Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

My partner Bud Watson is frequently asked to speak at seminars to share his years of observation and experience as both a former judge and current litigator.  I have asked him to share some of his strategies on this blog from time to time.  With that in mind, Bud provided this entry concerning an area of the law unique to Alabama -- The availability of only punitive damages in wrongful death actions.  Bud's observations on this issue are especially timely since I recently wrote about the interaction of Alabama's survival statute with its unique approach to wrongful death claims.  I have copied Bud's observations on this issue and posted them below:

By Bud Watson:

Here is a strategy that legal counsel might find helpful in wrongful death cases in Alabama.  Again, in Alabama (the only such state), there are no compensatory damages in wrongful death cases.  That means no recovery for medical expenses; no recovery for pain and suffering; no recovery for the huge financial impact to a family when a father or mother is killed.

The unique nature of Alabama law is not present because of some explicit statutory language.  It is a creation of our court.  Alabama courts have concluded that life is priceless and therefore not amenable to crass valuation in dollars.  The only allowable damages are punitive.

Yet, in all cases where punitive damages are claimed, the plaintiff can expect from the defense a long list of boilerplate challenges suggesting that punitive damage rules are unconstitutionally vague.  These defenses or motions to dismiss or strike contend that punitive damages should not be allowed because there is no objective standard by which to measure such damages.  In other types of cases where compensatory damages are also allowed, the law does impose some standards by which to measure punitive damages in conjunction with the compensatory damages assessed.  However, in the wrongful death context in Alabama, these objective comparisons are not present.  The truth is that, as presently applied and in the abstract, these challenges to punitive damages in wrongful death claims are probably correct.  The pattern jury instruction on punitive damages in Alabama also provides little guidance on this issue.

With this background, what is the novel strategy that could be argued in wrongful death cases in Alabama?  It is a pre-trial offer of proof stating the following:

The defendant has contended that there is no objective standard to direct a jury with regard to punitive damages.  In analogous criminal cases (such as criminally negligent homicide cases) the Court is required by law, before setting sentence, to initiate a victim impact statement pursuant to Ala. Rules of Criminal Procedure, Rule 26.3(7), which includes the economic and psychological impact on the family members.  Therefore, the plaintiff offers to provide proof to the jury of the financial and psychological impact of the death of the victim on the victim's immediate family members.  The plaintiff will provide evidence of victim impact from the victims themselves as well as through expert testimony from professionals such as physicians, psychologists, and economists.  Additionally, pursuant to Ala. Rules of Criminal Procedure, Rule 26.8, the application of punishment requires a full evaluation of the wrong and all its consequences.

If accepted, the plaintiff could then provide testimony concerning the impact of the death upon the remaining family members.  The offered approach does not conflict with the Alabama cases holding that a dollar value cannot be placed on the victim's life.  Rather, the emphasis is on the impact of the wrong as a necessary part of reaching a reasonable decision as to the level of appropriate punishment to assess as punitive damages.

Although judges with whom this approach has been discussed and to whom this approach has been made have expressed great interest and intrigue, Alabama courts have yet to rule on such an offer of proof.  On the occasions where I have made this offer in the past, a settlement for the applicable policy limits has soon followed.  As a result, I have not yet pursued the issue to completion in Alabama's court system.  In my conversations with opposing counsel, I believe that most defendants and their counsel do not wish to test this approach at an appellate court level.

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In Alabama, un-filed tort claims do not survive the death of the victim.  This is because of a special statute created by our legislature.

Why is this significant?  Consider the impact of this technicality on two different, hypothetical, tort victims.  Both victims suffer terrible injuries when struck head-on by an intoxicated driver.  Both are rushed to the hospital.  Both spend months receiving very expensive, specialized medical care.  Did I point out that months of hospital care would be very expensive!  Both lose wages.  The first victim files his case against the intoxicated driver who injured him.  Then, he dies.  The second victim dies before he can file his claim.  For the first victim (who actually filed his claim), his estate can still pursue the claims and seek to recover for the tremendous damages.  For the second victim, his estate must now pay huge expenses for medical care and other losses out of his assets, with no ability to recover these items from the person actually at fault.  Needless to say, these bills could easily consume an entire estate and leave the heirs with nothing.

Doesn't Alabama allow wrongful death claims?  Yes.  If the above victims died from their injuries (and not some separate cause), their heirs could pursue wrongful death claims.  However, under Alabama law, you cannot recover compensatory damages in a wrongful death claim.  Under Alabama's unique wrongful death procedure, only punitive damages are recoverable.  So, again, one estate can recover these huge expenses while the other cannot.

This unique aspect of Alabama law can lead to devastating consequences for families.  However, this injustice could be easily fixed by our legislature.  Alabama could adopt the Uniform Law Commissioners' Model Survival and Death Act or enact some other provision that fixes this problem.  In prior years, proposals have been introduced into our legislature.  It is certainly time for this issue to be seriously considered.

