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Plaintiffs lawyers, defense attorneys, insurance companies and the lobbyists who push their respective agendas have been facing off in the Georgia Legislature for two years over tort reform. The gaggle of bills that were introduced represent one of the more contentious matters to come before lawmakers this session. Most Republicans want to limit damages and include a $250,000 cap per case on noneconomic damages; many Democrats want to check what they view as frivolous suits and frivolous defenses. The issue isn’t limited to Georgia. In the nation’s capital, congressional Republicans have been battling to squelch what some — including President Bush — see as frivolous litigation. The House last week even passed the “Cheeseburger Bill,” which seeks to protect fast-food restaurants and other purveyors of food products from federal and state suits by consumers claiming the fare made them fat. But woven through the politics of the issue are the law practices of attorneys who, day in and day out, make their livings by arguing tort cases in Georgia’s courts. The Daily Report invited a panel of local plaintiffs’ and defense attorneys to discuss the verdicts, awards and statistics they believe point to or away from the need for tort reform. Led by moderator Michael L. Wells, a professor at the University of Georgia School of Law, plaintiffs lawyers William Q. Bird of Bird & Mabrey and Thomas W. Malone of Thomas William Malone P.C., and defense lawyers Earl W. “Billy” Gunn of Weinberg, Wheeler, Hudgins, Gunn & Dial and Michael J. Hannan III of Love Willingham Peters Gilliland & Monyak, examined the merits — and demerits — of the various tort reform proposals in the Georgia Legislature, and in Congress. Whatever the state of tort reform when the legislative session ends, one thing is certain: Lawyers will be arguing over the issue for years to come. –Janet L. Conley
WELLS: Tort reform has been a persistent feature of the political landscape for a long time. A hundred years ago, there was concern about workplace accidents that replaced tort with a workers’ compensation system. In the 1920s and 1930s with this new dangerous invention, the automobile, there were these guest statutes that limited the liability of people who drove cars. And then later in the ’50s and ’60s there was the advent of no-fault insurance. And in New Zealand nearly all of accident law was replaced by a no-fault compensation system that never happened in the U.S. And then in the 1980s and then continuing to today there have been reforms of matters like punitive damages and the joint and several liability rules and rules on non-pecuniary damages. And right now in the Georgia Legislature and in Congress there are some tort reform proposals. The one that gets the most prominence, I think it’s fair to say, is a proposal to put a $250,000 cap on nonpecuniary damages in medical malpractice cases. And by nonpecuniary damages they mean damages for pain and suffering, harm that isn’t reflected in a dollar amount that someone pays out. One doesn’t see nearly so much of this so-called reform effort in regard to other common law topics such as property or contracts. There is no great property reform movement or contracts reform movement. I think the reason for that is that property and contracts are much more wholly private law subjects between people who have claims to property or between contracting parties. But torts, though they involve suits between private parties, involve law that is made by courts and applied by juries. On the one hand this means that anybody who buys third-party insurance is going to be affected by tort judgments against other people. So there’s a public law aspect. On the other hand, one of the aims of tort is to deter misconduct of various kinds. And so there is a public interest in seeing that there are effective rules for deterring misconduct. Given that there is this important aim of deterring misconduct and given that pain and suffering is a real cost, take a look at the medical malpractice bills in the Georgia Legislature right now. What is the case against the cap? What is the case against pain and suffering and in favor of the cap? GUNN: I think the motivation in terms of the medical arena is at least a perception that the cost of medicine has gotten out of hand both for the patients and the cost of business for the doctors. You hear stories about doctors out in the country getting charged $80,000 for a malpractice premium to be able to deliver babies. The perception of these very large verdicts is what drives that. Pain and suffering drives a lot of the big verdicts. And I can see a justification for that. I personally am not a big advocate of caps. I think juries do a very good job of deciding who wins and who loses and what’s fair. If I didn’t believe that, I wouldn’t be able to advise my clients. There are different approaches about awards for pain and suffering. For instance, in Alabama if the claimant or the injured party dies, he can’t recover for any pain and suffering. I think oftentimes it’s a windfall for somebody that doesn’t deserve it. WELLS: There is an argument that economists make, an argument that we really