COVID-19 has thrust us into a global crisis unprecedented in the century since the Spanish Flu epidemic of 1918-19. It is not merely disruptive in our daily routines. It involves life, death and enormous hardship in massive scale, probably for a prolonged time.  In this new reality, some of the routines dealing with individual injury cases may be eclipsed by a near term future we did not anticipate just a few weeks ago.

The “new normal” after the end of this pandemic is impossible to discern. Some pundits have emphasized hope that after the entire population passes this crucible of shared hardship and existential threat, we might emerge a kinder, more empathetic, more cooperative and public spirited nation, less torn by toxic partisanship. This will be the central formative experience for the generation forced home from school. Despite some examples of irresponsible spring break conduct, some guess that this may lead to a “Greatest Generation 2.0” in response to shared crisis. Others fearfully predict a dystopian future reminiscent of a Mad Max movie. Reality may be somewhere between those two visions.

One thing is certain. As with every cataclysmic event, legal controversies will flow from this crisis.

Already there is a declaration from the Secretary of Health and Human Services providing immunity from liability for certain individuals and entities against covered claims of loss relating to the manufacture, distribution, administration, or use of medical countermeasures (“Covered Countermeasures”), except for claims involving “willful misconduct.” This was done under the authority of the Public Readiness and Emergency Preparedness Act of 2005 (“PREP Act”), codified at 42 U.S.C. §247d-6d, and is retroactively effective beginning February 4, 2020.  Tthere precedent supporting this immunity. See, e.g., Parker v. St. Lawrence County Pub. Health Dept., 102 A.D.3d 140 (3rd Dep’t 2012) (finding federal preemption over Plaintiff’s state law claim based on the unconsented vaccination of a minor during the H1N1 epidemic).

This immunity from liability applies to manufacturers, distributors, program managers, “qualified persons” (any person authorized to prescribe, administer, deliver, distribute or dispense the Covered Countermeasures), and their officials, agents, and employees authorized to prescribe, administer, deliver, distribute or dispense any antiviral, drug, biologic, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19, the transmission of SARS-CoV-2, or a virus mutating therefrom, or “any device used in the administration of any such product, and all components and constituent materials of any such product.”

Activities covered by this immunity from liability include manufacturing, testing, development, distribution, administration, and use of the Covered Countermeasures.

The COVID-19 Declaration is effective as of February 4, 2020 through October 2024, unless extended.

The purpose of the COVID-19 Declaration  is to permit the special use of drugs and other medical products during the COVID-19 pandemic that either have not yet been approved/cleared by the FDA or may be used off-label without the risk of liability in the event of a covered injury or loss. Under the PREP Act, if there are injuries as a result of Covered Countermeasures relating to a public health emergency, the relief available can be found via the Countermeasures Injury Compensation Program (“CICP”), which is charged with establishing a fund for such injuries.

“Covered Countermeasures” include anything used against the pandemic or against adverse events from these products, including antivirals, drugs, biologics, diagnostics, devices, vaccines used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials. These must be a qualified pandemic or epidemic product authorized for investigation or emergency use as defined in the PREP Act, the Food and Drug Cosmetic Act (“FDCA”), and the Public Health Service Act (“PHSA”).

The scope of immunity is not all-encompassing or absolute. Key limitations/qualifications on immunity protection are:

1. Some form of premarket approval is required. The Covered Countermeasure must be approved or cleared by the FDA under the FDCA; licensed under the PHSA; or authorized for emergency use by the FDA under applicable provisions of the FDCA.
2. Must be qualified pandemic or epidemic products, security countermeasures, or drugs, biologics, or devices authorized for emergency or investigational use.
3. Only for “recommended activities” involving Covered Countermeasures related to present or future federal contracts or other federal transactions or agreements, or activities authorized by authorities with jurisdiction to prescribe, administer, deliver, distribute, or dispense Covered Countermeasures following an emergency declaration.
4. Does not apply to death or serious physical injury caused by willful misconduct.
5. Not available for foreign claims.
6. Claim must arise from conduct that is directly related to the development/distribution of a Covered Countermeasure.

We may reasonably anticipate that bad things will happen, and sneaky people will claim immunity to which they are not legitimately entitled.  Those issues will be fought out in court.

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Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Recently he moved his  law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862.

Though common in litigation, confidential settlements can be controversial.

While confidentiality agreements had help expedite settlement, there are concerns that secret settlements can work against public safety by covering up health and safety hazards. As with much in life, the hardest choices are not between good and bad, but between good and good, and between bad and bad.

Under a confidential settlement agreement or order, some or all terms of a settlement are kept secret. Defense lawyers routinely include a confidentiality clause in a proposed release when there is a large settlement. Sometimes it is a throwaway item in a boilerplate document. In other cases they hang tough on confidentiality.

For defendants and their insurers, there are several obvious reasons to seek confidentiality of settlements. Especially in cases in which multiple future claims are likely, such as allegedly defective manufactured products or allegedly widespread conduct, they may seek confidentiality of settlements so as not to encourage additional claims or impair business reputation.

Public safety advocates criticize secret settlements that hinder the ability to identify threats to public health and safety and hold wrongdoers accountable. As Justice Brandeis noted, “[s]unlight is the best of disinfectants.” Where a case involves the potential for widespread public hazards due to product defects or systemic misconduct, there is good reason for plaintiffs to resist secrecy. In the discovery context, there are many factors to consider that are beyond the scope of this discussion of settlements.

Regarding settlement, plaintiffs’ lawyers should: (1) discuss secrecy concerns for public interest in advance with clients; (2) remember that a settlement agreement filed with the court is itself a public record; (3) insist that the settlement comply with states laws, court rules and ethics rules; (4) insist on plaintiff’s ability to disclose settlement to government agencies, accountants, bankers, and financial advisors. See Leslie A. Bailey & Amy Radon, “Confronting Court Secrecy Issues from Discovery through Settlement: Measures to Protect Both Your Client and the Public Interest.”

