as a college student.

Several defendants were sued, but only two defendants, Borg-Warner Corp. and Asbestos Corp. LTD. were remaining in the case at the time of trial.  Borg-Warner claimed that their products were not at the warehouse where Buttitta worked, and the claim was hard to prove because Borg-Warner had previously destroyed records of sales of their products to GM facilities.  However, John Fronig, a former GM manager testified in a case in Texas that Borg-Warner was the “prime” supplier of clutches to GM from the early 60’s until the mid-80’s. 

ACL, a Canadian company, was a major asbestos supplier to GM.  They asked the court to find that there was no personal jurisdiction over the company, because they are Canadian.  ACL also refused to participate in discovery in the case and was sanctioned, by striking their answer and defenses in the case.  ACL lost their appeal on all issues.

The verdict, the largest known verdict in New Jersey history, included $8 million for pain and suffering, $2 million for loss of consortium, $9 million for lost earning capacity, $2 million for loss of services, and $3 million to each child for loss of parental care.