ThePopTort

The Two Faces of Asbestos Transparency

Just catching up today on our earlier post about the series of hearings held this week by various subcommittees of the U.S. House Judiciary Committee.  So let’s discuss Wednesday.

In the morning, the Center for Justice & Democracy participated in a hearing on the topic of “litigation abuses,” which CJ&D defined this way:  

As a result of hundreds if not thousands of so-called “tort reform” laws that have passed around the country in the last 30 years, a series of recent Supreme Court decisions that have stripped everyday people of their legal rights (including providing corporations with the ability to ban all class actions) and other action and inaction by Congress, the sick, injured and violated struggle even to get into civil court today. 

Actually, this leads right to the Wednesday afternoon hearing on asbestos poisoning. Talk about the struggles of the sick and injured!  But let’s begin with secrecy, shall we?  Since without that, hundreds of thousands of people would not have died from asbestos exposure, and millions more would not face illness or death from asbestos disease, and the lethal cancer known as mesothelioma.

Since at least the 1930s, asbestos manufacturers and their insurers deliberately hid the dangers of asbestos from their own workers and the public.  For example, in 1933, the Johns-Manville Company settled with an attorney for 11 former Manville employees, all asbestosis victims.  The attorney received $30,000 for the victims, in exchange for a written promise that he would not “directly or indirectly participate in the bringing of new actions against the Corporation.”  This fact did not come to light for more than 45 years.  In the meantime, the company was able successfully to avoid damages suits while continuing to poison people.  Had the public known about this settlement, the hazards of asbestos would have come to light decades earlier.  (Learn more by reading this incredible book by Paul Brodeur.)

In other word, lives would have been saved and lawsuits prevented if Big Asbestos had been even the slightest bit transparent about the dangers almost a century ago. 

After killing and sickening all these people, the asbestos industry then used special bankruptcy laws to get rid of all of their asbestos liability through the creation of trusts.  These trusts, set up to compensate victims, have always been underfunded.  As a result, most asbestos victims are grossly undercompensated. 

Usually, multiple asbestos products and companies are responsible for each persons’ exposure.  State laws ensure that every defendant, whether a traditional defendant or a trust, only pays its share of liability.  At Wednesday’s hearing, Caplin & Drysdale attorney Elihu Inselbuch, who has 25 years experience representing victims’ rights in asbestos bankruptcy proceedings, explained:

Think of the shipyard worker, for example, assisting in the repair of countless U.S. Navy warships. The asbestos - containing products which were causes of his injury included boilers, pipe and thermal insulation, gaskets, and many others. A person so injured can legally recover from every company responsible, including both those he sues in the tort system and the trusts that stand in the shoes of bankrupt defendants. The current efforts by ALEC and its members are nothing more than an attempt to shift solvent defendants’ share of responsibility to the insolvent defendants and leave the innocent victims with the resulting shortfall in recovery.

According to a major General Accountability Office study in 2011, the trusts are doing a great job carefully examining evidence of claims before making payments while also preventing any possible fraud. GAO wrote:

According to the officials we interviewed at all 11 trusts we selected, each trust is committed to ensuring that no fraudulent claims are paid by the trust, which aligns with their goals of preserving assets for future claimants. Although the possibility exists that a claimant could file the same medical evidence and altered work histories with different trusts, each trust’s focus is to ensure that each claim meets the criteria defined in its TDP, meaning the claimant has met the requisite medical and exposure histories to the satisfaction of the trustees. Of the trust officials that we interviewed that conducted audits, none indicated that these audits had identified cases of fraud.

Unfortunately, the Wall Street Journal has its own “interpretation” of this statement, publishing some articles lately that instead rely on unnamed, unidentified “politicians, judges and defense lawyers” who claim that the “opportunity for abuse flourishes,” and then unfairly tying this politically-based perspective to anomalies likely paperwork or “keystroke” errors (which are themselves pretty rare, especially for such a vast system). 