Defendants may also desire confidentiality of settlements when plaintiffs’ lawyers have figured out a legal strategy that, if widely known in the legal community, could disrupt a multi-billion dollar business model. We have been involved in that repeatedly over the past thirty years but can’t talk about it.

Public safety concerns about confidentiality tend to be less when the cases arises from a single highway collision that, if reported in the media, could impact a defendants’ business but would not leave members of the public exposed to greater danger.
Plaintiffs often just go along with a confidentiality clause in settlement just to get their money sooner. However, it is not always just a matter of convenience. Plaintiffs recovering large amounts of money may desire confidentiality as much as the defense.
If a large settlement is publicized, it can affect relationships with friends, relatives and neighbors who might resent what they see as a financial windfall. Relatives and friends may suddenly come out of the woodworks as soon as they smell money. Investment advisors and charities may besiege the plaintiffs who have come into big money. It is common to agree to confidentiality of a settlement where client quietly lived in a small town and did not want their sudden wealth to distort relationships with friends and neighbors.

We once had a simple, uneducated, unsophisticated client from a rural county who had enough folk wisdom to recognize his vulnerability to such entreaties. In addition to confidentiality of the settlement, he opened a bank account two counties away from home, with a bank that did not have a branch in his home county. Both his initial cash disbursement and monthly settlement annuity payments were automatically deposited in that account. Disconnected from the community where he and all his relatives lived, there was virtually no risk of anyone he knew learning about his vastly improved financial status. He remained in the 150-year-old log cabin that been his family’s home since pioneer days, though considerably upgrading it inside. He worked a while longer to qualify for a state pension, then with a nephew started a “you pick ‘em” berry farm on the family land. With his confidentiality protected, he was able to live unobtrusively and undisturbed by greedy people for the remaining 25 years of his life.

Another client whose son died due to an obscure brake design defect was an immigrant from a Third World country that was emerging from a brutal civil war when we settled his case. As he came from a politically prominent family in his home country, he had an opportunity to take a cabinet position in the new government of his nation. The brutality of the losing side of the civil war was legendary so there were serious concerns for personal safety if anyone back home knew that he was a millionaire. The defendant auto manufacturer also wanted confidentiality of our settlement for all the usual reasons. After determining that ours was the only known incident in the country arising from that brake defect, and that the defect was corrected in all subsequent model years, we determined that the risk to public safety was remote. Thus, we and the manufacturer’s attorneys made a joint motion for a confidentiality order and to seal the court file. The client then returned to his home country to explore his options for public service. However, he determined that due to endemic corruption he preferred to return to Georgia and buy a business.
The terms of a confidentiality clause are negotiable. For example, in one recent case that was settled for $8,000,000, in which both sides wanted confidentiality for different reasons, we included the following language:

In consideration of $100 of the total amount set forth in Paragraph 2.0 of this Agreement, the undersigned agree and acknowledge that the terms and provisions of this Agreement, with respect to the actual amount paid, shall be kept in strict confidence, from inception of the agreement, moving forward. The undersigned further acknowledge and agree that the settlement amount may be revealed only with the written permission of Defendants and Insurer. The only exceptions to this promise of confidentiality are that a party may, without securing the prior written permission of the opposing parties, provide information about this Agreement and the settlement it memorializes as follows:
a. to the Internal Revenue Service or the Georgia Department of Revenue upon request; b. to the court in any proceeding to approve or enforce the terms of this Settlement Agreement so long as the Settlement Agreement is filed under seal;
c. to a health insurance company, health care professional, or others asserting a claim for subrogation or reimbursement for medical expenses paid;
d. as required by any governmental agency or by process of law, so long as the party(s) provides opposing parties with written notice via certified or statutory overnight mail of such governmental agency requirement or process of law and grants the opposing parties an opportunity to contest such governmental agency requirement or process of law in advance of any disclosure by the party(s) and, further, so long as any entity receiving that information is informed of this confidentiality agreement prior to the disclosure of information protected by it; and
e. to a party(s)’s attorneys, professional accountants, and financial advisors, spouse or professional tax consultants with whom that party(s) have a confidential relationship.
f. Counsel for Plaintiff may report the fact and amount of this settlement to any verdict database and in firm marketing materials, though without revealing the names of the parties, defense counsel, Insurer, county of venue, or the date or location of the subject incident.
If the undersigned is asked about any claim described in the recitals or released in Section I of this agreement, the undersigned may respond that “The case has been resolved” or words to that effect.

Blatant violations of confidentiality agreements and orders are relatively rare, in part because the consequences of violation are a deterrent. Remedies available for breaching a confidentiality clause are generally the same as those awarded for other contractual breaches. Nominal or compensatory damages may be awarded in appropriate cases.

Because proof of damages for breach of confidentiality is difficult, such contracts often include a provision for liquidated damages in amount sufficient to deter violations. Most courts have refused to award punitive damages.

Lawyers drafting confidentiality agreements may specify remedies including monetary liquidated damages, injunctive relief, costs, or attorneys’ fees. Liquidated damages amounts should not be so high as to be deemed punitive and thus potentially void.

If it is a confidentiality clause of a contract, that is governed by the same legal rules that govern other types of contracts. That is why settlement agreement often include a consent confidentiality order. But if the confidential settlement becomes an order of the court, the order itself ordinarily becomes a public record. One method to assist in keeping the terms confidential is to have the official record sealed. We have agreed to that where the plaintiff had strong reasons to desire confidentiality. In such cases, the court should independently weigh the need for privacy against the public’s interest in having access to public records.

When parties to subsequent cases seek discovery of prior settlements, confidentiality of settlements is challenged. Some courts allow discovery of confidential settlement agreements only where there is a particularized showing of a likelihood that admissible evidence be generated by the discovery of the terms of the settlement agreement. Other courts have allowed discovery of confidential settlement agreements, provided the party seeking discovery demonstrates that the information is relevant.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

No matter how many years a lawyer has practiced, there is no end to the need for exposure to bright new ideas from the best lawyers around the United States.

Over the past year, I had the opportunity to serve as chair of the Motor Vehicle Collision, Highway and Premises Liability Section of the American Association for Justice (AAJ). The largest section of AAJ, it encompasses the work of most “meat and potatoes” personal injury and wrongful death lawyers in America.

