Liability


According to Forbes. the Supreme Court of Oklahoma struck down a tort reform package the Oklahoma legislature passed in 2009.  The single law included numerous tort reform provisions, including a cap on non-economic damages and the requirement that an expert affidavit be filed with the petition in certain negligence cases.

The Supreme Court ruled that the law violated a constitutional requirement that a bill deal with a single subject.  The purpose of the law is to prevent a lawmaker from adding provisions to a bill that a lawmaker would feel log-rolled into agreeing with, in order to pass the provisions of the bill the lawmaker agrees with.

This news comes just days after a report out of Tulsa, by KJRH, that two more of Dr. Scott Harrington’s patients have tested positive for hepatitis.  If you have not previously seen the reports, Dr. Harrington is a dentist in Oklahoma who infected 80 patients with HIV and hepatitis, by using unsanitary conditions, including the use of dirty needles on patients.  The doctor is protected by damage caps the Oklahoma legislature put on these types of negligence cases.  The nearly 7,000 patients the doctor treated and the untold number of people infected by his horrible practices (negligent acts), are not able to obtain full redress for their injuries because of what the Oklahoma legislature has done.

The action of the Oklahoma Supreme Court, in striking down this onerous law, is a positive step in the right direction for the people of Oklahoma.

Garlock Sealing Technologies has filed for bankruptcy, according to a story on the WSJ Blog.  The company, founded in 1887, produces sealing materials for various sectors, including the petrochemical industry, the chemical industry, the power industry, and the paper industry.  For many years, approximately 1907 to 1980, Garlock produced gaskets, packing materials, and cloth that contained asbestos.  Garlock has been a defendant in numerous asbestos cases. 

In court documents Garlock listed the value of their assets at the $500 million to $1 billion range, and their debts in the $100 million to $500 million range.  The company is asking the court to establish a bankruptcy trust to pay asbestos related claims.  The filing also covers the Anchor Packing Company, an arm of Garlock that also produced asbestos containing products. 

Asbestos is a mineral widely used in the early to late part of the 20th century in industrial settings.  Breathing in asbestos can cause scarring of the lungs, which is called asbestosis.  This disease can prevent the lungs from expanding properly and leads to shortness of breath and even death.  There is no known cure for asbestosis, other than a lung transplant.  Asbestos also can cause cancer.  The most deadly cancer caused by asbestos exposure is mesothelioma.

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.

The family of a Philadelphia man who passed away in 2006 was awarded a verdict of $2.185 Million after a jury found two doctors and a hospital liable for medical malpractice, according to a story on philly.com

Zachary James, the decedent, presented to the hospital with chest, back and leg pains.  Tests were ordered in the emergency room, but it took two hours for some of the tests to be performed.  About two hours into the event, the lead emergency room doctor left the emergency room for a meeting, leaving a doctor who was starting his first day in the emergency room as the only physician in the emergency room.  The new doctor was supposed to be in orientation and not left alone to handle the emergency room by himself. 

X-rays were taken of Ms. James, but were not read in the emergency room when they were developed.  Hospital procedure dictated ER physicians were to read the x-rays immediately.  Instead, the x-rays were sent to radiology where they were reviewed the next day. 

Mr. James passed away after spending eleven hours in the emergency room with no diagnosis.  He had a dissecting aortic aneurysm, a tear in the wall of the aorta that allows blood to flow between the aorta wall’s layers, and can result in a rupture of the wall, and death. 

The defense argued that even if the hospital Emergency Room physicians had quickly identified Mr. James’ condition, there still may not have been enough time to transfer him to another hospital to perform a life saving surgery.  The jury found the two doctors 84% liable and the hospital 16% liable for the damages.

The Federal Government is mandating new safety standards for automobile roofs, the first such new standards in thirty years, according to the New York Times Wheels Blog.  Automobiles are currently required to have roofs that can withstand pressure equal to one and a half times the vehicle’s curb weight, with that pressure applied to one side of the roof only, up to a six thousand pound maximum.  Vehicles over 6,000 pounds are not currently regulated.

