This should apply to airframe manufacturers too

[Ray Andraka]

From CNN:
The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
medical-device regulations prevent patients from bringing state
product-liability lawsuits unless a medical-device company violated U.S.
Food and Drug Administration regulations.

"This decision shows that the extensive degree and nature of FDA
regulation necessarily means that its scientific decisions may not be
second-guessed by unscientific state juries," said Daniel Troy, a
partner at Sidney Austin LLP and a former FDA legal counsel.

It would seem to me that the manufacturers of certificated aircraft
could argue for a similar protection since the aircraft must meet
stringent tests and design parameters in order to recieve a type
certificate from the FAA. Heck, they could even use this ruling in favor
of Medtronic to support their case. Piper, Cessna, Lycoming, Textron,
anybody out there listening?

[[email protected]]

Ray Andraka > wrote:
> From CNN:
> The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
> medical-device regulations prevent patients from bringing state
> product-liability lawsuits unless a medical-device company violated U.S.
> Food and Drug Administration regulations.

> "This decision shows that the extensive degree and nature of FDA
> regulation necessarily means that its scientific decisions may not be
> second-guessed by unscientific state juries," said Daniel Troy, a
> partner at Sidney Austin LLP and a former FDA legal counsel.

> It would seem to me that the manufacturers of certificated aircraft
> could argue for a similar protection since the aircraft must meet
> stringent tests and design parameters in order to recieve a type
> certificate from the FAA. Heck, they could even use this ruling in favor
> of Medtronic to support their case. Piper, Cessna, Lycoming, Textron,
> anybody out there listening?

I highly douby anyone would want airplanes to be regulated to the
extent that medical devices are, though we are getting close.


--
Jim Pennino

Remove .spam.sux to reply.

[Ray Andraka]

wrote:

>
> I highly douby anyone would want airplanes to be regulated to the
> extent that medical devices are, though we are getting close.
>
>

I'd argue that the certification process for an airframe to obtain a
type certificate is pretty close. That is part of the reason the
homebuilts have become so popular.

[Jim Stewart]

Ray Andraka wrote:
> From CNN:
> The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
> medical-device regulations prevent patients from bringing state
> product-liability lawsuits unless a medical-device company violated U.S.
> Food and Drug Administration regulations.

That's clear enough...

> "This decision shows that the extensive degree and nature of FDA
> regulation necessarily means that its scientific decisions may not be
> second-guessed by unscientific state juries," said Daniel Troy, a
> partner at Sidney Austin LLP and a former FDA legal counsel.

That's one lawyer's opinion and I think you have to
accept it as-such. I would speculate that the decision
was more about keeping medical-device manufacturers
from going broke from lawsuits. Remember that sick
people are using the device and sick people sometimes
die.

> It would seem to me that the manufacturers of certificated aircraft
> could argue for a similar protection since the aircraft must meet
> stringent tests and design parameters in order to recieve a type
> certificate from the FAA. Heck, they could even use this ruling in favor
> of Medtronic to support their case. Piper, Cessna, Lycoming, Textron,
> anybody out there listening?

I don't think you can take it that far. Some people
*need* to have pacemakers. If all the pacemaker
companies are sued out of existence, many more people
will die. Based on that, perhaps a pacemaker company
deserves an extra level of protection in order to
keep the greater number of people alive. I don't
think the argument follows for aviation.

[[email protected]]

Ray Andraka > wrote:
> wrote:

> >
> > I highly douby anyone would want airplanes to be regulated to the
> > extent that medical devices are, though we are getting close.
> >
> >

> I'd argue that the certification process for an airframe to obtain a
> type certificate is pretty close. That is part of the reason the
> homebuilts have become so popular.

You mean requirments like implanted devices have to be tested in
environments that could never occur in a living human body?

My opinion is the certifaction requirements have little directly to
do with why most people build a homebuilt.

I would think the top reasons, in no particular order, are:

The satisfaction of building things with your own hands and knowing
it is built correctly.

The desire to own something not commercially available.

Saving money.


--
Jim Pennino

Remove .spam.sux to reply.

[Bob Noel]

In article >, wrote:

> I highly douby anyone would want airplanes to be regulated to the
> extent that medical devices are, though we are getting close.

The last I knew (circa 2002), the FAA paid more attention to the certification
aspects of software than the FDA did.

--
Bob Noel
(goodness, please trim replies!!!)