But all this is apparently to provide support for federal legislation called the FACT Act, on which there were hearings Wednesday afternoon – a topic about which we’ve written before.  Testified asbestos bankruptcy expert Elihu Inselbuch,

Asbestos defendants and insurance companies, under the guise of creating increased  “transparency,” are introducing proposed legislation in state legislatures [and now Congress] to grant solvent asbestos  defendants new rights and advantages to be used against asbestos victims in court. Some of these bills would also burden the asbestos trusts with unnecessary reporting requirements, slowing their ability to pay claims, and further draining them of the resources needed to make their already diminished payments. In general, the  bills are an attempt to change the rules of the tort  system to provide defendants with an advantage, using the existence of the trusts and claims of a  lack of “transparency” as a subterfuge. …  

It is also important to note that the bill only changes what the trust must report with respect to an  asbestos victim; the bill says nothing of the right of asbestos defendants to demand confidentiality. A typical asbestos defendant who settles a case in the tort system demands confidentiality as a condition of settlement in order to ensure that other victims do not learn how much the defendant paid. Trust payments represent settlements of former a asbestos defendants.  The remaining asbestos defendants now want the trusts to disclose specific settlement amounts and other information that they themselves  do not  provide and that the bankrupt  asbestos defendants who created the trusts  did not provide when they  were  defendants in the tort system .  … 

Here is his conclusion:

Under the rubric of arguing that “transparency” is necessary to prevent supposed fraud, asbestos companies continue their efforts to change the laws at a state and federal level to receive whatever benefits they can from the existence of the trusts.  These laws that seek to enforce disclosure, regulate timing of trust claims, and put additional burdens on these trusts, such as  the  FACT Act, are unjust and unfair to asbestos victims.

These laws were never designed  — nor  intended  — to address fraud in the trust system. Indeed, there is not a scintilla of evidence of any such problem. The real purpose of these laws is to allow solvent defendants to take advantage of the bankruptcies of their co - tortfeasors by shifting to plaintiffs the burdens of the shortfalls caused by the bankruptcies, as well as the burdens of discovery and proof of the bankrupt  tortfeasors’ responsibility. These laws are simply the latest stratagem by corporations that  produced and distributed asbestos - containing products to avoid responsibility for the deaths and  injuries of millions of Americans caused by those products.

Legislators should not allow public policy to be hijacked by special interests, and should be vigilant to protect the rights of injured  workers and their families.

White Shoe Firms Feeding at the Government Pig Trough

It must be hard to keep white shoes clean while slurping at a pig trough, no?  (Wild boar troughs included.) The National Law Journal today released an investigation  exposing how much money the U.S. government spends contracting legal work from outside, corporate firms.  Some of the vendors are not actually law firms but many are, and taxpayers are having the foot the bill for the inflated hourly fees of some of this nation’s top corporate firms.

Here are a few examples: Hunton & Williams, $34.7 million. Cadwalader, Wichkersham and Taft: $26.8 million. Morgon, Lewis & Backius: $20.3 million. And on down the list.  This work is conducted “with little public scrutiny” and a “lack of transparency.” But the government says they need the help!

We wouldn't be so hot and bothered by this had Corporate America not launched a brazen, hypocritical campaign attacking underfunded and under-resourced state Attorneys General who also hire outside counsel.  Yet state AG's do so on a contingency basis.  In other words, there are no costs to the taxpayer. The AG's hire counsel to help them protect their citizens in many diverse areas, including consumer protection, antitrust and utility regulation, and environmental protection. What’s more, they often recover millions of dollars for state taxpayers! See some great examples here. 

Corporate critics of state AG work include groups like the conservative American Legislative Exchange Council, which complains that these contracts aren't transparent enough - but apparently doesn't bat an eye when corporate firms benefit.  Hhmm.  ALEC has been pushing model legislation to limit AG’s power to hire outside counsel.

Groups like ALEC have tons of corporate members who have been found liable in state AG suits for corrupt and harmful business practices. These companies have had to reimburse taxpayers hundreds of millions of dollars. But these new ALEC laws are burdensome to the point that their enactment will cost state taxpayers hundreds of millions of dollars. 

