• Arbitration Agreements
• Attorneys' Fees
• Assault Weapons
• Civil Rights/§1983
• Class Actions
• Daubert
• Fraternity Hazing
• Gay Marriage
• "Junk Lawsuits"
• Medical Expenses
• Medical Malpractice
• Med Mal Experts
• Products Liability
• Punitive Damages
• Social Host Alcohol
• Tort Reform

The consumer watchdog group, Public Citizen, states:" President Bush is leaving this year’s campaign trail littered with distortions, exaggerations and patently false statements about the impact of consumer lawsuits on the nation’s economy and health care." Public Citizen published a fact sheet, "President Bush Dis-Torts the Truth About Lawsuits’ Impact on Health Care and the Economy" that debunks the unfounded rhetoric and falsehoods routinely espoused by Mr. Bush and Dr. Bill Frist.

Ironically, when President Bush appears at these rallies he often is accompanied by a doctor who was supposedly driven from practicing medicine by "junk lawsuits." But then, after Bush leaves town, the facts begin to emerge.

For example, President Bush traveled to Youngstown, Ohio, to talk about health care, and before long he was reprising his complaint about "junk and frivolous" malpractice suits, which he said are discouraging good doctors from practicing medicine. To bolster his argument Mr. Bush introduced a local doctor, Compton Girdharry, to an audience at Youngstown State University. Dr. Girdharry, an obstetrician/gynecologist, said he had been driven from a practice of 21 years by the high cost of malpractice insurance. If Mr. Bush was looking for an example of a doctor who was victimized by frivolous lawsuits, Dr. Girdharry was not a great choice. Since the early 1990's, he has settled lawsuits and agreed to the payment of damages in a number of malpractice cases in which patients suffered horrible injuries. A White House spokesman said the president had not been aware of the problems in Dr. Girdharry's background. "Had this doctor provided that information," the spokesman said, "he would not have been at that event.".

In Missouri President Bush bemoaned the fate of a neurosurgeon supposedly driven from practice by junk lawsuits. Afterwards, the facts came to light that this Columbia, Missouri neurosurgeon routinely testifes for plaintiffs in medical malpractice cases as an expert and corrected President Bush by saying: "I was not run out of business by lawsuits. I decided to retire because of the jump in my insurance premium, and there's not a direct correlation with lawsuits against me."

"I think the will of the American people is consistent with letting it expire, so it will expire," Senate Majority Leader Bill Frist, R-Tenn, told reporters on Capitol Hill today What? Does Dr. Bill Frist actually believe that most Americans want to have AK-47s, Uzis, Tec-9s and other assault weapons freely available for gangs, terrorists and drug dealers? Even though Al-Qaeda training manuals urge terrorists to buy these weapons (especially the AK-47) in the United States, Senator Frist blithely (or blindly) permits presidential politics to bring these weapons back to U.S. streets. Senator Frist is reckless, shameful and dangerous on this issue.

Senator Frist's RNC speech called trial lawyers "culprits" and "predators" for their role in medical malpractice litigation. He would have have been far more accurate to finger himself (and his House cohort Tom DeLay) as the real "culprits and predators" for willingly allowing the sale and trade of true weapons of mass destruction in a time of terror.

Senator Frist is not simply wrong, he is absurdly wrong. Polls consistently show a clear majority of American favor extending the ban on assualt weapons (the most recent poll showing 74% in favor of extending the ban on assault weapons). But more fundamentally, how can a medical doctor, a surgeon no less, possibly support the sale of assault weapons? The American Medical Association strongly supports the ban on assault weapons and adopted a formal resolution advocating that the ban remain in place. Senator Frist should remember the oath he took as a physician to "do no harm." As the AMA Resolution notes:

• Whereas, Our AMA supports appropriate legislation that would restrict the sale and private ownership of large-clip, high-rate-of-fire, automatic and semi-automatic firearms, or any weapon that is modified or redesigned to operate as a large-clip, high-rate-of-fire, automatic or semi-automatic weapon (Policy H-145.993); and
• Whereas, Semi-automatic assault weapons are civilian versions of military weapons with features that allow users to rapidly kill large numbers of people; and
• Whereas, One out of five law enforcement officers slain in the line of duty from 1998 through 2001 was killed with an assault weapon; and
• Whereas, Assault weapons have been used in many high profile mass shootings such as the one at Columbine High School in Littleton, Colorado and the Washington DC-area sniper shootings; and
• Whereas, Injuries from assault weapons have a particularly distressing effect on victims because increased firepower heightens the risk of multiple gunshot wounds and severe penetrating trauma, which can intensify devastation to the body; and
• Whereas, The severity of wounds that result from assault weapons lead to high medical costs for treatment and recovery; and
• Whereas, California significantly improved its state assault weapons ban in 1999 in response to gun industry efforts to evade a law passed in 1989, giving the federal government a successful model to follow; and
• Whereas, The 1994 federal Assault Weapons Ban is scheduled to sunset on September 13, 2004;

On a 49-to-48 vote, Republican leaders fell 11 votes short of the 60 needed to overcome the threat of a filibuster by Democrats and force the Senate to consider their bill to limit pain-and-suffering damages that juries can award in malpractice suits against obstetricians and emergency room doctors.Senator Bill Frist of Tennessee, the majority leader, said his party would not give up on getting malpractice legislation sought by doctors and insurance companies through the Senate this year.

