Law Professor Thomas A. Eaton on Tort Reform

Aug 29th, 2013 | By | Category: Featured
Thomas A. Eaton, U GA School of Law

Thomas A. Eaton, U GA School of Law

Earlier this month, the jury in the federal Donna Cisson transvaginal mesh case awarded Mrs. Cisson $1.75 million in punitive damages in addition to the $250,000 in compensatory damages.

The Cisson case established the Bard Avaulta mesh she received as a treatment for pelvic organ prolapse was defective. Yet readers learned something startling about any punitive monies awarded to a resident of Georgia, Mrs. Cisson’s home.  According to state statutes, three-quarters of that punitive damage will be given to the state’s general fund, something called split-recovery.

You can thank the tort reform movement – the same force that established caps on damages in medical malpractice cases and a U.S. Supreme Court decision (Riegel v Medtronics) that precludes a jury trial if the medical product has underg0ne the FDA’s premarket approval (PMA).

MDND talked to Professor Thomas Eaton, from the University of Georgia’s School of Law about tort reform around the country and in Georgia.

Q: Was the Cisson outcome as far as punitive damages going to the general fund the result of tort reform?

Yes that statute was enacted at one of the earlier stages of tort reform. Tort reform is something that has come in different waves. There were tort reform movements in each of the decades beginning in the 1970s and this bill was I think in the 1980s when it was enacted.

Q: How many states have this sort of a split-recovery system?

Not very many at all, just a handful of states. Some states don’t allow any punitive damages at all.

Q:  So at this point there are these women going online to figure what the statutes are.

I’m not sure how many people are going to be affected by this statute.
Any plaintiff who is not a Georgia resident won’t be affected at all. It’s a Georgia law that will affect Georgia claimants, but it won’t affect women who are residents of other states and since this is a multidistrict litigation (MDL) there are people from all over the country. Secondly, for the plaintiffs who are Georgia residents, it will only affect those who used that particular product. It’s my understanding there are a number of different mesh products that could be at issue.

Q: Well Bard has for the most part the Avaulta line so you are saying the Avaulta….

Well that particular Avaulta, the Avaulta Plus Posterior.  I’m not sufficiently familiar with the details to know how many different product lines they have but if there are other products, the punitive damage award involving one of them would not preclude a punitive damage award involving a different product, or at least a court is going to have to decide whether this is one product or multiple products. The third point I would make I think the purposes of the cases going to trial is to establish value range of injuries. In a lot of multidistrict litigation what you’re doing is establishing a range that will ultimately lead to mass settlements. The vast majority of these cases are not going to trial anyway.

Q: However the Donna Cisson case, as it was decided, that would not be affected by a settlement?

That depends on what the parties negotiate.

Q: So if some other woman has the Bard Avaulta Plus Anterior are you saying this decision would not apply?

I’m saying there is an argument this decision would not preclude an award of punitive damages. The question is going to be whether the anterior is a different product than the posterior.  The way that the statute is phrased it applies to a product.

Q: It’s up to whom?

The judge.

Q: And the judge has leeway to award legal fees out of the punitive damages I understand?

The way the statute is written is the amount of money that goes to the state would have to take into account the fact that the private plaintiffs’ lawyers are the ones who incurred all of the expenses. So the actual amount that goes to the state would be less than 75 percent.

Q: So it’s feasible a woman could walk away with less money than her law firm?

I do not know the details of this arrangement, but it’s my understanding that in those situation the parentage of contingency (fee to attorneys) applies to both punitive and compensatory. So the individual client will always receive more than the attorney will receive in fees.   Now the other variable to remember is that there are expenses in litigation and that is not money that’s paid to compensate them  but to reimburse them for expenses that were incurred in bringing the lawsuit.

Q: Understandable and that can run into hundreds of thousands of dollars if not more.

Expert witnesses are not free.

Q:  Right, that’s something people need to understand and the firms also take the chance of losing the case and never recovering their expenses.

And when you take into account a case like this takes a considerable amount of time over many years, that could be a considerable risk.

Q: People seem to be surprised that something like this can happen. How has tort reform sold to us, sort of like while you were sleeping this was happening?

Well I don’t know if people were sleeping as much as they were indifferent. Most people don’t view themselves as potential plaintiffs. On the other hand they view themselves as someone who is paying for insurance. So when they hear the rhetoric, “litigation explosion,” “runaway juries,” and they hear it often enough, they tend to believe it.

