FOR IMMEDIATE RELEASE CONTACT: Sarah I. Coole
June 20, 2009 Director of Communications
404-527-8700; 800-334-6865

Robin Frazer Clark Elected to Executive Committee of State Bar of Georgia

Atlanta – Robin Frazer Clark of Atlanta was elected to serve on the Executive Committee of the 40,000-member State Bar of Georgia on June 20 during the organization’s annual meeting at Amelia Island, Fla.
Clark is a graduate of Vanderbilt University and the Emory University School of Law. She is represents the Atlanta Judicial Circuit on the State Bar’s Board of Governors and is also past president of the Georgia Trial Lawyers Association.
The Board of Governors of the State Bar elects six of its members to serve on the Executive Committee with the organization’s officers. The Executive Committee meets monthly and exercises the power of the Board of Governors when the board is not in session.
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The State Bar of Georgia, with offices in Atlanta, Savannah and Tifton, was established in 1964 by Georgia’s Supreme Court as the successor to the voluntary Georgia Bar Association, founded in 1884. All lawyers licensed to practice in Georgia belong to the State Bar. Its more than 40,000 members work together to strengthen the constitutional promise of justice for all, promote principles of duty and public service among Georgia’s lawyers, and administer a strict code of legal ethics.

The news of another train collision was frightening and unwelcome. This time in Washington, D.C., on the Metro commuter trains.One train rear-ended another on the same track which, obviously, is not supposed to happen and you can bet doesn't happen absent someone's negligence or carelessness. The crash resulted in the loss of nine lives and injuries to 80 other passengers.
How do you miss a full size commuter train on the track ahead of you?

Could the answer be the train operator was texting while driving? It's too early to tell, but if it turns out it's because the at-fault train operator was texting while driving, I won't be shocked and I'll say you heard it here first. When I first heard of this horrible tragedy, I immediately thought of the MARTA train operator here in Atlanta who was caught texting while he was supposed to have been operating the train. But a diligent MARTA passenger caught him red-handed.

In the D. C. crash, investigators already expect "operator error" because there is simply no explanation for why the operator didn't throw on the train's emergency brake to try to stop it from plowing into the train ahead of it, yet the emergency brake appears not to have been used. I certainly hope the investigators obtain that operator's cell phone records immediately, which would indisputably show whether the operator was either on the cell phone or texting at the time of the crash. This is the procedure I follow in nearly all of my motor vehicle accident cases here in Atlanta, Georgia. My money's on texting. It has become a rampant problem, especially for operators of common carriers, e.g., buses or trains. Let's watch the reports carefully to see if there arises any evidence of texting while operating the train.

Which begs the question: What is MARTA's policy on train operators using their cell phones while supposedly operating a train? Do they even have one? Why haven't MARTA officials reassured the Atlanta, Georgia riding public that their trains are safe? The silence is deafening.

I am extremely happy to announce I was elected to the Georgia State Bar Executive Committee on Saturday, June 19 during the Annual Meeting of the State Bar at Amelia Island Plantation, Florida. The State Bar of Georgia is comprised of approximately 40,000 lawyers. The Board of Governors, on which I have served since 2002, consists of 150 of those lawyers who have been elected by their respective constituents to represent them on bar matters. The Executive Committee of the Georgia State Bar is comprised of 14 State Bar members also elected by the lawyers of the State of Georgia. So it is an absolute honor to have been chosen by my peers and colleagues to represent them on the Georgia State Bar Executive Committee. I look forward to serving and to continung to protect the rights of Georgia citizens by keeping our precious Georgia Civil Justice System's promise of Justice For All.

Below is a short press release issued by the President of Georgia Trial Lawyers Association about my election to the Executive Committee:

Friends:

Former GTLA president Robin Clark was elected to the State Bar Executive Committee on Saturday. Congratulations to Robin. Already on the Executive Committee are GTLA members Lester Tate, serving as President Elect and Ken Shigley, serving as Treasurer. All three individuals are great voices at the State Bar for issues of concern to GTLA members.

We all owe them a great thanks for their willingness to serve on the State Bar Executive Committee and for their great support of issues important to GTLA.

GTLA remains ever vigilant that broad coalitions are needed to protect access to a proper Civil Justice System for the citizens of this State.