Something is definitely wrong with this picture.

The Brutality of Wisconsin’s Nursing Home “Tort Reform” Law

There’s a song in the rock musical Hair called "Easy to Be Hard," and it goes like this:

How can people be so heartless
How can people be so cruel
Easy to be hard
Easy to be cold

These lyrics have been running around my head since reading the two-part series from the nonprofit Wisconsin Center for Investigative Journalism  about the impact of Wisconsin’s new nursing home “tort reform” law.  And when I say “impact,” I’m specifically talking about current and future nursing home residents who are abused and neglected.  (Pay close attention, Baby Boomers.) 

Here is the series’ summary:

Families’ abilities to hold potentially negligent nursing facilities accountable have been diminished by a recent change in state law that bars records of abuse and neglect from use in the courts, the Wisconsin Center for Investigative Journalism has found. The Center’s investigation also shows that some long-term care facilities are failing to report deaths and injuries, as required by law.

Not that we’re surprised.  Under the leadership Governor Scott Walker and with the express assistance of that nasty gang-‘o-corporations, the American Legislative Exchange Council, the nursing home industry authored a bunch of provisions to make it difficult or impossible for families to sue on behalf of their abused or neglected (i.e., dead or injured) relative. For one, these laws make it virtually impossible for grossly negligent facilities to ever be liable for punitive damages.  For another - and the focus of the series- these laws prohibit families in these tragic situations from using any state investigation records as evidence in their lawsuit.  In the words of Milwaukee personal injury attorney Ann Jacobs, “When you’ve got these records that are part of the regulatory process, the idea that you wouldn’t be able to introduce them to the jury is just insane.  Why would we hold that information back?”  Indeed.

In one case profiled by the series, records of a four-month period of neglect that led to a bone-deep, E-coli infected bed sore on the backside of a 32-year-old brain-damaged and physically-disabled resident (he required horribly painful surgery and months on his stomach), could not be used in the family’s lawsuit. 

The impact of this law extends beyond the families who do sue:

Several attorneys said they have turned down meritorious cases because the new law makes it harder and more costly to sue nursing homes and other health care facilities.

“Even before this legislation, these were very difficult, expensive, time-consuming cases,” said Jason Studinski, a Stevens Point attorney who specializes in elder abuse lawsuits. “Frankly, once a victim knows what hurdles are in their path, some choose to go away, even if they have a legitimate claim.” …

And don’t think patient safety won’t suffer.  As Dane County Circuit Judge William Hanrahan, who prosecuted crimes against the elderly for 19 years as a district attorney and assistant attorney general, put it: 

“It’s very important that attorneys are able to take these cases and hold those who neglect and abuse the elderly accountable.  Some of the biggest changes come as a result of legal action.”

Heartless, cruel, hard, cold.  Mustn't forget dumb.  

ALEC’s Phony Crony Capitalism

The American Legislative Exchange Council is the secretive organization of conservative lawmakers and corporations that draft and shop around model bills without identifying that these bills are written by national corporate lobbyists. It’s been called many things lately.  Let’s see.  Union buster.  Voter suppresser.  Concealed weapon and shoot to kill champ. Mistreater of asbestos victims.  Abuser of its charitable status.  

We also like Paul Krugman’s descriptive paragraph:

…ALEC’s claim to stand for limited government and free markets is deeply misleading. To a large extent the organization seeks not limited government but privatized government, in which corporations get their profits from taxpayer dollars, dollars steered their way by friendly politicians. In short, ALEC isn’t so much about promoting free markets as it is about expanding crony capitalism. 

