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An Endless Supply of Tort Hypocrites

First, there was George Bush, who has never missed a political opportunity to attack injured victims, lawsuits and lawyers, but who in 1999, sued Enterprise Rent-A-Car over a minor fender-bender involving one of his daughters in which no one was hurt.  Then there’s ABC News Correspondent John Stossel, who while routinely launching outrageous attacks on the civil justice system, sued a pro wrestler who hit him after Stossel implied pro wrestling was fake. He settled, reportedly accepting $200,000 for his pain and suffering. 

Yes, the list of these hypocrites in endless.  Now there is Robert Bork, the famed Reagan-era Supreme Court nominee rejected (borked) by the Senate for his extreme right-wing ideology.  Bork has routinely condemned the civil justice system, but like all tort hypocrites, as soon as they’ve been harmed, they head straight to court. Bork fell a couple of years ago at the Yale Club while climbing up to the speaker's panel, so he sued the Yale Club for a million bucks and the case just recently settled for an undisclosed amount.  The NY Times ran a great editorial last year called Bork v. Bork which offers a probing analysis of Bork the plaintiff and Bork the decrier of torts.  I am not sure anyone can get to the bottom of the quagmire that is Bork, but the Times made a great effort.

What we do know about Bork is that Bork the tort critic had no problem becoming Bork the victim who sues, as is his right like everyone else. Kind of like a transformer, but perhaps not as cool as Optimus Prime.

Another Drug Recalled - Late

We've blogged a lot recently about the inability - or lack of will - by the FDA to make sure consumers aren't hurt by dangerous drugs.  Today I heard another scary story which hits a bit closer to home. 

When I arrived at work this morning, I found out that my colleague's grandmother, in her 80s, had taken the heart drug Digitek and was now being detoxed at the hospital to get the drug out of her system.  A couple of weeks ago the company recalled Digitek because some of the pills were twice as strong as they should have been.  According to the manufacturer's (Actavis Totowa) press release the error,

"poses a risk of digitalis toxicity in patients with renal failure. Digitalis toxicity can cause nausea, vomiting, dizziness, low blood pressure, cardiac instability and bradycardia. Death can also result from excessive Digitalis intake. Several reports of illnesses and injuries have been received."

A class action lawsuit has now been filed againt the company.  As is being reported,

"[T]he FDA issued a warning letter to Actavis back in August 2006 for failing to provide periodic safety reports at its oral dose manufacturing plant in Little Falls, N.J. The suit alleges that some of the faulty generic Digitek came out of that plant. The suit also claims that an FDA inspection in early 2006 revealed six potentially serious and unexpected adverse drug events dating back to 1999 for products that included generic Digitek, that weren’t reported to the agency."

It's now 2008 and in the meantime, patients like my colleague's grandmother have been put at extreme risk.  Let's hope the courts will hold this company accountable because the FDA obviously can't, or won't. 
 

"IMPORTANT: PETIT JURY SUMMONS ENCLOSED"

One of the funny things about my job defending the civil jury system is that I’d never come close to serving on a jury myself.  It’s not just that I’d never been called for jury duty, but I figured that despite how much I want to do it, and how fair I knew I would be, what insurance defense attorney would want me on a jury, right? 

Well, that all changed this week.  It was finally my turn to serve jury duty, and I couldn’t believe what happened. 

I reported to Queens Civil Court at 8:30 AM Wednesday morning.  After a day and half of waiting around I was called on a panel of three to be questioned by the two attorneys in a negligence case.  I was on the hot seat.  The plaintiff's attorney asked me right away about my employer, "Mr. Guyette what is the Center for Justice & Democracy?"  With a smile I told him that we are a non-profit organization dedicated to preserving the civil justice system and protecting consumers' right to a trial by jury.  His face immediately brightened up.  After several more questions about whether I could be fair in this case, it was the defense attorney's turn.