[Ray Andraka]

wrote:
> Ray Andraka > wrote:
>
wrote:
>
>
>>>I highly douby anyone would want airplanes to be regulated to the
>>>extent that medical devices are, though we are getting close.
>>>
>>>
>
>
>>I'd argue that the certification process for an airframe to obtain a
>>type certificate is pretty close. That is part of the reason the
>>homebuilts have become so popular.
>
>
> You mean requirments like implanted devices have to be tested in
> environments that could never occur in a living human body?
>
> My opinion is the certifaction requirements have little directly to
> do with why most people build a homebuilt.
>
> I would think the top reasons, in no particular order, are:
>
> The satisfaction of building things with your own hands and knowing
> it is built correctly.
>
> The desire to own something not commercially available.
>
> Saving money.
>
>

I said PART of the reason. In the EAA chapter I am a member of, nearly
all the builders have said at some point along the way that part of the
reason they are building was so that they could modify and maintain
their own airplane and make it the way they wanted it. Building your
own gets you out from under a lot of the testing that goes into type
certification.

[Ray Andraka]

Jim Stewart wrote:

> Ray Andraka wrote:
>
>> From CNN:
>> The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
>> medical-device regulations prevent patients from bringing state
>> product-liability lawsuits unless a medical-device company violated
>> U.S. Food and Drug Administration regulations.
>
>
> That's clear enough...
>
>> "This decision shows that the extensive degree and nature of FDA
>> regulation necessarily means that its scientific decisions may not be
>> second-guessed by unscientific state juries," said Daniel Troy, a
>> partner at Sidney Austin LLP and a former FDA legal counsel.
>
>
> That's one lawyer's opinion and I think you have to
> accept it as-such. I would speculate that the decision
> was more about keeping medical-device manufacturers
> from going broke from lawsuits. Remember that sick
> people are using the device and sick people sometimes
> die.
>
>> It would seem to me that the manufacturers of certificated aircraft
>> could argue for a similar protection since the aircraft must meet
>> stringent tests and design parameters in order to recieve a type
>> certificate from the FAA. Heck, they could even use this ruling in
>> favor of Medtronic to support their case. Piper, Cessna, Lycoming,
>> Textron, anybody out there listening?
>
>
> I don't think you can take it that far. Some people
> *need* to have pacemakers. If all the pacemaker
> companies are sued out of existence, many more people
> will die. Based on that, perhaps a pacemaker company
> deserves an extra level of protection in order to
> keep the greater number of people alive. I don't
> think the argument follows for aviation.

A certificated airplane has supposedly passed a number of tests to
certify that it is airworthy and safe to fly by a competent pilot. The
FAA goes through great pains to make sure that the airplane meets those
requirements. As long as the manufacturer meets the requirements
stipulated in the type certificate, the airframe has essentially been
blessed by the feds as safe. If something comes up that proves to be
unsafe, the Feds issue an AD against the airframe to correct or prevent
the unsafe condition, in some cases grounding entire fleets. The
manufacturer is not free to make changes to the certified design without
getting an approval on the changes from the Feds, which usually involves
more testing.

If the medical community can get a pass on the liability of its products
under the claim that the government approved the device or drug, then
any other industry who's products are regulated to the point where they
cannot be used without the Fed's blessing should be allowed the same
degree of liability protection. The fact is most aircraft accidents are
caused by pilot error, not by manufacturing or design defects, yet when
it happens, the manufacturers are invariably sued, and usually lose
because uninformed jurors second guess the engineering that went into
the design of the airframe and components. Never mind those designs
require rigorous testing before they get approved by the government.

This is virtually the same situation as the one this decision shields
the medical device and drug manufacturers from. The bit about people
needing a medical device is immaterial to my statement. There are
legitimate needs to fly as well.

Anyway, I think this could be used as a camel's nose under the tent if
played right.

[Ray Andraka]

Bob Noel wrote:

>
> The last I knew (circa 2002), the FAA paid more attention to the certification
> aspects of software than the FDA did.
>

Yep, my experience as well.

[Ray Andraka]

Jim Stewart wrote:


> I don't think you can take it that far. Some people
> *need* to have pacemakers. If all the pacemaker
> companies are sued out of existence, many more people
> will die. Based on that, perhaps a pacemaker company
> deserves an extra level of protection in order to
> keep the greater number of people alive. I don't
> think the argument follows for aviation.