That more or less fits ALEC’s civil justice agenda too.  It’s new priorities are listed in a brand new report called ALEC 2013: Jobs, Innovation, and Opportunity in the States, and when it comes to people harmed or killed by corporate wrongdoing, it focuses on three areas: making it more difficult for people injured or killed by unsafe or defective products to hold manufacturers accountable in court; limiting the availability of “class actions,” so that big companies can more successfully violate large numbers of people with impunity; and limiting lawsuits by people who have been defrauded under state consumer protection laws.  All such laws transfer the costs of injuries away from those who caused them and onto others (like taxpayers, when people are severely hurt and need care.)

In other words, ALEC would like to undermine the tort system’s economic function -  deterrence of non cost-justified accidents - replacing it with new rules constraining what is now a free-market approach to holding corporations accountable for their negligence.  (You can read more about the tort system's important economic function in the 1987 book, The Economic Structure of Tort Law by conservative economic theorists William M. Landes and Richard A. Posner.)

So let's add one more ALEC description - subverter of the free market tort system.

Watch These Films and Watch What Happens

CNN, the so-called “most trusted name in news” can’t be trusted anymore.  The so-called “fair and balanced” network is so inaccurate that it ranks last in a survey of “most informed viewers.” Of course, there’s an endless supply of brilliant political satire on TV these days, but is satire the only option anymore?  Well, no, and here are a couple reasons to keep watching.

First, this Sunday night, September 30, on his PBS show, Bill Moyers Journal, the extraordinary Bill Moyers presents an expose of the American Legislative Exchange Council called, The United States of ALEC.  This is a topic we’ve covered many times and that’s because ALEC is responsible for, among other things, a host of “tort reform” bills and laws that have stripped everyday Americans of their legal rights.  You can see the wonderful Lisa Graves of the Center for Media and Democracy’s PR Watch and ALEC Exposed interviewed on the preview clip below, so you know it’s gonna be good!  See more about ALEC and "tort reform" in the Center for Justice & Democracy’s earlier report, American’s Worst Top Model.  By the way, CMD has just posted a brand new web site about another huge corporate “tort reform” trade group, the National Federation of Independent Businesses, called  NFIB Exposed.  (See our recent take on the NFIB here and learn much more about its early involvement in the “tort reform” movement here.) 

Second, the amazing Alliance for Justice is about to release its new film on the U.S. Supreme Court, called Unequal Justice: The Relentless Rise of the 1% Court, which “explores the growing pro-corporate bias in key Court decisions and their real-world impact on ordinary Americans.”  Here are some of the important cases on which the film focuses, many of which strip injured victims of their legal rights and weaken corporate accountability.

To host viewing house parties for either film, go here and here.   And then, do something more!  Or at the very least, V-O-T-E!

Lawyers Guns and Money

I’m sure I’m not the first person to think of the late great Warren Zevon when news broke of the unfortunately-timed civil lawsuit just filed by one of the victims of the Aurora shooting. The primary case “center[s] on the safety and security procedures at the theater” but some experts say, according to Bloomberg, that such claims may not be successful “because such cases require some proof that a company or organization acted unreasonably, and knew, or should have known, about the danger posed.”  Of course, Aurora CO wasn’t completely unaware that insane individuals were capable of mass murder.  In the 1990s, a guy walked into an Aurora Chuck E. Cheese and killed four people.  And of course, there was Columbine, only 17 miles way.  But this was a movie-theater first, and a judge may very well throw it out.

But we’re a lot more concerned about the various “get out of jail free” cards for which the National Rifle Association has lobbied so hard around the country, all for the purpose of ensuring that the gun industry – as well as “shooters gone rogue” - are never held responsible for any of the consequences of this nation’s gun violence.   For example, in 2005, President George W. Bush signed into law the NRA’s Protection of Lawful Commerce in Arms Act, which shields the gun industry from liability when the acts of a gun dealer or manufacturer contribute to gun violence.

Earlier this year, we covered the civil liability protections buried in Florida’s "Stand Your Ground" law.  At the NRA’s behest, these laws had been pushed around the country by the American Legislative Exchange Council (ALEC), which is holding its annual convention in Utah as we speak.  Goodness knows what those BFF’s, the NRA and ALEC, will come up with next. 