"I've never seen such special-interest legislation," said Senator Patrick J. Leahy, Democrat of Vermont. "Instead of going about doing the people's business, we seem to be going about the political action committees' business, and that's why, of course, nothing is getting done."

A complaint has been filed against Dr. Frist, a heart surgeon, for participating in the debate since his family founded the H.C.A. hospital chain and its subsidiary malpractice insurer, Health Care Indemnity.[See April 7, 2004].

The Senate's only doctor, Bill Frist, has been the unabashed point person for the Republican agenda to limit the rights of patients to sue and recover from doctors and drug companies. Now a highly regarded independent watchdog consumer group, The Foundation for Taxpayer and Consumer Rights, (http://www.consumerwatchdog.org) has called for Senator Frist to step aside from this debate and recuse himself because of his ownership (albeit in a blind trust) of at least $10,150,000, and up to $30,350,000 or more, in HCA stock. The foundation puts it plainly: "Senator Frist's current involvement in the medical malpractice debate rises beyond the level of general concern for health issues to specific advocacy for his family's company."

The Foundation for Taxpayer and Consumer Rights is absolutely right. Senator Frist should recuse himself from voting on limits on the rights of patients who have been most seriously injured by medical malpractice.The press release advocating Senator Frist's recusal may he viewed at: http://www.consumerwatchdog.org/healthcare/pr/pr004158.php3  

This is not the first time that Senator Frist's ties to HCA have been questioned as "legal corruption." Charles Lewis, with the Center for Public Integrity also concluded Dr. Frist had a "direct conflict" in urging legislation that would directly benefit HCA. See http://www.commondreams.org/headlines02/1222-04.htm. The Nashville Scene (reporter Willy Stern) did an excelllent investigation into Dr. Frist's blind trust and concluded that the trust was not in fact blind: "What the panel discovered is that Frist's "blind" trust isn't really blind at all, though he hasn't broken any rules.."

The limits Dr. Frist seeks would penalize patients and financially reward Health Corporation of America  (the nation's largest for-profit hospital) and HCI (Health Care Indemnity, the nation's sixth largest medical malpractice insurer). 
 
Founded and controlled by the Frist family, these companies (and the Frist family, including Senator Frist, whose holdings in the company are in a blind trust)  would profit from enactment of such legislation. Senator Frist's actions are as good as his words: "an appalling act of profiteering."*

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*Senator Frist, it will be remembered, recently took to the Senate floor to attack the ethics of Richard Clarke for, among other things, "an appalling act of profiteering" for publishing his book, Against All Enemies. Of course Senator Frist blithely (or blindly?) omitted that he himself had published a book on terrorism: When Every Moment Counts: What You Need to Know about Bioterrorism from the Senate's Only Doctor (March 2002) (available on-line in paperback for $10.95).

Thankfully, on Tuesday (Feb. 23, 2004) evening, the U.S. Senate said NO to a Motion to proceed to the consideration of S.2061, the bill that would have restricted the rights of injured mothers and their babies, and handed sweeping liability protections to physicians and others for injuries arising from OB/GYN services.Needing 60 votes to invoke cloture and end a filibuster against proceeding to the bill, proponents were able to muster only 48 votes, falling short of even a bare Senate majority. All Senate Democrats present and voting, except for Robert Byrd of West Virginia, opposed cloture. Democratic Senators Kerry, Edwards, Boxer, Johnson, Corzine and Miller were not present. Three courageous Republicans defied the White House and their Senate leadership and voted to oppose cloture, Lindsey Graham of South Carolina, Richard Shelby of Alabama and Mike Crapo of Idaho. Independent Jim Jeffords also opposed cloture. We should thank all Senators who voted to oppose cloture. Sadly here in Tennessee Dr. Frist and Lamar Alexander staunchly supported this restrictive legislation. You can reach Senate offices through the U.S. Capitol switchboard at 202-225-3121; additional information on how to contact your Senator can be found at http://action.peopleoverprofits.org/legDirectory/

Tennessee's Senator Bill Frist will bring to the Senate Floor on Monday, Feb. 23, 2003 a Senate bill (S. 2061), which the Republicans have titled the “Healthy Mothers and Healthy Babies Access to Care Act" that seeks to enact a series of tort reform measures at the federal level that would apply only to cases involving birth injuries and mothers (OB-GYN cases). Interestingly, the Republican Senate's official website calls the bill simply, "The Medical Malpractice Billl." Senator Frist has e-mailed Republican supporters urging them to support this bill. President Bush has also endorsed capping damages in medical malpractice cases.