Same could be said for aicraft component manufacturers. For example the
carburetor on my Cherokee Six was manufactured by Precision Airmotive,
which is the sole source for parts for that carburetor. Precision also
made the carburetors for the majority of the piston powered aircraft in
the fleet. They got sued last fall for an outrageous sum and abruptly
pulled out of the aircraft carburetor business because they could no
longer obtain liability insurance. The tight federal regulation over
aircraft has prevented any significant improvements to the pre-WWII
carburetor design used on these aircraft. The design is 80 years old,
has been installed on tens of thousands of aircraft, and is proven with
millions of hours of flight time. Without anybody making spare parts,
the likelihood of failures will increase as existing parts are repaired
instead of being replaced, exposing more people to potential crashes.
How is this materially different than your example with the pacemaker
company?

[Jim Stewart]

Ray Andraka wrote:
> Jim Stewart wrote:
>
>
>> I don't think you can take it that far. Some people
>> *need* to have pacemakers. If all the pacemaker
>> companies are sued out of existence, many more people
>> will die. Based on that, perhaps a pacemaker company
>> deserves an extra level of protection in order to
>> keep the greater number of people alive. I don't
>> think the argument follows for aviation.
>
> Same could be said for aicraft component manufacturers. For example the
> carburetor on my Cherokee Six was manufactured by Precision Airmotive,
> which is the sole source for parts for that carburetor. Precision also
> made the carburetors for the majority of the piston powered aircraft in
> the fleet. They got sued last fall for an outrageous sum and abruptly
> pulled out of the aircraft carburetor business because they could no
> longer obtain liability insurance. The tight federal regulation over
> aircraft has prevented any significant improvements to the pre-WWII
> carburetor design used on these aircraft. The design is 80 years old,
> has been installed on tens of thousands of aircraft, and is proven with
> millions of hours of flight time. Without anybody making spare parts,
> the likelihood of failures will increase as existing parts are repaired
> instead of being replaced, exposing more people to potential crashes.
> How is this materially different than your example with the pacemaker
> company?

People won't die if they can't fly their Cherokee Six.

[Ron Rosenfeld]

On Thu, 21 Feb 2008 16:09:19 -0500, Ray Andraka > wrote:

> From CNN:
>The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
>medical-device regulations prevent patients from bringing state
>product-liability lawsuits unless a medical-device company violated U.S.
>Food and Drug Administration regulations.
>
>"This decision shows that the extensive degree and nature of FDA
>regulation necessarily means that its scientific decisions may not be
>second-guessed by unscientific state juries," said Daniel Troy, a
>partner at Sidney Austin LLP and a former FDA legal counsel.
>
>It would seem to me that the manufacturers of certificated aircraft
>could argue for a similar protection since the aircraft must meet
>stringent tests and design parameters in order to recieve a type
>certificate from the FAA. Heck, they could even use this ruling in favor
>of Medtronic to support their case. Piper, Cessna, Lycoming, Textron,
>anybody out there listening?

As I understand the case, it does not give any kind of broad-based immunity
to the majority of medical device manufacturers.

It provides some immunity if the devices were certified under a particular
law, and many are certified under a different, more lenient process (and
the SC ruled in 1996 that this more lenient process was NOT protected).

It also does not preclude cases brought because the device was not
manufactured in accordance with its approval.

Furthermore, the ruling hinges on an interpretation of the relevant law
which, according to both the Senator who sponsored the legislation
(Kennedy); and a house member who was on the relevant house committee at
the time (Waxman) was contrary to what was intended.

If the Democrats win this next election, rewriting of that law would not be
surprising.

More here:

http://www.nytimes.com/2008/02/21/washington/21device.html?_r=1&th&emc=th&oref=slogin

or http://tinyurl.com/2t2l7u

(The NY Times requires a free registration to read this; I've never been
bothered by SPAM from their site).
--ron

[Ray Andraka]

Jim Stewart wrote:

> Ray Andraka wrote:
>
>> Jim Stewart wrote:
>>
>>
>>> I don't think you can take it that far. Some people
>>> *need* to have pacemakers. If all the pacemaker
>>> companies are sued out of existence, many more people
>>> will die. Based on that, perhaps a pacemaker company
>>> deserves an extra level of protection in order to
>>> keep the greater number of people alive. I don't
>>> think the argument follows for aviation.
>>
>>
>> Same could be said for aicraft component manufacturers. For example
>> the carburetor on my Cherokee Six was manufactured by Precision
>> Airmotive, which is the sole source for parts for that carburetor.
>> Precision also made the carburetors for the majority of the piston
>> powered aircraft in the fleet. They got sued last fall for an
>> outrageous sum and abruptly pulled out of the aircraft carburetor
>> business because they could no longer obtain liability insurance. The
>> tight federal regulation over aircraft has prevented any significant
>> improvements to the pre-WWII carburetor design used on these aircraft.
>> The design is 80 years old, has been installed on tens of thousands of
>> aircraft, and is proven with millions of hours of flight time.
>> Without anybody making spare parts, the likelihood of failures will
>> increase as existing parts are repaired instead of being replaced,
>> exposing more people to potential crashes. How is this materially
>> different than your example with the pacemaker company?
>
>
> People won't die if they can't fly their Cherokee Six.
>

No perhaps not, but an industry that set the US apart from the rest of
the world is slowly getting buried between litigation and federal
regulation. Plus the non-availability of new parts due means parts that
previously would have been replaced with new are going to be repaired
instead, and that will lead to more failures, which will likely result
in loss of life. We're talking about the majority of the piston fleet here.

OK, so I am not a lawyer, nor do I play one on TV. The fact is,
litigation and liability is literally choking this once vibrant industry
to death. I saw this article today, and figured it would be worth
pondering. I didn't expect to be pounced on like I have been,
especially by other pilots and aviation enthusiasts. Oh well.

[Ray Andraka]

Jim Stewart wrote:

> Ray Andraka wrote:
>
>> Jim Stewart wrote:
>>
>>
>>> I don't think you can take it that far. Some people
>>> *need* to have pacemakers. If all the pacemaker
>>> companies are sued out of existence, many more people
>>> will die. Based on that, perhaps a pacemaker company
>>> deserves an extra level of protection in order to
>>> keep the greater number of people alive. I don't
>>> think the argument follows for aviation.
>>
>>
>> Same could be said for aicraft component manufacturers. For example
>> the carburetor on my Cherokee Six was manufactured by Precision
>> Airmotive, which is the sole source for parts for that carburetor.
>> Precision also made the carburetors for the majority of the piston
>> powered aircraft in the fleet. They got sued last fall for an
>> outrageous sum and abruptly pulled out of the aircraft carburetor
>> business because they could no longer obtain liability insurance. The
>> tight federal regulation over aircraft has prevented any significant
>> improvements to the pre-WWII carburetor design used on these aircraft.
>> The design is 80 years old, has been installed on tens of thousands of
>> aircraft, and is proven with millions of hours of flight time.
>> Without anybody making spare parts, the likelihood of failures will
>> increase as existing parts are repaired instead of being replaced,
>> exposing more people to potential crashes. How is this materially
>> different than your example with the pacemaker company?
>
>
> People won't die if they can't fly their Cherokee Six.
>

No perhaps not, but people aren't going to die if they can't get their
breast implants either. (NY Times said: "Makers of medical devices like
implantable defibrillators or breast implants are immune from liability
for personal injuries as long as the Food and Drug Administration
approved the device before it was marketed and it meets the agency’s
specifications, the Supreme Court ruled on Wednesday.")

The fact is, an industry that set the US apart from the rest of the
world is slowly getting buried between litigation and federal
regulation. The non-availability of new parts due means parts that
previously would have been replaced with new are going to be repaired
instead, and that will lead to more failures, which will likely result
in loss of life. We're talking about the majority of the piston fleet here.

[Ray Andraka]

Ron Rosenfeld wrote:

> On Thu, 21 Feb 2008 16:09:19 -0500, Ray Andraka > wrote:
>
>
>>From CNN:
>>The U.S. Supreme Court, in an 8-1 ruling Wednesday, said federal
>>medical-device regulations prevent patients from bringing state
>>product-liability lawsuits unless a medical-device company violated U.S.
>>Food and Drug Administration regulations.
>>
>>"This decision shows that the extensive degree and nature of FDA
>>regulation necessarily means that its scientific decisions may not be
>>second-guessed by unscientific state juries," said Daniel Troy, a
>>partner at Sidney Austin LLP and a former FDA legal counsel.
>>
>>It would seem to me that the manufacturers of certificated aircraft
>>could argue for a similar protection since the aircraft must meet
>>stringent tests and design parameters in order to recieve a type
>>certificate from the FAA. Heck, they could even use this ruling in favor
>>of Medtronic to support their case. Piper, Cessna, Lycoming, Textron,
>>anybody out there listening?
>
>
> As I understand the case, it does not give any kind of broad-based immunity
> to the majority of medical device manufacturers.
>
> It provides some immunity if the devices were certified under a particular
> law, and many are certified under a different, more lenient process (and
> the SC ruled in 1996 that this more lenient process was NOT protected).
>
> It also does not preclude cases brought because the device was not
> manufactured in accordance with its approval.
>
> Furthermore, the ruling hinges on an interpretation of the relevant law
> which, according to both the Senator who sponsored the legislation
> (Kennedy); and a house member who was on the relevant house committee at
> the time (Waxman) was contrary to what was intended.
>
> If the Democrats win this next election, rewriting of that law would not be
> surprising.
>
> More here:
>
> http://www.nytimes.com/2008/02/21/washington/21device.html?_r=1&th&emc=th&oref=slogin
>
> or http://tinyurl.com/2t2l7u
>
> (The NY Times requires a free registration to read this; I've never been
> bothered by SPAM from their site).
> --ron


Correct, but one could argue that type certification is a pre-market
approval process that parallels the medical pre-market approval process
specifically covered by this decision.

Anyway, I saw the one paragraph summary of this decision in this
morning's paper and thought why couldn't this be applied to aviation.
The regulations regarding equipment manufacture are about as stringent,
and the liability is choking aviation even more than it is the medical
device makers. I'm not a lawyer, not even really good at debate. It
just seemed like something worthy of some thought and maybe some debate.
I'm kind of surprised that nobody jumped in saying yeah, good idea or
even might have some merit.

[Ron Rosenfeld]

On Thu, 21 Feb 2008 22:37:13 -0500, Ray Andraka > wrote:

>Correct, but one could argue that type certification is a pre-market
>approval process that parallels the medical pre-market approval process
>specifically covered by this decision.
>
>Anyway, I saw the one paragraph summary of this decision in this
>morning's paper and thought why couldn't this be applied to aviation.
>The regulations regarding equipment manufacture are about as stringent,
>and the liability is choking aviation even more than it is the medical
>device makers. I'm not a lawyer, not even really good at debate. It
>just seemed like something worthy of some thought and maybe some debate.
> I'm kind of surprised that nobody jumped in saying yeah, good idea or
>even might have some merit.

I think some of the issues include the fact that there is already a (is it
seventeen?) year limit on liability for manufacturers.

Another issue is that most of our lawmakers are lawyers <ng>.

Also, it seems to me that the SC interpretation of the law in question may
not be in accord with the original intent of Congress (even though they are
supposed to take that into account).
--ron

[Denny]

Well, we can debate this till the cows come home...

As a person in business most of my life, the threat of litigation is
like a constant dread just hanging over you... You do not have to do
anything wrong, just the simple fact that someone is angry at the
world and focuses on you will bring a swarm of lawyers like hornets...
And even if you prevail in the courts and win, the ruinous costs, the
smear on your reputation, and the joy it takes out of your life, makes
you feel like you lost... As Ray Donovan asked, "What office do I go
to get my reputation back?"

I do not want to live under any other system, yet our courts are out
of control, the trial lawyers are like pirhana sniffing blood <money>
- call Lee Free, etc...
I strongly believe that we need to enact a strict 'loser pays' law, no
exceptions, at the federal level to apply to all lawsuits...

denny

[Charles Talleyrand]

On Feb 21, 9:07 pm, Ray Andraka > wrote:
> Jim Stewart wrote:
> > I don't think you can take it that far. Some people
> > *need* to have pacemakers. If all the pacemaker
> > companies are sued out of existence, many more people
> > will die. Based on that, perhaps a pacemaker company
> > deserves an extra level of protection in order to
> > keep the greater number of people alive. I don't
> > think the argument follows for aviation.
>
> Same could be said for aicraft component manufacturers. For example the
> carburetor on my Cherokee Six was manufactured by Precision Airmotive,
> which is the sole source for parts for that carburetor. Precision also
> made the carburetors for the majority of the piston powered aircraft in
> the fleet. They got sued last fall for an outrageous sum and abruptly
> pulled out of the aircraft carburetor business because they could no
> longer obtain liability insurance. The tight federal regulation over
> aircraft has prevented any significant improvements to the pre-WWII
> carburetor design used on these aircraft. The design is 80 years old,
> has been installed on tens of thousands of aircraft, and is proven with
> millions of hours of flight time. Without anybody making spare parts,
> the likelihood of failures will increase as existing parts are repaired
> instead of being replaced, exposing more people to potential crashes.
> How is this materially different than your example with the pacemaker
> company?