But no wonder they’re concerned.  Given that the gun industry is virtually unregulated in the country, the threat of legal liability is probably the best way to change the way gun manufacturers and distributors make their products available to the public.  This was all explored in a 2003 newsletter from the Center for Justice & Democracy.  At the time this was written, the “Protection of Lawful Commerce in Arms Act” had just passed the House, so there was still hope of stopping it.  But alas, things got decidely worse.  Here what CJ&D observed back then.

After cities began filing lawsuits against gun manufacturers in 1998, Colt Manufacturing Co. announced that it would stop selling most handguns to the civilian market due to liability concerns. Facing the threat of future multi-million- dollar awards and the prospect of having its insurance canceled, Remington recalled 200,000 air rifles and air pistols within days of settling a case brought by a man who became paralyzed after a Remington air rifle suddenly discharged during a hunting trip even though the safety release was pushed into the “OFF” position.…

As Professor Stephen P. Teret, director of the Center for Gun Policy and Research at Johns Hopkins University, wrote in the Washington Post, “When needed regulation of products is thwarted by politics, health advocates turn to the courts for help. …Some argue that legislation is the only proper, legal route for protecting the public’s health. But litigation is designed to remedy injustices, and there should be no question about the injustice of a product that needlessly injures and kills tens of thousands.”

That would be guns.

The British Pharmaceutical Crooks are Coming, the British Pharmaceutical Crooks are Coming.

In all the commentary today about London-based pharmaceutical giant GlaxoSmithKline agreeing to pay a record fine (an honor previously held by Pfizer ) of $3 billion (as well as pleading guilty to some criminal charges), ex-NY guv Eliot Spitzer’s analysis made the most sense to me.  Writes the New York Times in a front page story today:

“What we’re learning is that money doesn’t deter corporate malfeasance,” said Eliot Spitzer, who, as New York’s attorney general, sued GlaxoSmithKline in 2004 over similar accusations involving Paxil. “The only thing that will work in my view is C.E.O.’s and officials being forced to resign and individual culpability being enforced.”

Resign – and jail, we should add.  One can hardly argue with this point of view.  The fine itself, “for promoting its best-selling antidepressants [Paxil and Wellbutrin] for unapproved uses and failing to report safety data about a top diabetes drug [Avandia]” as well as “civil penalties for improper marketing of a half-dozen other drugs” barely even cuts into the company’s sales revenue for these drugs:

Avandia, for example, racked up $10.4 billion in sales, Paxil brought in $11.6 billion, and Wellbutrin sales were $5.9 billion during the years covered by the settlement, according to IMS Health, a data group that consults for drugmakers.”

“So a $3 billion settlement for half a dozen drugs over 10 years can be rationalized as the cost of doing business,” said [Patrick Burns, spokesman for the whistle-blower advocacy group Taxpayers Against Fraud].

Mr. Burns and others have said that to institute real change, executives must be prosecuted criminally or barred from participating in the Medicare and Medicaid programs, an action known as “exclusion.”

This has occurred in only a handful of cases, and rarely in a case involving a major pharmaceutical company.

Need more evidence that deterrence hasn't yet worked?  Just take a look at the recent history of this company since Spitzer's 2004 lawsuit, a company that made over $30 billion in profits last year and whose CEO took in multi-millions in compensation:

• In October 2010, GSK “agreed to pay $750 million to settle criminal and civil complaints that the company for years knowingly sold contaminated baby ointment and an ineffective antidepressant.…Altogether, GlaxoSmithKline sold 20 drugs [including Avandia, Paxil Coreg, a heart drug, and Tabamet for acid reflux] that were made at a huge plant in Puerto Rico that for years was rife with contamination.”  The total includes “a $150 million payment to settle criminal charges [which] was the largest such payment ever by a manufacturer of adulterated drugs,” as well as “$600 million in civil penalties.  The share to the whistle-blower will be $96 million, one of the highest such awards in a health care fraud case.”
• Speaking of Paxil, in July 2010, the company settled some 800 Paxil lawsuits for more than $1 billion, because the drug caused birth defects in children of women who took it.  This settlement,  “which would provide an average payout of more than $1.2 million to families of the affected children, leaves more than 100 similar cases pending.  The birth-defect settlements bring to more than $2 billion the amount Glaxo has agreed to pay to resolve a variety of Paxil-related suits, including claims the pill caused suicides or attempted suicides and addiction problems….”  
• In May 2007, GSK settled a $64 million class action brought by parents who were misled about Paxil's safety for their children, with the company later paying an additional $40 million to insurers “who paid for the drug to be used in children and adolescents.” 
• Speaking of Avandia, in July 2010, GSK also “settled about 10,000 of the roughly 13,000 Avandia lawsuits in the US for approximately $460 million.”  Avandia, a Type 2 diabetes drug “has been linked to cardiovascular risk, although an FDA advisory panel … voted to allow the controversial diabetes pill to remain on the market, but with warnings.”  What's more, a U.S. Senate Finance Committee investigation revealed that GSK knew about these adverse effects for years and failed in their duty to warn patients. 
• In September 2006, GSK agreed to pay the IRS approximately $3.4 billion in back taxes, making it the largest single payment made to the IRS to resolve a tax dispute in the agency’s history. 
• In September 2005, GSK agreed to pay $150.8 million to settle Justice Department charges that the company set “fraudulent and inflated prices” for Zofran and Kytril, injectible anti-nausea drugs for patients undergoing chemotherapy cancer treatment. 

Meanwhile, this British company is running around the United States trying to pass laws to limit its liability when its drugs kill or sicken U.S. customers. According to Sourcewatch, "GSK is on the corporate ("Private Enterprise") board of the American Legislative Exchange Council (ALEC) as of 2011." (Seems every day there's some new ALEC outrage.) John Del Giorno, Vice President of State Government Affairs, represents GSK on the board as of 2011 and is now its Second Vice Chairman.  

More specifically, Giorno and Leah Lorber, GSK's Director of Public Policy, have been part of ALEC’s Civil Justice Task Force attending at least the following recent meetings: July 2010, December 2010, April 2011 and August 2011.  This task force's purpose is to wipe out liability for corporate crooks like GSK, among others.

Where’s Paul Revere when you need him?  Happy Fourth!

Doctors and Cigarette Companies Sittin’ in a Tree

It has always fascinated me how the political operatives and pollsters aligned with the “tort reform” movement have used doctors to provide cover for their tobacco-fueled movement.

For example, back in 2002, a Texas group called Citizens Against Lawsuit Abuse (CALA) in Weslaco organized a “Doctor’s Walkout” in the Rio Grande Valley to push for legislative restrictions on patients’ rights to sue malpracticing physicians (which, of course, eventually happened. )  As the Center for Justice & Democracy showed in its 2000 report The CALA Files: The Secret Campaign by Big Tobacco and Other Major Industries to Take Away Your Rights, CALA groups were and are part of a corporate-backed network of front groups that have received major financial and strategic assistance from organizations linked to Big Tobacco.

Polling has always been one of the activities of these front groups. For example, early on, they decided – correctly - that everyday folks have no clue what “tort reform” actually means. (If you check out the film Hot Coffee, it’s apparent that 25 years after the founding of the American Tort Reform Association, no one still knows what “tort reform” means.) But they figured something else out – everyone understands the words “lawsuit abuse.” Didn’t matter that the so-called “reforms” they advocated, like capping compensation, had nothing whatsoever to do with abusive lawsuits since they only kicked in after a seriouly injured person won their case.

As CJ&D found, the “lawsuit abuse” message may have been first cooked up back in the early 1990s via a South Texas survey commissioned by the right-wing Texas Public Policy Foundation and TPPF’s Center for Lawsuit Reform. (TPPF, by the way, continues to pop up in the news, most recently in support of its tainted corporate allies, the American Legislative Exchange Council, which we last covered here. ) The TPPF survey, conducted by President Bush's 2004 pollster Jan van Lohuizen, determined that the issue of “lawsuit abuse” polled well with 67 percent of the south Texas residents surveyed.  Compared to other campaigns, the study reported, “this level of awareness is quite high.”

