Tort Reform news

The Wisconsin Supreme Court in Ferdon v. Wisconsin Patients Compensation Fund back on July 15th. struck down a statutory cap on noneconomic damages in medical malpractice verdicts, being the third state to do so.

27 states have some sort of cap on noneconomic damages, but supreme courts in six of those states, according to a National Law Journal article on July 25th.(subscription), have struck them down. New Hampshire, Illinois, and now Wisconsin in medical malpractice cases; Oregon & Washington in personal injury instances; and Alabama for wrongful death.

The American Tort Reform Association, twice a year, publishes a report describing state enactments relating to tort reform. The current report was issued July 22nd., with a press release posted on their website.

Also perhaps here noteworthy was a Pennsylvania Commonwealth Court decision that stuck down that a 2002 tort reform measure limiting joint & several liability in that state. ( DeWeese v. Weaver). ATRA and the Insurance Journal both had postings on this.

IRS guidance on Health Care Tax Credit

IRS Notice 2005-50, issued back on July 5th., provides guidance on miscellaneous issues that have arisen with respect to the Health Care Tax Credit which was created back in 2002 under the Trade Act of that year. It is Section 35 of the Internal Revenue Code which provides a “65% tax credit for amounts for amounts certain individuals spend on certain kinds of health coverage for themselves & certain family members.”

IRS proposed uniform rules for electronic media

An article in last week’s Pension & Benefits Week (RIA) relates that the Internal Revenue Service issued a set of proposed regulations that would carry uniform rules for the use of electronic media to provide notice to plan participants & beneficiaries or transmit elections or consents relating to employee benefit arrangements.

Additional information and link to proposed regulations are available on Janell Grenier’s Benefitsblog.

DOJ sex offender registry

The U.S. Justice Department yesterday launched its national directory of sex offenders registry, representing the input of 22 states with the remainder expected to be on by the end of the year. Ohio and Kentucky are included now.

The site is a compilation of those states participating, and is neither hosted by, nor the responsibility of the DOJ. Users are urged to read the information collection & privacy confidentiality policies of the Dept. of Justice, and cautioned that many of the participating states have their own such policies which are also posted.

Users are also informed that if further information or verifications are needed, or errors found, they are to contact the state agency providing the information.


The FBI maintains a national registry as well, and local registries are maintained by the individual county sheriff’s offices (Hamilton, Butler, Clermont, Warren); Indiana and Kentucky have state-wide listings.

Liability from terrorist attacks/disaster

Thanks to little-known governmental guidelines, an article in the July 25th. issue of BusinessWeek magazine reports, “companies could find themselves fending off huge liability claims from possible terrorist attacks even as they struggle to get operations back on track.”

“A collection of crisis management pointers first assembled 10 years ago by the National Fire Protection Association, the 46-page set of guidelines was dusted off in 2004 by the 9/11 Commission which urged they ‘should be the standard of care owed by a company to its employees and the public for legal purposes.’” Congress has been pressing the Dept. of Homeland Security as well, and the article relates that some courts have been suggesting “once-unthinkable threats must now be planned for.”

The Department of Homeland Security has been urging such preparedness and posts overviews and advice for both businesses and individuals/families on its “Ready.gov” website.

U.S. Tax Court proposed rule amendments

The July 14th. issue of RIA’s Federal Taxes Weekly Alert, has an article about the U.S. Tax Court’s proposing three rule changes, two of which are in direct response to the Supreme Court’s recent decision in Ballard v. Commissioner ( No. 03-184, March 7, 2005), holding that the Court could not exclude from the record on appeal Tax Rule 183(b) reports submitted by special trial judges.

Tax Court has a press release & notice of the proposed rule amendments posted in its website.

Chief Judge Joel Gerber also announced that the Tax Court invites public comment to the proposed rule changes up until September 6, 2005 to the address on the notice. Absent further notice from the Court, the amendments will take effect on September 20, 2005 and have such effect as the Court orders.

REAL ID/ driver's license issues

This morning’s Court Index has an Associated Press article about many of the nation’s governors are warning that “motorists are going to see costs skyrocket for driver’s licenses and motor vehicle offices forced to operate like local branches of the FBI.”
“The (REAL ID Act) that passed in June goes beyond an earlier measure that sought to standardize state driver’s licenses, requiring that states verify license applicants are American citizens or legal residents,” the article says. (bill summary)

New Mexico Governor Bill Richardson commented that the new law unconstitutionally infringed on state laws in several areas, including his own where illegal immigrants have been able to get licenses, and that it would be challenged on those grounds.

About half of the states in the nation require license applicants to be U.S. citizens or legal permanent residents, but ten states, New Mexico included, explicitly grant licenses to illegal immigrants in an effort to improve road safety, according to a Financial Times article this morning. Ohio, Indiana, and Kentucky’s statutes.

Noah Leavitt at FindLaw, last May, wrote an article entitled “The REAL ID Act: How it violates U.S. treaty obligations, insults international law, undermines our security, and betrays Eleanor Roosevelt’s legacy,” which might be interesting to some.

Ohio's new tax law

The July 11th. State Tax Review by Commerce Clearing House has some notes about Ohio’s new budget & appropriations tax bill that Gov. Taft signed last June 30, including the imposition of a new commercial activity tax (CAT).