There is a specific provision in federal law that the Supreme Court
says
bars state lawsuits. It seems this was the intent of Congress and
they
wrote it into the law. See
http://www.scotusblog.com/wp/orders-and-opinions/more-on-the-decision-in-riegel-v-medtronic/

There is no such provision in the laws regarding the FAA. Maybe there
should
be, but it does not currently exist. Instead the Aviation
Revitalization Act places
different limits on aviation lawsuits.

Therefore, it seems in this case the Supreme Court was correct. If
you want to
change things, write your congressman.

Actually, the change I would make would be to allow FAA accident
report conclusions
into court. Right now there is a law baring the use of such documents
in
court.

-Charles Talleyrand

[Ray Andraka]

Charles Talleyrand wrote:

> On Feb 21, 9:07 pm, Ray Andraka > wrote:
>
>>Jim Stewart wrote:
>>
>>>I don't think you can take it that far. Some people
>>>*need* to have pacemakers. If all the pacemaker
>>>companies are sued out of existence, many more people
>>>will die. Based on that, perhaps a pacemaker company
>>>deserves an extra level of protection in order to
>>>keep the greater number of people alive. I don't
>>>think the argument follows for aviation.
>>
>>Same could be said for aicraft component manufacturers. For example the
>>carburetor on my Cherokee Six was manufactured by Precision Airmotive,
>>which is the sole source for parts for that carburetor. Precision also
>>made the carburetors for the majority of the piston powered aircraft in
>>the fleet. They got sued last fall for an outrageous sum and abruptly
>>pulled out of the aircraft carburetor business because they could no
>>longer obtain liability insurance. The tight federal regulation over
>>aircraft has prevented any significant improvements to the pre-WWII
>>carburetor design used on these aircraft. The design is 80 years old,
>>has been installed on tens of thousands of aircraft, and is proven with
>>millions of hours of flight time. Without anybody making spare parts,
>>the likelihood of failures will increase as existing parts are repaired
>>instead of being replaced, exposing more people to potential crashes.
>>How is this materially different than your example with the pacemaker
>>company?
>
>
> There is a specific provision in federal law that the Supreme Court
> says
> bars state lawsuits. It seems this was the intent of Congress and
> they
> wrote it into the law. See
> http://www.scotusblog.com/wp/orders-and-opinions/more-on-the-decision-in-riegel-v-medtronic/
>
> There is no such provision in the laws regarding the FAA. Maybe there
> should
> be, but it does not currently exist. Instead the Aviation
> Revitalization Act places
> different limits on aviation lawsuits.
>
> Therefore, it seems in this case the Supreme Court was correct. If
> you want to
> change things, write your congressman.
>
> Actually, the change I would make would be to allow FAA accident
> report conclusions
> into court. Right now there is a law baring the use of such documents
> in
> court.
>
> -Charles Talleyrand


Unfortunately, my congressman is a dolt and has zero interest in general
aviation. I get better results ****ing into the wind. Not that I
haven't tried with issues that were already on the floor like the user
fee debacle.

[Mike Spera]

> I strongly believe that we need to enact a strict 'loser pays' law, no
> exceptions, at the federal level to apply to all lawsuits...
>
>

You are suggesting we adopt some version of the English system. I
completely agree. However, the whiny liberals will quickly point out
that such a system presents huge barriers to those who have been wronged
and justly come forward to attempt to recover their damages. I say its a
crock.

What a "Loser Pays" system appears to do quite well is to weed out the
"Legal Lottery" contingency cases.

My twist on this new proposed system is that it requires trail lawyers
to pay 1/3 of the costs of cases they lose (since most take 1/3 of the
winnings).

Unfortunately, when a weeping mom and the kids do lose a frivolous case
that should have never been brought to court, it is likely that she will
never be able to pay up the 2/3s of the trial's cost. Who is going to go
after them to collect?