shouldn’t have any recovery for pain and suffering because we don’t see people choosing to buy first-party insurance coverage for pain and suffering. They argue that because people don’t buy this as first-party insurance that’s a good signal that it’s not something people value; therefore, we shouldn’t have it covered in the tort system. Covering it in the tort system merely means that as the cost of products goes up, the cost of litigation goes up and so on. MALONE: With all due respect to you, I think that’s an absurd proposition. I’ve never heard that there was any product available where you could buy an insurance policy to cover you for pain and suffering, a first-party policy. For somebody to suggest that pain and suffering is of no value I think that would have to be the rich or wealthy people in our society who have plenty of money and if they lose their ability to earn their income, they are going to get compensated handsomely. Someone who works for a living, a blue-collar worker, or someone that’s a janitor has very little income. What they do have, their real value that all of us come into this world with, if we’re fortunate, is good health and the ability to enjoy life, to enjoy fishing. I think most of us, when we get 60 years old or older, start thinking about the things we would really enjoy doing with our life. That’s what pain and suffering is about. It’s to compensate you when someone else, through their carelessness, takes away the right of enjoyment of life. I would think that the guy that can’t afford anything but a cane pole and digs up some worms enjoys going to that [river] bank with his grandchild, for example, teaching him how to fish. Well, when you take away their ability to have that happiness and you take away the ability for somebody else to earn tremendous amounts of money, I don’t think one person is necessarily at a loss more than the other. But the tort reformists would want you to quantify it all, to give all the rich people plenty of compensation when they can no longer enjoy their lives and earn their living but less to somebody, a housewife, someone that didn’t work outside the home, the elderly, the very young. Atlanta had two cases and I had one in South Georgia even before the Atlanta event, where these children, newborns in the nursery, lost their penises through just stupidity on the part of the health care providers in circumcisions that went wrong. Just absolute, careless stupidity. Well, they didn’t have much in medical expenses and I don’t see how you could equate it to lost income, but for a newborn — a male newborn to go through life with no penis and that be $250,000 is absurd. It’s just frankly absurd. WELLS: Well, how about the defense lawyers speak up? Are you in favor of the ceiling or would you agree that we shouldn’t have one or would you agree on a bigger ceiling? HANNAN: I agree with Billy to the extent that I do believe that juries fairly determine the outcome of cases and I believe that the system works. However, I do believe they crave a tremendous amount of guidance when it comes to determining the amounts to be applied to intangible factors such as those that Malone just described. Now, obviously, the cases — the specific cases he was just referring to — are notable exceptions. But the plaintiffs’ bar does have the ability to blackboard tangible amounts for recovery in the form of life care plans and other methods that are available to help someone cope with future pain and suffering. There was a movement in the early ’90s to allow expert testimony to try to actually place a value on the intangible factors of life. These were called hedonic damage experts. In cases I had in Georgia, which does not have the Daubert Rule yet, such as the federal courts have, even those experts were excluded because they invaded the province of the jury. So we circle back to the issue of what kind of guidance does the jury get, the standard being their enlightened conscience. I can’t tell you what the appropriate amount of a cap would be, but if it allows trauma centers to keep from shutting down, then I do believe a cap would be appropriate. I can tell another war story. I had a case in the early ’90s involving a lady who had an alleged three-month delay in diagnosis of cervical cancer. We proved that the treatment she received three months later was the same treatment she would have received three months earlier. In the courtroom, there was no evidence to prove that she had incurred any additional medical expenses or would incur any additional medical expenses in the future other than that which she would have incurred as a result of her illness. Nevertheless, because the jury found that we had done something wrong there were four men on the jury who wanted to award $1. There were women on the jury who found that the men were simply disrespectful to women — and this is not meant to be a sexist comment, but this was exactly what the jurors told us at the time — and wanted to award upwards of six to seven million dollars. And in a compromise simply to end the deliberations there was an agreement that the verdict would be $500,000. To my knowledge this lady today is still healthy. But I do believe jurors need some guidance. If