Legislation

Hot Coffee The Movie; A Documentary About The Enemies of Civil Justice

June 29, 2011 | Benjamin S. Persons, IV

Winston Churchill once said “A lie gets half way around the world before the truth has a chance to get its pants on.” Unfortunately this is the case with the civil justice system. If you are an HBO subscriber, the new documentary “Hot Coffee” is definitely worth taking the time to watch. The documentary, made by Susan Saladoff, takes a look at tort reform in America, and provides a look into the other side of the argument of so called “frivolous,” lawsuits. “Hot Coffee” tells the story of four families who have been left emotionally and financially devastated by caps on punitive damages and mandatory arbitration. It also seeks to dispel the myth that American courts are currently flooded with “frivolous” lawsuits.

One of the main stories of the documentary is the lawsuit of Stella Liebeck, better known as the woman who sued McDonald’s over burns she received from a cup of coffee purchased from the restaurant chain. This is the lawsuit that everyone seems to use when they use the term “frivolous” lawsuit. What the documentary points out is that McDonalds and other corporations used this case by twisting the facts to promote tort reform, claiming that this was a ridiculous lawsuit, and turning Ms. Liebeck into the punch line of jokes all over the country. In reality Ms. Liebeck was a 79-year-old woman who was burned so severely while attempting to put cream and sugar in her cup of coffee that she required skin grafts. When Ms. Liebeck brought the suit she was only attempting to cover the difference in her medical cost and what Medicare was paying. On top of that, McDonalds had already received over 700 complaints of coffee burns that they were keeping at between 180 and 190 degrees Fahrenheit, but these are the details that McDonalds managed to keep out of the media all these years to promote their own interest.

Ms. Saladoff says she made the documentary because she wants people to be empowered to take our justice system back. She believes that the American civil justice system has been hijacked by groups like the U.S. Chamber of Commerce who are only concerned with the economics of big business interest, and have no concern for the public at large. Saladoff has also created a Hot Coffee “Take Action” page, for people feel strongly about her film, where she shows many things you can do to fight against corporate interest trying to take away American’s rights in the civil justice system.

John Stossel; In Favor of The Civil Justice System Before He Was Against It

June 16, 2011 | Benjamin S. Persons, IV

Mark Twain once wrote “nothing so needs reforming as other people’s habits.” John Stossel recently presented a program on Fox News vilifying the American Civil Justice System and Trial Lawyers and promoting “tort reform”. The Tort Reform movement, led by people like Mr. Stossel, believes we should restrict the constitutional right to trial by jury to honest Americans because of a few isolated incidents of frivolous lawsuits. However, when Mr. Stossel needs to use the civil justice system it’s okay.

Based on what happened in the video below, Mr. Stossel sued wrestler David Schultz and the World Wrestling Federation and settled his case for a healthy sum.
http://www.youtube.com/watch?v=Tbl92RqHVmk

Controversy Continues Over Full Body Scans at Airports

November 18, 2010 | Benjamin S. Persons, IV

Public debate continues to rage over new security measures being used on passengers at our nation’s airports. At the center of the controversy are the body scan machines (“naked scanners“) that uses radiation to create naked images of us for security personnel to review. If the passenger refuses the naked body scan then they every part of the body is touched head to toe during a pat down procedure. Following the much publicized “underwear bomber”, the body scans and pat downs are designed to catch contraband even if it’s hidden near a persons genitals. The body scan program is being opposed by the American Pilots Association, Airline CEOs, the Libertarian Party, consumer rights groups, and religious groups. In response, TSA claims the body scan images are never retained, they claim the radiation is minimal and downplay the privacy and religious concerns with being viewed naked at the airport.

As to the first claim of never retaining naked body scan images, we now know that isn’t true. It was recently discovered 35,000 body scan images, stored by U.S. Marshals in Miami, were obtained by a technology blog. Of those 35,000 images,100 naked body scans were posted on the internet. I imaging the thought of seeing yourself naked online does not appeal to most people.

Even if your naked images never make it to the internet, many describe the process of being viewed naked in the airport as humiliating. It was this type of humiliation that led to violence at Miami International Airport in September of this year. A TSA worker in Miami was asked to submit to a body scan to illustrate the use of the machine to fellow coworkers. In the weeks following the body scan demonstration, he was taunted by coworkers about the size of his genitalia. According to the police report, after the taunting became too much to take, the TSA employee beat one of the taunting coworkers in the parking lot with a police baton.

Vote No on One! Constitutional Amendment 1 is Written on the Georgia Ballot to Deceive Voters

October 6, 2010 | Benjamin S. Persons, IV

The State of Georgia’s Constitution has for over a century contained a provision prohibiting the legislature from passing any law that would permit a contract that defeats or lessens competition. Ga. Const. Art. III, Sec. VI, Par. V(c). Based on the protection of our Constitution, Georgia law prohibits enforcement of “covenants not to compete” unless they have reasonable limits on time, territory, and scope of restricted activity. However, reasonable covenants are currently enforced. Some large established business interest are against this competition and are working to circumvent the protections of the Constitution with Amendment One. For some companies, avoiding competition sounds easier than providing good service. The Amendment is getting some media attention, AJC – Amendment One: Making Georgia Less Competitive, but many voters are still unaware.

You might be wondering who would vote for an amendment that will strip us of our Constitution’s protection to work and practice our trade? Why should we worry, this will never pass. The business interests behind Amendment One know the only chance they have to get people to vote for it is if they deceive voters with the language on the ballot. Here is the actual language: “Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements?” The truth is, if voters vote yes, their existing rights to compete reasonably will be lost. Or to put it another way, 11 Alive – Amendment One: It’s a Damned Lie.