Chris Clark, President
Georgia Trial Lawyers Association

O'Neal, Brown & Clark, P.C.
1001 American Federal Building
544 Mulberry Street
Macon, Georgia 31201-2774
Phone: 478-742-8981
Fax: 478-743-5035
E-mail: clark@obclawfirm.com
website: www.obclawfirm.com

Have you seen this video? http://www.11alive.com/video/default.aspx?playerId=newsmaker&maven_playlistId=1f23dc40ee67898d157716d17d3efded65dbd23b&maven_referrer=mrss&maven_referralPlaylistId=1f23dc40ee67898d157716d17d3efded65dbd23b&maven_referralObject=1138688802 It is of a MARTA train operator texting on his cell phone while the train is running down the rail. The operator is texting on his cell phone while he is supposed to be driving a train carrying hundreds of Georgians just trying to get to their jobs safely. Unbelievable!

Congratulations goes to Everyday Georgia Citizen Matthew Jones, who uses the MARTA subway train system to get to work and relies on the train operators to get him to work, and then back home, safely every day. Matthew spotted the train operator texting while the train was in operation on the tracks and took the smoking gun photo. Amazingly, the GM of MARTA says maybe the only thing that will happen to this train operator is a suspension. A slap on the hand! What will it take to insist on passenger safety? A train wreck while a MARTA operator is texting? Will that do the trick? We already know how deadly it can be for a train operator to be texting while he is operating a train, as evidenced by deadly train wrecks in Boston and in California (which I previously blogged about). Don't we want to spare Georgia citizens that horror?

We should all be vigilant like Matthew Jones. When we see a MARTA bus driver or MARTA train operator operating his bus or his train in unsafe manner, we must report that to MARTA. MARTA buses are identified by a bus number on the outside. The next time you see a MARTA bus operator run a red light, or other similar dangerous behavior, call MARTA with that bus number and report what you saw. The same should be done if you observe a MARTA train operator texting while driving, or asleep at the switch. Maybe MARTA won't do anything to the employee after just one complaint, but I would hope after more than one complaint the employee would get more than a mere slap on the hand. The more we do this, the safer our public transporatation will, hopefully, become. Be vigilant, Georgians!

Georgia settles with drug company for $6M
Other states seek more with lawsuits over potential side effects of Zyprexa
By BILL RANKIN

The Atlanta Journal-Constitution

Wednesday, April 29, 2009

Georgia has decided to enter into a multimillion-dollar settlement with Eli Lilly and Co. over the pharmaceutical giant’s off-label promotion of the anti-psychotic drug Zyprexa.

The state will get more than $6 million from the deal. Even so, lawyers familiar with the case wonder if Georgia is missing out on a much larger payday.

Recent headlines:

Georgia has its first confirmed case of swine flu
Swine Flu Update
11 state park pools closed for lack of funds
• Metro and state news A dozen other states have decided not to settle. They have filed their own lawsuits seeking massive damage awards. The suits seek, in part, reimbursement for Medicaid payments for unwarranted Zyprexa prescriptions.

The suits contend Lilly misled patients and their physicians about Zyprexa’s potential side effects — diabetes, hyperglycemia and excessive weight gain. Lilly has denied wrongdoing in these civil cases.

Georgia has joined 30 other states in taking the settlement, a Lilly spokeswoman said.

Mark Zamora, an Atlanta lawyer who represents clients with Zyprexa claims, said Georgia should take on Lilly in court.

“At the end of the day, Georgia citizens would be better served by taking their chances with 12 fair jurors,” he said. “You have to hold the company accountable here, and there’s already admitted criminal wrongdoing.”

State Attorney General Thurbert Baker believes it is a good deal for state taxpayers.

The attorney general’s office looked at the anticipated Medicaid losses and calculated the payout would be about double what Georgia’s claims would have been, said Russ Willard, a Baker spokesman. The entire settlement for Georgia is more than $15 million, with $9 million reimbursing the federal share of state Medicaid claims, he said.

“Given the issues raised as well as the parameters of the settlement, Attorney General Baker thought this was a beneficial settlement for the taxpayers of Georgia,” Willard said.

