Senate committee votes down product liability suit roadblocks
Posted June 10, 2014
Raleigh, N.C. — One father told lawmakers about his daughter who died of a blood clot after taking medication for acne. A banker from Wake County talked about how a mesh implant tore and stabbed at her insides and is still not fully removed seven years years after being implanted.
Those human faces helped sink a measure that would have granted manufacturers of pharmaceuticals – or virtually any product from car seats to cribs – immunity from lawsuits if their goods were reviewed and approved by any government agency, such as the U.S. Food and Drug Administration.
"The ambulance left the yard with our 15-year-old daughter, and she died on the way to the hospital," said Scott Prewitt, recalling how the family had been packing for a vacation before she started coughing up blood.
The culprit was eventually found to be a birth control medication that some doctors prescribed, at the urging of its manufacturer, to treat acne.
"The company was aware of the increased risk of blood clots....This legislation would protect manufacturers' profits whether the manufacturer is located in another state, another country or around the world," Prewitt said.
Defense lawyers who testified before the committee pushed back against his and other testimony, saying that companies should be able to take refuge under government approval.
"As long as the company has not sandbagged the government, it has done everything it is supposed to do by law, then how can that fall below the standard of care required of a manufacturing or pharmaceutical company," said Kirk Warner, a lawyer at Smith Warner.
Another section of the bill would have made it harder for plaintiffs to recover damages in asbestos-related cases. Both the product liability and asbestos provisions were stricken from the bill as lawyers on the committee decried the measures as stepping outside the legal norm.
"I tell you, if we do this, civil justice in North Carolina has taken a step back to the dark ages," said Sen. Thom Goolsby, R-New Hanover, who is a lawyer by trade.
Goolsby said North Carolina juries and courts already do a good job of turning away frivolous product liability suits.
"No, no they don't," muttered Sen. Tom Apodaca, R-Henderson, who owns bail bond and travel agent businesses.
The bill itself passed and now includes a provision that the Senate first included in the budget it sent to the House. That provision would require that any challenges to the constitutionally of state laws be heard by three-judge panels appointed by the state Supreme Court's chief justice.
Sen. Dan Blue, D-Wake, said that the Judiciary Committee was the right place for such a law to be reviewed, but the amendment process gave them little time to do the necessary work.
"If we are to do our duty, we ought to take this amendment and parse it and look at it line by line," Blue said. "Just to give it a quick two-minute, three-minute dip in this committee, I think, is a mockery of the Judiciary Committee."
From the beginning, the bill included provisions that would discourage shell companies from suing North Carolina companies in frivolous patent infringement cases. An amendment added Tuesday would make the language included in the Senate bill mirror the language passed by the state House last week.
Other sections of the bill would cap fees included in contracts the attorney general could use to hire outside attorneys and adjust language related to shareholder lawsuits.
Sen. Brent Jackson, R-Sampson, the bill's sponsor, said he did not favor the amendment stripping the product liability and asbestos provisions.
"As a business owner and a business person, this bill, as it was written, was a great bill," Jackson said. Those who have had to deal with government agencies knew the legal wringer that product approvals can face.
The bill passed on a voice vote. Apodaca called for division, a formal count of the committee votes, but committee Chairman Buck Newton, R-Wilson, pointed out that such formal counts were not typically taken.
The bill's next stop is the Senate Finance Committee. It would then go to the Senate floor.