There was a wonderful and truthful article in today's Fulton County Daily Report, the "legal organ" of Fulton County, Georgia, that I share with you below. Georgia citizens should know that many of us plaintiff's personal injury trial lawyers continue to fight for your rights to access to the courts to obtain justice. Enjoy.
Friday, March 06, 2009
GOP legal issues are losing steam
Governor's Tort reform proposals have been scaled back, while Chamber of Commerce's seat-belt evidence rule has lost in the House of Representatives
By Andy Peters, Staff Reporter
(Zachary D. Porter/Daily Report)
Sen. Bill Cowsert ponders legislation on the session's 27th day. Lawmakers are required to meet 13 more days.
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Republicans Control everything under the Gold Dome, but positions typically espoused by the GOP—making life tough for plaintiffs lawyers or criminal defendants—are struggling.
Two-thirds of the way into the 2009 General Assembly, one component of Gov. Sonny Perdue's call for broader tort reform has been scaled back, and the other part has been rejected in committee.
A legal issue that was a priority item in the Georgia Chamber of Commerce's legislative agenda—to allow jurors in car accident cases to hear whether plaintiffs were wearing seat belts—suffered an embarrassing defeat in the House of Representatives. That measure may return for another vote, however.
An important item to the State Bar of Georgia, rewriting Georgia's 19th century evidence code, is slated to be voted on by the full House of Representatives soon. But prosecutors don't like the current version of the legislation and vow to drum up public support to defeat it.
Asked about this trend, a leading Republican attorney said that a trial lawyers' initiative to make campaign contributions to Republicans, as well as Democrats, is paying dividends.
In 2006, the plaintiffs' bar “began the process of wooing legislators with significant campaign contributions and trinkets,” like tickets and dinners, said McKenna Long & Aldridge partner J. Randolph “Randy” Evans.
“They have gritted their teeth in writing checks, sometimes big checks, to leading Georgia General Assembly members,” Evans said.
In June 2008, the Georgia Trial Lawyers Association gave $10,000 to the MMV Alliance Fund, a political action committee formed by House Speaker Glenn Richardson to finance Republican legislators' campaigns, according to the State Ethics Commission. GTLA also has given to individual GOP legislators, including Sens. B. Seth Harp Jr., Bill Hamrick and Lee Hawkins, and Reps. Chuck Martin and Melvin Everson.
GTLA lobbyist William T. Clark responded to Evans' comments, saying, “It is sad, actually embarrassing, that Mr. Evans has fallen so out of touch with the legislative process in Georgia that he no longer has the ability to understand legislators' commitment to protecting the rights of Georgia citizens. For him to trivialize those rights is truly shameful.”
Robert S. Highsmith Jr., a Holland & Knight partner who advises Republicans, said “A lot of legislative members right now don't want to be on the receiving end of a well-organized GTLA effort” to defeat them in a campaign.
The Legislature on Thursday completed its 27th day and is required by law to meet another 13 days this year. Time is running low, as bills need to receive approval from either the House or the Senate by the 30th day to stand a good chance of reaching Perdue's desk for his signature.
Bills targeting lawyer issues may not get a lot of attention in the session's waning days. The Legislature has approved neither the supplemental budget for the current fiscal year nor the budget for the upcoming year, and debates over hundreds of millions of dollars in proposed spending cuts will consume much of the lawmakers' time.
Tort reform struggles
Four years after Perdue signed sweeping legislation that, among other things, capped pain and suffering damages at $350,000 and protected emergency room doctors from liability unless they exhibited “gross negligence,” the governor announced in January that he wanted dramatic changes to how and when lawsuits could be filed in Georgia state courts.
Perdue asked for a bill creating a loser-pays requirement to discourage frivolous lawsuits. If a claim is dismissed “at the earliest possible stage,” then the losing side would be required to pay the other side's legal fees.
Perdue also wanted to bar product liability suits against pharmaceutical and health care companies with major presences in Georgia if the products had received Food and Drug Administration approval.
Several lawmakers and lobbyists said they did not expect tort reform to be an issue in this year's legislative session, and the resulting bills received a lukewarm reception.
This week, Perdue reached a compromise with lawmakers and attorneys who opposed some of his efforts. On Tuesday, he agreed to drop a loser-pays provision from Senate Bill 108, but the bill keeps a stay in discovery proceedings in a trial until a judge rules on whether a motion to dismiss has merit.
The stay begins at the filing of a motion to dismiss and lasts for 120 days, or until the judge rules on the motion.
The stripped-down version of SB 108 received unanimous approval from the Senate Special Judiciary Committee and now goes to the full Senate for a vote. An identical piece of legislation, House Bill 414, was scheduled for a vote in the House Judiciary Committee on Thursday.
Members of the Georgia Trial Lawyers Association, who opposed the loser-pays provision, indicated they would support the compromise bill.
“This version is its much better than the earlier version, which we were calling the 'victim-pays bill,' ” said Childers & Schlueter partner C. Andrew Childers, a GTLA member. “The way the original bill was written, the defendant would have been the only one who would have ever been paid.”