Now, I’ve conducted a fair amount of empirical research that in Georgia, neither one of those propositions is true. There has not been a litigation explosion. There are not runaway juries. In fact, the federal judge who initially struck down the constitutionality of the punitive damage statute, cited one of my early studies on that, but the Georgia Supreme Court has not twice ruled that the statute is constitutional.  I think that the case for radical tort reform has been overstated and is not supported by the empirical data as some would have you believe. Ultimately, it’s a political decision. The forces that support tort reform are well-funded and are a constant presence.

Q: I think the genesis was Big Tobacco and Big Asbestos was it not?

Well that was certainly part of it but there’s more. Most of the medical community has been part of the coalition as has the Chamber of Commerce representing a lot of small and large businesses. I would say it’s a well orchestrated, well organized group that is exercising its own constitutional rights to try and influence policy.

Q: Is there anything citizens can do when this hits them over the head and they suddenly realize tort reform was not in my best interest?

Well they can try to change the rules. Any statute that’s been passed can be changed but it’s more difficult to organize potential victims than it is to organize potential defendants. Defendants are repeat players. They face the prospect of being sued on a regular basis.

People who are consumers of products or medical services or ride in automobiles just don’t tend to view themselves as, “I’m going to be in the courtroom one day as somebody who has been injured, I’m worried about what rights I might have.”

Q: And we’re dealing with a product that went through the FDA’s 510(k) process. If instead we were talking about a medical device that went through the FDA’s premarket approval (PMA) then citizens are really out of luck aren’t they?

Well there is a preemption issue that is absolutely the consequence of a holding that free market approval preempts any tort claim based on warning or design. Yes, you’ve got to hope the regulatory process has weighed the risks and benefits appropriately.

What I would like to calm the fears of a lot of the class members out there, this is part of a mass litigation process that in all likelihood will result in group settlement provisions. So the impact of this Georgia statute on the rest of the plaintiffs here is probably not as great as they may fear. It may certainly have an impact on other Georgia claimants, especially Georgia claimants who go to trial. If you were a plaintiff who lives in Oklahoma, the Georgia law isn’t going to affect them.

A: I guess before a plaintiff decides if they file in state court or the federal MDL (multidistrict litigation) they should check their state statutes?

The MDL technically only deals with the pretrial process. The judge who handles the MDL could send the case back to the original forum for trial, but it’s quite common that the judge who has handled all of the discovery will also handle the trial.  There is a certain efficiency to have a judge who is familiar with all the issues in the trial, but it’s not required, so there is a choice that’s being made. The MDL process is the most realistic way to try and process the volume of claims that can be generated by a mass produced product that injures lots and lots of people.

Q: So you are saying if we have 4 bellwethers and split decisions, 2-2, for the plaintiff and defendants, Bard decides it wants to continue and not offer a settlement, the plaintiff has the option to go back to their originating forum for trial?

Yes, let’s go have a trial.

Q: Do you have any predictions what will happen if we have four losses for Bard?

Well the more losses and the higher the damage award, the higher the settlement value is going to be. But what we’ve seen in asbestos cases and other types of mass torts, both sides win some and lose some. Some will have some fact specific issues. In asbestos cases you had the role of smoking cigarettes by the injured which was always an issue. I’m not sure we have anything comparable here.

But the age of a claimant is going to be a factor in terms of the amount of damages, the kind of physical injuries that have occurred is going to be a factor. But clearly for either side, you want to win the bellwether cases. The more wins for the plaintiff, the more the settlement values are likely to be.

Q: The last case found the mesh was defective in its design, will that set a precedent for other cases?

It may not necessarily be binding for anybody else, but it certainly will be a big plus for the cases going forward. They will know what kind of arguments jurors have been receptive to, what kind of testimony that works and it is going to have a big impact.

Q: I don’t know if you follow these cases, one lawyer said it may rival Vioxx in the number of claimants and the amount that might be offered?

Certainly the injuries are painful and significant and it seems the jury in West Virginia took that into account.