So not surprisingly, dozens of “Citizens Against Lawsuit Abuse” groups then started popping up around the country, organized by ATRA’s PR firm, APCO. (Read all about it here.) The money trail from many of them led directly to large corporate donors. This included the tobacco industry, which would funnel money through the Washington DC law firm Covington & Burling – current home anti-jury corporate lawyer Phil Howard, who we’ve covered before, like here. 

What’s this all have to do with today, you may ask? Well just last week, Media Matters found a priceless Fox News clip where conservative pollster Frank Luntz instructed a physician to get in line, stop using the phrase “tort reform” and use “lawsuit abuse reform” instead.  Surprised he didn’t go one step further and tell him to just join his local Citizens Against Lawsuit Abuse group, where his interests would be well-represented alongside those of cigarette companies. Better yet, why not create a new group called Doctors and Cigarette Companies Against Lawsuit Abuse? No sense beatin' around bush.

It’s a Baldwin Kind of Day

Of all the many lawsuits surrounding the 2010 Deepwater Horizon oil rig explosion, which killed 11 and was a subsequent environmental and health disaster, the weirdest has to be this one: Stephen Baldwin of the famous acting Baldwin brothers and recent star of I'm a Celebrity…Get Me out of Here!, has sued Kevin Costner, currently starring in the History’s channel’s blockbuster show, Hatfields and McCoys, about one of the most violent family feuds in U.S. history. 

Baldwin is alleging that Kevin “I probably know more about oil spills than almost anyone in the world” Costner and his friend tricked him into selling his shares of a company (for far less than they were worth), which marketed oil cleanup devices to BP, unaware that BP had placed a $52 million order for it (and then never used it.)

According to testimony yesterday, “Stephen Baldwin threatened to feed personal information about Kevin Costner to The New York Times if they couldn’t resolve their business dispute.”  Not a great way to express one's frustration, but far better than shooting a guy in the back.  (See clip below.)

Writes the Hollywood Reporter, “Baldwin says his primary motivation wasn't money but rather the impact of the technology itself, and that even though he was involved in bankruptcy proceedings, he would have invested more. ‘I could have asked my big brother,’ he said, referring to fellow actor Alec Baldwin.”

Poor Alec.  His name sure get's thrown around a lot these days, especially since it's (coincidently) awfully similar to the tainted organization ALEC, which we cover often at ThePopTort – most recently Monday.  See today’s Newark Star Ledger editorial imploring all corporate ALEC members to dump it like Johnson & Johnson just did.

The organization Republic Report, a project of United Republic, has created a spoof Tumblr site in response to a new attempt by Grover Norquist and his corporate buddies to try to counter the anti-ALEC waive, with “I Stand With ALEC.”  Incredibly, it took Norquist about two months to get this site going. On the other hand, the spoof site is called, I Stand with Alec, not ALEC.”  I won’t try to explain it – just go there.  And if you are tweeting about this, use the hash tag, #istandwithalec.  It’s Norquist’s, but the anti-ALEC tweeters have already pretty much taken it over.

Johnson & Johnson – A Tall Order Even for Don Draper

Last week watching Mad Men, when I heard Don Draper’s pitch to Dow Chemical about the wonders of Napalm (coincidently just as the country was recognizing the 40th anniversary of that iconic photo), I thought, "wow, if Don Draper were alive today – er, I mean a fictional TV character today - have I gotta company for him"!

Most people probably know Johnson & Johnson, the $44.6 billion (in gross profit) pharmaceutical giant, for its baby shampoo and Q-tips.  But today, Bloomberg is reporting:

Johnson & Johnson (JNJ) has agreed to pay as much as $2.2 billion to settle U.S. probes of the marketing of its Risperdal antipsychotic drug and other medications [i.e., the heart-failure drug Natrecorand the anti-psychotic medication Invega].