The State Bar of Georgia also had opposed the loser-pays provision, but will not take a position on the stripped-down version, said Chambers, Aholt & Rickard of counsel Kenneth L. Shigley, secretary of the State Bar.
The lead sponsor of SB 108, Sen. William S. Cowsert, R-Athens, told the committee on Tuesday that further review indicated that existing sections of the Georgia Code sufficiently provided judges with a loser-pays option. Those code sections include O.C.G.A. § 9-15-14; 13-6-11 and 51-7-82.
“There are already five different loser-pays provisions in state law,” Shigley said. “This [bill] didn't really add anything constructive, it just added another layer.”
Perdue's idea to protect drug companies was rejected by a 7-4 vote last month by the Senate Economic Development Committee. Two Republicans—Harp of Midland and Jeff Mullis of Chickamauga—joined the committee's five Democrats against the measure.
Childers noted that a U.S. Supreme Court ruling on Wednesday reflected concerns of plaintiffs' lawyers about the drug company immunity proposal.
The high court ruled 6-3 that state law tort suits are not pre-empted by the federal law governing drug labeling. “The Supreme Court specifically said the FDA doesn't have the resources to monitor all the drugs on the market and in development, and that manufacturers, not the FDA, bear the primary responsibility for drug labeling,” Childers said.
In authoring the majority opinion, Justice John Paul Stevens wrote, “Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.”
Perdue's executive counsel, Joshua B. Belinfante, said last month that the governor was reviewing his options for bringing the FDA bill back for another vote.
A third item on Perdue's tort reform agenda has succeeded so far. Senate Bill 75 would give owners of pick-your-own fruit and vegetable farms and hunting plantations broad immunity from negligence lawsuits.
Seat belts
The Georgia Chamber this year has been promoting legislation to let jurors in car accident cases hear whether plaintiffs were wearing their seat belts. City and county governments joined the Georgia Chamber in supporting the measure, saying jurors should be allowed to consider whether plaintiffs contributed to their injuries by not buckling up.
Plaintiffs' attorneys oppose the legislation, arguing that jurors could be prejudiced against accident victims who did not wear their seat belts.
Two bills were introduced this year to allow seat-belt usage to be introduced as evidence, one each in the House and Senate. On Tuesday, the House resoundingly rejected House Bill 200, by a 148-15 vote.
Earlier, a Senate committee passed its version of the seat-belt legislation, Senate Bill 23. However, SB 23 included an amendment, added by Harp, that effectively serves as a poison pill if the House considers it.
The amendment would extend the state's mandatory seat-belt law to pickup trucks, which are currently exempted. The House has a longstanding opposition to requiring seat-belt usage in trucks.
Georgia Chamber lobbyist Joe Fleming said his group is following several legal issues and many are still alive this session. The Chamber has endorsed the rules of evidence bill.
Rules of evidence
Georgia lawmakers and the State Bar have tried for decades to replace Georgia's rules of evidence with rules that are based on federal law. Only five states aren't using codes of evidence based on the federal law and of those states, Georgia's evidence code is the oldest, according to Georgia State University law professor Paul S. Milich.
A joint House-Senate study committee met several times last year to review the 50,000-word legislation that was produced by a State Bar study committee. Representatives from the district attorneys, solicitors and the defense bar and civil litigators attended the meetings and offered suggestions and critiques.
Among other things, the legislation, House Bill 24, eliminates Georgia's “antiquated” rule saying that hearsay is illegal evidence.
But the part of the bill that's generating heat from prosecutors is eliminating the use of “bent of mind” as evidence.
Prosecutors say that they should be allowed to submit evidence of past actions by a criminal defendant, referred to as “similar transactions,” that demonstrate he has the bent of mind to commit a certain type of offense, such as drunk driving. The new rules would take away that option in all cases except in sex crime trials.
It's important that the bent of mind provision be removed because otherwise defendants lose the presumption of innocence, Milich said.
“If the prosecution can come out at the beginning of a case and say the defendant has done these crimes in the past, then the presumption of innocence is lost,” Milich said.
But prosecutors have vowed to fight.
“In the area of bent of mind, we can never compromise,” said Douglas County Solicitor General Brian K. Fortner.
Solicitors say the bent of mind provision is essential to their ability to prosecute DUI cases, as it is used as a tool against DUI defense attorneys.
“The efforts of the DUI defense bar is paying off,” Fortner said. “DUI defendants have been told repeatedly by DUI defense lawyers to refuse to take any test. So when they get in court, we don't have any test results to submit as evidence.
“We should be allowed to argue that this person knows how to beat the DUI laws, that they've learned to not take the state test because of their past convictions,” Fortner said. Fortner is president-elect of the Georgia Association of Solicitors-General.
Under the terms of the new rules of evidence, similar transactions still would be admissible as evidence to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” according to the terms of the legislation.
The House Judiciary Committee passed HB 24 on Tuesday, and it now goes to the full House for a vote.
Staff Reporter Andy Peters can be reached at Andy.Peters@IncisiveMedia.com