The section includes over 2,500 trial lawyers in all 50 states and specialized litigation groups on trucking litigation, bus litigation, traumatic brain injury (TBI), spinal cord injury (SCI), motorcycle litigation, bicycle litigation, resorts torts litigation and inadequate security litigation. The section and its litigation groups have active listservs for exchange of bright ideas.

Having worked for decades in all of these areas of personal injury litigation, chairing the section for a year was like a year of graduate school in my practice area.

After I became chair last year in Montreal, we sponsored national continuing legal education programs in New Orleans and Los Angeles, and I was moderator of an advocacy seminar at Boca Raton.  Presentations in our programs in the past year in seminars at Montreal, Boca Raton, New Orleans and Los Angeles included:

• Accident Investigation and Reconstruction in Motor Vehicle Cases
• Bus Cases Are Different From Auto Cases: Investigation and Evidence
• Cross-Examination of A Defense Medical Examiner, With Rules Of The Road™
• Daubert Motions In Motor Vehicle And Premises Cases
• Industry Standards: Evidence of Negligence in Premises Liability Cases
• Investigation and Discovery in a Sexual Assault Case
• Liability and Causation Defenses in the Typical Auto Case
• Rules Of The Road for Security and Violent Crime Cases
• Trying Better, Faster, And Cheaper!
• Twenty-Minute Auto Wreck Case Voir Dire
• Why I Handle Negligent Security Cases
• Greyhound’s “Most Precious Cargo”
• Making Small Cases Big Cases
• Eliminating the Soft Tissue Myth: Spine Injuries Are Serious
• Deposition
• Practicing In Multiple States
• Using Social Network Sites in Trucking and Motor Carrier Cases
• Trying High-Profile Motor Vehicle and Premises Cases
• Self-Driving Cars and Crash Avoidance Systems: The Future of Car Crashes
• Truck Crash Litigation For The Car Crash Lawyer
• Safe Or Scary: Negligent Security In Schools, Colleges, And Day Care
• Effects And Ethics Of Social Media In A Personal Injury Case
• Taking Down The Defense Medical Examiner
• How To Zealously Represent Victims Of Sexual Assaults While Protecting Your Client
• Auto Defect Cases: The Future Of Your Auto Practice

_____________________

Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

The short answer is that in handling personal injury and wrongful death cases for individuals and families, I do not require any money up front from clients whose cases I accept. I evaluate the merits of a case much like I would try to evaluate a stock before investing in it. If I take the case, I charge a percentage of what I recover for the client and advance the expenses. Both fees and expenses come out of the recovery from the other side. If we lose, I eat the time and expense invested in the case.

Fees in most personal injury cases are generally one-third of the amount of the recovery, with the percentage escalating if the case is tried, if there is an appeal, etc.  While we prepare every case on the assumption that it will go to trial, about 95% of cases that are well screened and well prepared do settle before trial.  We can’t work for free, and this is how I provide my family and save for retirement, but when necessary to make the numbers work out for a client, I do sometimes make courtesy discounts.

Occasionally, particularly in trucking cases, there is an opportunity to force the other side to pay the attorney fees and expenses. If we can do it, that goes directly to the client’s bottom line because I don’t charge the same fee twice.

Expenses in personal injury and wrongful death lawsuits include filing fees, process servers, expert witnesses, court reporters, medical records, depositions with both stenographic and video recording, fees to treating physicians for their depositions, exhibit preparation, travel expense, etc. Knowing that if we lose, I will eat the expense, I am somewhat conservative about spending money. Case expenses on the types of cases injury and death cases I accept generally run from $2,000 to $5,000 for a routine car wreck case with limited insurance coverage up to ten times that amount, or more, for a complex commercial trucking or premises liability case.

Products liability and medical malpractice cases can easily run up expenses well into six figures. Once I was co-counsel in an automotive products liability case in which an associated firm spent $500,000 on expenses. That’s pretty bold. Frankly, I figured that if frugal Ken had been running that show my expenses might have been closer to $100,000.

If a law firm advances case expenses out of pocket, that is treated as a loan and cannot be deducted from income for tax purposes until such time as the case is lost and the “loan” is written off. That can severely constrain the capacity of a firm to aggressively prosecute cases as they come along.

The U.S. Tax Court recently reasserted that case expenses advanced by a contingent-fee law firm on behalf of its clients are “in the nature of loans” rather than tax-deductible expenses for the law firm. (Humphrey, Farrington & McClain, P.C., v. Commissioner of Internal Revenue).  Like many rulings before it, this case upholds Private Letter Ruling 8246013 (6/30/1982, IRC Sec(s). 162) which states that a law firm “…may not deduct as ordinary and necessary business expenses the various litigation costs advanced for a client on a contingent-fee case…”.

Therefore, in order to free up capital and increase capacity to do what needs to be done to develop serious personal injury and wrongful death cases, I maintain a litigation line of credit with Advocate Capital, which funds most of our case expenses. When cases are settled, the expenses are reimbursed to us out of the recovery. I then pay off the portion of the line of credit allocated to that case, and pass along as a case expense the nominal amount of interest incurred on those expenses. The transaction is a straight pass-through with full transparency and no markups.  Because we and Advocate track every expense by case number, that is a very simple bookkeeping exercise.

The impact on my capacity to aggressively develop major cases is huge. If I need to hire a top national expert witness for a wrongful death or catastrophic injury case, I can do it without worrying about the effect on operating capital in office operation or the need to pay for my daughter’s upcoming wedding. If I need to fly around the country to take depositions in a major case, I can just do it without hesitation. Of course, being inherently frugal, I still buy the cheapest web-saver plane tickets rather than flying first class, and stay at an economy motel when traveling for clients rather than a 5 star hotel.

For example, recently I was hired on an interstate tractor trailer wrongful death case at a time when cash flow was slow. Because I had ready access to adequate capital for case expenses without dipping into savings, there was no delay in hiring the best investigators and experts. The trucking company and its insurer had a “rapid response team” at the accident scene almost before the ambulance arrived. But I was able to have my own “rapid response team” on the way almost immediately after the first call from the client’s family attorney.