This latest effort at federal tort reform is Dr. Frist's plan to fundamentally change the law in every state for birth injury cases to benefit drug companies, manufacturers, HMOs, docotors and others who are found to be at fault for causing serious birth injuries or deaths by juries. Senator Frist correctly noters that this bill is patterned closely after California's medical malpractice law, MICRA, that has capped damages in California. However, the California experience has hardly been a model of success or fairness as well documented by the Consumer Attorneys of California.

Having previously failed to enact a broader tort reform bill, Senator Frist's latest effort to enact this legislation is an even more profoundly disturbing encroachment into the rights of states and juries to fairly deter malpractice and defective products and provide full and fair compenation to victims. I have represented many families whose lives have been permanently devastated by birth trauma caused by negligence, malpractice, HMO decisions or defective drugs. This bill wrongly discriminates against women and infants by restricting their right to hold physicians, hospitals, insurance companies, HMOs, and even drug and medical device manufacturers accountable for injuries resulting from the provision of obstetrical and gynecological care. Although "conservative" Republicans are generally opposed to federal legislative efforts to limit the laws and authority of states to govern traditional areas of state law, when it comes to insurance companies, HMOs and the AMA, there is no lack of zeal by the Republican Senate leadership to vote for immunizing liability. Although Senator Frist says the bill is necessary to increase access to women’s health care, nowhere does the bill make liability insurance for doctors more available or affordable. And nowhere does it provide access to health care for women who are uninsured. What this proposal does do is greatly limit the ability of women and children with the most devastating injuries to hold the wrongdoer accountable. The bill includes the following provisions:

• Caps Non-economic damages at $250,000.00. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom an action is brought. This cap is more restrictive than any state cap. Non-economic damages compensate patients for very real injuries–such as the loss of fertility, pain and permanent and severe disfigurement. They also compensate for the loss of a child or a spouse. These are real damages, and juries are able to calculate them fairly. Infants who sustain life-long injuries during childbirth or women who lose their fertility due to a defective drug taken during the course of pregnancy do not have lost wages or salary. Their injuries may be almost completely non-economic and this bill would have a severe impact.
• Periodic payments of all future damages. Allowing all future damages over $50,000 to be paid periodically punishes meritorious plaintiffs who were injured by malpractice and unsafe products and leaves them vulnerable and undercompensated. Meanwhile, large insurance companies reap the interest benefits of a plaintiff's jury award.
• Helps Insurance Companies and HMOs. The bill is not limited to just medical malpractice, but also product liability and insurance claim cases relating to the provision of obstetrical care. The bill applies to medical malpractice, medical products, and health insurance claims. If Senator Frist was truly concerned about an insurance crisis facing doctors, why does his bill sweep in even product liability claims against pharmaceutical and medical device manufacturers, and bad faith claims against insurers and HMOs?
• Immunity from punitive damages in product liability cases used in connection with the provision of obstetrical or gynecological services. The bill completely immunizes manufacturers of FDA-approved drugs and devices used in connection with the provision of obstetrical or gynecological services from punitive damages. The bill also extends this immunity to the manufacturers of drugs and devices that are not FDA-approved, yet are "generally recognized as safe and effective." Finally, the bill immunizes the manufacturer or seller of drugs from punitive damages for packaging or labeling defects unless the trier of fact determines by the heightened standard of “clear and convincing evidence” that the product was not manufactured in substantial compliance with FDA regulations. These broad-based immunities completely undermine patient safety by eliminating the deterrent effect of punitive damages and have no relation to issues regarding medical malpractice.
  
• Blanket Insulation of Liability beyond OB-GYNs. The bill apllies not just to Ob/Gyns, but any physician, nurse or health care professional providing “services for pre-natal or labor and delivery, including the immediate postpartum period.” The definition of protected services is so broad it would protect any professional attending a pregnant mother, and even protect a pediatrician attending a baby during the postpartum period. For example, the bill would limit the recovery of a woman who is injured by an anesthesiologist during the course of childbirth, but would preserve state tort law if that same anesthesiologist injured the same woman during heart surgery. The limits on recovery could even apply to a women who is injured as a result of a negligently performed hysterectomy immediately following child birth, but it would not apply to a hysterectomy performed at any other time.
  