When I graduated from law school I worked for a judge and we had one of the early mass torts with the Dalkon Shield. I kind of cut my teeth working for the judge on processing those cases. One of the, processing the numbers was logistically difficult. Quantifying damages was a very difficult task and with all of the mass torts we’ve been dealing with it is extremely difficult to individually quantify the monetary value of an injury.

Q: They came up with different tiers of injury in the Kugel Mesh case.

And that basically is what is going to happen with all of the mass torts. Ken Feinberg, who was special master in 9/11, did the best he could to come up with a variable that was most relevant. And you have the bellwether cases that put a value on the injuries that fall within those boxes and you negotiate and ultimately you get a resolution.

The MDL process is the most realistic way to try this volume of claims generated by a mass-produced product.

Learn More:

U.S. Chamber of Commerce – Tort Liability Costs for Small Business
http://www.uschamber.com/reports/tort-liability-costs-small-business

SourceWatchon the genesis of tort reform, Big Tobacco, Big Asbestos
http://www.sourcewatch.org/index.php/Tort_reform

Public Citizen, The Great Medical Malpractice Hoax, January 2007, says runaway juries and judgments are a hoax. Million dollar judgments are less than 1 percent of the total number of payments.  In 2006, President Bush claimed “lawsuits are driving many good doctors out of practice.”  The number of malpractice payments actually declined between 1991 and 2005. And while our attention is diverted to “ambulance chasers” “runaway juries” and “Jackpot Justice”, the real issue for most Americans – patient safety – is not seeing improvements in outcomes.
http://www.citizen.org/documents/NPDB%20Report_Final.pdf

Hot CoffeeThis documentary debunks the myth of Stella Liebeck, the woman scalded nearly to death by hot coffee served by McDonalds. The jury awarded her after the appearance of McDonald’s executives on the stand who showed reckless disregard for the safety of their customers. She only wanted medical bills covered and McDonalds declined. The award represented just two days coffee sales from McDonalds. It was portrayed as a jackpot for Stella Liebeck. The award was later reduced by a judge and Liebeck never fully recovered from her scalding injuries and has since died. See the trailer here.
http://www.hotcoffeethemovie.com/

Riegel v, MedtronicConsumers who are injured by a defective medical device that received FDA approval, are preempted (prevented) from suing. The manufacturer enjoys immunity under this Supreme Court ruling. http://www.law.cornell.edu/supct/html/06-179.ZS.html

The Faces of Preemption
http://www.afj.org/faces_of_preemption.pdf

 

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7 Comments to “Law Professor Thomas A. Eaton on Tort Reform”

  1. John says:

    If the “state” gets the award, let the “state” pay the legal fees!

  2. pj says:

    This is a slap in the women’s face, those that will >>>truely <<< suffer for the rest of their lives, where the mesh has gone into their other body parts, intestines, etc, protruding out, cutting causing infections , bleeding, where is the hope for these women , that these companies got billions , off mesh? a few million is nothing to them especially when the women have no choice , but to be their guinea pigs for the rest of their life.

    THE PIC. OF THE DOCTORS IN SURGERY ATTIRE , REMINDS ME OF THE DOCS AND NURSES THAT SOME WOMEN WERE RIDICULED AND MADE FUN OF BY THOSE IN MEDICAL FIELD, SOME LIED SAYING THEY COULD NOT DETECT THE MESH PROTRUDING OUT,
    these women were refused any communication with doc's and nurses to even be told anything about health problems, docs so cruelly refused to tell them anything after they suffered pneumonia after surgery, and tried to get anti biotic , for over a week that put them back into hospital in another city.
    THE CRUELTY BY THESE COMPANIES AND MEDICAL AND ALL THAT DID NOT DO THEIR JOBS,. WOULD YOU TRUST THEM AGAIN? those that their oath is to save lives , not kill,

    THE RICH COMPANIES , THAT AT THE FIRST SIGN , AND THAT WAS BEFORE THEY PUSHED THEIR PRODUCT TO DOC AND NURSES AND HOSPITALS TO USE ON HUMAN BEINGS. AN EVIL DAY IN AMERICA , FOR COURTS TO CARE SO LESS ABOUT HUMAN LIVES , LET THE WOMEN TELL THE TRUTH THE WHIOLE TRUTH AND NOTHING BUT THE TRUTH IN COURT OF THEIR SUFFERING BY COLLEAGUES THAT COVERED TRUTH UP, AND THE COMPANIES ESPECIALLY.

    these companies would think twice next time they want to use humans as guinea pigs and lie. AS i said the women if they go to any doctor for help, till their last breath, they will be the companies guinea pigs under microscope for doctors to report to companies all that went wrong.
    docs and nurses angry about this law suit, all they have to do is look up on computer available to doc and nurses only, to know about mesh, and treat anyone evilly, that docs and their colleagues have mentioned.