This makes a world of difference between weakness and strength, between failure and success.

Of course, I am frugal and don’t spend money on cases needlessly. Expenses are scaled to the potential recovery in the case. Having come up the hard way having to do things cheaply, I still resist spending a dime I don’t have to spend. I still know how to hold case expenses under $1,000 when that is what the case needs, using stock drawings out of medical books rather than custom made medical illustrations, snapshots blown up at the drug store and glued to cardboard rather than professional photos professionally mounted, etc. It’s all a matter of what fits the case.

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Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-13), and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board for Legal Specialty Certification. His Atlanta-based trial practice is focused on catastrophic injury and wrongful death cases arising from commercial truck and bus accidents and unsafe conditions on commercial premises.

The Georgia Chamber of Commerce held a forum on tort reform last week. According to today’s Daily Report, Rep. Rich Golick, chair of the House Non-Civil Judiciary Committee who is a corporate attorney for Allstate Insurance Company in his “day job,” told the attendees:

“Go talk to the plaintiffs bar. … See if consensus can be struck,” he said. “I beseech you — it’s the middle of August and there is a run-off and a general election — now is a great time for quiet conversation in quiet rooms where consensus can be achieved.”

After the forum, Golick said, “My sense is that the General Assembly doesn’t have a taste for litigation that would create a holy war in Georgia.”

Rep. Golick is right. While there may be tweaks in Georgia tort law and procedure on which there could be consensus, my sense of the climate after dealing with the legislature last year as State Bar president is that there is little eagerness to add much more to the broad tort reform legislation that Georgia enacted in 2005.

Here are some of the issues discussed at the forum and my thoughts on them.

E-Discovery.

At the Chamber forum, a representative of General Electric complained about burdensome discovery processes regarding electronically stored information. I’m all for developing a state rule on e-discovery that reasonably limits burdens and costs without enabling concealment of important evidence.

Perhaps the G.E. representative who flew in for the meeting was unaware that there is already a joint Bar-Chamber task force working on this in Georgia. Last spring, one of the last things I did as State Bar president was to cooperate with the Georgia Chamber of Commerce in appointing a joint task force on development of electronic discovery rules to include provisions for cost control and proportionality. By agreement with the Chamber representatives, that task force is chaired by Cobb County Superior Court Judge Steve Schuster and includes 4 Bar appointees and 4 Chamber appointees. They have just begun to work.

Time limit demands.

State Sen. Bill Cowsert of Athens is quoted in the Daily Report saying he would like to see legislation next session that would set “a reasonable length of time to give an insurance company to settle a case.” This grows out of the case Southern General Ins. Co. v. Holt, 262 Ga. 267; 416 S.E.2d 274 (1992), which held that a plaintiff may place a reasonable time limit on an offer to settle for policy limits. If a case is not settled within the time limit, then the insurer may be exposed to a judgment in excess of its insured’s policy limits if a jury returns a verdict for a greater amount.

Insurer bad faith liability is based on the principle that a liability insurer has a duty of good faith to its own insured to give equal consideration to the insured’s interests as its own.  For nearly half a century it has been the law in Georgia that if the insurer refused an opportunity to protect the insured by settlement within policy limits it could be responsible for the full amount of a judgment against the insured. The Holt case in 1992 held that within the facts of that case, a 10 day time limit on an offer to settle for policy limits was reasonable.

The importance of a time limit in this context is to provide an incentive for an insurance company to stop stonewalling and unnecessarily putting at risk the personal or corporate assets and income of the insured defendant.

My general approach has been to give an insurer a 30-day time limit after providing the bulk of medical bills, medical records, income loss records, photos, reports, etc., so that the insurer would have a fair opportunity to assess damages in excess of policy limits. When there is a request for more time, I generally allow a reasonable extension. Occasionally, I have felt that a shorter time limit was appropriate but one should be careful to be reasonable both in substance and in appearance.

Senator Cowsert is quoted in the Daily Report as saying, “Reputable plaintiffs lawyers will give you 30 to 60 days.”  A bill he introduced in the last legislative session would have required 60 days. I told him I generally give 30 days, to which he replied, “yeah, but you’re a good lawyer.”

The key here is the need for reasonableness and fairness on both sides with standards that keep both sides honest. I hope that both sides can work together to develop a fair, simple and balanced standard.

Seat Belt Evidence.

At the Chamber forum, a representative of an auto manufacturer urged change in Georgia law that excludes evidence that an injury victim was not wearing a seat belt. The origin of this rule is that the late House Speaker Tom Murphy did not like seat belts, did not want to wear one, and would allow passage of a law requiring seat belt use only if non-use were excluded from evidence.  I can understand the viewpoint of those who think this makes little sense.

One problem is that even when an injury victim was consistently conscientious about always wearing a seat belt, in the trial of a catastrophic case involving defective design of a vehicle, the defense is likely to bring in highly paid experts to suggest that the person was not wearing the seat belt even if they were.  Part of the strategy is to inject even greater complexity and confusion with highly paid testimony about the meaning of markings on belts and buckles, and whether those result from normal wear and tear versus stress loading. This can add vast amounts to the cost of litigation, bog down a jury in unnecessary complexity on ancillary issues, and often unfairly feed a “blame the victim” defense strategy.

I don’t know what the ideal solution should be, but I do hope that any legislative changes would be the result of negotiation and conscientious consensus rather than one side bulldozing over the other in the legislature.

Attorney Fees.

Georgia has five statutory “loser pays” rules. The oldest is OCGA 13-6-11 which was passed with the Code of 1863. For nearly 150 years, it has provided that when a defendant acts in bad faith, is stubbornly litigious or causes unnecessary trouble and expense, it can be held liable for expenses of litigation including attorney fees.  In the past generation, there has been a series of cases holding that violation of mandatory safety rules can be considered by a jury as evidence of bad faith in the transaction, and thus a basis for an award of attorney fees.