The Ohio Department of Taxation has a press release and overview of major changes posted on its website, including a link to the new law. Legislative Service’s bill analysis is available on their site, along with a “comparison document.”

Mayors' Courts

An article in last evening’s Cincinnati Post addresses a call on the part of some to eliminate “mayors’ courts” from the structure of Ohio’s jurisprudence. Chief Justice Thomas Moyer back on May 12th. called for the elimination of mayors’ courts in his annual address to the State Bar Association.

Mayor’s courts, established around 1815, have survived numerous changes in the overall court system statutorially, but according to the Post’s article “handle fewer cases than their municipal counterparts and are less efficient in handling cases within recommended time limits, according to the first statewide review of courts.” They have original jurisdiction over ordinance violations and traffic situations in their respective confines.

A July 13th. release by the Ohio Supreme Court says “mayors’ courts have small case volumes & are concentrated in Ohio’s largest counties.” Hamilton, Franklin, and Cuyahoga Counties all have 20 or more mayors’ courts; Butler County has three, Clermont nine, and Warren seven according to the Supreme Court’s “mayor’s court registration & reporting” page which contains case loads and statistics for each of these courts.

Copies of the “2004 Mayor’s Court Summary” are posted on the Supreme Court’s website.

Clean Air notes

Senator George Voinovich introduced a bill in Washington this week that would “distribute $1 billion in federal funds over five years to establish national grant & loan programs to retrofit older diesel engines,” an article in this morning’s Enquirer reports.

A study by the Clean Air Task Force, a nonprofit environmental group headquartered in Boston, earlier this year, shows Ohio as being worse than 80% of the rest of the continental in United States diesel emissions and associated health risks, and the tri-state worse than 97% of other metropolitan areas.

Here in Ohio, Timothy Grendell, Kevin Coughlin, and Eric Fingerhut last April introduced a bill in the Senate which would revamp current motor vehicle inspections in the State, and implement new enhanced programs.

Home Improvement/Remodelling bill

An article in this morning’s Enquirer discusses a bill introduced in the Ohio House of Representatives back in March of this year that would require home improvement contractors and remodelers to register with a State board and impose fines & civil penalties on those working in the State without registration.
Among other things the bill would provide for are an avenue for homeowners to file complaints of violations, and an electronic database containing “ information for applicants regarding registration or renewal submits, as well as any action taken by the board on each application,” along with internet access to the public of the names, addresses, and business telephone numbers of home improvement contractors.

Safe Workplaces

Ohio courts had previously decided that public policy favored workplace safety. The July issue of Ohio Employment Law Letter, however, carries an article describing a 2nd. District Court of Appeals case that “recently clarifies this, stating that public policy doesn’t require employers to guarantee a safe workplace, but rather need only to provide a reasonable & adequate degree of workplace safety.”

This case started out as a physical dispute between an employee and his supervisor, but according to the Law Letter article it is significant, first of all, because “ Ohio courts with increasing frequency are making broad general pronouncements of undefined public policies that employers have to be careful not to violate when firing or disciplining an employee.” Secondly, the case demonstrates “how the reasonable & documented efforts of an employer may pay big dividends in litigation matters.”
(See Garrett v. Dayton Power & Light Co., 2005 Ohio 1362)

Marina Bai v. National Aeronautics & Space Administration (?)

While most of the rest of the world seemed duly enthralled by NASA’s 4th. of July comet impact, not everyone reacted with the same measure of awe.

Marina Bai, a Russian “self-published author & spiritualist,” had sued NASA, seeking to curtail the mission claiming it “infringed on her system of spiritual & life values, in particular on the values of every element of creation, upon the unacceptability of barbarically interfering with the natural life of the universe, and the violation of the balance of the universe.” A Pravda article from back on May 6th. has some more information.

The case had been thrown out of a lower court, according to an ABC news account, but Bai’s attorney had the ruling overturned by showing that NASA’s office in the U.S. Embassy was sufficient to establish jurisdiction. A BBC article relates that Bai’s claim to now be “experiencing ‘a moral trauma’—which only $300 million can put right.” A final decision by the Russian Presnya court isn’t expected for at least another month.

Meth Labs

An Associated Press article in this morning’s Enquirer (printed edition) is relating that “more than half of the sheriffs interviewed for a National Association of Counties survey considered meth the most serious problem facing their department.” A like article was posted on WCPO’s website.

Ohio & Indiana were among 16 states reporting 100%- increases in meth-related arrests, and Kentucky claimed a 92% increase.

Similar concerns were voiced last month at the National Sheriff’s Association’s annual conference in Louisville.

Eminent Domain 2

The Supreme Court’s Kelo v. New London decision last week has ignited a couple fires around the country, including a perhaps “tongue-in-cheek” overture, that not everyone thought was funny, for a taking of Justice David Souter’s New Hampshire farmhouse. Souter was part of the majority opinion.

There are several articles this morning about committees and investigations looking into the usage of the eminent domain power, including hearings intended to “explore (the Kelo decision) as well as broader property rights issues” by Rep. Steve Chabot, chairman of the House Constitution subcommittee in Washington.

Using “eminent domain” as a search term on Thomas’ Legislative Service brings up four new bills reacting to the Kelo decision, including one introduced by Rep. Phil Gingrey and 78 cosponsors titled “Expressing the grave disapproval of the House of Representatives regarding the majority opinion of the Supreme Court in the case of Kelo v. City of New London.”