I told him that I thought of myself as a pretty fair guy who wouldn't jump to any conclusions before hearing all of the evidence on both sides.  He was still concerned about my job and asked, "Mr. Guyette would you say your work is more pro-plaintiff or pro-defense?"  I told him that I would not characterize my work as either, but rather "pro-consumer." He then asked, "Is there anything Mr. Guyette that I should know about you that I don't already know."  Kind of an open-ended question I thought.  I said "no" and told him that my life is pretty much an open book.  Both attorneys then left the room to decide whether they wanted me.  They came back, and much to my surprise, I was picked as the 5th juror!

What?  I was sure the defense attorney would have knocked me off.  But it turns out, as I later learned, the defense attorney had used all of his juror challenges the previous day.  Oh well!

I was really looking forward to serving on this jury.  So were the other friends I made - the four other jurors.  We jokingly became known as the "Five Musketeers."  But after a couple of hours waiting in the hallway and watching CNN, the two attorneys came back and told us the case had settled. 

We were all a little disappointed.  For all the initial sighs and groans, the people that I met while serving jury duty all wanted to be on a jury.  I think we all had a positive experience together.

With a wink and a nod, the plaintiff's attorney told me afterward to "keep up the good work."  And though I never sat on a jury, I met some wonderful people during my two days of service.  The experience gave me even more respect for the jury process.  Ordinary citizens coming together to decide what is fair in a given case.   It is a remarkable system.

Oklahoma Governor Protecting the Civil Justice System

As many state legislatures are starting to wind down for the year, lots of legislation is landing on the desks of Governors.  Right now, a bill is on its way to the desk of Oklahoma's Governor Brad Henry.

Attached to this bill is a measure that would add a significant roadblock for victims of medical malpractice who wish to file a lawsuit.  Fortunately, the Governor has expressed concern over this bill because the language seems remarkably similar to a law that was deemed unconstitutional in 2006, by the Oklahoma Supreme Court.  The court found, correctly, that such a law places an undue financial burden on people seeking access to justice.

Gov. Henry should be highly praised and commended for standing up for the sick and injured, in the face of enormous pressure from the insurance industry and medical establishment, just as he did earlier this session when a broad sweeping tort "deform" bill was withdrawn because of the threat of the Governor's veto.

No Caps in New Hampshire

I live in New York, I don't own a car and take the subway to work everyday.  So, I really like public transportation.

So I'm all for New Hampshire's plan to build a commuter line connecting suburban New Hampshire to Boston.  But they don't have to take away the rights of people who could be injured or killed to do so.

On Monday, the House of Representatives passed legislation that would arbitrarily cap damages should someone be harmed or killed.  Governor John Lynch has said he supports the legislation, so now it is up to the Senate next week.

The New Hampshire's Supreme Court has previously ruled that caps are unconstitutional in the 'Live Free or Die' state, however it may be a while to see how this legislation goes.

Small claims courts: "The Great Leveler"

Cross posted from Illinois Deserves the Truth by Eric Bell

Reading the paper yesterday I came across an article about an unheralded consumer tool: small claims courts.  When most people hear those words, they probably think of TV shows like Judge Judy, but small claims courts are an essential part of our judicial system and can be an important tool for anyone who has been wronged.  The writer called them the "Great Equalizer" (that's what I might call the civil justice system as a whole, but it's not far off).

Unfortunately, the article only briefly mentions Big Business’ attacks on this institution--not to mention the entire civil justice system.  Credit card companies and others use mandatory arbitration agreements to take away our right to seek a trial by jury when we are scammed.  Learn more about the pitfalls of binding arbitration agreements from Public Citizen’s report, “The Arbitration Trap: How Credit Cards Companies Ensnare Consumers”

In the News...

