ThePopTort

ALEC’s Tort Reform Agenda Finally Gets Some Sunshine

Blood-sucking Vampires aren’t afraid of much.  Silver stakes, for sure.  They apparently don’t like garlic.  But nothing says “fear” to a Vampire like sunshine.  “Sunshine,” said Supreme Court Justice Louis Brandeis back in the day (1913 to be exact), “is the best disinfectant.”  So we couldn’t be more pleased to see a heavy dose of sunny disinfectant shining down these days on the demon known as the Americans Legislative Exchange Council (ALEC), the corporate, right-wing group that sponsors a terrible array of state bills, which we’ve discussed many times (most recently here). 

Now, as much as we might hope this new sun exposure would kill-off the dangerous ALEC fiend, we’ll take whaever maiming we can get.  And there’s been a lot, lately.  (For example, check out the lastest former ALEC corporations and legislators who’ve escaped this evil demon.)

Yesterday, Common Cause filed a complaint with the IRS, asking the agency to audit and penalize ALEC because of how connected to legislative lobbying this outfit actually is (which they deny).  Nothing wrong with lobbying, of course. But if you are a 501(c)(3) tax-exempt “charitable” organization, lobbying clearly can’t be your main mission.

As part of that complaint is Exhibit 5, which is something we’ve try to find out for a long time.  It's spreadsheet tracking all of ALEC’s “tort reform” legislation.  We don’t know how Common Cause got this document, but all we can say is, “Thank you, sunshine!”  It’s definitely worth a peruse.

One of those bills is the topic of a great piece yesterday by Evan Wyloge in the Arizona Capitol Times, about legislation that would protect drug companies from punitive damages, even in cases of egregious wrongdoing:

The legislation would shield manufacturers from punitive damage claims — the most aggressive legal recourse allowed against manufacturers — unless very specific negligence can be demonstrated.

The changes are so dramatic that a former Phoenix police officer who was nearly killed when his patrol car exploded in 2001 after it was rear-ended says the proposed law would have made it impossible to sue Ford for punitive damages — even though the car manufacturer ignored information that the fuel tanks in its police cars were prone to exploding.…

The language in the bill is very similar to a 2007 resolution advanced by the American Legislative Exchange Council. The Arizona Chamber is a member of ALEC, a conservative public policy group that is made up of corporations and legislators from across the country.

Also today is a column by Joanne Doroshow, Executive Director of the Center for Justice & Democracy, called “ALEC laws still a threat to N.J.”  Here’s an excerpt: 

Now, ALEC bills are making their way into New Jersey, with the support of the New Jersey Lawsuit Reform Alliance, an organization that has adopted several ALEC bills as its priorities. Not surprisingly, NJLRA and ALEC share members, including pharmaceutical giants such as Johnson & Johnson, Pfizer and Bayer.

There are similarities in the bills they promote, as well. One top NJLRA priority is an ALEC bill to amend New Jersey’s appeal bond process, making it easier for corporate wrongdoers to appeal verdicts against them without making sure that their victims will ever be paid. NJLRA also is promoting an ALEC proposal that would ensure that corporate miscreants can more easily dismiss class-action lawsuits against them. Another priority of both NJLRA and ALEC is making it more difficult for consumers to enforce consumer protection laws.

Let the sunshine in!  And let's hope the weather holds.  Or else, we should all move to Phoenix (provided that bill doesn’t pass)!

State Constitutions and “Tort Reform” – One Big Conservative Yawn

With Iowa’s place in the election-cycle sun about to set, the intense media spotlight on the state will soon take another 4-year break.  Which is not to say that there aren't wonderful things to visit in Iowa, like the Field of Dreams baseball diamond  and the Herbert Hoover National Historic Site.  But I think we can all agree that these attractions are not nearly as entertaining as candidates falling all over themselves trying to prove to conservative caucus-goers who’s the real “constitutional conservative.”  I find this somewhat ironic in a state that instead of respecting independence of its judiciary, decided to oust three Supreme Court justices because they dared to uphold the constitutionality of same-sex marriage.  Nothing like moving forwards/backward into the 20th century.

