ThePopTort

9/11 and Elusive Justice

It seems no matter how hard we try, 9/11 keeps moving to the #1 position of this country’s collective Netflix que.  On Wednesday, friends of mine were in a plane that was forced to land when someone wrote the word “bomb” on bathroom tissue paper. There is intense discussion about the contribution to the debt crisis of two wars that we started in the aftermath of that tragedy. 

And yesterday, reports the Associated Press, Sheila Birnbaum, the corporate lawyer in charge of administering the $2.8 billion compensation fund for sick and injured 9/11 clean up workers (see our early sense of Ms. Birnbaum here), “got an earful” from “about 50 first responders and others at a town hall meeting in City Hall two days after a federal review found insufficient evidence linking cancer to Sept. 11 to warrant adding cancer to the list of conditions covered.... Birnbaum, the fund's special master, said she was ‘representing the victims’ at the town hall meeting in Jersey City, across the Hudson River from ground zero. ‘If you have a problem, you can take it up with Congress,’ she said. ‘That's what we have to deal with it.’” 

What at fighter. Moreover,

[T]hose who say toxic dust from the destroyed twin towers traveled from ground zero over the Hudson River to Jersey City and other communities will not be eligible.  Birnbaum said there simply wasn't the scientific evidence to prove injuries sustained outside New York City were caused by the attacks. 

That may disqualify Joann Sullivan, a 40-year-old who was working at a Jersey City bar in September 2001 and said she aided survivors as they returned from the World Trade Center to New Jersey, picking up contamination as she doled out water and food to those in crisis.

"I felt that it was my job as an American to do what we had to do," she said. 

Sullivan said she later developed an inflammatory lung condition called pulmonary sarcoidosis, rashes and a fever — all of which she attributes to 9/11. She said she lost two jobs because of the dozens of legions that visibly marked her body. ...

On Wednesday, Birnbaum addressed participants in New York, who expressed similar frustration over the exclusion of cancer from the list of covered illnesses. A third town hall will be held Tuesday in Melville, N.Y.

But while justice may be elusive for these selfless folks, one of the families suing United Airlines over horrendously poor security measures, which allowed the 9/11 hijackers to carry weapons onto Flight 175 (the second plane that crashed into the World Trade Center) and murder 56 passengers plus crew, may get just what until now had seemed completely elusive.

On Wednesday, the judge, Alvin K. Hellerstein of Federal District Court, said that he would probably allow [Mark] Bavis’s mother, Mary, the plaintiff, to seek such damages, despite strenuous objections by United, which had argued that she was not entitled to such a recovery under the law of Massachusetts, where Mr. Bavis lived.

Judge Hellerstein listened to arguments by lawyers for the family and United, and said his inclination was to allow the jury to come up with “a figure for pain and suffering” through the entire 21-minute period.

“My thinking is tending toward allowing terror damages,” Judge Hellerstein said.

[T]he case would be the only wrongful-death lawsuit stemming from Sept. 11, 2001, to go to trial.

In other words, this is the only family not willing to settle their case through either the compensation fund or lawsuits that were filed.

Brother Michael Bavis "added that he felt positive because Judge Hellerstein seemed to keep an open mind, and in his view, recognized the importance of having the story of Flight 175 told in the courtroom. 'This is my brother’s voice, this trial.'"

Let’s hope he gets to speak.

The Complicated Story of Shirley Sherrod, Tom Vilsack and the USDA

A funny thing happened to Agriculture Secretary Tom Vilsack on his way to repairing the USDA’s history of discrimination against African American farmers.  (There he is, all the way to the left.) 

As we all know by now, he erroneously fired black USDA employee Shirley Sherrod based on a videotape of a speech she gave that was doctored by a right-wing blogger, and which then hit the web and Fox News.  Apologizing to Sherrod and offering her job back, Vilsack said, “’This is a good woman; she’s been put through hell.  I could have done and should have done a better job.’” 

There may be no way to truly make amends to Shirley Sherrod, whose life’s work was trying to rectify discrimination (not to mention that of her husband, renowned civil rights leader Charles Sherrod.)  But I suspect she would want this terrible mess to be used as an opportunity to remind the American public of the larger story of USDA discrimination, which we covered several months ago here at ThePopTort.  It’s worth reviewing again.

During the early 1980s, several African-American farmers began a movement to try to force the USDA to stop discriminating against black farmers over “price support loans, disaster payments, operating loans and farm ownership loans.”