a cap provides that for intangible things in life, then that’s my argument for it. BIRD: Let me give you an example of why I think the argument for caps is absurd. First of all, the basis for tort reform that we hear from the President on down is frivolous litigation. Caps are intended only to apply to those who have proven that they have a meritorious case and that they have been seriously injured. So you are inflicting a double injury on them. And under our law in a wrongful death case you’ve got the measure of damages, the full value of the life. It’s made up of the economic value and the intangible value. The intangible value is what they propose to cap at the $250,000 [level]. So suppose you have a very successful businessman who is earning a million dollars a year. He is 40 years old. And he decides that he would rather go to the church and volunteer his services for the rest of his working life. If he continued to work and he is killed the next day, you can blackboard and be entitled to recover $25 million in future lost income as far as the economic value of the life. If he is killed the day he starts to work at the church, under the tort reform proposal, the value of his life is $250,000. So you’ve got basically an absurd situation. Does society view his life as that much less because he has chosen to contribute his efforts to the church? I don’t think so. GUNN: I see it a little bit differently in terms of arbitrariness because I don’t see anything wrong with not awarding $25 million that he wasn’t going to earn because he had made an election that he was out of the work force. But what I think is arbitrary is you have two people, they’re in the same vehicle and they’re in a catastrophic accident. Say one gets ejected and has a soft landing and maybe fractures some vertebrae. It’s a case that we all think a jury would give $250,000 in pain and suffering. So they get their full recovery. Then the person who stays in the car is trapped in a fire, but manages to escape. In the hospital, [he] has 30 or 40 procedures, horrible injuries, [and] you’re going to cap them at $250,000. One person has been fully compensated, the other not remotely compensated, and they were in the same accident. It just seems arbitrary to me. MALONE: Well, that is what the tort reformists really want to do. They want to bring in an arbitrary cap so they can bring predictability to the system, so then they can do nothing but make money. They would take all of the risk out of the insurance industry, if you were able to cap what the true losses would be. WELLS: What do you think of the argument that doctors make, that under the current system in Georgia many doctors just face increasing medical malpractice premiums that make it impossible for them to continue practicing medicine. MALONE: There’s no doubt that doctors are caught between the proverbial rock and the hard place. The main thing that’s happened to them is managed care. The business interests have taken over the practice of medicine. Their reimbursements have gone down. I asked some people at the public health department at Emory University to do a study to let us know for hospitals, whether all of them have problems and if there was a financial problem, what was it. That study showed that the small hospitals, 100-bed and under, were struggling to even stay alive. But when you get to the 150 to 199 beds, they are making $13 million a hospital. That’s the average payment they make, $81,000 a bed, where the smaller ones are losing $10,000 a bed. The statistics from this study also showed that in some of these institutions 70 percent of the care they deliver is non-reimbursed. And if the insurance companies lose their money in the stock market or bad investments and they try and make it all back up in a single year or two, you know, then the increased premiums, the reduced reimbursements have got doctors where they can no longer survive. And my heart goes out for them. When the stock market is rolling, we don’t hear that much about tort reform. When you have these economic depressions, tort reform comes about. WELLS: Let me ask one other question that I get from the economists. And it’s not my argument; it’s theirs. They say that what we should do to deal with the problem of medical malpractice and skyrocketing insurance rates is to allow the doctor and the patient to make a contract under which the doctor can disclaim liability for negligence. And they say that this would be in keeping with American ideals of liberty of contract. And they say that this hasn’t happened because courts wouldn’t enforce those agreements. What do you think of that? MALONE: I think that would be just about as valid as when you give the keys to your nice car to the guy that’s going to go park it, that they put on the back of that parking ticket that we’re not responsible for our own carelessness. I think that would not hold up in the courts. You’re the professor; I’m not. WELLS: Well, no, I think you’re right; it wouldn’t hold up. But I’m curious as to whether you think it would be a good idea and determine whether it would hold up. Don’t you think that freedom of contract ought to be respected? If the patient and the doctor have made a deal, I