I have used this in trucking cases where we can prove violation of Federal Motor Carrier Safety Regulations or the correlate state safety rules.  There is also a case approving use of a fire safety code as evidence of bad faith in the transaction.

Whenever asked, I have urged my fellow plaintiff lawyers to refrain from pushing this too far and provoking a backlash. Whenever a younger lawyer has asked my advice, I have told them to avoid overreaching by claiming that there is bad faith every time a driver breaks a traffic law.That is qualitatively different from systemic violation of very specific safety rules which a relatively sophisticated party is obligated to follow and require its employees to follow for protection of the public.

Perhaps there could be a compromise on defining the scope of what would constitute bad faith in the transaction under OCGA 13-6-11, perhaps by simply codifying what is in current case law. Or perhaps the provisions of this statute could be made available to both sides. But I urge legislators to refrain from throwing out the baby with the bath water by more substantially changing a law that has been functional part of the Georgia code since the Civil War.

Medical costs.

Some at the Chamber forum advocated allowing evidence of the actual amount a medical provider accepted in payment from a health insurance company in payment of medical bills, rather than the larger “sticker price” that appears on a medical bill. That would override the venerable “collateral source” rule that does not allow presentation to the jury of either liability insurance or medical insurance information. If a person has provided for her health care by having insurance the defendant who causes her injury should not get a discount for that.

Frankly, there are a few medical providers, particularly some pain clinics, that inflate the “sticker price,” knowing they will accept a lesser amount from an insurer. Their reasoning is incomprehensible to me.  On the rare occasion when I have seen that in representing a plaintiff, I have hired a billing expert to provide evidence of what the UCR (usual, customary and reasonable) billing amount should have been. I don’t want to blow my credibility by endorsing obviously inflated medical bills.  If bills are inflated, either side should be able to show what the UCR billing should have been, and if so perhaps the amount of an enforceable medical lien should not exceed what a jury finds is the UCR amount.

The larger reality today is that medical insurance programs usually include an aggressively enforced reimbursement clause requiring that the insurer be paid back most or all of what they pay for an injury victim’s medical bills. If the law were changed to limit evidence of medical expense to the amount a medical provider accepted under a contractual agreement from a medical insurer, then in all fairness the jury should also be told that none of the money included in the verdict for medical expense would go to the injured person but would only benefit an insurance company. Therefore, they should award more money if they intend to help the injured person.

Then why not let it all hang out by allowing evidence of the defendant’s liability insurance limits (which jurors usually want to know), what both parties paid for their various insurance coverages, etc.?

Or just leave well enough alone.

Duty to Warn.

An auto industry representative urged adoption of a law eliminating any continuing duty  of manufacturers to warn of some danger it became aware of after the sale of a vehicle. On first blush that may sound sound fair. But what of the situation where a manufacturer learns that a design defect is responsible for a mounting number of deaths and catastrophic injuries? Should there not be a duty to warn consumers of that?

Perhaps there is a room for a legislative tweak in existing law on duty to warn, but as Rep. Golick suggested, it should be done through consensus.

Bifurcation of trials.

Georgia law already requires bifurcation of trial where punitive damages are claimed, with a second phase of trial to consider any punitive award after liability and compensatory damages are decided. A representative of an auto manufacturer proposed a further level of bifurcation between liability and damages. It is not entirely clear from the news story exactly what he was proposing, but I am confident it is carefully designed to help defendants and reduce any leverage available to injured people.

One astute defense strategy is to attempt to exclude all evidence of the defendant’s bad conduct by any means available, sometimes by conceding liability at the last moment after years of fighting accountability. Then, if that strategy works, the plaintiff’s injury is removed from the context of what caused it and the trial becomes entirely about attacking the injured plaintiff to try to make it appear as if the jurors are inconvenienced merely because a greedy plaintiff is overreaching. Never mind that the defendant may have resolutely denied liability right until the eve of trial.

It has been the law in Georgia since at least the mid-19th century that evidence of the defendant’s conduct goes into evidence even if there is an offer of a stipulation to liability. That is a good rule and we should keep it.

 I’m a pretty conservative guy, both politically and personally, a member of a bunch of conservative organizations, and spent a decade representing insurance companies before I went into plaintiffs’ practice. I don’t see the world in terms of personal injury plaintiffs always being right and good or corporations and insurers always being wrong and evil. I recognize that there is necessarily always a dynamic interplay between interests in setting the rules in the area of tort and insurance law.

The outcome is likely to be better and fairer if it is a result of respectful dialogue, negotiation and consensus rather than pure power politics.

 Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).

Cruise ships are like floating cities with thousands of passengers on board. Usually a lot more fun than the typical workaday city, but probably no less likely to involve accidents and injuries.

Cruise ship lines cannot guarantee that no one will get hurt aboard, but they do have a responsibility to prevent dangerous conditions on board that can cause serious injury to its passengers. When a cruise ship accident occurs because of poor maintenance, incompetent or  improperly trained employees, inadequate safety equipment or emergency precautions, the cruise  line can be held accountable.

Cruise ship tickets typically have a provision that requires you to file your claim within one year in a specific state and in a particular county within that state. The ticket may also dictate that the case be filed in Federal Court.

People who are injured on cruise ships need a team of a hometown lawyer and a lawyer in the location where suit must be filed. The lawyer back home may handle the damages aspects of the case, such as video depositions of treating physicians and other damages witnesses.  The other half of the team is a maritime law specialist experienced in cruise ship litigation in the location where the ticket terms require a suit be filed.

If you are a Georgia resident seriously injured on a cruise ship, we can handle the “back home” part of of this and make a knowing selection of a maritime lawyer appropriate to handle the liability part of the case in the place where the terms of the ticket require that suit be filed.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?

Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.

7. Draft jury instructions early.

Judges are understandably most comfortable using pattern jury instructions. Prior to drafting the complaint and discovery, compile all the applicable pattern jury instructions and prepare a preliminary draft of additional charges not covered by the pattern.  Research statutes and case law rather than simply relying solely upon patterns and forms. Then develop pleadings, interrogatories and deposition questions with the probable jury instructions in mind.