• Restricts Attorneys Fees. The bill specifies that contingent fees, regardless of the number of plaintiffs, may not exceed: (1) 40% of the first $50,000 recovered; (2) 33?% of the next $50,000 recovered; (3) 25% of the next $500,000 recovered; and (4) 15% of any recovery in excess of $600,000.
• Reduced statute of limitations. The legislation unfairly reduces the amount of time that an injured woman has to file a lawsuit. Under the bill, a suit would have to be filed no later than one year from the date the injury was discovered or should have been discovered, but not later than three years after the “manifestation” of injury. This statute of limitations is much more restrictive than a majority of state laws and would arbitrarily cut off meritorious claims involving diseases with long incubation periods. Thus, a pregnant women who contracted HIV through a transfusion but only learned of the disease five plus years after the transfusion would be barred from filing a claim. In addition, the bill limits the rights of injured newborns by requiring that actions on their behalf be brought within 3 years from the date of the manifestation of injury. This is in direct contradiction to the laws of many states, which preserve the rights of minors to seek legal redress upon the age of majority.
• Eliminates Joint & Several Liability. Under joint liability, injured mothers and their babies are compensated fully for their loss. Joint liability enables an individual to bring one lawsuit against the entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among themselves, if the jury finds for the plaintiff.
• Medical products and medical provider suits must be brought separately. S. 2061 requires that health care providers not be named as defendants in the same cases as pharmaceutical or medical device manufacturers. Further, health care providers may not be held responsible for an injury to a pregnant mothers in a class action against pharmaceutical or medical device manufacturers. These requirements do not mean that the provider was not negligent. Instead of having all parties present and allowing the jury to evaluate the evidence, this provision will allow the defendant to blame another defendant who is not a party to the case. The result will be finger pointing by wrongdoers while injured mothers and their babies remain uncompensated.
  
• Restrictions on Expert Witnesses. Under this bill, a nurse present at the delivery could not testify that even the most flagrantly negligent obstetrician violated the standard of care nor could a pediatric neurologist testify against an obstetrician about injuries sustained by an infant during birth due to negligence.
  
• Discriminates Against Women. The bill effectively discrimates against women by placing a different value on injuries suffered by a pregnant women injured by medical negligence. Men’s injuries are given full value. For example, if a woman is prescribed blood pressure medication during pregnancy that causes blood clots, her recovery is limited under the bill’s provisions. If a man is prescribed the same defective blood pressure medication by his internist, he may recover against the drug manufacturer in accordance with available state law remedies.
• Collateral source rule. The bill requires that any damages recovered by an injured woman or her baby be reduced by the amount of any collateral source benefits. Suppose, for example, a baby is injured by her doctor and needs complicated surgery and rehabilitation to correct the problem. If the cost for the medical treatment paid is by the health insurer for that treatment is more than the damages recovered–a likely possibility under a bill that severely restrict non-economic damages–the injured patient may recover nothing. This provision deters those patients with the most serious injuries from holding the wrongdoers accountable.
• Severe restrictions on punitive damages. The bill provides that punitive damages may only be awarded if the plaintiff proves by a “clear and convincing” evidence that (1) the defendant acted with malicious intent to injure the plaintiff or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury. The bill does not create punitive damages in those states that don’t recognize them. The bill further limits punitive damages to two times the amount of economic damages or $250,000, whichever is greater. Finally, because the bill prohibits punitive damages unless compensatory damages are awarded, the bill would eliminate any monetary recovery for women and infants under Alabama’s wrongful death statute, which specifies that only punitive damages are available in wrongful death cases.
• Heightened pleading standards for punitive damages. Punitive damages may not be sought by the plaintiff initially. At the court’s discretion, a plaintiff may be allowed to file an amended pleading for punitive damages only after a finding by that court that there is a substantial probability that the plaintiff will prevail. After suffering horrendous injury and going through the expense and trauma of litigation, this provision would force a mother to undergo a second ordeal.
• Preemption of state law. The bill includes a sweeping preemption of state law. This preemption is designed to override state laws that protect consumers and patients while keeping in place state laws that favor doctors, hospitals, insurance companies, HMOs, pharmaceutical and medical device manufacturers, and other health care defendants. Specifically, the bill preempts all areas of state law covered by the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, attorneys’ fees, and periodic payments. The bill does not preempt any state defenses designed to protect health care providers. The bill would leave in place existing state damage caps on economic, non-economic, or punitive damages, but would impose the caps in the bill on states that do not have limitations on damages, including states whose limitations were struck down as unconstitutional by state supreme courts.

2/18/05: Law Prohibiting Gay Marriage Does Not Violate State Constitution (Indiana). Morrison v. Sadler (Lawyers Weekly USA No. 9930003) Indiana Court of Appeals No. 49A02-0305-CV-447. Jan. 20, 2005.

2/13/05: Newsom Calls for Support of Gay Marriage. Marking the anniversary of his decision to sanction same-sex marriages, Mayor Gavin Newsom on Saturday urged gay couples to back politicians who support gay marriage, saying it is time "to hold our elected officials accountable."