grant courts won’t enforce it, but why shouldn’t they enforce it? BIRD: Don’t you think there is a disparity in the contracting parties in that instance? WELLS: Well, maybe that’s the argument; there’s a disparity in bargaining power. I can see that. BIRD: That’s the problem. [For] somebody who is sick and needs to be treated, there is incredible disparity in bargaining power. GUNN: Some people get to pick their doctors and others don’t. I mean, there’s doctors I would enter into that agreement with, but … WELLS: Well, I’m curious as to the defense lawyers, what do you think? Are there constructive moves that could be made to improve the system from your point of view? GUNN: I’ve got very, very strong feelings about that and there are two things that we could do. I think one of them Tommy and Bill are going to agree with me on, and the other they are not. The first thing we could do is give our judiciary the tools to do its job. More judges, higher pay, higher pay for law clerks. I mean, if Bill and I have a trial, he’s got two or three lawyers helping him that have a lot of experience and they are very good, and I have as many lawyers as I need helping me that have a lot of experience and typically the judge has somebody that’s been out of school a year. It makes it very hard for the courts to do the court’s job as well as it should. The court is the least provided for in the system. Joint and several liability causes the party with the money to pay for everything, and oftentimes the party that is most egregiously at fault pays nothing. I settled a case this week at mediation where my client owned some commercial property. It contracted out somebody to handle the parking. The parking people contracted out to a repair company. The repair company didn’t do its job. A safety switch wasn’t working. A worker became a paraplegic because of the lack of the safety switch which this party was charged with inspecting once a month and fixing and simply wasn’t doing it. The property owner knows nothing about this. The property owner is the deep pocket. The repair company has a one-million-dollar policy and it gets out for 20 percent of the case. MALONE: There is a better example, I’m sure, that we could come up with that would explain joint and several liability. Joint and several liability really doesn’t exist when the injured party has been somewhat responsible for their own injuries. And that is the major distinction in joint and several liability when it’s fair and joint and several liability when you might say it’s not fair. You have to understand that in order for a defendant to be held liable, the jury must find that, but for their conduct, there would have been no injury. In other words, that their conduct was a substantial contributing factor to the injury. So on the one hand you’ve got an innocent victim and you’ve got a defendant whose conduct contributed in a significant way to the injury, without which the injury would not have occurred. So I think that if you compare the clean hands, if you will, of the innocent victim and the rather dirty hands, maybe not as dirty as another defendant’s but still dirty, then you understand why joint and several liability should exist. I think that maybe there are some things that we could agree on. I suspect that Billy would point out to the jury that one percent isn’t enough to be a substantial contributing factor. I think that what we could come together on is before any defendant was responsible for anything their conduct at least had to be a substantial contributing factor. But to say an innocent victim who had minimum limits or a no-insurance person starts the chain of events that is compounded by a drunk on the other side of the road and that that drunk was maybe 10 or 20 percent responsible and has got $20 million worth of coverage but shouldn’t have to pay very much because he was just a little bit responsible when somebody else with no insurance was the primary responsible party, just to me, leaves the innocent victim treated unfairly. BIRD: I think I would propose something a little bit differently. And that is an apportionment between the defendants who are held in by a verdict but not as against the plaintiff, only after the verdict has been paid. And that is to make an apportionment among the defendants against whom a verdict has been returned, after the verdict has been paid to the plaintiff. And the way it would work, the plaintiff would recover in any fashion that he or she wanted to. Based upon what the jury found, the responsibility of the remaining defendants would be according to their assigned liability. WELLS: But if one defendant has money and the other doesn’t, the defendant who has money is still at a loss. BIRD: That is the decision of who should bear the risk of there being non-payment because somebody doesn’t have sufficient money. To me it should be the tortfeasors. WELLS: Is there an argument that maybe that risk should be shared between the plaintiff and the defendant who owes money? BIRD: The defendants aren’t sharing the plaintiff’s disability. WELLS: One other kind of tort reform that we need to talk about is punitive damages. Some years ago, a statute was enacted in Georgia that — it’s too