Nothing happened. Then, in 1997, Timothy Pigford, a North Carolina black farmer, filed a lawsuit against the USDA.…

In 1999, Pigford and about 2,000 other farmers in the class action settled for $50,000 apiece to avoid prolonged litigation. Thousands of other black farmers were unaware of the Pigford vs. Glickman class-action lawsuit and missed the deadline for filing. The USDA disqualified thousands of others. [John Wesley Boyd Jr.] led an effort, known as the Black Farmers Late Claim Bill, to ensure that some 80,000 black farmers would receive compensation.

Indeed, in May, the White House set aside $1.15 billion to help settle claims in conjunction with the Pigford lawsuit. 

Sherrod and her family were themselves part of this lawsuit “because of the land trust they started in the 1960s along with several other black families.”  Apparently, “complaints of discrimination began piling up after the Reagan administration shut down the department's civil rights division in 1983, and the lawsuit covered the years between 1983 and 1997.”

The Sherrods’ land trust -- New Communities – “was awarded $13 million, mostly for loss of land and loss of income and including $300,000 for the Sherrods, according to the Rural Development Leadership Network.”

Said Vilsack, “’We have been working hard through the past 18 months to reverse the checkered civil rights history at the department and take the issue of fairness and equality very seriously.’” 

Let’s hope the full story doesn’t get lost in the media chaos surrounding this teachable incident.  Moving forward. 

How Do You Solve a Problem Like John Stossel?

Remember in the Sound of Music, when the nuns sing, “How do you solve a problem like Maria?” … “How do you find a word that means Maria?  A flibbertijibbet! A will-o'-the wisp! A clown”? 

I’m not quite sure what a flibbertijibbet exactly is, but I do know a will-o'-the wisp clown when I see one.  That would be the Fox Business Network's new Thursday night start, John Stossel.  John Stossel is a problem that clearly needs solving.

Take his latest weird diatribe last night (“Parasitic Tort Lawyers”) and accompanying column, which he begins with the words, “Tort lawyers lie.”  And he then goes on to trash the entire profession of attorneys who try to hold corporate wrongdoers accountable in court on behalf of injured people.  I suppose that might be believable coming from a guy who once said “Enron is an example of how well the market worked for people.”  Except well, turns out, like all good hypocrites, he has no problem running to court himself when he feels like it, like when he once sued a pro wrestler who hit him after Stossel implied pro wrestling was fake, and he got $200,000 for his pain and suffering.

So I guess Stossel’s problem isn’t himself.  It’s everybody else who uses the court - and their attorneys who “say their product liability suits are good for us. But their lawsuits rarely make our lives better.” OK let’s see. 

How about lawsuits that have saved thousands of womens’ lives?  How about just children?  Communities living around toxic pollution?  Food safety?  (Even CNN’s Sanjay Gupta came through on this one.)  Cars, airplanes, cleaning products, we could go on – and on – and on.  And actually we did, a few years ago, here.

When he says all the fun of playgrounds and such were “taken away” because of lawsuits – that’s a lie. 

And when he says lawsuits are stifling innovation, that’s a lie.

And when he suggests that without lawsuits, savings due to “defensive medicine” would be anything more than 0.2% of health care costs, that’s a lie.

I know we keep using the term "tone deaf" to describe these people, but really now? 

Blink 182’s Travis Barker Settles Plane Crash Suit; DJ AM’s Estate Still Pursuing

If you haven’t heard, there’s an update on a story we’ve been following for over a year now.

Blink 182 drummer, Travis Barker, has settled his lawsuit against those responsible for the September 2008 plane crash which severely injured him and DJ AM (who died in August 2009 of an accidental drug overdose) and killed four others. 

It’s a tragedy that could have been prevented, according to the National Transportation Safety Board, which found that “the thrust reversers — devices on the back of jet engines that divert their thrust forward, helping to slow a plane or force it backward — were not in the right position to help slow down the plane.”

Compounding the tragedy of this crash is, of course, what happened to DJ AM months later.  His estate believes that “medication [he] received during his stay in the hospital, as well as the trauma from the crash, were the main reasons why [DJ AM] started using drugs again after a decade of sober living.”  That’s why his estate is continuing to pursue their claim.  A mediation conference is scheduled for this Thursday.

We hope this gives the families some peace.

In the News

We told you last March why some 9/11 victims felt morally obligated to file lawsuits and forgo the 9/11 Victim Compensation Fund.  Now it’s being reported that the first 9/11 wrongful death suit will go to trial in Manhattan on April 12.

Last year, the FDA settled a lawsuit with “anti-mercury activists” by agreeing to post a precaution on its website acknowledging the potential dangers posed by mercury dental fillings.  But “in something of an about-face” the agency is now revising that position…

A federal whistleblower lawsuit against a Tulare County hospital and health-care system has been settled amidst allegations that they gave “doctors who referred Medicare patients to the health care system a break on their rent and the cost of commercial real estate, as well as forgiving their debts.”