If the American public was REALLY sick and tired of this, it would be
changed. The average Bubba thinks the current game is just fine,
especially when he trips over his own feet in the local Wall-Mart and
teams up with the neighborhood ambulance chaser in an attempt to cash in.

Opinions vary... a lot
Mike

[Denny]

Valid points, Mike... But the current system is strangling us...
As the probable defendant in a tort case, I have made the hard
calculations over the years... I no longer take the 'airport kids' for
a ride, or casual friends, etc... I can count on one hand the number
of non family who have been in my airplane in the past ten years...
The risk is just too extreme under our current system of liability...

Under Loser-Pays, your weeping widow will have to stop and do a hard
calculation <just like me> as to what will happen if she loses... The
attorney will have to do a hard calculation about malpractice if she
loses; and is going to turn away any case that is not based on
proveable fact... Riding the merry go round and grabbing for the
golden ring from a sobbing jury will decrease, which is the whole
point of loser-pays...

Your modification to have the attorney liable for a percentage is
excellent; and is likely to end contingency fee arrangements.. But
even lacking that, it won't take but a few malpractice suits against
the attorney by the disgruntled plaintiff who is now liable for the
defendants costs to modify the behavior of the plaintiff bar... The
old game of suing the maker of every part on the crashed airplane will
cease...

denny

[Mike Spera]

> Valid points, Mike... But the current system is strangling us...
> As the probable defendant in a tort case, I have made the hard
> calculations over the years... I no longer take the 'airport kids' for
> a ride, or casual friends, etc... I can count on one hand the number
> of non family who have been in my airplane in the past ten years...
> The risk is just too extreme under our current system of liability...
>
> Under Loser-Pays, your weeping widow will have to stop and do a hard
> calculation <just like me> as to what will happen if she loses... The
> attorney will have to do a hard calculation about malpractice if she
> loses; and is going to turn away any case that is not based on
> proveable fact... Riding the merry go round and grabbing for the
> golden ring from a sobbing jury will decrease, which is the whole
> point of loser-pays...
>
> Your modification to have the attorney liable for a percentage is
> excellent; and is likely to end contingency fee arrangements.. But
> even lacking that, it won't take but a few malpractice suits against
> the attorney by the disgruntled plaintiff who is now liable for the
> defendants costs to modify the behavior of the plaintiff bar... The
> old game of suing the maker of every part on the crashed airplane will
> cease...
>


I detected some hints that you thought I was against a "loser pays"
system. I am quite in favor of it. Not sure if my original post was clear.

The challenge is that lawyers and their firms make a fortune on
lawsuits. Lawyers make up the bulk of Congress. The public will need to
raise quite a stink before anything changes. The ABA has been quite
protective of it's members gravy train (remember aircraft liability
reform?).

I still like "losing attorney pays a third". I want a direct connection
between taking on frivolous cases and pain at the cash box. The weeping
widow will likely not have the cash to take on her own attorney when she
loses the case. And malpractice is pretty hard to prove. Under "you
lose, you pay" there is little ambiguity.

Believe me, I know all too well what this current lottery system is doing:

* My family continues to goad me into flight instructing. I explain that
it is a young person's game. When they ask why, I point out that a 20
year old has few assets to sue for when something goes wrong during the
flight (whether it is the instructor's fault or not). A 52 year old has
plenty to lose. I don't want to be that 52 year old. Provide me with a
bullet proof liability shield and I will consider it. Legally, there
ain't no such thing. So, the thinning ranks of instructors stays thin.

* We put up with 45 year old crap engineering because nobody in their
right mind will try to improve or get into aviation manufacturing.

* We put up with ridiculous prices because of liability insurance and
the complete lack of competition.

* Flight schools and airports are closing DAILY and a big part of the
problem is the cost of insurance.

* The idiots in the media crank up the public by portraying every aspect
of flying in a negative light. This just fans the flames in the courtroom.

I say, let's try "loser pays" for 15 years and see how things go. Cannot
handle that, how about a "split system" where you either pay for the
current liability nonsense or you don't. You buy parts "with" or
"without" coverage. You step into an airplane "with" or "without" the
right ot sue. You take flight instruction "with" or "without". You get
the idea. And, you pay the likely huge cost differential for the coverage.

I have no idea how to handle this administratively, but I always
wondered what would happen.

Be Careful out There,
Mike