The Georgia Supreme Court yesterday in Atlanta Oculoplastic Surgery v. Nestlehutt struck down as unconstitutional Georgia's statutory limitation on non-economic damages in medical malpractice actions.

Georgia had adopted a cap of $350,000 on non-economic damages in medical malpractice cases as part of its 2005 tort reform statute. (Prior post). The cap (codified at O.C.G.A. 51-13-1) caps non-economic damages at $350,000 in any action for medical malpractice, including an action for wrongful death.

The Georgia Supreme Court upheld the ruling of the trial court, that the statute was unconstitutional in light of Georgia's constitutional provision that "[t]he right to a trial by jury shall remain inviolate." (Ga. Const. of 1983, Art. I., Sec. 1, Par XI(a)).

The Court's opinion, which was unanimous, looked to prior Georgia cases intepreting Georgia's unique "right to trial" provision, finding that they prohibited statutory limitations on the right to trial in cases where the common law had permitted a plaintiff to have a trial. Citing Blackstone and other ancient authorities, the Court found that a cause of action for medical malpractice was well-established prior to the adoption of Georgia's Constitution and was, therefore, a right that could not be limited by statute.

In a later post I plan to contrast the reasoning behind this opinion with the Court's decision on loser-pays just last week.

The enforceability of the offer of judgment rule in Georgia is now established as the Georgia Supreme Court in Smith v. Baptiste made it clear in its ruling on Monday that the 2005 offer of judgment rule was permitted under Georgia's Constitution. (Prior post).

To paraphrase Grateful Dead front man Jerry Garcia, however, "what a long, strange trip it was."

In a twin blow to trial lawyers yesterday the Georgia Supreme Court upheld two provisions of the state's 2005 tort reform statute. (Prior post.)

In Smith v. Baptiste the court upheld an offer of judgment rule (codified at O.C.G.A. 9-11-68) that allows a defendant in a tort case to 'shift' its attorneys fees to the plaintiff if the plaintiff refuses to accept an offer of settlement and ultimately fails to recover more than the amount offered. (Prior post on Georgia offer of judgment rule). The offer of judgment rule was adopted as part of Georgia's comprehensive tort reform legislation in 2005.

In Gliemmo v. Cousineau the court upheld the Georgia statute's limitation of liability for emergency room doctors which limits liability only to claims resulting from "gross negligence."

Groups affiliated with trial lawyers had attacked both elements of the tort reform statute on constitutional grounds. I hope to supplement this post with a longer analysis of the offer of judgment rule case shortly.

In 2005 the Georgia legislature passed a sweeping tort reform bill (S.B. 3) which enacted a number of measures intended to reduce the incidence of meritless litigation and to decrease the cost of litigation. The 2005 bill included caps on non-economic damages, increased standards of proof for certain medical malpractice claims, and a loser-pays offer of judgment rule.

Predictably, the trial bar cried foul and several test cases have wound their way through the system and are likely to be decided by the Georgia Supreme Court in the next few weeks or months.

In the interim, however, the Eleventh Circuit has taken the opportunity to wade into the scuffle with an opinion of its own.

In Deen v. Egleston (11th Cir. Feb. 26, 2010) the Eleventh Circuit reversed a ruling by the federal trial court that had struck down an earlier tort reform statute that had limited the time period for medical malpractice plaintiffs to file to only two years. (Opinion; Background from Fulton County Daily Report (subscription required)).

The Georgia legislature recently adopted a bill (H.B. 29) that, in addition to allowing for electronic service of pleadings via email, imposes an automatic stay of discovery in civil suits where the defendant files a motion to dismiss at or before the time when an answer must be filed.

Governor Perdue has already commented favorably on the bill, so its passage seems likely.

The logic of the bill is that it allows the defendant to avoid (or at least delay) the expense of discovery until the court has the opportunity to rule on the preliminary motion. The rationale is that defendants who expect to be dismissed at the preliminary motion stage should be entitled to avoid the expense of discovery.

The reform would not, however, do anything to reduce the expense of litigation for those cases where the plaintiff's pleadings are logically valid but ultimately non-merit-worthy. A preliminary motion does not address the ultimate merits of the case, but merely asks whether the plaintiff's complaint "states a claim on which relief may be granted."