If you believe in the right to work and practice a trade, Vote No on One.

Georgia Medical Malpractice Damages Caps Ruled Unconstitutional by the Georgia Supreme Court (Nestlehutt Case)

March 22, 2010 | Benjamin S. Persons, IV

In 2005, under extreme pressure from the insurance industry, the Georgia Legislature passed sweeping tort reform measures (known as SB3) drastically changing Georgia law. At the heart of SB3 is OCGA § 51-13-1, which limits noneconomic damages in medical malpractice actions. Under this law no matter what value a jury places on a human life, the loss of a limb, the ability to see, or other catastrophic injury the award must be reduced to an arbitrary limit imposed by the Legislature. Today, the Supreme Court of Georgia in an unanimous 7-0 decision, Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al., held noneconomic caps on damages unconstitutional.

The Supreme Court ruled “OCGA § 51-13-1 clearly nullifies the jury’s finding of fact regarding damages and thereby undermines the jury’s basic function…Flat caps on noneconomic compensatory damages…violate this State’s constitutional guarantee that ‘the right to trial by jury shall remain inviolate.'”

As one who believes in protection of our sacred constitutional rights and also a strong believer in victims’ rights, I could not be more pleased with the Supreme Court’s decision. Today is a great day for Georgia and for Betty Nestlehutt. Click here to watch Betty Nestlehutt’s story.

ER Gross Negligence Statute Upheld by the Supreme Court of Georgia

March 18, 2010 | Benjamin S. Persons, IV

Since 1863, Georgia law has required that those practicing medicine for compensation must bring to the exercise of their profession a reasonable degree of care and skill, and Georgia law has provided that any injury resulting from a want of such care and skill shall be a tort for which recovery may be had. In 2005, all that changed, and ER physicians in our State were no longer required to practice with care and skill. This new law, codified at OCGA § 51-1-29.5 (c), was part of the tort reform package proposed by the insurance industry and passed by the Georgia Legislature in 2005. Those injured or killed by ER malpractice can no longer recover unless they can prove a much higher burden of gross negligence. This week in a 4-3 decision, Gliemmo et al. v. Cousineau et al., the Supreme Court of Georgia upheld the ER gross negligence statute as constitutional.

The case began in 2007, when Carol Gliemmo presented to St. Francis Hospital with serious pain behind her eyes, a sudden snapping in her head, and elevated blood pressure. Mark Cousineau, MD of Emergency Medical Specialists of Columbus, P.C. wrote her a prescription for Valium and sent her home. Two days later her primary care physician ordered a CT scan, which revealed a brain hemorrhage. As a result of the brain hemorrhage going untreated Carol Gliemmo was paralyzed.

So, even though expert physicians can agree that Dr. Cousineau breached the standard of care required of emergency physicians and caused this woman’s paralysis she cannot recover under Georgia law. It’s still difficult to believe this is the state of the law in Georgia. I’m certain Georgia medical malpractice lawyers will continue to fight for injured victims, but times are grim in Georgia. Of course Atticus Finch would say courage is knowing you’re licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.

The Supreme Court of Georgia Upholds the “Offer of Settlement” Statute, OCGA § 9-11-68

March 16, 2010 | Benjamin S. Persons, IV

In 2005, by the narrowest of margins, the Georgia Legislature passed sweeping changes to Georgia’s tort laws, known as SB3. Included in those changes was the new “Offer of Settlement” statute, codified at OCGA § 9-11-68. The Offer of Settlement statute has created a new mechanism for punishing a party to litigation with attorney’s fees. Georgia already has two statutes (OCGA §§ 9-15-14 and 13-6-11) that subject parties to statutory penalties, including attorney’s fees, for bringing frivolous suits or unreasonably litigating matters. The Offer of Settlement statute is different in it applies to all cases even meritorious suits that prevail at trial. This statute sets up situations where injured victims may win a jury verdict but end up with a net loss because the insurance companies’ attorney’s fees exceed the verdict. This week, the Supreme Court of Georgia in a 5-2 decision upheld the Offer of Settlement statute overruling the trial court’s finding that the statute violated the Georgia Consitution’s right to access the courts.

In her dissent, the honorable Justice Hunstein artfully explained why this statute does in fact violate our constitutional access to the courts as follows: “OCGA § 9-11-68(b)(1) penalizes plaintiffs with meritorious causes of action for an impossiblity, namely, their failure to see into the future so as to calculate the precise amount a factfinder may award them for the damages they reasonably believed they sustained at the hands of the defendants…No party intending to file a cause of action in tort can foresee whether she will recover ‘enough’ money to avoid the effect of OCGA § 9-11-68(b)(1).”

The practical effect of this statute is that it will make it extremely difficult for middle class Georgia citizens to pursue meritorious cases. As discussed above, if an injured person fails to recover “enough” money from the jury, the insurance company can take a judgment against the injured person for the attorney’s fees they paid defending the case. Those without significant assets will not be deterred from pursing meritorious cases, because there is no way to collect a judgment against someone that has nothing (also known as “judgment proof”). The wealthy will still seek justice and their day in court knowing they can afford the unlikely result of a lower than expected jury verdict in their favor. The middle class injured victim is the only one truly stung by this new law. Many will still seek justice, but there are those that will forgo pursing recovery for their broken bones and medical expenses because the fear of having to pay for the insurance companies’ lawyer. This new law is just one of many challenges an experienced Georgia personal injury lawyer must negotiate in the mine field that is civil litigation.