The settlement, which might be announced this week, will include a misdemeanor plea and criminal penalty of as much as $600 million…  The accord also would resolve civil claims that J&J paid kickbacks to Omnicare Inc. (OCR), a company that dispenses drugs at nursing homes, the people said. 

Read more here.

This comes on the heels of the company agreeing to stop selling vaginal mesh implants, which it improperly put on the market (see our earlier coverage here) and which subsequently injured or killed hundreds of women.  And as if that were not enough:

• J&J faces over 6,000 lawsuits from patients severely harmed after receiving a DePuy artificial hip known as ASR.  According to victims, the ASRs – 93,000 of which DePuy recalled worldwide in 2010, including 37,000 in the U.S., since more than 12 percent of the devices failed within five years – caused joint dislocations, infections, bone fractures and other painful injuries.
• Thousands of cases are pending in federal and state courts over J&J’s alleged failure to adequately warn consumers about the risk of tendon damage and tendon ruptures associated with the antibiotic Levaquin.
• In April 2011, J&J reached a $70 million settlement over federal charges that it paid bribes and kickbacks to win business overseas.  Under the agreement, the company pledged to pay a $21.4 million fine to settle Justice Department criminal charges and more than $48.6 million to settle SEC charges.
• In March 2011, J&J’s McNeil subsidiary and two of its executives reached a consent decree with the FDA and the Justice Department over the company’s repeated unwillingness to comply with federally-mandated manufacturing practices.  The agreement put McNeil’s Las Piedras, PR, Fort Washington, PA and Lancaster, PA plants under FDA supervision, required the company to adhere to a strict timetable to bring those facilities into compliance and threatened thousands of dollars in fines for decree violations, up to $10 million annually.
• In January 2011, the company recalled nearly 50 million bottles and packages of consumer products, including Tylenol, Benadryl and Rolaids, due to lax cleaning procedures and other problems at its McNeil Fort Washington, PA manufacturing plant.
• Also in January 2011, the state of Oregon filed a lawsuit, alleging that J&J and two subsidiaries endangered public health and safety by failing to notify consumers and retailers about defective Motrin for more than a year before recalling the product.  According to state AG John Kroger, the companies conducted a “phantom recall” – hiring contractors to go into stores to secretly buy vials off shelves to avoid negative publicity – in direct violation of the state’s Unlawful Trade Practices Act.  This Motrin buyback program came to light during a 2010 congressional investigation into recalls of over-the-counter McNeil drugs.
• In December 2010, J&J recalled over 13 million packages of Rolaids after metal and wood particles were found in the antacids, causing vomiting, gum and tooth injury in some cases.
• In May 2010, J&J’s McNeil unit pled guilty to a federal misdemeanor and was ordered to pay a $6.14 million criminal fine for promoting off-label use of its anti-seizure and migraine medication, Topamax. An affiliate of McNeil also agreed to pay over $75 million for illegally promoting the drug and causing false claims to be submitted to the government for unapproved uses. 
• In April 2010, J&J’s McNeil recalled more than 135 million packages of children’s and infant’s Motrin, Tylenol, Benadryl and Zyrtec for possible bacterial contamination and the presence of small metal parts. The tainted pediatric drugs had been produced at McNeil’s Fort Washington, PA plant.

The company even endangered babies with its signature Baby Shampoo line.  In November 2011, J&J  finally agreed to phase out the use of potentially cancer-causing chemicals in its baby products. 

And that's just the recent stuff. 

Last but by no means least, there's the problem of J&J’s longtime association with the tainted American Legislative Exchange Council (which we last covered here ). ALEC has already “lost the support of 18 corporations in recent months,” and J&J is being pressured to become #19. (See today’s op ed by Rashad Robinson, executive director of ColorOfChange, the largest online black civil rights organization. )

My guess?  Even Don Draper would agree with that.

UPDATE: J&J has dropped ALEC!