    THEY DO NOT WANT TO READ WHAT i could tell of how evil people can be to humans, ungodly, evil as history of mankind repeats , like those that put humans to be murdered by animals , no concious to what they do evil or care. IF THEY DID THE WOMEN THAT HAVE SUFFERED FOR YEARS AS i have , would have got immediate attention and payed to get to docs that knew what they were doing to stop infections and pain and suffering. I would say not 1 of those that said nothing that are a part of these companies lose a night's sleep , for what they did to thousands of women.
    the state should not take 1 penny of the women's suffering money , as leaders refused also to listen to women crying for help in state,

    AS 1 WOMAN USED THE WORDS i am damn mad, IT''S WAY OVER DUE FOR WOMEN TO SPIT OUT , WHAT THOSE SO EVILLY KNOWING DID TO THEM, THOSE THAT ABUSE THEIR JOBS AND AUTHORITY, call the evil what they are, I AM SURE IT WOULD NOT BE ALLOWED ON THIS WEB SITE.
    i was laughed at in my face by some in medical power and more. that's how evil these companies were and those they got to do their dirty work using humans.

    for those women that have truly suffered at the hands of evil that cared less about them as a human being, GOD BE WITH YOU, the amount is like the courts patty caking with companies , not considering at all what the women still face , 1 doc and butchering to remove it and being lied to, , I PREFER DEATH OVER GOING THROUGH WHAT i HAVE IN MEDICAL OFFICE AND HOSPITALS THAT COVER FOR THE EVIL OF THEIR COLLEAGUES. IT'S A SLOW DEATH;.

  3. jade says:

    http://articles.washingtonpost.com/2009-12-27/business/36791212_1_hot-dogs-sales-reps-surgeon

    I’ve always agreed that hospitals should be liable for allowing implantationg of these devices, as well as, the doctor and, of course the manufacturers. Manufacturers’ reps are usually present in the OR when their device is being used. Read the attached article and note the comment below contained in the article…..

    Richmond gynecologist Catherine A. Matthews said that’s a frightening argument. “They’re not in any way motivated to recommend what might be the best thing for the patient,” Matthews said. “They’re there to sell their product.”Doctors shouldn’t have to depend on reps for expertise, she added.

    In reading Dr. Jim Ross’ deposition, he admitted signing “Certification Certificates” when doctors took the weekend cadaver courses for implanting C.R. Bard’s mesh kits. These “certificates” were most likely used by the attending doctors (whether they passed or failed) to present to their hospitals as “proof” they were qualified to implant Bard’s mesh kits! If hospitals took these signed certificates from Bard (which, Dr. Ross implied didn’t hold much weight in his view – to the fact that he didn’t even know what the doctors used them for – although I think we all know) – I repeat, IF the hospitals took these signed certificates from Bard as a true Certification to allow those doctors to utilize these kits in their organizations on unsuspecting women without total disclosure – HOSPITALS SHOULD BE CRIMINALLY LIABLE for NEGLIGANCE. After all, hospitals were making BIG BUCKS on these surgeries and riping OFF our insurance companies with subsequent revision surgeries which shouldn’t have been needed IF a mesh implant was NOT used in the first place!

