Ohio Tort Reform "Losing Our Democracy"

The insurance, pharmaceutical, and automotive industries have spent billions of dollars on propaganda and campaign contributions to eliminate the risk of lawsuits. In doing so, many Americans are foregoing their rights to pursue claims within the civil justice system because the propaganda has made them feel as if tort (injury suits) cases are unjust handouts that hurt the economy. Incredibly, tort cases make up less than 10 percent of all cases filed and are being filed even less frequently. The largest percentage of filings are corporations suing other corporations.

In Ohio, the Supreme Court has issued several business friendly decisions including Arbino v. Johnson and Johnson. Despite a long history of finding damage limitations (caps) unconstitutional, the Court, with strong financial support from the insurance and medical indutries, found that the recently passed damage laws were constitutional.

The effect of such legislation takes the voice of juries away. Despite the impression of the public that there are many runaway juries, the reality is that this a extremely rare event, and in those cases, there are safeguards already in place where the presiding judge can remove or reduce the verdict. By allowing the legislation and Judges who accept large campaign contributions to take away the american public's right to trial by jury is yet another example of us losing our democracy. The jury system is built on the concept that the educated public can deliberate and render the most objective decisions where the litigants can not resolve the disputes on their own. Legislation that takes away a jury's opportuninty to deliberate and make a decision is in essence saying that "the jury", i.e., the american public, is not smart enough to make these decisions.

There are many individuals that will never be convinced that the civil justice system is a necessary and critical element in deterring corporate conduct and compensating victims. By allowing companies to pay less for the injuries they cause, the financial burden is shifted to the american public through medicaid and medicare. Furthermore, the risk of a larger judgment is elimited and companies can predicate whether making a safer product is more expensive than selling a defective one and paying those individuals who will be injured. Those citizens who have petitioned for tort reform have likely never needed the system.

Unfortunately, people who need the system for long term care of injured family members are stigmitized for using their rights and questioning why they were hurt and their life changed for ever. It is a sad day in this country when corporate profits are placed ahead of the rights of individuals both in and outside the courtroom. I am hopeful that as the new change in this wonderful country takes place, that we will come to again recognize the beauty of asking questions and value deliberation and the right to govern ourselves.

Preemption Ruling in Drug Eluting Stent Litigation

In light of the recent Supreme Court ruling in Riegel v. Medtronic, the viability of the claims against the manufacturers (Boston Scientific and Cordis and J&J) of drug eluting stents (DES) has been unknown. The DES litigation in Palm Beach County, in the case of O'Shea v. Cordis, was one of the first cases to raise these issues post-Riegel. Judge Kelley carefully considered these complex issues and even recognized that : " The difficulty is determining what is and what is not a parallel claim." The Order was split and found that certain claims are preempted and also found that several claims were not preempted.

The following claims are preempted:
1. All common law negligence and strict liability claims to the extent the claims are based upon approved FDA design and labelling;
2. Unfair Trade Practices
3. Fraud on FDA or Fraud based upon approved labelling or brochures.

The following claims are not preempted:
1. Negligence claims based upon "Good Manufacturing Standards";
2. Express Warranty claims
3. Fraud on the physician/ patient

The Order leaves open confusion with regard to "parallel claims". Primarily, the Order does not address whether claims based on federal regulations, other than Good Manufacturing Practices, are preempted. Reigel suggests that claims based upon a breach of federal law (duty) are not preempted. The language in the opinion suggests that claims based on federal regs, in adddition to GMP, but the Court did not specifically address the impact of federal regulations outside of GMP. The Plaintiffs steering committee, which I am a member of, is in the process of deciding the next step in this important battle.