complicated to describe entirely here, but it does cap punitive damages in some cases unless you have intentional misconduct. Do you all think that works well? MALONE: I think it’s virtually given most defendants immunity from punitive damages in Georgia. I don’t seek punitive damages in my cases. I doubt Bill does, either. BIRD: Very seldom. In some cases though. HANNAN: I believe most plaintiffs’ lawyers elect not to seek punitive damages, hoping that the jury will somehow implicitly inject a punitive component into the pain and suffering verdict. GUNN: A lot of my adversaries seek punitive damages, and I’ve seen awards capped. But there is an exception for product liability cases where there is no cap. I haven’t seen in Georgia where that created some horrible situation. But I’m not sure why if a cap is appropriate for an individual or a property owner or a transportation company, it shouldn’t be also appropriate for a manufacturer. WELLS: Well, it does seem that punitive damages get awarded in these business tort cases, like the famous Six Flags case, because there you have to show intentional misconduct to win in the first place. But is it appropriate to have very large punitive damages like the ones in the Six Flags case just because … just because one party to a contract is upset with the way things worked out? BIRD: I think you’ve got a system really that is designed to provide protection ultimately against an undue award. I mean, you have a judge who is going to pass on it, you have appellate courts that can pass on it. Certainly in that case it was deemed appropriate. Depending upon not only the conduct but also the financial status of the defendant. For some corporations $250,000 is not going to hurt a single thing. So I’m not sure that the caps there are appropriate. I think that juries will usually do the right thing and when they do not, particularly if we give the judges the support that Billy is talking about, then you are going to have better adjudications even after the verdicts. The public only hears about the verdict. They don’t hear about the entire case. MALONE: I think this discussion is very appropriate to consider when we’re talking about caps on victims of medical negligence because you already have removed from the personal injury system the concept of punishment. It doesn’t even exist anymore when you have the $250,000 cap. Now they want to take away from the innocent victim the compensatory award for other general damages. So that they have already gotten their immunity, if you will. And the truth is if they want to just say that we take away the right to collect any punitive damages, I would rather see that than tamper with the general damages for noneconomic losses. WELLS: Independent of the compensation is the argument that the way that a plaintiff’s law practice works economically is that one really counts on being able to obtain large pain and suffering awards so as to finance the lawsuit. Is that a fair way of putting it? MALONE: Here’s one thing to look at. If you recover your lost wages, the injured party is just back to even. Then on the medical expenses there is usually today an ERISA plan or Medicaid or somebody out there saying pay me back for the medical expenses. And the tort reformists have been doing this, as you know, since the mid ’60s if not actively since the early ’70s and they know what will happen if they put these caps in. Or as these draconian things we were discussing the other day have no noneconomic recovery that then will leave nothing for the lawyer to be paid from. Because these people come in and expect first-dollar reimbursement. If you are going to let your client be back where they were with the lost wages, now you are looking at $250,000 to pay the cost of the litigation and to pay the attorney’s fees. So that’s where they are headed. Today — I’m sure Bill’s experience is like mine — of a hundred people that call our office we may be able to help one or two, usually because their damages are not severe enough for us to be able to put $100,000 in a case that we have to be prepared to put in it if we are going to expect to do the kind of job the defense is going to do. So the end result isn’t just bringing some reason to the system. It’s basically disenfranchising most of the injured citizens of our state. WELLS: How would you help doctors? You know, what would you do if we can’t — for the reasons you all give — do something about the pain and suffering damages and if doctors still have a problem, as you suggested they do, with managed care, should we abandon managed care or what should we do? MALONE: No. The first thing we could do is help doctors clean up their own mess. Do you realize that 3.5 percent of the doctors are responsible for 40 percent of the Georgia medical malpractice payouts? In California in 1976 they took away the plaintiffs’ rights and the premiums were $228.5 million. By 1988 with the most draconian tort reform that’s been put forward in the halls of Congress, they skyrocketed to $663.2 million. But then they realized where they needed to focus and they did insurance reform and the premiums have been relatively stable ever since. WELLS: Would either of our defense lawyers like to