Gulf coast homeowners who have fought to hold the Army Corps of Engineers liable for contributing to the extent of Katrina’s destruction may finally get some relief – not for negligence in building the levees but for flood damage caused by a navigation channel that funneled Katrina's storm surge into the city, according to a recent federal court ruling. (AP) According to the article,

“The suit charges the agency with ignoring repeated warnings that the [ship channel] turned into a ‘hurricane highway,’ funneling Katrina's storm surge into St. Bernard Parish and New Orleans and overwhelming levees and flood walls.  The 76-mile shipping channel was built about 40 years ago as a shortcut to New Orleans. For years, environmentalists and emergency planners have blasted the channel as a destructive force because it has eroded enormous tracts of wetlands and increased the threat of flooding.”

A NY Times editorial slams the recent federal court decision that threw out New York City’s suit against gun manufacturers, and equally slams Congress for passing a gun immunity law. (NY Times) Also, check out our recent post.

FDA woes continue.  Drug maker Merck & Co. has serious safety and cleanliness issues at main vaccine plant. (AP)

99,000 people die each year from preventable hospital infections, according to the Centers for Disease Control and Prevention.  (We wonder if this is in addition to the other 98,000 dying from other medical errors in hospitals??)  Anyway, CNN tried to tell us how to protect ourselves from hospital infections. (CNN)

Quote of the Day

A Georgia court has struck down the state's $350,000 non-economic damages cap in medical malpractice cases, saying the cap made the jury's job of determining appropriate damages "a meaningless exercise."  The court went on to say,

“...the statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy.  Under the caps enacted by S.B. 3, the disabled manager of a hedge fund, a corporate CEO, an entertainer, or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering.”

Check out the full decision here.

       

Happy "Law Day"

Goodbye April and hello May.  For most countries today is "May Day," a holiday akin to labor day that celebrates workers. However, in the US today is "Law Day," created in 1958 to counter May Day which was perceived to be a communist celebration.  So its been 50 years and President Bush commemorated the occasion by renewing the holiday and proclaiming this day once again as Law Day.  Am I missing something?  Here is a snippet from Bush's proclamation:

"The American legal system is central to protecting the rights and freedoms our Nation holds dear. The theme of this year's Law Day, "The Rule of Law: Foundation for Communities of Opportunity and Equity," recognizes the fundamental role that the rule of law plays in preserving liberty in our Nation and in all free societies. We pay tribute to the men and women in America's legal community. Through hard work and dedication to the rule of law, members of the judiciary and the legal profession help secure the rights of individuals, bring justice to our communities, and reinforce the proud traditions that make America a beacon of light for the world."

Throughout his administration, Bush has relentlessly advocated taking away the legal protections of average Americans, attacked lawyers, and supported a corporate movement that seeks to undermine the independence of judges, threatening a tradition of judicial independence that has served and protected us for over 200 years. 

Besides eating, drinking and being merry, my Law Day festivities will recognize the importance of the tort system for average Joe's injured by corporate malfeasance who seek justice.  I won't be inviting the President.

Aw, Shoot

Yesterday, a federal appeals court threw out New York City's lawsuit against gun manufacturers and distributors.  The suit started back in 2000, in an effort to curb the flow of illegal guns onto the streets of New York City.  The case demonstrated an ingenious use of the civil justice system since over the past decade major municipalities had been unsuccessfully bringing criminal prosecutions against gun manufacturers when their products hurt and killed people.

The Second Circuit's decision upheld an act of Congress (misnamed the Protection of Lawful Commerce in Arms Act) that insulates Smith & Wesson, Beretta and other gun manufacturers (and distributors) from liability, holding that New York's public nuisance law does not fit into an exception in the act.

Although the Circuit court decision is regrettable, it does not affect in any way the City's lawsuits against gun dealers.  In those cases, filed in 2006, against 27 gun dealers in five states, the results to date have been extremely successful at stopping the small number of bad actors who violated gun sale laws.

For more information about these cases and some cool undercover videos - click here

UPDATE:  A few days after the decision, the New York Times published this great editorial