But that’s kinda how it is with constitutional conservatives – sometime they like their constitutions.  And sometimes they don’t.

Take Arizona, for example.  There, writes the Arizona Daily Sun, “two state legislators want changes to sections of the Arizona Constitution that govern how much businesses and individuals have to pay -- and to whom -- when a jury finds they're liable for killing or injuring someone.”  Arizona, interestingly, has one of the strongest constitutions in the country protecting its injured citizens from politicians who want to strip them of their constitutional rights.  It should be noted that similar efforts were rejected by voters twice before, in 1986 and 1994.

This issue is also rising to the surface in Tennessee, where the “Tennessee General Assembly pass[ed] two laws explicitly aimed at overturning state Supreme Court decisions that lawmakers didn’t like” and they’re not alone.  Writes The Tennessean, 

In statehouses, 2011 saw more efforts to remove judges than any other year in recent history, according to Bill Raftery of the National Center for State Courts. Fourteen bills in seven states sought the impeachment of judges, including one that would have abolished the entire Superior Court of New Hampshire. In all but two instances, impeachment was sought simply because lawmakers didn’t like judges’ decisions, according to Raftery.

In Tennessee, there is a serious question whether last year’s law capping damages that jurors can award is constitutional.  The same is true for two other bills that, writes the paper,

Go so far as to tell the courts how to interpret their own procedural rules for resolving disputes. In the words of Mark Chalos, a Nashville attorney at the plaintiffs’ firm Lieff Cabraser Heimann & Bernstein, lawmakers went beyond changing the substance of a law, which he said would be OK, and changed the rule lawyers and judges play by, which he said crosses the line.

“The Tennessee Constitution and Tennessee law is clear that it is exclusively in the courts’ purview to make rules for resolving disputes,” Chalos said. “There is a concern that this legislature is ignoring the constitutional limits on its powers.”

 Welcome back, PopTort fans! Should be a interesting 2012.

Judge John M. Roll - Violent Threats for Doing His Job

We at ThePopTort, like you, are terrible shaken up by the horrible events in Tucson.  As many already know, fatally wounded federal judge John M. Roll, sadly, had lived with violent threats against his life in the past.  This was because he – like Rep. Giffords –was simply doing his job: he allowed injured plaintiffs to pursue a case.  So, we thought we would tell you a little more about this case. 

The case was Vicente v. Barnett, which was heard in Judge Roll’s court.  This was a civil rights case resulting from anti-Latino hate crimes, the second one (here’s a chilling description of the first) brought by MALDEF — Mexican American Legal Defense and Educational Fund - against a violent border vigilante, rancher Roger Barnett, his wife, Barbara, and his brother, Donald.  As described by MALDEF, 

The plaintiffs are five women and 11 men who were resting at a wash in Douglas, Arizona when they were accosted by defendant Roger Barnett who was armed with a gun and accompanied by a large dog. Roger Barnett held the group captive at gunpoint, threatening that his dog would attack and that he would shoot anyone who tried to leave. During the encounter, Barnett kicked a plaintiff as she was lying, unarmed, on the ground.

In February 2009, a civil jury found in favor of the women plaintiffs and awarded damages on their claims of assault and intentional infliction of emotional distress. The case was a victory in favor of the plaintiffs who suffered unjustly from Barnett's extreme and hateful antics.

According to the Arizona Republic,

When Roll ruled the case could go forward, U.S. Marshal David Gonzales said in 2009 that talk-radio shows cranked up the controversy and spurred audiences into making threats.

In one afternoon, Roll logged more than 200 phone calls. Callers threatened the judge and his family. They posted personal information about Roll online.

"They said, 'We should kill him. He should be dead,'" Gonzales said.