While nearly half of all complaints are dismissed through motions for summary judgment, very few are dismissed on a motion to dismiss of the kind contemplated in H.B. 29.

HB 29 was originally coupled with a loser-pays provision that would have imposed the defendant's attorneys' fees on the plaintiff if the preliminary motion to dismiss prevailed but that provision was booted (at least in part) because lawmakers could not adequately define the term "substantial merit" (the lack of which would have triggered the payment of attorneys fees). In addition, the provision could have complicated the use of Georgia's somewhat unique "offer of judgment" rule in O.C.G.A. 9-11-68.

Fellow Atlantan Ken Shigley predicts that H.B. 29 will prompt a "rash of frivolous motions to dismiss as a stalling tactic" but will eventually become "much ado about nothing."

He reasons that defendants who file frivolous motions to dismiss will be sanctioned for doing so and that this will eventually curtail the practice, an outcome that's hard to dispute, although I seem to have missed the plaintiff's bar using that argument in favor of H.B. 29 before it was passed.

Reversing a number of campaign pledges, Oklahoma Governor Brad Henry on Saturday vetoed S.B. 507, a measured passed by both houses of his legislature to reform Oklahoma's tort law.

Glenn Coffee, the Republican Co-President pro-tem of the Senate said, "The governor missed a grand opportunity to send a message to the nation that Oklahoma is pro-jobs, pro-doctor, and pro-business. Instead, he sent a message that millionaire trial lawyers are still running the show.�

Oklahoma's tort reform bill, S.B. 507, is now sitting on Governor Brad Henry's desk. The Governor has stressed the need for tort reform several times in the past, in 2004 outlining 28 "key areas" that needed to be reformed in the law.

According to the National Association of Manufacturers' blog, S.B. 507 addresses 18 of those 28 "key areas". The Oklahoma Chamber has a detailed fact sheet on the bill here.

The Governor's office has not yet made any statements concerning S.B. 507.

The Oklahoma legislature last week passed a comprehensive tort reform bill which, among other things:

(1) reforms the rule of joint and several liability among joint tortfeasors;

(2) caps punitive damages in most cases (greater of two times compensatory damages or $500,000);

(3) requires opt-in class membership for most class actions;

(4) restricts the admission of expert testimony and provides standards for the qualification of expert witnesses; and

(5) creates a general immunity for volunteers and charitable organizations.

The measure has been sent to the Governor for approval. Oklahoma's Governor, Brad Henry, has not yet taken a position on the bill.

Cross-posted.

Justinian Lane, a frequent writer in opposition to tort reform, wrote an extended column opposing the loser-pays rule here. I responded on my own site, and the debate has since exploded on the comments pages of Lane's other site.

The heart of Lane's original argument was that enacting a civil loser-pays rule would require the simultaneous adoption of a criminal loser-pays rule. Lane's proposed criminal rule would require the state to reimburse the attorneys' fees of a vindicated criminal defendant.

That argument, I believe, mis-reads not only the intention of loser-pays advocates but also conflates several factual and theoretical points that support the civil loser-pays rule.

Walter's post this morning on Quaker litigation rang a bell for me. I grew up in Quakertown, Pennsylvania (seriously), home to a Quaker meeting house that has been holding meetings since 1710.

While law and economics provides a very plausible explanation for the Quakers' use of their own, intra-community, courts, there is a non-economic explanation as well: a literal reading of the New Testament suggests that Christians avoid secular courts in disputes with fellow Christians! As the linked article confirms, the Quakers took a number of theological positions based upon a literal reading of the Bible.

Chapter Six of Paul's First Letter to the Corinthians chides his readers for having utilized secular courts in disputes with each other and claims that it would have been better for them to allow themselves to be wronged than to have availed themselves of the litigation process:

(1)If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? (2)Do you not know that the saints will judge the world? And if you are to judge the world, are you not competent to judge trivial cases? (3)Do you not know that we will judge angels? How much more the things of this life! (4) Therefore, if you have disputes about such matters, appoint as judges even men of little account in the church! (5)I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? (6) But instead, one brother goes to law against another�and this in front of unbelievers!

(7) The very fact that you have lawsuits among you means you have been completely defeated already. Why not rather be wronged? Why not rather be cheated?