And it helped to increase my patience with the replacement process when I recently ran over some sort of metal strip on an exit ramp, resulting in the loss of both front tires — one immediately and the other a couple of days later when I was still driving on my spare.

At the risk of sounding like President Wilson, here are my “Fourteen Points” for tire safety, with thanks to California lawyer Mike Danko and Gerry Maloy at MSN:

1. No on-the-rim repairs. The tire must be dismounted so that the tire can be properly inspected and sealed against moisture. Short cuts on this can put the survival of your DNA at severe risk.

2. No repairs near the shoulder. This is the weakest part of the tire.  Only holes in the middle of the tire can be repaired.  If you pick up a nail near the shoulder, just spring for the price of a new tire. It’s cheaper than a funeral.

3. New tires go on the rear.  Installing the new tread on the front can lead to loss of control.

4. Check tire pressures and adjust at least once a month. According to the National Highway Traffic Safety Administration (NHTSA) on tire-related crashes, the leading cause of tire failure is underinflation.

5. Inspect tires regularly for abnormal wear or damage. This is easily done at the same time you check pressures. If repair is needed, see #1 above.

6. Rotate tires every 6,000 miles or according to owner’s manual. I know, this is as boring as flossing teeth, but uneven wear pattens can have really bad outcomes such as catastrophic tire failure, rollover, death, quadriplegia, etc.

7. Maintain tires in proper balance.  See #6.

8.  Maintain steering and suspension in proper alignment. See #6 again.

9. Never overload a tire. Overloading is the second leading cause of tire failure, next to underinflation. So don’t load down your old Pinto with rocks  to build that cool stone patio and outdoor fireplace for the coming spring. Read the load capacity stuff in the owner’s manual.

10. Avoid overheating tires.  Excessive speeds, heavy loads, underinflation, rough pavement or concrete, and aggressive driving all contribute to high tire temperatures. All these, especially in hot weather, can lead to sudden tire failure.See #6 again re: bad outcomes.

11. Replace tires when . . .

• Any portion of the tread is worn to the “wear indicator bars”—lateral bars molded into the tire grooves at about 20 percent of their new tread depth—or to a depth, as measured in a groove, of 1/16th inch or less.
• Tread wear is severely uneven (in which case have the wheel alignment checked) or the center is worn much more than the edges. (See #6 again about bad things happening to good people.)
• The tire sidewalls are severely cracked or there are bulges anywhere on the tire.
• There is any indication of tread separation from the tire carcass.
• The tire has been punctured and cannot be satisfactorily repaired. (See #1 & #2 again.)

12.  Install tires in matched pairs or complete sets.  I just taught this one to my frugal daughter who had one tire go bad. I hope she remembers when she, rather than Dad, is paying for the tires.

13.  Select the right tires for your vehicle and driving environment. There is quite a variety of specialized tires available. In our generally mild southern climate, “all season” tires are generally good enough for most of us. My daughter’s boyfriend is an advocate of snow tires in upstate New York, where they are in college. I tell her to ride with him in the winter since we Southerners don’t know how to drive on that stuff anyway.

14. Review 1 through 13. I didn’t really have “Fourteen Points” but as a former history major, I couldn’t resist a nod to the President who once had a law office near where our Georgia Bar Center now stands.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed among the “Legal Elite” (Georgia Trend Magazine), as a “Super Lawyer” (Atlanta Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).  He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is President-elect of the 42,000 member State Bar of Georgia.

Tire failure is a well known cause of fatal crashes. Some time back I made the joint damages presentation for a team of products liability lawyers who recovered a total $9.2 million for members of a college cheerleading squad who were riding in a passenger van that rolled over after tread separation in a defectively manufactured tire.

Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice, is  a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers. He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, spinal cord injury, wrongful death, products liability,  brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. Ken and Sally Shigley have been married 27 years and are proud parents of Anne Shigley and Ken Shigley, Jr.  This post is subject to our ethical disclaimer.

This week the National Highway Safety Traffic Administration launched an investigation of the safety of gas tanks on three million Jeep Cherokees. The investigation covers Grand Cherokees in model years 1993 to 2004.

The advocacy group Center for Auto Safety in October asked NHTSA to review whether the gas tank’s position below the rear bumper and behind the rear axle could cause fuel to spill if the SUV were struck from behind. The group also said that the neck of the fuel tank could tear off in crashes.

The risk of explosion, fire and catastrophic injuries with that design cannot be ignored.

Fortunately for people harmed by explosion of one of these gas tanks, Chrysler Group LLC agreed to assume legal responsibility for injuries drivers suffer from defects in vehicles produced before it emerged from bankruptcy protection..

The Center for Auto Safety says that the Grand Cherokee fuel tank storage system was defective and posed a hazard in a crash in that the plastic fuel tank  was behind the rear axle, extended below the rear bumper, and had inadequate shielding, leaving it vulnerable to rupturing or leaking in a crash. Chrysler put the fuel tank in front of the rear axle and shielded it in the 2005 model year.

Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice, is  a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers. He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, spinal cord injury, wrongful death, products liability,  brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. Ken and Sally Shigley have been married 27 years and are proud parents of Anne Shigley and Ken Shigley, Jr.  This post is subject to our ethical disclaimer.

Earlier this month, according to a news article by Laura Clarizio, actor James Marshall was in court for a lawsuit against pharmaceutical manufacturer Roche in which he asserts that Accutane taken for acne caused the loss of his colon.

Personally, I have spent many a long night on cots in hospital rooms attending to a family member suffering horribly with Crohn’s disease. No one who has not seen the effects of this disease can really know how painful and debilitating it can be.

Ken Shigley, is  a Certified Civil Trial Advocate of the National Board of Trial Advocacy, author of Georgia Law of Torts: Trial Preparation & Practice, and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers. He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, spinal cord injury, wrongful death, products liability,  brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. This post is subject to our ethical disclaimer.

Honda issued a recall last February on some models of its car because of a defect with the driver’s side airbag. In that recall, metal pieces from a part in the airbag could cause injury or death to the driver.  Of course, Honda denies that this incident was in any way related to the recall. Right.