Zyprexa has Food and Drug Administration approval for the treatment of schizophrenia and bipolar disorder. Yet lawsuits contend that Lilly’s marketing campaign targeted patients with dementia, even though the company lacked FDA approval to do so. The drug was Lilly’s best seller for years, bringing in billions of dollars.

In January, Lilly pleaded guilty to illegally marketing Zyprexa. It agreed to pay $1.42 billion to resolve lawsuits and end the criminal investigation.

This included $800 million to settle civil cases, with $438 million going to the federal government and $362 million to states. Lilly did not admit wrongdoing in the civil litigation.

There is always risk when a lawsuit is filed, said Edward Sherman, a Tulane University law professor and expert in civil litigation. Lilly could prevail and, if the state wins, the case could take years to play out, he said.

Also, states pursuing such demanding cases must hire trial lawyers who work for contingency fees. This can have political repercussions, he said.

But states taking on Lilly in court could win big verdicts or get larger settlements, Sherman said. “There’s the potential for a good deal more money than what’s being offered now.”

Alaska took such an approach.

In March 2008, three weeks into trial, the state and Lilly agreed on a $15 million settlement. Although Alaska had sought far more, the settlement was sizable given the state’s population of 670,000. Georgia has about 9.5 million residents.

Fletch Trammell, a Houston lawyer whose firm represents several states in the Zyprexa litigation, said the risk to bringing suit is diminished because Lilly entered a guilty plea.

“States participating in this settlement instead of litigating their claims,” he said, “are sending the message to Lilly and companies like them, ‘You can steal all the money you can for as long as you can, as long as at the end of the day, you’re willing to settle with us for pennies on the dollar.’ “

GTLA wishes to thank out-going President Fred Orr for his wisdom and vision over the past year. With him at the helm, many things have been accomplished (including this new website). With Fred as the Immediate Past President, GTLA eagerly welcomes Chris Clark to his new role. Chris' intelligence, leadership style and passion for the Civil Justice System will only serve to make this great organization stronger.

At the President's Gala on Friday night, 250 members of GTLA watched as Fred Orr handed the reins over to Chris Clark-- both of whom received a standing ovation. Congressman Bruce Braley of Iowa, a trial lawyer, a champion for justice in Washington DC and a Past President of his state's TLA entertained and enlightened the crowd with his tales of courage in politics as the keynote speaker. The evening ended with incredible comaraderie found only at GTLA events.

Witnesses tell Senate UnitedHealth may have defrauded one in three insured Americans.
CQ Healthbeat (3/27) reports, "UnitedHealth Group officials are in for an unpleasant experience at a Senate hearing next week - if a set-up session on Thursday was any indication." At a Senate Commerce, Science and Transportation Committee hearing today, witnesses "described how health insurers routinely defrauded millions of patients who sought out-of-network care by paying less than the insurers owed for medical bills." A witness told the panel, which will hear from United representatives next Tuesday, that "the practice could have potentially affected as many as one in three insured Americans and lasted for at least a decade." Committee Chairman John D. Rockefeller, IV (D-WV), "declined to say what types of changes should be included in health overhaul legislation," saying, "I want to make sure exactly what it is we need to do...just in the saying of it, I could do damage to health reform."

If you believe you may be one of United Healthcare's victims, I urge you to call me and let's make sure United Healthcare doesn't get away with this.

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

I have written about the attempt going on RIGHT NOW at the Georgia Capitol by Governor Perdue and Senator Bill Cowsert and others who take up Governor Perdue's mantra to eliminate Georgian's rights to sue a Georgia pharmaceutical company if its drug harms a Georgian. Senate Bill 101, heard yesterday in the Economic Development Committee (NOT the Judiciary Committee, where it actually belongs), would strip Georgians of ALL of our rights to hold a Georgia drug manufacturer liable for damages its drug causes a Georgian. Ironically, this bill would hurt ONLY Georgians; those folks who took the drug in any other state, Alabama, for example, WOULD be able to hold the Georgia company responsible for the harm it causes, as it should be. Can you imagine any worse affrong to the rights of Georgia citizens than this? This should show you how little the Governor of Georgia and his followers in the Georgia General Assembly think of the welfare of Georgia consumers. Yesterday in the Committee hearing, the Chairperson did not allow the Committee to vote on the bill.

