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Trial lawyers' legislative wish-list

The state’s trial lawyers have released their legislative agenda for the upcoming session of the General Assembly. The wish-list seeks to advance protections for injured people who sue, reduce what it sees as heavy-handed criminal laws, resist “tort reform,” and narrow the use of the death penalty.

Here are some of the highlights:

Report notes North Carolina's longtime ties to ALEC

Dome meant to note this earlier, but it’s been a busy year: One local liberal group, Progress N.C., put out a report some months ago on the American Legislative Exchange Council that will likely have some bearing on the upcoming session.

ALEC was a significant part of Republican lawmakers’ agenda in Raleigh, with a “boot camp” on “model legislation,” a spring summit meeting of the organization’s various task forces – each specializes in specific issues – was held in Charlotte, and in the summer of 2011, a large contingent of Republican members of the House attended the national conference in New Orleans, where House Speaker Thom Tillis was named one of the legislators of the year.

Meanwhile, a drumbeat by liberal groups outed ALEC’s behind-the-scenes work to bring the corporate agenda to the nation’s legislators to pass pro-business laws. Despite the bad P.R., North Carolina legislators aren’t likely to severe their longstanding ties to ALEC, and the group will likely continue to be a player in the new session that begins in January.

Lawyer winners & losers in the post-election haze

Now that the dust has settled from Tuesday’s election, what’s it all mean for the legal community? N.C. Lawyers Weekly has come up with a list of winners and losers. Here’s a sampling:

Trial lawyers' ad attacks Rep. Brisson on big-pharma protection

The state’s trial lawyers are buying a TV ad critical of Rep. William Brisson’s support of a bill last year that would have given broad protection to pharmaceutical companies against product liability lawsuits.

Brisson, who represents Bladen and Cumberland counties, is one of five conservative Democrats who bucked their party on a number of issues last year. Brisson was one of the primary sponsors of the drug-maker protection bill, although that provision was eventually stripped from the bill.

A Senate judiciary subcommittee is considering resurrecting that protection.

The TV ad by N.C. Advocates for Justice singles out Brisson:

“Should politicians give pharmaceutical corporations immunity when they sell harmful drugs?  Representative William Brisson says yes.  He took political contributions from pharmaceutical corporations and voted to give those corporations immunity.  Immunity from personal responsibility.  That’s wrong.  Everybody should be accountable for their actions.”

Brisson has a Democratic challenger in the primary, but none in the general election.

Product liability immunity for drugs is back

The pharmaceutical industry is making another run at a proposal to let drug manufacturers off the hook if something goes wrong with their product, so long as the FDA has approved it. A state Senate committee is looking at the issue, which first came up last year but was stripped out of a broader "tort reform" bill. Here's today's story.

Drug liability protection stripped from 'tort reform' bill

A Senate judiciary committee has stripped out the most controversial part of a bill aimed at restricting lawsuits. The bill that heads to the Senate floor for a vote this afternoon is minus the section giving strong protection from product liability lawsuits to drugs that have been approved by the FDA.

That's a far cry from the original version of the bill, written by Rep. Jonathan Rhyne, a Lincoln County Republican, which would have granted protection to any product that had been approved by a government agency.

Another controversial provision in the bill that was eliminated before it left the House would have taken 75 percent of any award for punitive damages over $100,000 and put it in a state fund.

Trial lawyers are still unhappy with the provision that requires juries be told how much of a plaintiff's medical expenses have been covered by insurance. This is HB542.

Meanwhile, new concerns have arisen about SB33, the medical malpractice bill that was sent to the governor last week. No one noticed at the time that the version that came out of the Republican-dominated conference committee actually broadened protection for emergency medical treatment -- beyond just care in emergency rooms. Rhyne told the House that the bill that came out of the conference committee did not change the narrow focus on emergency room doctors only. He portrayed it as a victory for the House version of the bill.

A new section has been added to HB542 to address that, after the governor's office raised concerns, Sen. Pete Brunstetter, a Republican from Forsyth County, said on the Senate floor today.

The Senate voted 43-5 to tentatively approve HB542. It remains on the calendar for a final vote later, and will then return to the House.

AG Cooper says state could lose millions if tort reform becomes law

State Attorney General Roy Cooper weighed in Thursday on tort reform legislation in the state House.

Cooper said that North Carolina could lose millions in legal settlements if House Bill 542 becomes law.