2/13/05: Massachusetts AG Supports Gay Marriage Ruling. One day after the Massachusetts Supreme Judicial Court announced it would hear arguments challenging its decision to legalize same-sex marriage, Massachusetts Attorney General Thomas F. Reilly told reporters Friday that he now supports the ruling. He had previously opposed the unions, and initially spoke out against the court's November 2003 ruling.

2/2/05: New York judge strikes down same-sex marriage ban. New York State Supreme Court Justice Doris Ling-Cohan ruled that New York's law banning same-sex marriages violates the state constitution. If upheld on appeal, the decision would allow same-sex couples in the state to wed. Justice Ling-Cohan found in favor of five same-sex couples who were denied marriages licenses last year.

Interactive Map and State by State Comparison.

Analysis: When the United States Supreme Court struck down a Texas statute outlawing homosexual sodomy in Lawrence v. Texas, 123 S.Ct. 2472 (June 26, 2003), Tennessee Senator Bill Frist called for a constitutional amendment banning gay marriage. When the Massachusetts Supreme Court held in Goodridge v. Department of Public Health, 798 N.E.2d 941, Mass.,2003.(Nov. 18, 2003) that limiting the protections, benefits and obligations of civil marriage to individuals of opposite sexes lacked a rational basis and violated state constitutional equal protection principles, Senator Frist again called for a constitutional amendment banning "gay marriage." At a "Republican dinner" in Williamson County, Tennessee on Feb. 19, 2004, Senator Frist again called for a constitutional amendment banning gay marriage. Tennesseean, (2/20/04), p. 10A ("Frist Wants Constitutional Amendment to Ban Gay Marriages").

Then, on February 24, 2004 President Bush called for a Constitutional Amendment banning gay marriage but left open to states the right to sanction "civil unions."

Respectfully, a constitional amendment outlawing "gay marriage" is a misguided polarizing effort to divide our country and citizens on religious and moral grounds and misses a very moderate and sensible solution: civil unions that provide same-sex partners with rights and legal interests of married couples.

Currently 37 states have laws that are "Defense of Marriage Acts." The constituitonality of these laws is uncertain given the Massachusetts Supreme Court's recent opinion that even "civil unions" that have all the rights and benefits of marriage relegate same-sex couples to "second class citizens" in violation of the Massachusetts state constitution. In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565, Mass., Feb 03, 2004, By contrast, the State of Alaska (Bush 59%; Gore 28%) enacted a constitutional amendment to the Alaska Constitution in 1999 that "To be valid or recognized in this State, a marriage may exist only between one man and one woman." AK CONST Art. 1, § 25. Congress has also passed, at the federal level, the Defense of Marriage Act, 1 U.S.C. § 7 (2000) defining "marriage" as "only a legal union between one man and one woman as husband and wife," and "spouse" as "a person of the opposite sex who is a husband or a wife". The specific language of this law is as follows:

• " In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."

The effect of this federal law is largely aspirational because by far and away most laws affecting marriage and families are state laws. About a month before the U.S. Supreme Court's decision in Lawrence, a constitutional amendment was proposed in the House of Representatives providing that "[m]arriage in the United States shall consist only of the union of a man and a woman." H.R.J. Res. 56, 108th Cong. (2003). This proposed amendment would amend the U.S. Constitution to state:

• SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman . Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups

A little more than a month after the Lawrence v. Texas decision, in response to "social conservatives" who were "seething" over Lawrence, President Bush stated that he was proposing official action, which might include a constitutional amendment, that would define marriage as a union between a man and a woman. Neil A. Lewis, Bush Backs Bid To Block Gays From Marrying, N.Y. Times, July 31, 2003, at A1.He has now done so.

Tenneessee's statutes contain hundreds of citations to "marriage" and, as personal injury lawyers are well aware, status as a spouse carries important legal rights including: the right to wrongful death damages as a surviving spouse; rights to inheritance as the immediate nexi-of kin; right to determine method of final disposition by burial or cremation; loss of consortium benefits; evidentintiary privileges; and protections against spousal abuse. The proposed amendment to the Constitution advocated by Rep. Musgarve (and endorsed by Bush) would prohibit any constitutional protections to same-sex couples relating to the "legal incidents of marriage." Most Americans, however, favor recognizing "the legal incidents of martriage" for same-sex couples as a "civil union." The moral or political overtones of "gay marriage" cloud the moderate view that same sex couples should have the same bundle of rights that married couples enjoy. The point was rather eloquently made by Vice-President Dick Cheney in his Oct. 2000 VP debate with Joe Lieberman:

• "[P]eople should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard...The next step then, of course, is the question you ask of whether or not there ought to be some kind of official sanction, if you will, of the relationship, or if these relationships should be treated the same as a conventional marriage is. That's a tougher problem. That's not a slam dunk. I think the fact of the matter is that matter is regulated by the states. I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area. I try to be open minded about it as much as I can and tolerant of those relationships. And like Joe, I also wrestling with the extent to which there ought to be legal sanction of those relationships. I think we ought to do everything we can to tolerate and accommodate whatever kind of relationships people want to enter into."

