Wednesday, March 24, 2010
Alternative Fuels Industry in Limbo Without Extension of Tax Credits
9:59 am edt
After the House and Senate passed bills
including an extension of the alternative fuel mixture and biodiesel tax credit program
, alternative fuel producers assumed that Congress would act quickly to put the legislation into a form that could be signed
by the President.
It has been more than two weeks now, however, and still Congress has not reconciled the two
House Ways and Means Committee Chairman Sander Levin (D-Mich.) is quoted by BNA Daily Tax Reports (March 23)
to say that if lawmakers must hold a formal conference committee to settle differences on legislation extending expired and
expiring tax cuts, it could be a long time before a compromise is reached.
Levin's comments came the day after
he told the House Rules Committee that it is "uncertain" when the House will consider the $31 billion extenders
package (H.R. 4213), telling that panel the Senate-passed legislation has "many other provisions in it we need to consider
within the committee and I'm thinking we're going to have a conference committee and if we do I think the likely result is
it will take considerable time to complete it."
According to Levin, the House and the Senate used different
offsets to pay for AFM and biodiesel tax cuts that expired December 31, 2009.
Until the bills are reconciled and
signed by the President, the AFM and biodiesel tax credit remain in abeyance and the alternative fuel industry remains in
Tuesday, March 23, 2010
Georgia Supreme Court Strikes Down Med-Mal Damages Cap
11:57 am edt
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. 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)).
Cross-posted on PointOfLaw.
Wednesday, March 17, 2010
The Offer of Judgment Rule in Georgia: Analyzing Smith v. Baptiste
10:53 am edt
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.
To paraphrase Grateful Dead front man Jerry Garcia, however, "what a long, strange trip it was."
Read the rest of the post at PointOfLaw.
Tuesday, March 16, 2010
Georgia Supreme Court Upholds Two Tort Reform Statutes
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.)
11:06 am edt
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.
Thursday, March 11, 2010
Senate Passes Alternative Fuel Tax Credit Extension
10:15 am est
The U.S. Senate yesterday voted
by a margin of 82-36 to pass the American Workers, State and Business Relief Act, which included H.R. 4213. That bill includes
a one year extension of the biodiesel excise tax credit and the alternative fuel mixture credit.
with a sign of relief and reportedly have re-commenced or ramped up production
in response to the news.
For more background on the biodiesel and alternative fuel excise tax credits, please
check out our recent podcast
Monday, March 8, 2010
Georgia Tort Reform Cases
8:50 am est
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
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 plaintiff (Deen) had sought treatment from a dentist
for swollen gums resulting from periodontal disease. The dentist performed a "debridement" procedure in which calculus
was removed from underneath the plaintiffs' gums. A debridement procedure causes a large quantity of bacteria to be released
into the bloodstream and can be dangerous for patients prone to infections and other complications.
claimed that various elements of his medical history should have alerted the dentist to these factors or that the dentist
should have taken other steps to prevent the infection. The plaintiff claimed that the debridement caused an infection in
his brain as a result of which he suffered a stroke and long-term mental and physical incapacitation.
filed suit nearly three years after the procedure and his injuries. The Georgia statute of limitations, O.C.G.A. 9-3-71, however,
requires medical malpractice plaintiffs to file within two years from the date of injury.
U.S. District Judge
Anthony A. Alaimo, just months prior to his death, ruled that the two year limitation was unconstitutional because it was
not rationally related to the state's interest in reducing healthcare costs. He wrote that the statue "appears to have
been based on either [a] misunderstanding of the problem of healthcare expenses, or an outright boondoggle."
Roughly one week ago, the Eleventh Circuit reversed, suggesting that the late Judge Alaimo had "waded[d] far too deeply
into the debate" over health care reform. The 11th Circuit panel said that the court should not have tried to answer
the question of whether tort reform improved access to healthcare but rather should have focused on the more narrow question
of whether the Georgia legislature's approach was rationally related to the legislative intent. On that question, the Court
of Appeals held, it was.
Thus, for the time being at least, Georgia's two-year limitation on medical malpractice
At least two tort reform cases are now pending before the Georgia Supreme Court:
Atlanta Occuloplastic Surgery v. Nestlehutt: Plaintiff was awarded actual damages of $115,000 and punitive damages of $1.15 million. Under S.B. 3's cap on punitive damages,
the punitive award was required to be reduced to $350,000. The trial judge ruled that the cap on punitive damages violated
Georgia's Constitution under various theories. The Georgia Supreme Court has heard oral argument on the appeal and a ruling
is expected soon. (Background: Atlanta Journal Constitution).
Gliemmo v. Cousineau: Plaintiff sought treatment at a hospital emergency room for a severe headache. The attending doctor diagnosed the patient
as having a stress-induced headache, prescribed valium and discharged the plaintiff. The plaintiff subsequently suffered a
stroke and incurred significant injuries. Georgia's S.B. 3's limits the liability of an emergency room doctor to gross negligence
only as shown by "clear and convincing evidence."
The plaintiff challenged the constitutionality of
the statute before the trial court claiming that (1) the gross negligence standard is vague and in conflict with another Georgia
statute that requires "a reasonable degree of care and skill" in medical malpractice actions; (2) the statute denies
similarly situated plaintiffs equal protection under the law; (3) the bill under which the statute was promulgated violates
the Georgia Constitution's "one subject rule"; and (4) the statute is an unconstitutional special law.
The trial court upheld the statute and the plaintiff's appeal has been argued before the Georgia Supreme Court. A ruling
is expected shortly. (AMA Amicus Brief.)
(Cross-posted on PointofLaw.com)
Friday, March 5, 2010
SEC Interpretive Guidance on Climate Change
9:24 am est
The SEC has issued interpretive guidance
on climate change and environmental regulation. The guidance is dense, as SEC guidance usually is, but it begs the
question of why the SEC chose to come out with guidance now.
Certainly companies with environmental exposure will
need to disclose environmental risk in their 1934 Act risk factor disclosures and, to the extent the EPA gets into the act
by trying to regulate carbon dioxide emissions, that regulatory risk will become a risk factor as well. But given the
great uncertainty surrounding climate change and the uncertainty surrounding current liability (as expressed in private suits)
and future liability (as contemplated by potential regulations) how much sense does it make to give guidance on risk factor
disclosures on such certainties?
Doesn't the multiplication of uncertain science, uncertain liability and
uncertain regulation just equate to more uncertainty?
Wednesday, March 3, 2010
Obama Goes Nuclear and Rangel Goes Fishing
12:50 pm est
President Obama is reported to be planning to present today his proposal to use reconciliation
- the nuclear option - to get a modified version is his health care legislation through Congress. At the same time,
Charlie Rangel (D. NY) is reportedly stepping down from his chairmanship
of the House Ways and Means Committee in response to a finding that he broke House ethics rules.
Monday, March 1, 2010
New York Times Calls for Rangel's Chairmanship
11:16 am est
The New York Times has added its voice to the choir calling for Charles Rangel (D-NY) to step down as chairman of the House
Ways and Means Committee.