The Alabama Legislature just ended its current session. In light of the bad economy, there will be no legislative cure for a court system facing very difficult budget issues. However, the Legislature did pass several bills that will impact the way cases are handled in our courts. A quick summary of some of these new bills follows:
- A change in the standard which applies to expert witnesses in litigation (SB 187). Alabama state courts have long applied the Frye standard to the admission of expert testimony. Under Frye, expert scientific testimony is admissible if the methodology used by the expert is "generally accepted" in the scientific community. This new legislation will alter Alabama law so that courts will now apply the more restrictive Daubert standard applied by Federal Courts in admitting expert scientific evidence. One excellent defense attorney in Birmingham recently commented that he expects the effects of this change to benefit the defense. I think it will swing both ways. Certainly, it may eliminate some claims by plaintiffs. However, in many of my cases I routinely listen to defense experts spout opinions but then they cannot explain how they reached their conclusion. The imposition of the Daubert standard will certainly raise the bar for both sides in litigation.
- A change in the rule which governs venue for wrongful death actions in Alabama (SB 212). Previously, the plaintiff in a wrongful death action often had a choice of which county to file his claim. Such a claim could be filed in the county where the wrongful act causing the death occurred or it could be filed in the county where the estate’s administrator resided. The new legislation removes these options which allowed for a venue selection. Now, a wrongful death claim may only be filed in a county where the deceased could have filed suit for his injury had he lived. The practical impact is that counsel can no longer open the estate in a county thought to be a more favorable venue in an effort to file the case in that forum.
- A change in the products’ liability law which shields retailers and distributors (SB 184). Alabama already had some judicial doctrines applicable to products’ liability claims that protected innocent sellers of a defective product. Despite these protections, the Legislature enacted additional legislation. The new law prohibits products’ liability claims against distributors of a defective or dangerous product, except in certain limited circumstances. Mainly, the distributor is shielded from liability in most situations, unless it assembled, manufactured, designed, or modified, the product before it reached the consumer.
- A change in the interest rate which applies to judgments (SB 207). Previously, Alabama applied a 12% interest rate to uncollected judgments. In talking with people, I believe this issue is often misunderstood. Many people simply see the figure of 12% and think how high it is. However, it is important that the post-judgment interest rate be high. The time to win or lose a case is at trial. Without a substantial interest rate applicable to judgments, the losing defendant would simply file a frivolous appeal and refuse to pay during the some 2 years it often takes for the case to wind its way through Alabama’s appellate courts. In most cases, the losing party’s counsel knows whether an appeal has merit. During this long appeal period, the losing defendant can invest its money and make a profit. During the same time, the injured plaintiff can be left struggling to survive in the face of a loss of income and huge expenses. I have seen appeals filed, especially in workers’ compensation cases, for no real purpose other than to starve a disabled plaintiff into compromising their case. The large interest rate acts as a deterrent to these frivolous appeals which harm the injured party and clog our court system. The current legislative session saw a strong effort to reduce the post-judgment interest rate to basically nothing. Fortunately, some legislators who understood the devastating impact this would have on both the courts and consumers were able to negotiate a compromise that only reduced the rate to 7.5%.
- A change in the time limit which bars certain claims related to construction (SB 59). This alteration basically shortens the statute of repose applicable to claims against architects, engineers, or builders, related to the construction of buildings. This includes defects which cause the injury or wrongful death of a person. In many cases, dangerous defects in buildings and other projects are often not discovered until much later. Then, this discovery often only occurs after a devastating injury. It will be interesting to see the extent of immunity this shortened time period will provide for those who create dangerous defects.