ACT NOW! Folks, now is the time for everyone living in the State of Georgia to call your State Senator and ask them to vote NO on Senate Bill 101. Also, now is the time to call the Governor's office and let Governor Perdue know you don't appreciate his underhanded attempts to eliminate your constitutional rights.

Enough is enough.

Below is a wonderful letter by fellow trial lawyer Josh Branch published yesterday in the Athens, Georgia Banner-Herald. Josh is absolutely 100% correct.

Josh Branch: Limiting liability is wrong move
Athens Banner-Herald | Story updated at 8:11 pm on 2/18/2009

Senate Bill 101, backed by Gov. Sonny Perdue and now making its way through the state Senate, would free Georgia-based pharmaceutical corporations that make dangerous drugs or medical devices from accountability for any harm they cause, so long as their drug or medical device has received federal Food and Drug Administration approval. The bill grants complete immunity from liability to the corporation while stripping the constitutional rights of the citizens of this state.

Vioxx was an FDA-approved drug that seriously harmed or killed at least 139,000 people. If a drug were made here that killed Georgians as Vioxx did, our residents would have absolutely no recourse. A person in Phenix City, Ala., just across the state line, could pursue justice in the courts; a person in Columbus, Ga., just inside the state line, could not. Why take away the rights of citizens in your own state?

Perdue should not hand the lives of our citizens over to a federal bureaucracy and at the same time strip them of any right they have to seek a civil remedy if something goes horribly wrong. Georgians deserve much better than that.

While it's clear where the governor's priorities lay, let's hope elected members of the legislature think otherwise.

Josh Branch

Virginia Graeme Baker Pool and Spa Safety Act
June 18, 2008 Staff Interpretation of Section 1404:
“Federal Swimming Pool and Spa Drain Cover Standard”*
On December 19, 2007, the President signed into law the Virginia Graeme Baker Pool
and Spa Safety Act, named after the daughter of Nancy Baker and the granddaughter of
former Secretary of State James Baker. Graeme Baker died in a tragic incident in June
2002 after the suction from a spa drain entrapped her under the water. This Act was first
introduced by Rep. Debbie Wasserman-Schultz (FL) and was supported by the Baker
family and Safe Kids Worldwide.
There is an annual average of 283 drowning deaths (2003-2005) and 2,700 emergency
room-treated submersion injuries (2005-2007) involving children younger than 5 in pools
and spas. In addition, from 1997-2007, there were 74 reported incidents associated with
suction entrapment, including 9 deaths and 63 injuries. The new law is aimed at reducing
these deaths and injuries by making pools safer, securing the environment around them,
and educating consumers and industry on pool safety.
The Act specifies that on or after December 19, 2008, swimming pool and spa drain
covers available for purchase in the United States must meet specific performance
requirements. Additionally, public swimming pools, wading pools, spas and hot tubs
must meet requirements for installation of compliant drain covers. New drain covers
which meet the current standard are now beginning to make their way into the
marketplace. Additionally, in certain instances, public pools and spas must have
additional devices or systems designed to prevent suction entrapment.
U.S. Consumer Product Safety Commission (CPSC) staff has prepared this guidance
document that spells out the technical requirements of Section 1404 of the Act, along
with CPSC staff’s answers to certain enforcement and legal issues. This document takes
into account comments provided to CPSC during an open comment period in March
2008. Comments were provided by a member of the U.S. House of Representatives, state
government officials, pool industry representatives, safety equipment manufacturers and
representatives, consumer safety organizations, and others.
CPSC staff urges all public pool and spa owners/operators, state and local health and
safety officials, and those in the pool and spa industry to carefully review this document
as they work toward complying with Section 1404 of the Act prior to December 19,
2008.
Contact CPSC at info@cpsc.gov or 301.504.7908 if you need further assistance.
* This document, which was prepared by CPSC staff, has not been reviewed or
approved by and may not necessarily represent the views of the Commission.
ENGINEERING/MECHANICAL REQUIREMENTS
Note: italicized language is taken directly from the Pool & Spa Safety Act.
Drain Covers: …each public pool and spa in the United States shall be equipped with
anti-entrapment devices or systems that comply with the ASME/ANSI A112.19.8
performance standard, or any successor standard…
Staff interpretation: All public pools and spas must have ASME/ANSI
A112.19.81 compliant Drain Covers on or after December 19, 2008. The basic
requirements of the ASME/ANSI standard are:
• Cover material must be tested for structural integrity
• Cover must be tested for body entrapment and hair entrapment/entanglement
• Cover must display a flow value in gallons per minute (gpm) that indicates the
maximum flow rate for which the cover has been approved
Main Drain: The term “main drain” means a submerged suction outlet typically located
at the bottom of a pool or spa to conduct water to a recirculating pump.
Single Main Drain: …each public pool and spa in the United States with a single main
drain other than an unblockable drain…
Staff interpretation: A main drain is a term usually referring to a plumbing fitting
installed on the suction side of the pump in pools, spas and hot tubs (a suction
outlet). Sometimes referred to as the drain, it is normally located in the deepest
part of the pool, spa or hot tub. It does not literally drain the pool, spa or hot tub
as a sink drain would, but rather connects to the pump to allow water to be drawn
from the pool, spa or hot tub for circulation and filtration.
Staff interpretation: The term “single main drain” means a submerged suction
outlet, with or without a skimmer, connected to a dedicated pool pump. A pool
may have more than one single main drain if it has multiple suction outlets that
are each connected to a dedicated pump. A group of suction outlets connected
together is considered a single main drain if the centers of the outlets are located
within three feet of one another.
Staff interpretation: Pools and spas with multiple main drains are not subject to
the requirements of Section 1404(c)(1)(A)(ii).
Staff interpretation: Multiple main drains consist of, at minimum, two fully
submerged suction outlets per pump, with drain cover centers at least 3 feet apart.
While no maximum separation is noted, the connections between the outlets and
the pump are important for proper operation and should be certified by a design
professional and inspected by a licensed inspector to ensure hydraulic balance
between outlets and the main suction line to the pump.
1 The current approved version of this standard is A112.19.8-2007. There is an Addendum moving forward
through the ASME/ANSI ballot process to correct errors in the test method for UV light exposure. The
prior version of this standard is 1987 (reaffirmed in 1996) and addresses only hair entrapment.