Coincidentally, a consumer survey released this week found that slightly more Americans now say the United States makes better-quality vehicles than Asia does.

Ken Shigley is treasurer of the State Bar of Georgia, of which he has been elected to become president-elect on 6/19/10 and president on 6/4/11. His law practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in spinal cord injury , brain injury,  burn injury , products liability, trucking and bus accidents, catastrophic personal injury, wrongful death, and cases. Much of his practice is focused on tractor trailer, big rig, 18 wheeler, truck and bus crashes.  He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). 

 For criteria to be considered in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

Workers compensation provides the exclusive remedy of an injured worker against the employer in work accidents.

However, sometimes an injured worker can recover additional compensation for an injury from a third party, such as an equipment manufacturer. Since Georgia law was changed in 2005 to require apportionment of damages among both parties and non-parties to a lawsuit, that has been made more difficult as an equipment manufacturer can try to shift more blame to an employer’s negligent maintenance, training and supervision.

However, every case is different.  Over the years we have successfully represented workers injured by carpet mill machinery, poultry processing equipment, commercial bakery equipment, plastic extrusion machines, wood chippers,  forklift trucks, and a wide variety of other industrial and commercial equipment.

Manufacturers of industrial equipment may be liable to injured workers under legal doctrines including negligent design; failure to adequately test and inspect;failure to provide adequate instructions, warnings and labels; and failure to issue an adequate recall notice.

In one carpet mill case we handled, the manufacturer of a laminating machine had installed an emergency stop cord switch backwards — contrary to instructions from the switch manufacturer — and failed to install any safety stop cord on the side of the machine where a worker was most likely to fall in.

Ken Shigley is president-elect designee of the 41,000 member State Bar of Georgia. He has long litigated cases throughout his native northwest Georgia and holds the record for the largest jury verdict in Gordon County. Mr. Shigley’s law practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in products liability, trucking and bus accidents, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). 

 For criteria to be considered in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

The problem with Ford Explorers rolling over after tire failure is well known. I have seen video of test track exercises demonstrating how easily the Explorer rolls over in certain reaction maneuvers, and that if the Explorer wheelbase were widened by four inches it would not roll over.

Of course, I don’t know the details of why this particular incident occurred. We have turned down Explorer rollover cases after investigating the details of specific incidents. While the answers regarding this tragedy are not yet known, the questions about Explorer handling characteristics are all too well known.

Ken Shigley, an Atlanta attorney, launched the first law firm web site in Georgia in 1996, and the second lawyer blog in the state. He is a national board member of the Interstate Trucking Litigation Group. His practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in commercial trucking and bus accidents. Mr. Shigley also has extensive experience representing parties in  products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  has been listed as a “Super Lawyer” (Atlanta Magazine), in the Bar Register of Preeminent Lawyers (Martindale), and among the “Legal Elite” (Georgia Trend Magazine).

Mr. Shigley is currently unopposed as a candidate for president-elect, of the 41,000 member State Bar of Georgia, of which he has served as secretary and treasurer.

 For criteria to be considered in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

Last week, a Texas jury returned a verdict of nearly $12 million against a tire maker after determining that a defective tire caused a wreck that killed six people and left a 12-year-old boy paralyzed.

The jury found that a manufacturing flaw in a Goodrich tire made by  Michelin North America contributed to the New Year’s Eve 2006 crash outside Matamoros, Mexico. A tire on a pickup truck separated from its tread, causing the vehicle to swerve into oncoming traffic, where it collided with another vehicle killing all six passengers inside the SUV.

One of our cases here in Georgia involves a tread separation of a tire from another manufacturer. Our experts concluded that the layers of the tire never properly adhered due to a defect in the manufacturing process. The tread separated on a college van loaded with a dozen cheerleaders, causing three deaths and one serious brain injury, as well as several lesser injuries. Our team of lawyers representing all the cheerleaders ultimately resolved the case for a total of $9.3 million before trial.

Ken Shigley is a Certified Civil Trial Advocate of the National Board of Trial Advocacy.  His law practice in Atlanta, Georgia, focuses on representing people who are catastrophically injured, and families of those killed, when companies violate rules designed for protection of public safety. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).  Currently he is a national board member of the American Association for Justice Interstate Trucking Litigation Group and treasurer of the 41,000 member State Bar of Georgia.

 For criteria useful in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

 Recently we have seen an unsuccessful proposal to give civil immunity in Georgia for manufacturers of FDA-approved medical devices and pharmaceuticals that employ at least 200 people in manufacturing or R&D in Georgia.  Even Georgia’s conservative legislators decided immunity was a bad idea.

 And earlier this week the U. S. Supreme Court decided, in Wyeth v. Levine, that FDA approval does not preempt products liability claims under state laws.

 Now there’s an interesting article by Alicia Mundy in today’s Wall Street Journal about political lobbying overcoming scientific objections to approval of a medical device at the Food and Drug Administration.

 The article focuses on the fast-track FDA approval of Menaflex, an implant for repair of torn meniscus in knees. Made of cow collagen, it is intended to stimulate regrowth of tissue that acts as a shock absorber within the knee. The current standard treatment is to sew up the torn meniscus tissue.

 The manufacturer of Menaflex apparently started out applying for FDA approval on the standard track that requires clinical trials, but grew frustrated with an agonizingly slow process. Then, the critics say, it started political lobbying for fast-track approval, bypassing the scientific review process.

 Having dealt with slow, unresponsive government bureaucracies many times, I can understand their frustrations. And having seen too many efforts by companies to immunize themselves from accountability, I understand the medical review scientists’ concerns about elevating politics and profits over scientific integrity.

 The WSJ article points out that Menaflex has been used in Europe for years. European regulators generally require only that medical devices perform as stated and don’t apply a risk-benefit evaluation akin to the FDA’s full approval process.

 My perspective on this is a little different from many of my trial lawyer colleagues. I have a child with neurofibromatosis (NF), a genetic disorder that made her deaf and for which there is currently no treatment approved by the FDA. She and I have both run marathons as fundraisers for NF research.

