Tort Reform in Georgia

A press release from the Governor of Georgia released yesterday has this interesting section on "tort reform." Note how it makes a connection between "tort reform" and making Georgia "more friendly to business." The full press release is available here. It states, in part: "This session, I will propose two pieces of legislation that will make Georgia more friendly to business. First, we will cement our position as a leader in the biotech industry by enacting laws that respect the role of the federal Food and Drug Administration as the regulator of the safety of drugs and medical devices. "As other states have decided, I believe that FDA approval should mean something. It certainly should imply protection from tort lawsuits. This legislation will say that companies with a significant presence in Georgia will not be subject to product liability claims within this state if the FDA approved the medical device, drug or the labeling along with it. The legislation will make Georgia an even more attractive environment for biotechnology companies. "Secondly, Georgia’s courts are crowded with nuisance lawsuits, but unfortunately, they are often cheaper to settle than to litigate. Current law provides almost no deterrent for frivolous lawsuits and that must change. "I’m asking the General Assembly to pass another tort reform bill that will provide relief to individuals and companies wrongly sued. In short, if a claim is dismissed at the earliest possible stage, the litigant bringing the claim will be responsible for the prevailing party’s attorneys’ fees. "If the attorney fails to notify the client of this provision, that attorney could pay the award. Lastly, the bill will make sure that the costly discovery process will not begin until the legal merits of a complaint have been tested. "This will free up our courts to pursue justice in cases with merit, protect our existing businesses that provide jobs for Georgians and attract new investment. With the help of the General Assembly, we’ll make plain that the threat of meritless litigation is not a viable business strategy in Georgia." In other words, the Governor is proposing to pass legislation that would eliminate the right of plaintiffs to sue in state court for certain types of cases and procedural barriers to their claims when they do have the right to bring them. Interestingly, Illinois tried the approach of instituting procedural barriers a number of years agon but they were declared unconstitutional by the state supreme court. Also, the "loser pays" proposal has been considered and rejected in some form or another by the ABA in an old ethics opinion. It will be interesting to see if anything comes out of this. Thanks to Sheila B. Scheuerman of TortsProf Blog for the information

Product liability plaintiffs and the issue of proximate cause

Next week's (January 19) National Law Journal (available here now if you have a subscription) will feature a column by J. Russell Jackson on products liability in which he discusses the fact that courts continue to expand the reach of who can be a plaintiff in products liability cases and how this forces courts to discuss the issue of proximate cause. Here is an excerpt: "The plaintiffs in products liability lawsuits today often have little, if any, relationship to the underlying sale of the challenged product. Increasingly, lawyers are creatively defining their plaintiff classes — particularly in the pharmaceutical context — to be comprised of so-called "third-party payors," such as insurance and health benefit funds. Typically, they argue that the product seller has perpetrated a fraud on the entire medical profession, and that therefore proof of reliance for any individual's purchase should not be required. Cf. In re Zyprexa Prods. Liab. Litig., 253 F.R.D. 69, 190 (E.D.N.Y. 2008) ("The [U.S. Supreme] Court held that the person who suffered the loss need not be the one to whom the fraudulent words were directed . . . .The fraud was directed to prescribing doctors. The overpayments were made by third-party and individual payors").One consequence of using plaintiffs who are so far removed from the underlying transactions, however, is that courts increasingly are forced to confront the issue of proximate cause in early motion practice. Recent decisions suggest that the further a plaintiff is removed from the underlying sales transaction, the less likely it is that the court will find proximate causation."

Settlement is not a bar to malpractice claim

Suppose a lawyer prepares a prenuptial agreement for a groom shortly before the wedding. then, after a few years of marriage, the wife files for divorce. When the husband's new lawyer tells him that there are serious doubts about the enforceability of the agreement, the husband enters into a settlement with his wife for "fear[ that the original agreement] would not be upheld..." The husband then sues the lawyer who had drafted the agreement for malpractice. Should the claim be recognized? The trial court dismissed the legal malpractice action on grounds of public policy and judicial estoppel but the New Hampshire Supreme Court reversed, holding that the divorce settlement did not bar the malpractice action on either grounds. Posted by Mike Frisch at Legal Profession Blog.