Lieutenant Governor Cagle, Speaker Richardson, Speaker Pro Tem Burkhalter, President Pro Tem Williams and other members of the General Assembly. Ladies and Gentlemen. I am overwhelmed by your warm welcome.

Today I stand before this distinguished body for the last time as the Chief Justice of the Supreme Court of Georgia. I am both honored and humbled. I have so many of you to thank for your years of support and encouragement. And I am forever indebted to my colleagues on the Supreme Court—my friends—Presiding Justice Carol Hunstein, former Chief Justice Robert Benham, and Justices George Carley, Hugh Thompson, Harris Hines and Harold Melton. I am also grateful to my friends on the Georgia Court of Appeals, now being ably led by Chief Judge Yvette Miller, as well as all of my other colleagues in the judicial branch.

__________________________

The judicial system's budget is less than one percent of the overall state budget, but we play a huge role in protecting the safety and security of Georgia citizens. Unfortunately, like others in state government, we have had to slash our budget to the bone. We have reduced personnel and cut our expenditures. Before this economic downturn, this state's appellate courts were well on our way toward unveiling an electronic filing system to make all our courts more accessible to people throughout the state. Such a system is a minimum requirement in this 21st century. Unfortunately, we have had to put that on indefinite hold.

We are deeply concerned, as you are, about the present financial situation and its effect on Georgians. We are particularly troubled about its impact on the delivery of justice to our citizens. Even in good economic times, the administration of justice is difficult to fulfill given the sheer volume and complexity of problems Georgians bring to their courthouses. Because of the effects of the nation's bad economy, people will need access to justice now more than ever. We already see this happening. The number of mortgage foreclosure cases in Georgia is at an all time high. Debt

collection has increased dramatically. We may also begin to see an increase in other types of problems that typically escalate during tough economic times, such as crime, child abuse, domestic violence and substance abuse.

We are frequently reminded that government cannot do everything. And that is true. Government cannot do everything, and in times like these, government cannot afford to do everything. But there are some things that only government can do, and these things it must do well. Administering justice under the law is a function that only government can fulfill. The determination of guilt and innocence, property rights and parental rights, legal privileges and power are judgments only government can make. Administering justice is one of the reasons governments exist. If we neglect this fundamental obligation to the people, we break trust with them, and ultimately, lose their confidence. And for government, public trust and confidence is everything.