defend the doctors at all here? GUNN: Well, I’ve spent a lot of my time defending doctors. And I will tell you I’ve never seen one lose a case that shouldn’t have. It’s hard for a plaintiff — and I can’t say the opposite of that’s true. A plaintiff has a hard time winning a medical case unless it’s pretty clear. MALONE: For every outrageous verdict there is — and I don’t think there have been any in the state of Georgia — there are thousands and thousands of people with legitimate claims who have gotten nothing. BIRD: About four years ago, the Institutes of Medicine published a study. And the study estimated that somewhere between 45,000 and 98,000 Americans a year die in hospitals as the result of malpractice. Now, that’s not a plaintiffs’ group doing that study. That is the Institutes of Medicine. That is a staggering figure if you think about it because we’re talking about almost as much as a hundred thousand deaths a year just in hospitals. That doesn’t count the folks who leave the doctor’s office and die or are discharged from the hospital and die or die somewhere else. To sort of put it in perspective, if the higher figure is accurate, that means that in one decade more Americans died in hospitals as a result of medical malpractice than have died collectively in all the wars in which America has fought. There’s something that needs to be done. It’s not to change the civil justice system, which in fact is really one of the only checks that exists effectively upon bad medical practice right now. If you really think that the tort system is putting a burden on the economy, imagine what a hundred thousand deaths a year is putting on the economy. And that doesn’t say anything about the people who have been maimed. WELLS: Well, what do you think of a bill that would forbid you from suing McDonald’s over obesity? MALONE: I don’t see why the legislature needs to get involved in that. But the truth is we would have all felt the same way about cigarettes, when it first started. GUNN: In theory we’ve got a system already in place where the court can throw out frivolous lawsuits. WELLS: But, you know, some people would have said the gun litigation is frivolous, but some of that has been successful in some places. Should you be able to sue a gun manufacturer because of the way someone uses the gun? MALONE: Those cigarette and McDonald’s cases, I think, do some public good. But I certainly understand how it irritates a lot of voters and a lot of people, you know, that are putting pressure on the legislators. And what I’m afraid is that those kinds of concepts are added to some outright lies that the tort reformists say. Have you heard the one about the guy that bought the Winnebago? He put it on cruise control and he goes down the highway and he wants to make a cup of coffee, so he goes to the back to get his coffee and then the Winnebago wrecks while there is no driver up there and he collects hundreds of thousands of dollars — just an absolute fraud, you know, that’s perpetrated. So when you talk about the McDonald’s and those kinds of things, yeah, I personally would sacrifice those kinds of cases. You know, those things are lightning rods that may sacrifice the fundamental legitimate cases like we all spend our lives defending. DAILY REPORT: Don’t you think that those McDonald’s cases make the profession and the plaintiffs’ lawyers, in particular, look bad? Do you not even conceive that? MALONE: I know it makes the profession and the lawyers that handle those cases look very bad in the minds of most of the public today And I’m sure the cigarette lawyers, even though they’ve collected all this money for all these states, still look bad in the minds of the public because their fees were so large I think it would be a sacrifice. I think people have the right to file those suits and they have the right to pursue them. And I personally say that I would give them up, you know, in order to preserve the fundamental cases that we have. HANNAN: Isn’t it apples and oranges though? I mean, the cigarette companies virtually enjoyed immunity from the enactment of the warnings in ’64 or ’65 until approximately — I believe it was ’88 or ’89 with that Cippolone case, [Cippolone v. Liggett, 683 F. Supp. 1487 (D.N.J. 1988); for commentary see 23 Ga. L. Rev. 763 (1989)], out of New Jersey when they finally made a chink in the armor of the cigarette companies holding them liable for breach of express warranty going back to the old advertisements. And then that sort of opened the floodgates to the class actions, the state actions, and the attorney general actions and then led to the disclosure of information, which was good for the public. On the other hand here, doctors have never been immune. Yet what we’ve got is we’ve got increasing costs, as Billy said, of doing business. Insurance companies have to raise their premiums, but they are not rated by what they invest in the stock market. They are rated by what kind of reserves they can set based on the claims that have been filed against their insureds and whether they are solvent enough to handle those claims. So the cost for them doing business is growing. Obviously, if market share goes up, it’s proportional, and that’s all understandable. With