What the law should do is recognize civil unions that carefully define what rights same-sex couples may enjoy. For example, the Eleventh Circuit has held that Florida may prevent same-sex couples from adoption, declining to extend the sexual privacy rationale to gay adoption. Lofton v. Secretary of Dept. of Children and Family Services, 2004 WL 161275, 17 Fla. L. Weekly Fed. C 201, 11th Cir.(Fla.), Jan 28, 2004. Cokie Roberts and Steven Roberts wrote an excellent op-ed article on just this issue. Escaping Extreme Views, Civil Unions Make Sense. The "gay marriage" label and the effort to Constitutionalize prohibitions aganist equal protection and due process for homosexuals obfuscates the real issue which is that discrimination against same-sex couples should not exist with respect to laws relating to inheritance, death, health, taxes, adoption and crimes.By invoking the "gay marriage" nomenclature and calling for a constitutional amendment for political purposes, Senator Frist (and President Bush) miss the issue and divide us further.

In Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 62 Fed. R. Evid. Serv. 1199, 7th Cir.(Ill.), Oct 21, 2003 the Seventh Circuit, in an opinion by Judge Posner, approved a punitive damages award 37 times compensatory damages in a case involving bedbug infestation at a Red Roof Inn motel. The Second Circuit has also approved a 75,000 to 1 ratio in a police-misconduct case, Disorbo v. Hoy, 343 F.3d 172 (2d. Cir. 2003) The Fifth Circuit approved a 150 to 1 ratio in a police-misconduct case. Williams v. Kaufman County, 2003 WL 22890399, 5th Cir.(Tex.), Dec 09, 2003 These cases are important in rejecting the concept that a single-digit ratio should always apply to punitives. In State Farm Mut. Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003) however, the court stated, "few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process." Judge Posner in Mathias suggested that if a tortfeasor is caught only half the time he commits torts, then when he "is 'caught' he should be punished twice as heavily to make up for the times he gets away." Also, absent a mutli-digit multiplier it would be difficult to finance litigation that has a propsect of only negligible compensatory damages. Finally, "official" penalities could have included misdemeanor battery charges and loss of the license to operate. The decision was favorably reviewed in The National Law Journal, Vol. 26, No. 10 (Nov. 3, 2003).

The factors to consider under the Supreme Court's decision in State Farm Mut. Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003) include: 1) the ratio or proprotionaliity between compensatory and punitive damages; 2) the reprehensibility of the defendat's conduct; and 3) the level of official financial sanctions that a defendant could have been subject to for the conduct being punished.

In Hodges v. S.C. Toof & Co., 833 S.W. 2d 896 (Tenn. 1992) the Tennessee Supreme Court permitted evidence of "the defendant's financial affairs, financial condition, and net worth." Donald Paine argues that State Farm does not prohibit consideration of a defendant's wealth because in State Farm Justice Kennedy stated that "The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award." (Emphasis supplied). Moreover, State Farm quoted BMW v. Gore, 116 S.Ct. 1589, 517 U.S. 559 (1996) with approval that "[Wealth] provides an open-ended basis for inflating awards when the defendant is wealthy. . .That does not make its use unlawful or inappropriate; it simply means that this factor cannot make up for the failure of other factors, such as 'reprehensibility', to constrain significantly an award that purports to punish a defendant's conduct." (Emphasis supplied). See Paine, Punitive Damages: Hodges and State Farm, 39 Tenn. B.J. 33 (Nov. 2003).

Five years after a major report describing an epidemic of medical errors in the U.S. health care system shocked patients, policy makers and physicians, little substantial progress has been made to make medical care safer. See Scant Progress Seen on Cutting Medical Errors (Reuters Health, 11/04/04). Observers cite a lack of money and political will needed to fund safety research and implement safeguards in hospitals and physicians' offices throughout the nation.They also point to a resistant medical culture in which doctors still balk at efforts to record errors and participate in systematic steps to solve them.The Institute of Medicine issued a report in November 1999 warning that outdated and sometimes nonexistent safety practices were causing widespread errors in pharmacies, doctors' offices and operating rooms throughout the country.