No doubt you have heard what other states' judicial systems are now doing to cope with our nation's troubled economy. Some states have closed their courthouses a few days a month. New Hampshire has cut back on the number of jury trials it holds. Several states, including Utah, are leaving judgeships vacant following retirements, including a few who have vacancies on their Supreme Courts. These are drastic steps. They will deny justice to many. In Georgia, we cannot afford to go down this path.

Nevertheless, I am confident that even in the face of economic turbulence, the future of our judiciary is as bright and solid and undaunted as is the bedrock optimism of our people. After all, we are Americans. And we are Georgians. That means that, working with you and the Governor, we will be bold. We will learn to do more with less. And for the safety and security of our state, we will endure, and we will prevail.

That is in large part because Georgia is fortunate. This state's judges are among the best in the nation. I am honored to have stood with them all these years. Like me, many have devoted their careers to guaranteeing that all citizens of our state receive fair and impartial justice. I will miss being a part of “the brotherhood.” And I will miss all of you.

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It's never easy to say good-bye. I have been truly blessed. When I embarked on my judicial career 26 years ago, I never imagined that it would turn out as it has. Indeed, the world has changed much since I first became a judge. I was a mere 27 years old when Mayor Andrew Young appointed me to Atlanta's traffic court. It was 1982—the year USA Today was first published, Diet Coke was born, and the Weather Channel aired for the first time. Voicemail was patented that year, and back then, most of us lived without cell phones, e-mail or laptops. Imagine that!

To some extent, my career as a judge has been a metaphor of how much our great state has changed. In 1988, when I ran to become a Fulton County Superior Court judge, there were only four African-American superior court judges in the whole state, and only six women. I can still remember my first day on the bench. I was trying a simple zoning case when I noticed that the room was packed. Standing room only. Deputies, court reporters, administrative assistants and other spectators were lining the walls and peering through the windows. They were there to watch me try my first case, as if I were an alien who had landed in Fulton County.

And I'll never forget 1992 around Valentine's Day when Governor Zell Miller called and said to me, “Judge, I want to let you know I am going to appoint you to the Supreme Court of Georgia.” I was flabbergasted. I was only 36 years old—the youngest person ever to be appointed to the Supreme Court. I was a woman—no woman had ever served on that court. And I was an African-American—the second, just behind my friend and colleague Justice Benham. Somehow I managed to regain my composure to thank Governor Miller. And I pledged to him that I would never let him down. I have always tried to live up to that promise.

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Permit me to tell you a few of the things I have learned in the 26 years I have been a judge. I have learned that people are far more complex than the labels we sometimes affix to them. As judges, we would not be doing our jobs if we paid attention to labels because we have but one purpose: to know and uphold the laws of the State of Georgia and the United States, regardless of where the chips may fall. That means that in our work we can espouse no ideology, no partisan political views, and we must ignore the false assumptions people sometimes make.

I have learned that the people of Georgia are fortunate to have attorneys of the highest quality. I am always amazed at the ability of Georgia's lawyers to present vigorous, well-reasoned arguments on both sides of complicated issues and to answer the probing questions of the justices of our Court. I commend the State Bar of Georgia for all it does to maintain the exceptional quality of Georgia lawyers.

I have learned that whether you are a member of the legislative, executive or judicial branches, we are all servants of the people, and we are all in this together. That means we must communicate and cooperate with one another to accomplish the people's business. And we can do that in a way that preserves the integrity of all branches and honors the concept of the separation of powers.

I have learned that sometimes a whisper is better than a roar. I now know that to get your point across, you don't always need to carry a big stick. I've also learned that while you should never shy away from standing up and speaking out for that which you believe is right, you have to pick your battles. On a court like ours, the only way to succeed is with your intellect and your integrity. The best judges listen more than they talk. And they are patient. That often means that when your position doesn't prevail, you have to let it go and move on.

I have learned that the most rewarding part of my career has not been the offices I have held but the people I have met and with whom I've had the privilege of working. Since I've been Chief Justice, I have only been treated with generosity and kindness. The fact is that I have had the exceptional privilege of working with exceptional people who have dedicated years of hard—and at times heartbreaking—work to make Georgia's judicial system the very best in the nation.