In an interview with The Arizona Republic in mid-2009, Roll, who was the chief federal judge in Arizona, said both he and his wife were given a protection detail for about a month.

"It was unnerving and invasive. ... By its nature it has to be," Roll said, adding that they were encouraged to live their lives as normally as possible. "It was handled very professionally by the Marshals Service."

At the end of the month, Roll said four key men had been identified as threat makers.

The Marshals Service left to him the decision to press charges but recommended against it. Roll said he had no qualms about following their advice.

The recommendation was based on the intent of those making the threats.

"I have a very strong belief that there is nothing wrong with criticizing a judicial decision," he said. "But when it comes to threats, that is an entirely different matter."

Judges should not have to live with threats, even the non-violent kind.  We honor Judge Roll.

Election Results Say Some Interesting Things About Corporate Money in Politics

Tuesday was a big election day but the biggest story may have come by way of the supremely – activist U.S. Supreme Court.  As a charming follow-up to its widely-condemned Citizens United decision that “gave corporations a free speech right to spend unlimited amounts on election races,” yesterday it issued an “emergency order” (no written decision or dissent) invalidating Arizona's Clean Elections Law, a voter-approved initiative “designed to combat corruption in the state legislature.”  The law “provid[ed] public funds for candidates who agreed to abide by limits on spending and fund-raising.”  The immediate impact is on the gubernatorial race in Arizona, where the incumbent is now blocked from receiving public funds to combat an extremely rich challenger who is vastly outspending her in an upcoming primary.

But also yesterday, there were two amazing stories out of California showing that sometimes, voters can see past money-fueled manipulation.  First, California’s Prop. 17, a terrible insurance industry-sponsored voter initiative, has gone down to defeat despite insurers outspending consumer advocates 16 (million) to 1 (million).  This is nothing short of unbelievable. 

The campaign was “heavily financed by the Mercury Insurance Group, the state's third-largest insurer” and “the target of complaints by Consumer Watchdog, the Santa Monica advocacy group that was founded by Harvey Rosenfield, the author of [insurance reform initiative] Prop. 103.”  Rosenfield said “the measure would allow Mercury and other companies to impose surcharges as high as $1,000 on drivers who have not had continuous coverage. … [like] students, low-income and members of the military on duty in other states.”

Second, a candidate for a California Assembly District, Betsy Butler, beat out several opponents to win her primary.  Butler, “who worked in the political arm of the Consumer Attorneys of California, which represents trial lawyers” was the subject of a grotesque smear campaign by big corporations and a California’s “tort reform” group (the Civil Justice Association of California), which distributed fliers accusing her of being in the “pocket of big oil, drug and insurance companies.” (!)  This took smear campaigns to a whole new level considering that those “doing the smearing likely included the big oil, drug and insurance companies themselves. At least one group funding it was, indeed, an insurance organization, the Cooperative of American Physicians.”

Speaking of trial lawyers, Roxanne Conlin, trial lawyer and the first woman president of the American Association for Justice, decisively won her nomination to unseat Sen. Chuck Grassley (R-IA).  

November should be interesting!

Immigration and Abortion Lawsuits Move Forward; Dystopia Averted?

Opponents of two of the most controversial and extreme state laws passed in recent memory (see one funny take here, if that’s possible) are headed straight to court. 

First is the Arizona immigration law, which may be challenged by the U.S. Department of Justice on a very familiar (to us, at least) theory – federal preemption (i.e., the state law interferes with immigration enforcement, which is the feds job).  This suit would be in addition to the challenge by civil rights groups. Now admittedly, we didn’t like it too much when the Bush administration used this theory to try to protect reckless drug companies, and the Supreme Court didn’t either (except when it came to dangerous medical devices!).  But we do look forward to seeing if the argument can be played out here.  It’s all about what Congress intended, after all.