In Wooten v. Logan, 2004 WL 68541 (6th Cir.(Tenn.)), (Jan 14, 2004) the Sixth Circuit held that a Pickett County sheriff's act of rape after a traffic stop did not support a 42 U.S.C. § 1983 Civil Rights claim because there was no proof of an "official policy" in that the act of rape "did not establish or constitute a 'municipal policy." The court reasoned that the sheriff's conduct was not "designed to guide future decision making or in furtherance of some governmental body's high-level overall plan." Circuit Judge Karen Moore dissented on the ground that the sheriff-rapist was the policy-maker: "Logan's position as sheriff is his ability to create policy. Whether that policy allows the abuse only of his office, or of all law-enforcement offices, is irrelevant. It is not the greater power of the sheriff to force sexual acts from the citizenry that matters; it is the greater power of the sheriff to set the policy of the municipality to allow such reprehensible acts to happen under the color of state law that is at issue."

In Grimes v. Mazda North American Operations, 2004 WL 63417 (6th Cir.(Ky.), Jan 13, 2004) the Plaintiff introduced evidence from persons involved in other accidents where the seat belt latch in the vehicle was defective. The district court ruled that such evidence could be used only for the purpose of providing notice to the manufacturer of a possible defect, not as evidence that the product was defective. The Sixth Circuit held the trial court correctly ruled on this point. But, even if there were error, the error had no effect. The jury returned a special verdict that plaintiff was not wearing her seatbelt and that this, not design defect, may have been a cause of her injury.

In Hunter v. Ura, 2003 WL 22438444 (Tenn.Ct.App., Oct 28, 2003) the trial court held a Daubert/McDaniel evidentiary hearing to determine the reliability of expert causation opinion in a medical malpractice case. The court excluded one expert, but permitted the plaintiffs' anesthesia expert to testify.

• "We find persuasive the plaintiff’s arguments that Mr. Cox did not have the express or apparent authority to sign the admission agreement for his wife and that the alternative dispute resolution provisions are otherwise unenforceable. We will address the latter of these two arguments first. We hold that the admission agreement in the instant case is a contract of adhesion because the admissions coordinator offered it to Mr. Cox on a take-it-or-leave-it basis, i.e., Mr. Cox had to sign the agreement as written or his wife would not be admitted. See Eyring, 919 S.W. 2d at 320. Mr. Cox, as the weaker party, was not afforded an opportunity to bargain over the terms of the agreement. He certainly had no opportunity to bargain over the mediation and arbitration provisions. He was handed a form contract, under, what was for him, very trying circumstances, i.e., his need to quickly find accommodations for his ailing wife. It is clear he had two options: sign the form contract as presented to him by the defendant, thereby clearing the way for his wife’s admission to the defendant’s facility or refuse to sign the contract and thereafter try to make arrangements for his wife’s shelter and related accommodations. This is a classic case of a contract of adhesion. Following the teachings of Eyring and Howell, we hold that the mediation and arbitration provisions are unenforceable. In so holding, we rely upon the following facts: unlike Eyring, the dispute resolution procedures in this case are a part of an eleven page contract dealing with many issues, including financial arrangements and consent to care, rather than being set forth in a separate stand-alone document; the dispute resolution procedures do not contain any type of “short explanation” encouraging patients to ask questions; essential terms in the mediation and arbitration provisions are “buried” and not clearly “laid out”; there are no provisions addressing how mediation and arbitration work; most significantly, the provision waiving a patient’s right to a jury trial isburied – and in no way highlighted – in the provisions; the dispute resolution procedures seem for choosing the arbitrator; and, unlike the arbitrationprocedures before us, including the provision waiving type, and color as the rest of the agreement."
• "In summary, we hold that Mr. Cox did not have the actual or apparent authority to bind Mrs. Cox to the alternative dispute resolution provisions in the admission agreement. Furthermore, these provisions, especially the waiver of the right to a jury trial, are outside the reasonable expectations of a reasonable consumer, and, hence, unenforceable. Following Eyring and Howell, we hold that the trial court erred when it decreed that the mediation and arbitration terms were enforceable. Therefore, we conclude that the judgment below must be reversed. In view of our holding, we do not find it necessary to reach the plaintiff’s argument based upon her interpretation of 42 U.S.C. § 1396r(c)(5)(A)(iii) and 42 C.F.R. §§ 483.12(d)(3),