The bill, which was passed out of committee on Thursday and heads to the House for a vote next week, says drug companies can only be sued by those harmed by an FDA-approved drug if the approval was obtained by fraud or bribery.

House dials back tort reform

State House Republicans who crafted a sweeping bill that would have given near blanket immunity from liability for virtually any product that had been approved by regulators have backed off.

Today they presented a scaled-back bill to the House Select Committee on Tort Reform that narrows the protection to only FDA-approved drugs. The rewritten bill also caps noneconomic damages in medical malpractice cases to $500,000. The bill originally set the limit at $250,000 from each defendant.

The proposal still has several controversial provisions, including making it extremely hard to sue emergency-room doctors, limiting the amount of money plaintiffs could collect in punitive damages, and allowing juries to know how much of a plaintiff’s medical expenses have been paid.

Another change, made by the committee today, would allow separate trials in civil cases to determine if someone is liable and then how much they should pay in damages, in cases where more than $150,000 in damages is sought.

An attempt by Durham Democratic Rep. Larry Hall to remove the cap on noneconomic damages in cases of severe bodily harm failed. Hall and several fellow Democrats sought to limit the cap to damages awarded for pain and suffering but not for injuries such as disfigurement.

But Rep. Johnathan Rhyne, a Lincolnton Republican who is the main author of the bill and co-chairman of the tort reform committee, aid the cap “right-sizes damages” and helps prevent insurance costs from escalating. Rep. Jennifer Weiss, a Democrat from Cary, said the goal shouldn’t be to “right-size” the amount of jury awards. She noted that state law already prevents someone from collecting damages if they are even slightly at fault.

“We’re talking about a human being…,” Weiss said. This bill, she said, would “protect the person who is fully at fault.”

The committee spent nearly two hours working through the first of more than two dozen proposed amendments to the bill, and they will resume next Thursday.

Product liability bill would be first in the nation

Product manufacturers would enjoy substantial protection from liability, to a degree unlike any other state in the country, under a bill introduced Thursday in the state House of Representatives.

The proposal would provide immunity from lawsuits for any product that has been approved by any government regulator.  It is part of a broad tort reform bill that encompasses some of the medical malpractice changes that were included in a bill the Senate approved earlier this month, including making it extremely difficult to sue emergency-room doctors, and capping the amount of noneconomic damages.

Other parts of the bill would limit the amount of money plaintiffs could collect in punitive damages in lawsuits, and require separate trials be held in civil suits to determine liability first and then damages. The medical malpractice part of the bill would cap “pain and suffering” damages at $250,000 from each defendant, and allow payments for future economic damages be made periodically instead of in a lump sum in some cases. Juries could also be told if a plaintiff has or will receive compensation from an insurance company; current law prohibits that.

Dick Taylor, chief executive officer of the trial lawyers’ group N.C. Advocates for Justice, told a House committee on Thursday that everything about the bill “favors perpetrators of harm to others at the expense of innocent North Carolinians who in no way caused the injury to themselves.”

Frederick Rom, an attorney who has represented the pharmaceutical industry, spoke in favor of the bill’s product-liability provision. He said allowing juries to decide when a product is unsafe undermines the regulatory system that is in place.

“The bill does not give the manufacturer a free pass,” Rom said.

The proposed law protects manufacturers whose products were approved by a government regulator unless the approval was obtained by bribery or withholding or misrepresenting facts.

Hagan not committed to a bill

Sen. Kay Hagan said this morning she is not ready to commit to the compromise bill being considered this week by the Senate Finance Commitee.

Hagan, a Greensboro Democrat, voiced strong support for the need for changes in the health care in a Senate speech Wednesday, saying health care costs were bankrupting individuals and causing hardships for businesses, Rob Christensen reports.

But she said she was withholding judgment on legislation proposed by Sen. Max Baucus, the chairman of the Senate Finance Committee, that is being considered this week. She noted that the bill that comes out of the Finance Committee will be merged with a bill that has already passed the Senate Health Committee.

"I think there are over 500 amendments," Hagan told reporters in a teleconference. "I'm anxious to see the debate and the amendments that come forward this week. My key conditions have always been you have to have pre conditions not being an impediment to health care, you have a way to open up health insurance to other people, you have to have a bill that is deficit-neutral."

More after the jump.

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