the cigarette companies we had a system that has now been corrected. And with the doctors now I think we do have something hitting critical mass that does have to be corralled somehow. BIRD: I agree it’s not the full picture. A very large part of it is 9/11 and the fact that ultimately the re-insurers paid out so much money. They are largely unregulated, and they increased costs to the insurance companies. MALONE: I wish we had time to talk about some of this other tort reform legislation like requiring board-certified physicians to be the only ones that can testify against defendants and things like that. WELLS: What do you think about that? MALONE: Today there is no problem in getting board-certified physicians to testify. They advertise in magazines. But you give it five or 10 years and you’ll be back to where we were 30 years ago where you can’t find a physician to come testify against another physician because they will put the screws on them when they join the fellowships and they’ll know it before they ever get in the organization, if you testify for plaintiffs against your fellow neurosurgeons, or whatever the specialty of the board is, that you will not expect to be very well-received in this good boy group or good girl group. GUNN: I don’t see that as really happening. I think that is legislation that sounds great. How can you argue with it? But it’s not going to help the defendants. I’d much prefer, Tommy, to have some general practitioner talking bad about my neurosurgeon than to go out and find him a neurosurgeon that will do it. MALONE: We ought to touch on frivolous litigation as well. If frivolous litigation is a problem, who’s responsible? It’s not the expert witnesses and it’s certainly not the litigants. It would have to be the lawyers. So I propose if they really want to address the problem, sanction me for my first frivolous suit, suspend me for my second one and disbar me for my third one. WELLS: But don’t lawyers have the same problem there as doctors with the self-regulation? Isn’t there going to be a systematic tendency for lawyers to be really reluctant to listen to other lawyers just in the way that you suggest doctors are reluctant to listen to other doctors? BIRD: The Georgia Trial Lawyers has proposed last year legislation that would strengthen the sanctions against frivolous litigation. I wasn’t at the hearings. But, in fact, I’m told that there are only two entities that spoke against it. DAILY REPORT: If you have cases in your practice or cases that maybe you didn’t litigate, but you’ve used in your practice that illustrate your point of view on which direction you think tort reform should go, we would love to hear those. MALONE: I gave you the circumcision case. And I represented a lady in her 70s down in Albany whose doctor, when he was going to take a growth off of her esophagus, he got confused or disoriented and instead of using his surgical cutter clamp, he cut it sideways, so he stapled her esophagus in half. And the rest of her life she is going to have these tubes going down in her throat, dilating her throat so that she will be able to swallow. They would say she was entitled to $250,000. Spurlock v. Freeman. No. 97-CV-1083-1, Dougherty County Superior Court, (1998) GUNN: There is a case that I lost in stunning fashion, the biggest wrongful death verdict in Gwinnett County. But that woman was murdered. The murderer paid zero. Jennings v. TGM Ashley Lakes, No. 99-C-7943-4 (Gwinn. St.). BIRD: A 32-year-old mother of two had a wrongful hysterectomy, absolutely no indications for it. And seven days after the surgery she had a massive pulmonary embolism, which is a complication of the surgery, that killed her. She wasn’t a wage earner. She would be restricted to $250,000. The jury that included two nurses gave her $2 million. Carson v. Tillman, DeKalb Superior Court. HANNAN: I’ve already given you one war story, half a million for a woman we can respectfully contend was a healthy woman. It was a 1992 DeKalb County case. GUNN: I’ll give you another example. I had a verdict entered against a client of mine in December in Wyoming where the jury specifically found that the defendant was 47.5 percent at fault, awarded $10 million on wrongful death, $7.5 million on brain damage. Now, in Georgia that defendant that the jury found was only 47.5 percent at fault would have to pay 100 percent of that. Williams v. Vail Resorts Development Co., Nos. 02CV17J, 02CV16J (U.S. District Court, Wyo.). MALONE: I think there is another one that comes to mind that would clearly point out what we’re talking about. And, of course, that was a jury verdict, too. And it was Adams against Kaiser Health Foundation. Adams v. Kaiser Foundation Health Plan of Georgia, No. 93VS79895 (Fulton State Court, 1995). And that child, an infant, lost both arms and both legs. The jury awarded a verdict of $45 million, which was settled before appeal for less than that amount. But if tort reform had been in existence, that child would have gotten $250,000 to go through the rest of his life with no arms and no legs. And that in and of itself ought to say what is wrong with some arbitrary one-size-fits-all.

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