A judge has decided that Indiana will have to pay some 15,000 current and former state employees $42 million to compensate them for 20 years of unpaid work.

An Op-Ed in today’s New York Times by former NTSB chairman Jim Hill, underscores what we’ve been saying about the real problem with medical malpractice being the amount of medical malpractice itself.  “The Obama administration should take a lesson from the transportation safety board’s successes and establish an independent agency charged with identifying and eliminating the causes of medical error,” writes Hill.  “Such a move would save money by saving lives and would ensure that our nation’s health care system is equipped to provide the safest medical care possible.”

Cass Sunstein’s Indelicate Balance

The following entry, by Joanne Doroshow and Andy Hoffman, has been cross-posted on InjuryBoard.com.

As the National Transportation Safety Board (NTSB) concludes its three-day public hearing on the crash of Colgan Air Flight 3407 in Buffalo, New York, and it becomes increasingly apparent that shoddy training  was largely to blame, the defense being mounted by Colgan has so far been: don’t blame us, our training was “FAA approved.” 

For those of us familiar with the so-called “preemption defense,” (i.e., I should be immune from lawsuits so long as my reckless behavior adhered to minimal regulatory standards) this argument represents a very tired old saw—one many of us were enjoying a welcome break from after the Supreme Court’s landmark decision in Wyeth v. Levine.   Nevertheless, it does say something about the continued resonance of such arguments (at least, in certain circles), and underscores the importance of not only maintaining consumers’ access to the civil justice system, but also having a federal regulatory system with genuine bite. 

Enter Cass Sunstein, Harvard law professor and Obama friend/colleague from his University of Chicago days, who is perhaps best known for his “cost-benefit” approach to public protection (as well as attacking punitive damages, we might add).  As the Colgan flight 3407 hearings wore on, Sunstein was busy “cruising” through a hearing of his own—with the U.S. Senate, no less—cementing his status as the new White House “regulatory czar.”

Since Reagan came to office, most significant regulations have required the approval of this czar—which can lead to the serious diluting of public protection regulations.  President Bush’s czar, John D. Graham, proved to be a lightening rod of controversy for relying heavily on a cost-benefit approach, endangering the public.  So, when President Obama was elected, health and safety advocates were hungry for the kind of change Obama had been promising.  But unfortunately, it seems all they got was more of the same.   

In their report, “Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein,” the Center for Progressive Reform wrote:

    * Sunstein is a stout supporter of cost-benefit analysis as a primary tool for assessing regulations, despite its imprecision and the ease with which it is manipulated to achieve preferred policy outcomes;
    * He supports such cost-benefit approaches as the widely condemned “senior discount” method for undervaluing the lives of seniors in cost-benefit analyses, an approach even the Bush Administration was forced to disown;
    * He rejects the “precautionary principle” as a basis for regulating, thus ensuring that dangerous pollutants and products will be given the “benefit of the doubt,” rather than well-grounded concerns about health and safety;
    * He supports the centralization of authority over regulatory decisions in the White House – [Office of Management and Budget’s Office of Information and Regulatory Affairs] (OIRA) in particular, even though Congress delegated the exercise of expert judgment to the regulatory agencies, not to OIRA’s staff economists in the White House; and
    * He has written that the Occupational Safety and Health Administration might be unconstitutional.

Sustein has written, for example, that he doesn’t think the toxic contamination of Love Canal, which one article on the EPA website called “one of the most appalling environmental tragedies in American history,” “ever posed significant risks to anyone” and that “people fear things like toxic chemicals or pesticides because of ‘mass delusions’ … availability heuristics (fears fanned by the media), informational and reputational ‘cascades,’ and interest-group campaigns.”

We’re going to hope for the best with Cass Sunstein.  He did testify that he’d be "inclusive and humanized" and more moral in his approach to regulation.   We hope that means better days at the FAA and all the other agencies that turned into corporate shills under Bush 43.  Rena Steinzor, president of the Center for Progressive Reform, called Sunstein’s remarks "very heartening"—but, as she also said,  "the proof will be in the pudding."

One thing seems certain, though.  Regulatory balancing of the public health and safety will continue under this Administration.  Corporations will still be able to block regulatory oversight and weaken safety regulations.  All the more reason why liability must continue to be our the last line of defense against corporate malfeasance.

In the News

Class action suit says taking care of luggage is not British Airways’ “bag.”

On average, Americans spend more time (16 hours a year) watching “often misleading” drug ads on TV than talking with their primary care doctors.

Unlike efforts in the aviation industry, patient safety measures have yet to take flight.