But, here the parent who hosted the party--but provided no alcohol -- was nevertheless held liable. This was the evidence: "Mr. Worley hosted the party for his daughter Ashley’s eighteenth birthday at his residence. No written invitations were sent; Ashley Worley personally invited friends. Other students heard about the party by word-of mouth. Everyone who showed up at the Worley home on the night of the party was welcomed by the Worleys. Mr. Worley did not intend to serve any alcoholic beverages, and did not. However, he was aware that some of the minors attending the party would bring beer and drink it at the party. He expected that to occur. Mr. Worley told Ashley prior to the party that if any of the guests consumed alcoholic beverages they would not be permitted to leave the party and would be required to stay the night. The court found that Worley owed a duty of care to Jennifer Biscan: "Imposing a duty to act reasonably to prevent driving by an intoxicated minor in a situation where the adult defendant has the authority and opportunity to take non-onerous action to preclude that driving furthers such public policy.20 We find Mr. Worley owed a duty of reasonable care under the circumstances to Jennifer Biscan. . .We recognize an apparent anomaly if an adult host who served alcohol to a minor could not be liable because of the Dram Shop Act, but a host who acted with good intentions as Mr. Worley did could face liability. We simply note that the case before us does not involve a defendant who served alcohol to minors, and we are not called upon to address that situation. Further, allowing an intoxicated minor to drive when it could have been prevented is a cause of the injury separate from and additional to the intoxication." The court also found Mr. Worley assumed a duty of care. "Nonetheless, his own deposition testimony established his undertaking and intent with regard to safeguarding the guests and the general public. Consequently, the evidence before the court at the summary judgment stage was sufficient for it to conclude that Mr. Worley voluntarily assumed a duty to ensure that minors who had been drinking did not leave the party by driving." The court stated the " question of whether Mr. Worley owed a duty to Jennifer Biscan to prevent Hughes Brown from driving in an intoxicated state after having consumed beer at the party, with or without a passenger, or to prevent Jennifer from riding in the car with Hughes Brown must be answered by balancing the degree of foreseeability of harm against the burden upon Mr. Worley to avoid the harm by acting differently. Id. at 901. The degree of foreseeability of harm and the magnitude of that potential harm must be balanced against the onerousness of the burden involved in alternative conduct. “Of course, a duty of care is dependent upon foreseeability.” Pittman v. Upjohn, 890 S.W.2d 425, 431 (Tenn. 1994). Applying the relevant factors to the circumstances presented in this case, it is clear that it was foreseeable that a minor guest who drank at the party would become intoxicated and that if an intoxicated minor drove a car, there would be an accident." So what did the duty require? The court stated, "On the other side of the equation, the burden placed on Mr. Worley to prevent the harm caused by an intoxicated minor driver leaving Mr. Worley’s home was not onerous. He himself devised a plan which merely required him to enforce the rule he attempted to impose. He only had to retrieve car keys or make the cars inaccessible. Of course, he also could have banned alcohol or refused to have the party." (emphasis supplied).

See also Stovall v. Clarke, 113 S.W. 3d 715 (Tenn. 2003) where the court stated:

• "First, Dr. Uhrig did not rely upon a national standard of care, nor did he simply equate the local standard with a national standard. Moreover, although Dr. Uhrig had never practiced medicine in the State of Tennessee, he testified that he had reviewed over twenty medical charts from the State of
  Tennessee and had testified in three other malpractice cases in middle Tennessee. In
  addition, Dr. Uhrig stated in his supplemental affidavit that he had reviewed statistical
  information about the medical community in Williamson County, Tennessee, which included
  information about the medical specialists and resources available at the Williamson County
  Medical Center.
  Unlike the expert proof in Robinson, Dr. Uhrig also expressed understanding of the
  locality rule and explained that he had applied the locality standard of care--and not a
  national standard--to the facts and circumstances in this case. Moreover, Dr. Uhrig did
  not simply offer a vague, conclusory statement that he was familiar with the local
  standard but instead showed some underlying basis for his testimony. In sum, all of these
  factors distinguish this case from Robinson and should be considered by the trial court
  when determining whether an expert's testimony satisfies the requirements of Tennessee
  Code Annotated section 29-26-115(a)(1).
  Dr. Clarke, however, contends that the trial court should not have considered Dr.
  Uhrig's supplemental affidavit and that his statements were based on information provided
  several years after the alleged malpractice in this case. We are not persuaded. First,
  we find no error in the trial court's consideration of Dr. Uhrig's supplemental affidavit
  because it was filed in opposition to the defendant's motion for summary judgment before
  the trial court's ruling. Second, we note that Dr. Clarke's arguments essentially contest
  the weight of Dr. Uhrig's statements and thus misapprehend the procedural context of this
  case: the proper analysis with respect to summary judgment is whether the evidence, when
  viewed in a light most favorable to the plaintiff, raises a genuine issue as to a material
  fact.
  Accordingly, we conclude that the Court of Appeals properly held that the trial court
  erred in granting summary judgment to Dr. Clarke. It follows that the trial court's
  denial of the plaintiff's motion to alter or amend the summary judgment in favor of Dr.
  Clarke was also erroneous. As we have reached this conclusion based solely on the testimony and
  supplemental affidavit of Dr. Uhrig, we need not reach the question of whether the
  trial court was required to consider the supplemental affidavits in ruling on the
  plaintiff's motion to alter or amend as it applied to the summary judgment in favor
  of Dr. Clarke."