How can some members of the Republican Party take a national disaster and turn it into a windfall for corporate America?
No-bid contracts for companies working to clean up the mess caused by Katrina? Of course, but there is more. Eliminate the need to pay the prevailing wage? Sure.
How about tort reform?
A defendant in a product liability case cannot introduce proof of the absence of other claims unless strict guidelines are met, according to the Third Circuit Court of Appeals.
The plaintiff’s lawyer “argued that there was no foundation for such testimony because [defendant’s] engineer had admitted in his deposition that [it] kept no records relating to either safety complaints by [its] customers or past accidents involving [the product involved in the incident].”
Judge Smith said “Most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness’s knowledge, no such prior accidents have occurred.” Judgment in favor of the defendant was reversed.
The NYT has a great article today about the issue of conflicts between physicians and the medical device industry. The information about the cost of medical devices and the disparity between the costs of the devices at different hospitials is shocking.
A recent poll indicates that many Americans think that they are being “overtreated” by their doctors.
An article describing the poll results says that “[n]early three-quarters (72%) of U.S. adults think that patients who have medical conditions experience problems because of being overtreated (i.e., getting too many treatments or getting more aggressive treatment than is appropriate). In light of these concerns by the public, it’s not surprising to learn that half (50%) of all adults are somewhat or very concerned, personally, about being overtreated when they are sick or in need of medical care.”
One thing particularly troubling about this poll: 53% of adults think that one reason for the overtreat is because of concerns about malpractice suits. The propaganda is working. This is what can happen when you have the ability to spend millions and millions of dollars over thirty years to influence public opinion.
Are you one of those people who say that politics doesn’t matter to you or your practice? Do you refuse to get involved in political campaigns? Do you “just say no” to a request for a political contribution?
Well, those who want to take away the rights of your clients have a different view. Excample: Michigan. Michigan tort law is a shadow of its former self. The Legislature has gutted the common law of torts in Michigan and the Michigan Supreme Court readily and frequently irrigates the open wound.
This article from the Free Press gives you an idea of the frustration that the lay public is beginning to experience.
Read this nice article about Chris Seeger, lead trial counsel in the New Jersey Vioxx trial. I have known Chris for 10 years or so – he is a great guy with a passion for what he does. He will give Merck one heck of a fight.
A recent article reports that certain minivans get a failing grade in crash tests designed to check likelihood of neck injuries in rear-end collisions.
“Earning poor overall ratings were seven models subjected to a simulated crash: versions of the 2004-2006 model years of the Dodge Grand Caravan and its corporate twin, the Chrysler Town & Country; a version of the 2005-2006 Toyota Sienna; and four General Motors Corp. minivans from the 2005-2006 model years – the Chevrolet Uplander, Buick Terraza, Pontiac Montana SV6 and Saturn Relay.”
Did you know that there is a federal statute that provides certain limitations on the liability of “volunteers?”
Under the definitions in most insurance policies a loss of consortium claim is included as part of a personal injury claim and therefore the two claims count as one claim for purposes of liability coverage.
Did you know that under the Governmental Tort Liability Act loss of consortium is a seperate claim and therefore a spouse for an injured plaintiff can seek recovery under a “seperate” cap? The case reaching this conclusion is Swafford v. City of Chattanooga, 743 S.W.2d 174, 178-79 (Tenn. App. 1987).
The relevant language: “Although a husband’s or wife’s claim for loss of consortium will always be “derivative” in the sense that the injuries to his or her spouse are an element and must be proved, the right to recover for loss of consortium is a right independent of the spouse’s right to recover for the injuries themselves. The Tennessee Governmental Tort Liability Act reads in pertinent part as follows: ” ‘injury’ means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.” T.C.A. ㋔ 29-20-102(4) (1980 and Supp.1986). Although ㋔ 29-20- 403 refers only to “bodily injury or death” in setting the minimum limits of liability coverage under the Act, we think that the specific removal of immunity upon which recovery here rests–that of removal of immunity for injury from unsafe streets and highways of ㋔ 29-20-203–controls. It reads that “immunity from suit of a governmental entity is removed for any injury caused by defective, unsafe, or dangerous condition….” (emphasis added). To hold that the language “bodily injury or death” of ㋔ 29-20-403 controlled would create an exception to the clear removals of immunity created by ㋔㋔ 29-20-201, -202, -203, -204, and -205. We therefore remand this case to the trial court to award judgment to Ms. Swafford for her damages due to loss of consortium.”
You may remember that the Congress passed a $287,000,000,000 transportation bill last month. What you may not have known is that a tort reform measure was slipped into the bill.
Transportation bills gives “pork” a bad name. Historically, they have been filled with local projects of questionable value. But now we have a Republican-controlled Congress that never misses the opportunity to give a get-out-of-litigation-free card to some special interest group. This gift in this bill – the elimination of vicarious liability for auto rental and leasing companies for 16 states and the District of Columbia.
In these states – Tennessee is not one of them – the leasing company was liable for the acts of the lessee. The cost of insurance was build into the cost of the leasse. No more.