Top legal blogs

The ABA Journal recently conducted a poll to select the top legal blogs. The voting closed at the end of the year and the results are in. The complete list of the ABA Journal's Top 100 blogs is now available here. The list is organized in the following categories: news, law professors, crime, niche, technology, quirky, careers, students, podcasts and regional. I am happy to report that many of my favorite blogs made the list.

State liability for court appointed counsel's negligence?

Should a state be subject to liability if court-appointed criminal defense counsel provides negligent representation? According to a recent decision of the Arizona Supreme Court the answer is NO. The court held that the duty of the state begins and ends with the appointment of counsel. Counsel is an independent contractor that the state does not control or supervise. Thus, the state may not be held vicariously liable for counsel's negligence. Orginally posted by Legal Profession Blog

FDA issues guidance on "off label" drug literature

The TortsProf Blog reports that the FDA has issued a final "Guidance for Industry" which provides "the agency's views on the distribution of medical journal articles and scientific or medical reference publications that discuss unapproved new uses" for FDA-approved drugs and medical devices. Thanks to Sheila B. Scheuerman for the information.

Attorney for Wyeth shares his thoughts on preemption

The attorney who represents Wyeth in Wyeth v. Levine has published his thoughts on the case over at Drug and Device Law Blog. For more on this case, search this blog for posts on the topic of preemption.

More on the California decision on Good Samaritans

A few days ago I reported (here) that the California Supreme Court ruled that a woman who pulled a co-worker from a crashed vehicle isn't immune from civil liability because the care she rendered wasn't medical. I suggested that the decision was based on the widely accepted "no duty to help" concept that applies in pretty much all jurisdictions, but that, unlike in most jurisdictions, the "good samaritan law" in California offers immunity depending on the type of conduct involved rather than on the training of the person providing it. In response to the case, legislators in California are introducing legislation that would offer greater legal protections to good samaritans. Two of those bills are available here and here. The bills would extend the same legal protection to any good samaritan offering emergency care at the scene of the emergency unless it is a place where emergency medical care is available (ie, a hospital or clinic, etc). This proposed approach would also be unusual. The rule in most states is that medical personnel who cause an injury in an attempt to help a person they don't have a duty to help are immune from claims for having caused the injury, but that any other person could be liable. This approach is essentially based on the notion that rescue attempts should be left to those with training to perform them. Is it really a good idea to encourage people with no training whatsoever to try to help others in need of medical attention? As Prof. Anthony Sebok, whose column I have recommended here many times, suggests in his most recent column, "California should be wary of providing blanket tort immunity to rescuers attempting either medical or non-medical aid." His column on this subject is available here.

California Court Revives Secondhand Smoke Case

Law.com reports that the California Court of Appeals has reversed the dismissal of an asthmatic 7-year-old girl's public nuisance suit against her family's apartment complex over secondhand smoke in outdoor common areas. The court ruled that the girl not only had standing to file suit as a tenant, but also that she has pleaded a cause of action sufficient to withstand a motion to dismiss. This may be the first time that a court has suggested that outdoor secondhand smoke can constitute a public and private nuisance. Law.com's article is available here.

More on the FDA

Public Citizen has published a short note on the letter sent by nine scientists at the Food and Drug Administration's Center for Devices and Radiological Health (CDRH) to President-elect Barack Obama and his transition team, alleging gross mismanagement at the agency. According to the letter, the FDA has "placed the American public at risk." According to the note on Public Citizen's blog, "among the charges are that scientists have been threatened and told, on occasion, to ignore FDA regulations, that FDA managers have ignored serious safety and effectiveness concerns, and that FDA experts have been excluded from product meetings because manufacturers felt that they were "biased."" You can find more on this story on CNN.com and AP. On a related story, TortsProf blog is reporting today on a New York Times article titled "F.D.A. Is Lax on Oversight During Trials, Inquiry Finds" that states that the FDA "does almost nothing to police the financial conflicts of doctors who conduct clinical trials of drugs and medical devices in human subjects, government investigators are reporting."