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A study by The American Association for Justice shows that eighty-three percent (83%) of the recalls announced by The Consumer Product Safety Commission (CPSC) in 2009 were from foreign manufacturers.  The results for 2008 were similar.  What happens when one of these defective foreign-made products injures someone?

The recent litigation concerning defective Chinese drywall highlights the problems with holding foreign manufacturers accountable for the injuries their products inflict upon the public.  Millions of tons of defective Chinese drywall were imported into the United States for use in the construction of homes.  After these homes were built, owners began complaining that the drywall emitted corrosive and irritating fumes.  In November 2009 the CPSC issued a press statement,  after studying the issue, finding "a strong association between homes with the problem drywall and the levels of hydrogen sulfide in those homes and corrosion of metals in those homes."  The defective drywall was emitting hydrogen sulfide gas which not only created an irritating smell, but also, caused parts of the home to corrode.  The CPSC is continuing to study the health issues which may also be associated with the defective drywall.

Last week, a Federal Judge in Louisiana assessed $2.6 million in damages against a Chinese state-owned manufacturer of this defective drywall on behalf of seven Virginia families.  These damages relate only to the costs necessary to remediate the problem and fix the damaged homes of these plaintiffs, not the potential health risks.  Many other damaged homeowners have also filed claims which remain pending.

The problem arises in the enforcement of the Court's judgment.  Will the foreign manufacturer truly be held accountable or is this a judgment that will never be collected?  The Wall Street Journal published a great article discussing the case and its history.  In this litigation, the Chinese manufacturer never even answered the lawsuit.  While the Court's ruling on the initial drywall claim is a positive step, it remains unclear as to whether the foreign drywall manufacturer that caused this harm will ultimately pay for the damages it created.

Foreign manufacturers are often able to avoid their liability because of difficulties obtaining legal service of the claim on the company in its home country, issues related to whether the U.S. Court has jurisdiction over the manufacturer, and then problems collecting any eventual judgment.  It is important to remember that the damages caused by a defective product will be borne by someone.  If the foreign manufacturer avoids its responsibility, then the innocent consumer, our government, or a domestic company that distributed the product, will ultimately (and unfortunately) bear the loss.

In February, several members of the U.S. House of Representatives introduced legislation that would make it easier to hold foreign manufacturers accountable for their defective products.  The American Association for Justice issued a press release detailing some of the problems under current law as well as solutions presented by the proposed legislation.  Among other things, the proposed legislation would require foreign corporations to have an "agent" in the United States to accept service of process for civil and regulatory claims.  It would also require the manufacturer to consent to jurisdiction in our courts.  This is much needed legislation that will hopefully protect consumers in the future. 

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After spending the last few days in trial, I found the recent entry of Philip Thomas on his blog concerning settlement mills very timely and interesting.  Philip provides a detailed discussion of a research article on this issue by Stanford Law Professor Nora Engstrom.  Before I add my comments to his entry, I should first compliment my law partner Jennifer McKown on a job well done at trial this week.  Typically, our firm carries 2 or more partners to each trial.  Since Jen primarily worked this case, I had the opportunity to do more watching than working.  So, I watched two excellent attorneys, both Jennifer and her opposing defense counsel, really show their great skills.

However, I probably should return to Philip's blog entry on settlement mills.  I would encourage anyone interested in law practices to read his entry as well as the research upon which it is based.  When I consider the phrase "settlement mill," I typically picture a law firm that advertises on television, takes a high volume of cases, does very little to develop or prepare their cases, and then settles as quickly as possible.  Clearly, these "settlement mill" firms are not serving the best interest of each individual client.  Clearly, these "settlement mill" firms are not serving the best interest of our justice system.

When I travel to larger cities, I am confronted with more settlement mill firms.  However, they are now present practically everywhere.  Here, in Alabama, you can see their advertisements on television.  They employ well known actors to make claims of great success or use a catchy jingle that sticks in your mind.  In one local advertisement, a well-known celebrity implies that "the firm" will get you maximum results.  However, with a little background work, you can discover that "the firm" is really one attorney working from an office many hours away.  You don't see the attorney in the actual commercial and I've never seen his name on an actual docket for trial.

On a more personal level, I frequently receive calls from injured individuals who hired one of these mills.  They often call right before the statute of limitations is set to expire, barring their claim.  In these cases, the settlement mill could not get their claim settled and simply did not want to go to court.  Other times, the caller settled their case below its value at the recommendation of the firm and now regrets that decision.  On other occasions, the caller hired the settlement mill firm and then could never speak with an actual attorney (or sometimes anyone at all who was familiar with their case).  Many times, the settlement mill firm has placed their client at such a disadvantage by not working the case that any actual trial becomes a very difficult task.

What should you look for in an attorney?  Look for an attorney who will actually go to trial.  Look for an attorney who will actually prepare the case.  A good attorney rarely needs paid celebrities or catchy jingles to market his professional services.  A true trial attorney is often very selective in screening what cases he or she accepts.  Then, once accepted, that attorney prepares the case as if it will go to trial.

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