Second, a lawsuit has now been filed to invalidate two pretty shocking anti-choice laws enacted this week in Oklahoma, over Governor Henry’s veto.  One law forces women to see and hear about a fetus’ physical details before she is allowed to get an abortion.  The second law immunizes doctors who deliberately “withhold information about birth defects while the child was in the womb. Opponents argue that the law will protect doctors who purposely mislead a woman to keep her from choosing an abortion.”

The Governor called this law “immoral” and said, "It is unconscionable to grant a physician legal protection to mislead or misinform pregnant women in an effort to impose his or her personal beliefs on a patient."

Or as the Comedy Central blogger put it, “Oklahoma, it seems, is doing it's level best to out-Arizona Arizona this week in the on-going battle to be the most dystopian state in the union.”

Chrysler/GM Auto Defect Victims Head to DC—Demand Justice, in Spite of Bankruptcies

As we mentioned yesterday, families and severely injured victims of defective GM and Chrysler vehicles are in Washington DC this week seeking immediate help from lawmakers to remedy those companies’ excessively cruel bankruptcy plans.

Under both schemes, warranties issued by the “old,” pre-bankruptcy versions of the companies will be honored and money set aside to cover replacement of the defective car parts—however, if the part causes an accident or leads to a catastrophic injury or death, the companies will be off the hook—and those injured will be effectively abandoned.

Well, we’re happy to report that the media and Congress are beginning to take notice of this terrible injustice—and we wanted to share some of the latest developments… 

•    Check out Senator Claire McCaskill (D-MO) yesterday grilling GM CEO Fritz Henderson over  his company’s intention to seek “immunity for existing claims and potential claims for any cars that have been sold prior to the closing of [his] bankruptcy.”  (FF to 176:32 on this link.)
•    Also take a look at the coverage from Bloomberg, KHOU in Houston, Fox News’s DC affiliate, The Hill,  ABC News, and CNN (embedded below).

Another Day, Another (Employee's) Dollar...

Last week it was food industry leaders who were caught with their hands in employee tip jars.  Now a group of construction workers from California, Arizona, and Nevada have filed a lawsuit charging that the major subcontractor that hired them—Building Materials Holding Corp., and several related subsidiaries—withheld overtime and other wage payments.

Pablo Nunez, 37, who served as a carpenter for one of the company’s subsidiaries for about three years, said he regularly worked 10 hours of overtime each week, but was paid for only five.

“They did that for years and years,” Nunez said through an interpreter, adding that complaints to his supervisors were ignored and that he was ultimately laid off.

The suit currently involves 14 plaintiffs, but if a judge grants it class-action status, that number could balloon into the thousands, according to the workers’ attorney, Glenn Rothner.

Building Materials Holding Corp. reported $2.3 billion in sales in 2007.

In the News…

Last week, CJ&D’s Executive Director Joanne Doroshow responded to the Desert Sun’s article on tort abuse.

This article's use of fictions, exaggerations and scare tactics do nothing more than create public scorn for severely injured people, who sometimes must turn to the legal system.

Lawsuit filed in South Dakota meant to challenge the state’s medical malpractice cap.

Earlier this month, the New Times reported on at least six doctors practicing in Arizona who had their licenses revoked in other states.  The report “played a key role in the potential suspension” of one of the physicians. 

New York City’s civil lawsuit against 27 gun dealers is expected to settle this week with one of the final gun dealers. 

Medical Malpractice – The Hits Keep on Coming!

A VA hospital in Philadelphia may have given “insufficient radiation treatment to more than 100 prostate-cancer patients” over the last six years.  Some have died. 

In Arizona, the medical board disciplined 54 doctors so far this year, mostly by sending letters of reprimand.

Meanwhile, hospitals in 23 states now say they won’t bill patients “for the worst kind of medical mistakes, including operating on the wrong body part or the wrong person, or giving someone the wrong blood.”  Says Craig Becker, president of the Tennessee Hospital Association, “When you look at these adverse events, these are pretty gross errors.”