Massachusetts AG seeks to foreclose a “foreclosure-assistance” scam.  Other federal and state officials are doing the same.

Meanwhile, Atlanta may soon join the list of big cities (like Baltimore; Buffalo, Cincinnati, Cleveland, and Memphis) in taking reckless mortgage lenders to court.

“Bullish on America”?  Merrill Lynch has agreed to “settle a class-action lawsuit by employees who lost money investing in Merrill stock through their retirement plans.” 

Congratulations, you’ve just won a free vacation—not! (says Texas AG’s lawsuit).

The Value of Suing Over 9/11

The New York Times had a pretty interesting story today about what happened to 9/11 victims who sued in court, including why they went that route.  While the story focuses on money, we found it much more interesting to hear, in the victims' own words, why they chose to go to court.

It should first be noted that the legal hurdles 9/11 victims faced were pretty huge.  The airlines had already received immunity from litigation, which is why Congress tacked onto the immunity bill, the 9/11 Victim Compensation Fund—basically an entitlement program that afforded 9/11 victims a pretty good avenue for compensation.  They were also able to get expert legal help through Trial Lawyers Care, a pro bono project established by the Association of Trial Lawyers of America (now known as the American Association for Justice) to help victims litigate before the fund.

Some chose to go to court against airline security companies and others, however.  The late 9/11 widow and victims’ advocate, Beverly Eckert, used to emphasize that their primary motivation was a desire for moral justice, real accountability, and getting to the bottom of what happened on that terrible day.

And those are the exact sentiments found by victims quoted in the Times today.  “It was never a risk to me because it was never about getting more money,” said Julie Sweeney Roth, who sued United Airlines and other defendants over the death of her husband, Brian D. Sweeney, 38, who was aboard United Flight 175 when it hit the south tower of the trade center.  “I wanted to know why and how this happened in this country….If suing for money is how I have to do it, then that’s what I’m going to do.”

One of the attorneys said that “the lawsuits had turned up mountains of material that helped explain the security lapses that allowed the attacks to take place” and while so far, the defendants have required this information to stay confidential, “the plaintiffs in the three unresolved lawsuits are seeking to have it made public as part of any settlement.”

Interestingly, the Times also reported that some of those who opted not to sue felt “discomfort, regret, shame, anger” about not doing so because the suits “might have provided more information, accountability and change.”  One widow even “agonized over whether applying to the fund might do a disservice to her husband and other victims’ families, because suing seemed to be the only way to find out why the attacks happened.”

Ultimately, for us, today’s Times story might have been titled, “Why We Fight.”  Lawsuits do more than compensate the injured and hold wrongdoers accountable.  They also have a unique and powerful way of getting to the bottom of things, and affording a sense of justice for those who have been hurt.

Transportation Misery

Wanna know a great way to prevent plane crashes, horrific deaths and injuries, and, by the way, subsequent litigation?  (Like the suits just filed in last month’s plane crash in Denver?)  How about better government regulation?

NPR did a story about yet another federal agency in bed with the industry it’s supposed to regulate, the FAA.  NPR reports, “In congressional hearings, there were accusations that the FAA had ‘cozied up’ to the airlines they are tasked with regulating, and FAA administrators were blamed for covering up the actual rate of commercial aircraft near misses.”

And speaking of transportation tragedies caused by lax regulation and wily companies, the U.S. Supreme Court is allowing a class action to go forward against GM for defective parking breaks in 4 million trucks and SUV’s.

But lest we focus just on U.S. automakers when they’re down, Japanese car companies are dealing with their own transgressions.  Like false advertising around Honda Civic Hybrid's mileage claims.  One case against American Honda Motor Co. was just reinstated, and a federal class action is pending in California, “which claims that the company inflated the savings and mileage figures Civic Hybrid drivers could achieve."

For Docs, DJ AM, and Parents, A Very Civil Justice Vaca!

One thing we’ve learned here at ThePopTort is that the pursuit of justice through our civil courts seems to never take a vacation, not even during the holidays. 

Not even for some Wyoming neurosurgeons who have brought a 14th Amendment equal protection lawsuit against a medical center for, among other things, defaming them. (Yes, you heard right, doctors are suing - again.)  Of course, the medical center is saying the docs can’t sue claiming qualified immunity. (Hey docs, let us know how that feels!) 

Not even for celebs like DJ AM who joins Travis Barker  in suing over the plane crash that severely injured them and took the lives of others.

Not for parents of a 12-year-old girl who was beaten and arrested by three police officers who say they thought the girl was a prostitute, and who have now filed a federal lawsuit.

And not for the mother a man killed in the September Los Angeles Metrolink train crash that killed 25 people and injured 135.

Let's hope 2009 is a better year for all.