 The NF market is too small a market to make it a profitable priority for drug companies, who can make bundles on drugs and devices for common but less devastating ailments. The process of gaining FDA approval for a promising new drug  for NF would be prohibitively slow and expensive. We can’t compete with the profitability of Viagra or Menaflex. So when I spoke to an international medical researchers conference last June, I encouraged them to look for bridge therapies (e.g., nutritional supplements, off-label uses of already approved drugs, etc.) that could, without the need for FDA approval, provide help for the current generation of kids with  NF.

 As the majority of the Supreme Court recognized in the Wyeth case, and as Georgia legislators recognized in stalling the FDA immunity bill, the FDA approval process has problems. Between a medical review process that is sometimes too slow and expensive, and end-runs that put profits ahead of science, confidence is lost.

 Perhaps it is time for Congress to change the process in order to both encourage innovation and rapid delivery of improved products and preserve accountability. 

 They could adopt a more streamlined approval process, somewhat akin to that in Europe, that requires only that drugs and devices perform as stated, without exhaustive risk-benefit analysis.

 But the tradeoff would be preservation of the secondary regulation role played by tort laws, which the majority of the Supreme Court recognized in Wyeth.

 f unbridled tort liability under the laws of 50 states is too much of a deterrent to innovation, as the industry claims, then devise a new set of uniform federal rules governing liability of pharmaceutical and medical device manufacturers. The tradeoff there could be a less onerous and less expensive process, defined by federal law, to obtain fair compensation, perhaps in exchange for capping punitive damages in pharmaceutical and medical device cases.

This suggestion would likely draw fire from both sides — the manufacturers who want immunity and my trial lawyer brethren who want no restrictions of civil liability.  However, something along these lines may be needed to serve the public interest in both economic viability of medical progress and fair compensation for those who suffer the consequences when the train runs off the tracks.

The far-reaching impact of the decision will extend beyond pharmaceutical  and medical device cases to other areas of product liability. In recent years several federal agencies asserted that their actions should preempt any state law tort claims. Now the majority of the Supreme Court has rejected that, at least in the context of this case.

The analysis of when federal law preempts state law under the Supremacy Clause of the U.S Constitution is seldom simple. The Wyeth decision and the dissent cover most of the major  arguments on both sides.

Whether we argue for or against federal preemption in particular context, we will parse the words of the Wyeth case to find support for our positions.

Ken Shigley is a trial attorney in Atlanta, Georgia who was recently listed for the fifth consecutive year as a “Super Lawyer” (Atlanta Magazine).  He is also included among the “Legal Elite” (Georgia Trend Magazine) and in the Bar Register of Preeminent Lawyers (Martindale).  Mr. Shigley has long experience representing parties in truck and bus accidents, catastrophic personal injury, wrongful death, products liability, brain injury, spinal cord injury and burn injury cases.  A Certified Civil Trial Advocate of the National Board of Trial Advocacy. he now serves as Secretary  of the 40,000 member State Bar of Georgia.

This week I saw two announcements from Cooper Tire.

First, they recalled Cooper CS4 Touring (VR tires) size 215/55 R17 produced between September 7 and October 11, 2008.  This is part of a long history.  According to the NHTSA recall campaign these tires may have been cured for an inadequate amount of time. This condition can lead to tire tread separation, possibly resulting in the loss of vehicle control and a vehicle crash. Cooper Tires has agreed to notify owners and replace, mount and balance any defective tires free of charge. Owners may contact Cooper Tire Consumer Relations toll free at 1-800-854-6288.

Second, Cooper Tire announced it was closing its manufacturing plant in Albany, GA, which employs about 1,400 people.  I really feel for those folks who are not responsible for their employer’s quality control and management decisions, or for the general collapse of the auto industry and the economy in general.  I have not heard of quality control issues at the Albany plant.

Tires are an important and complex area of defective products litigation.  Tread separation is an extraordinarily dangerous defect that often results in death and catastrophic injuries. Improper manufacturing and curing of tires can cause a tread belt separation, which often leads to a tire blowout. Tread separations ordinarily cause the driver to lose control of the vehicle even when the tire does not lose pressure.

I have worked on such cases in the past.  When you combine a delaminating tire with a 19 passenger van operated at high speed, the outcome is tragic.

 Ken Shigley is an Atlanta, Georgia trial attorney with a practice is focused on cases of catastrophic personal injury and wrongful death arising from commercial truck and bus accidents. He is a former chair of the Southeastern Motor Carrier Liability Institute, and is a frequent speaker at national continuing legal education programs on trucking liability cases. He has been rated as a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,).  Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia.  He is available for a free initial consultation regarding cases of serious personal injury or wrongful death in Georgia.

At that time in the early nineties, I used that statute to recover from a product distributor that would not have responsibility for a fatally defective forklift under Georgia product liability law that shields sellers from liability. However, by classifying the forklift and attachment as an “office supply” we were able to get the job done. After surviving a barrage of motions and an interlocutory appeal, we settled for policy limits on the eve of trial.  The judge on that case still mentions it every time I see him.

Now my friends at Finch McCranie have blogged about Altria Group v. Good, in which the U. S. Supreme Court has held that federal law neither expressly or impliedly preempts a lawsuit filed under the Maine Unfair Trade Practices Act by Maine smokers.

It may be worth noting that while the Georgia Fair Business Practices Act does allow personal injury and wrongful death claims, it bars class actions based upon it.  The Georgia FBPA can be useful, however, in individual products liability claims where there was an unfair or deceptive act in the promotion or advertisement of the product.

Ken Shigley has been designated as a “Super Lawyer” in Atlanta Magazine and  one of the “Legal Elite” in Georgia Trend magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, a Master of the Lamar Inn of Court at Emory Law School, and served as a faculty member for ten years at the Emory University Law School Trial Techniques Program.   A member of the Million Dollar Advocates, he has successfully tried trucking accident cases to multimillion dollar verdict.  He was recently elected Secretary of the 39,000 member State Bar of Georgia. Mr. Shigley is available for free consultations in cases of wrongful death or serious personal injury in Georgia.