The new standard, to be implemented by the National Highway Traffic Safety Administration, is that the vehicle’s roof must be able to withstand three times the weight of the vehicle, with pressure applied first to one side of the roof and then to the other side of the roof.  Safety experts claim that the two sided test better approximates the conditions a vehicle experiences in a roll over situation.  The new standard also removes the six thousand pound cap on vehicles and brings vehicles in the 6,000 to 10,000 pound range under the regulations.

The NHTSA hopes that the tougher standard will prevent deaths from rollover crashes.  The Administration’s data shows 10,000 deaths annually from rollover crashes, under the current standard.  In the Administration’s press release, Transportation Secretary Ray Lahood states, “These new standards go a long way toward reducing deaths, but safety belts are the first, most important step everyone should take to protecting themselves and their families.” 

The phase in for the new requirements begins in September 2012.  The Administration has also mandated electronic stability control systems which will also help to prevent rollovers from occurring.

The Arkansas Supreme Court found two provisions of a 2003 tort reform bill known as the Civil Justice Reform Act unconstitutional, according to a story on arkansasnews.com.  In the case, Johnson v. Rockwell Automation Inc., a worker sustained severe injuries to his hand, when the safety switch on a starter bucket malfunctioned, and sued Rockwell, the designer of the bucket.

The two issues the court looked at were a provision that allowed jurors to assess fault to non-parties and a provision that abolished the collateral source rule.  The Court found that the legislature went too far in the tort reform bill and that these provisions violated separation of powers provisions of the state constitution. 

In the opinion, Justice Paul Danielson wrote the “(r)ules regarding pleading, practice and procedure are solely the responsibility of the court.”  Because rules regarding pleading, practice and procedure are solely the province of the judiciary, the legislature cannot pass laws in this area, without running afoul of the constitution.

In this case, the defendant wanted to introduce evidence that a non-party shared blame for the defect that caused the injury, which was admissible evidence under the new statute.  The court found that “(t)he nonparty-fault provision bypasses our ‘rules of pleading, practice and procedure’ by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty’s fault in an effort to reduce a plaintiff’s recovery.”  The Court found that “(b)ecause the nonparty provision is procedural, it offends the principle of separation of powers.”

The collateral source rule is a common law doctrine which dates back to the 1800’s.  It says that evidence that a victim might be compensated for injuries from a source other than the defendant that caused the injury, is inadmissible.  For example, a car wreck victim might have health insurance which pays for some of their doctor bills. 

The reason the defendant cannot ask for a reduction in a case where health insurance pays a bill, is that the health insurer has a right to pay back from the plaintiff, for any money they pay out on the claim (subrogation right).  That means if a jury reduces the amount of an award by the amount the health insurer pays, then the health insurer gets pay back from the plaintiff for what it paid out, the plaintiff ends up under compensated for their injuries. 

The court stated “we have held that the rules of evidence are rules falling within this court’s domain.”  The statute restricts what evidence may be admitted at trial.  Because the statute creates a new rule regarding what evidence is admissible at trial, it violates the separation of powers provision of the state constitution. 

Collateral source and joint liability are two common targets in tort reform attacks in state legislatures.  Joint liability protects plaintiffs from being under compensated when there are multiple defendants and one of the defendants cannot pay their share.  The collateral source rule prevents the at fault party from getting away with paying less than the full amount they owe and short changing the victim.

According to a story on philly.com, a jury in Freehold, New Jersey found a truck driver liable for a traffic accident, where the trucker had no physical contact with the other vehicles in the accident.  The truck driver was stopped in traffic and Thurman Baker, the driver of the car involved in the accident, was in a parking lot, trying to enter the roadway.  The truck driver waved Baker’s car across the lanes of traffic, where the car was hit by a motorcycle traveling in the other lane of travel.

The trucker told an officer at the scene he waved for the driver to enter into the highway, the sign that it is clear to go, but then later changed his story.  The jury in the case awarded the victim $1.5million.  His injuries included a concussion, permanent damage to his arm and five cracked teeth.