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I am proud that when I step down, I will leave behind—according to a recent national study—the No. 1 most productive Supreme Court in the country. That same study ranked Georgia's high court as one of the five best state Supreme Courts in the nation, based not only on productivity but also on national influence and judicial independence. The Georgia Court of Appeals also has been ranked among the top five appellate courts in the number of opinions issued per judge.

I am also proud that Georgia has a state trial court system that works hard to ensure that all people have access to justice, no matter their status in life. Today, thanks to your support, Georgia is taking the lead with drug courts and mental health courts. This past year, both the National Highway Traffic Safety Administration and the National Council of Juvenile and Family Court Judges cited the work of Georgia's drug courts as a model for the nation.

In the past, some were skeptical of these so-called “accountability courts,” worried that they coddled criminals. But attitudes have changed because we now know that to prevent crime and save taxpayer dollars, we must break the cycles of drug addiction and mental illness that have contributed to the clogging of our courts and of our jails.

I am also proud of the work of the Georgia Supreme Court Commission on Children, Marriage and Family Law. As you know, I have long been a proponent that “children do better with parents together.” This is not just another do-good campaign unrelated to crime or justice. As a judge, I have seen daily the effects on our courts, not to mention our society, of family dissolution.

There is much sociological data that now suggests that children who grow up in healthy, intact families are less likely to engage in criminal behavior, and are more likely to have productive lives that never lead them to the inside of a courtroom. That's why marriage continues to be the most pro-child institution and antipoverty program we have.

This past year, the Commission co-hosted a national summit on marriage, bringing together experts from around the country to debate and discuss the future of this institution. Governor Perdue joined me in welcoming them to Atlanta.

I hope all of you will continue to join in the efforts to keep marriage alive and strong and valued as an institution, for the sake of our children and our nation. I assure you that whatever I do next, you have not heard the last from me on this issue.

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Time does not allow me to mention all the people who have served and worked with me through the years. Suffice it to say, the Supreme Court staff is stellar. I know that Presiding Justice Carol Hunstein will receive the same loyal support from this outstanding staff when she takes the reins as chief justice this summer. I wish her every success.

And, of course, I can never thank enough my own family, without whom I would not be here. My children, Addison and Brennan: I am so proud of the young man and woman they have grown up to become. My mother, Onnye Jean SEARS, who along with my late beloved father, always guided me and always believed in me and made me believe in myself. And, of course, my husband, Haskell Ward. Whatever I have been able to achieve as Chief Justice could not have been accomplished without the unfaltering love and support of this man. He has been my strong and steady rock for the last 10 years, and I am always thankful for that. My husband, mother and daughter are here today. Would you please stand.

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And then, of course, there are my colleagues and dear friends who have served with me on the Supreme Court. We are a collegial bunch. We are people of different perspectives and diverse backgrounds. We are a well-oiled machine that has kept the wheels of justice going in this state for about 15 years now.

At times, I have jokingly compared our little group to family members who get together just once a year at Thanksgiving. There is sometimes a bit of tension, but the respect and the love are always there. Having served so long together, we know each other well—each other's tics and predilections. We can often read each other's facial expressions and anticipate what's coming next, sometimes with dread.

I just want to say how much you all mean to me. There are many precious memories. We've worked hard together. We've argued, sometimes vehemently, only to then break for lunch and enjoy a meal together. We've shared sacrifices and tears, victories and joys. Some of you have held my hand during difficult times, and I've held yours. Each of you is a part of my life's story, and I will forever be grateful. The state of Georgia has benefitted from your service and our cohesiveness.

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As to the Court's future, my prayer is that whoever the Governor appoints to replace me would build on the progress the Supreme Court of Georgia has already made. My prayer is that the next Justice would be a fair, honest, upright person of the highest integrity, a man or woman who would walk in the same shoes as a Logan Bleckley, Joseph Lamar, Charles Weltner or Norman Fletcher. We have had the greatest of justices in this state, whose courts have not been infected by politics. And that is because our justices were never ideologues. Rather they were just good lawyers, fair and impartial judges, decent men and women.

I suppose my failure as Chief Justice was my inability to get our state's judges a much-needed raise—a raise they have not had in more than a decade. Many of you here worked hard for that goal, and I thank you. I was honored to have so many join in the effort. When our economy improves, for the sake of this state's judicial system, I urge you to renew that effort.