  4. Bejah says:

    WOW! Nice interview, thanks Jane. Lots to think about. First thing that occurs to me is that we better start paying attention to our political process, and voting, and protesting, and signing petitions, and all of that…it is terrifying to see that what is called legal is actually anything but and should be catagorized as crimminal. If you make a defective product you should be punished. What kind of Supreme Court would pass a law forbidding bsuits against corporations that produced faulty products thata cause harm to American people? I am no Tea Party person but folks we need to take back our nation…this has gotten way out of hand. Don’t let them distract you with consumer goodies…they pacify you by offering up Monday night football and sales at Macys and guess what they are doing while you are busy being good workers or consumers….they are taking your rights away, they are making money at your expense, and those dollars you spend are fueling their economy…not for your benefit….save your money, invest it, do not spend and spend at least some of your free time fighting things like “Tort Reform”….there are a lot more of us than there are of them. There are people in every small community who could get this rolling….lets get political and fight for our nation. Women are the ideal candidates for these organizational roles because of our passion, because we still statistically spend more time at home so let’s make time to do this…because we are going to be the ones in the courtroom, and even if we are not, our neighbors are, our relatives are, our children are, and guess what…it is the right thing to do…is your life meaningful, when you review your life what do you think about what you have done, or wanted to do or felt you could have done to make it better, to make a difference for not only your family but all people. We need to change, we need to start over right now, today, turn the wheel, create a better nation, dismantle what is evil and create that new world we thought was not possible, a fantasy, a pipe dream…we can make it real but we can only do that together. It is our nation, lets take it back. Thanks Jane for your tireless efforts. Can we nominate Jane for an emmy? Of course she would need a new gown! :-)

    • KIM says:

      Hi, I to nominate Jane, She has started a new era . I for one want to help, I live up Sate New York and would like to no where to start. I had mesh put in me in Vermont because I felt that there hospital was better then Plattsburgh , Burlington Vermont is much bigger and they have a- lot of teaching there and it seem that it’s a least a better place for a Dr, to live easy assess to montreal Canada , NY CITY , ALBANY NY, INSTEAD OF PLATTSBURGH – WELL i WAS WRONG – I SIGNED PAPER’S IN DR. VISELLIE OFFICE NO MESH – BUT SHE PUT IT IN ANY WAY’S NOW I’M ALMOST CRIPPLED, MENTALLY,PHYSICALLY. I WANTED HER ARRESTED BUT SHE GOT AWAY WITH IT – NOW THERE PASSING IT OFF TO THE MANUFACTURER WHICH IS IN THE FIRST PLACE CRIMINAL- BUT THESE DR.S ARE AWARE OF MESH, I WOULD LOVE FOR DR. VISELLIE TO HAVE SAME PROCEDURE TO HER HAS SHE DID TO ME . ONE DAY MAYBE SHE WILL BE IN AN ACCIDENT AND WILL BE KNOCKED OUT AND WONT BE ABLE TO SIGN FOR SURGERY AND ANOTHER DR. WHO ALSO NO’S OF THIS MESH WHAT IT’S DOING WILL PUT IT IN HER.

      • Bejah says:

        Is there any reason why we cannot establish a “wall of shame” and post the photos and names, affiliations of physicians and medical centers that have engaged in conduct that violates their code of ethics if not the laws that govern their practice in the state where they do business? So long as we state the truth there is no libel or slander issue. People comment about physicians every day on web sites that track patient satisfaction with physicians visited.

  5. Betty says:

    I am finding it hard and harder as time goes on to believe this is still being allowed, even if the shape of the “product” is changing, it can still shrink and cause autoimmuine dieseases. Some Dr.’s have testified that the arms are the issue. There is no standard, and to implant is permanent. I do not understand why the insurance companies, who try to deny me medication and Dr. visits continually are the very same ones who allowed the implant in the first place. They know there are issues, they’re paying for them (or trying to get out of it). Dr.’s know this also, they are seeing injured patients. They really believe that the good of the many outweigh the good of the few?? It is scary to think of all the “time-bombs” out there who haven’t had an issue . . . yet. I know of several practices that have been taken over by mesh. It is changing the medical industry. Yet no-one seems to be in the right place of power or fame to help those who are helpless. The fact that the media ignores our pleas (many people, including me have written to everyone they can think of). The torture we are enduring is senseless and I can’t think of any other word for it. I’m being tortured – as is my family. The complete lack of knowledge displayed by a majority of Dr.’s of the mesh issue is also so unacceptable. It is criminal – the only thing missing is “war” – they could be considered war criminals if there was one. This kind of testing on people is unconsciable. In the beginning I heard, sorry you’re in the 3%. That has been proven wrong so many times as we all know. Yet on and on it goes. The fact that judge Goodwin has set a limit on trial’s because of the FDA warning just sends shivers up back. How many more are going to be hurt after they make it through these trials?? No one to stop them from keeping the money machine going. Jane made a comment about how history will look onto this era – it makes me wonder too.

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