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I came to the Supreme Court quite young. I determined some time ago to leave before I was too old. It has been a privilege to serve here. But the court, like most institutions, needs constant replenishment with people who are not comfortable with its ways. It is time I moved on.

As to my future, my so-called “retirement” at 53 years old is by no means an end for me. Rather it's a beginning. A rebirth. A launching of a new adventure. I don't know exactly yet what it will be, but like you, I am a public servant at heart. My life has been driven by a desire to do what I can to make things better for all people. And as long as God blesses me with health and well-being, I will continue to serve in some capacity. Just as I pledged to Gov. Miller 17 years ago, I pledge to you today: Whatever I do next, I swear to you, I will not let you down.

Finally, I want to thank the people of Georgia for giving me this extraordinary opportunity. I want to thank the millions I've never met personally who are simply good, solid, hardworking people. Those who voted for me, called me with their words of support, sent me notes and wrote me letters along the way. They were the ones who decided—not once, not twice, but three times—that I was worth keeping around by electing me to office.

I am so proud of this state. I am so very proud to be a Georgian. And I am proud of all of you. God bless and comfort you. God bless Georgia. And God bless America.

Enacting ‘Victim Pays’ would be like taking away David’s Slingshot
SB 108 would allow intimidation and fear to rule our court of law

Atlanta, GA—SB 108, a component of Governor Perdue’s so-called “tort reform” package, seeks to enact a ‘Victim Pays’ provision in Georgia law. Current law dictates that each party in a lawsuit pays its own attorney fees unless specific authority is granted by statute or contract allowing for the assessment of those fees against the other party. This provision is known as the ‘American Rule.’ This uniquely American method distinguishes our Civil Justice System from that of much of Europe which still operates under ‘The English Rule.’
The American Civil Justice System was based on the premise that individuals and small businesses, regardless of their financial means, have the right to seek justice for wrongdoing in a court of law that views each party as completely equal. As our Civil Justice System has matured, the American Rule has been championed as a unique equalizer — it does not discourage a person of little-to-no means from pursuing a meritorious claim — whereas ‘Victim Pays’ acts as a deterrent to individuals harmed through no fault of their own by the negligence of others.
“Governor Perdue has used the term ‘Loser Pays’ to label this provision. Yet nothing could be further from the truth” said Fred Orr, President of the Georgia Trial Lawyers Association. “This provision only affects one party in the suit — the plaintiff. If a large corporate defendant loses a claim, they will never have to pay for the victim’s legal fees under this bill, despite how baseless their defenses were.”

“SB 108 as it is written will harm middle class Georgians and small businesses the most,” said Atlanta attorney Darren Penn. “The very rich can afford legal fees and poor plaintiffs, as a practical matter, will not have to pay either. But, your traditional ‘mom and pop’ businesses and regular middle class Georgians could be bankrupted by the steep fees corporate defense attorneys charge.”

Besides creating real fear and intimidation for Georgians who wish to file suit, SB 108 fails to do much else that isn’t already covered by Georgia law. Besides having sanctions against “frivolous” lawsuits in both state and federal courts already in place, our current ‘American Rule’ operates under a contingency fee system — a natural deterrent against claims with little-to-no merit. Under the contingency fee system, the plaintiff’s lawyer carefully reviews a potential case to decide if he or she will take the case. The attorney fronts the entire cost of pursuing the case out of his or her own pocket — receiving no payment from the client. Both the client and the attorney only get paid if they win in court. In the business world, such expenditures are called ‘research and development.” Just as no business is going to spend money researching and developing a product they know to be worthless, no wise attorney would risk their money and their practice by pursuing a “frivolous” claim in court. The personal financial risk would be too high. SB 108 does nothing to improve that situation and is not needed.

“SB 108 is a procedural “gotcha” that will discourage attempts to resolve technical deficiencies in legitimate claims and will encourage gamesmanship and manipulation of the legal system by corporate defendants, rather than facilitating appropriate resolution of disputes between parties,” stated Penn. “Enacting SB 108 is like taking away David’s slingshot. The party with more money, more power and more control will have the ability to scare David into not taking a shot at all, even when David has a righteous cause.”