ThePopTort

Lawsuit’s Hard Knock Life Gets a Break

Hi.  My name is Annie Lawsuit and let me tell you, it’s not easy being me.  Politicians constantly insult me.  The media constantly misrepresent me.  I’ve had Presidents of the United States attack me - by name!  My ability to exist at all is threatened every day.  

But today is a good day.  Today, my very existence was publicly validated in ways that I could never have imagined.  Let me explain.

If you look on the op ed page of the New York Times, you will find a column called, “Learning From Litigation” (in the very same spot they gave Angelina Jolie last week, no less.)  Like I’ve been trying to tell everybody all these years, I am something you can learn from!

The author of this article said some really nice things about me and I couldn’t be more proud.  Here’s some of what she wrote:

My study … shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.…

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Moreover, litigation discovery can unearth useful details about safety and quality concerns. Analyses of claim trends can reveal problematic procedures and departments, and closed litigation files can serve as rich teaching tools. …

Moreover, because lawsuits help to identify incidents and details of medical error, limitations on lawsuits may actually impede patient safety efforts.

Medical-malpractice lawsuits do not have the harmful effects on patient safety that they are imagined to have — and, in fact, they can do some good.

That's not all. We learned late yesterday that Charles Schwab backtracked on its “requirement that clients waive their right to bring class-action lawsuits.”  (See our earlier coverage.)

Schwab's right to stop clients from bringing coordinated court actions was challenged last year by the Financial Industry Regulatory Authority, the securities industry’s principal regulator. A FINRA hearing panel in February ruled that Schwab's policy does violate FINRA rules but was consistent with federal law and recent Supreme Court interpretations of the Federal Arbitration Act.…

Consumer advocates, along with class-action lawyers, have blasted Schwab's efforts to limit the lawsuits, saying many ordinary investors cannot afford to pay on their own for the cost of arbitration hearings.…

Public Citizen, a consumer watchdog group that has been circulating a petition asking Schwab to rescind the class-action ban, congratulated the company for its "responsible" decision. It said many of its 19,000 supporters who signed the petition also are Schwab customers who spoke directly to the firm.

See, for me, each of these forced arbitration clauses with class action bans is like the death penalty, so you can see why I’m so happy. 

And speaking of arbitration, we found out that on Wednesday, a federal judge in the Northern District of California (Michelle Lou v. MA Laboratories et al.) ruled that an arbitration clause in an employment contract was “procedurally oppressive and unconscionable,” that “the procedural unfairness was severe and the substantive one-sidedness [because the employer was allowed to go to court while the employee wasn’t] was heavy-handed” and therefore the forced arbitration clause was unenforceable!

It’s been a hard knock life for 35 years.  But not today.

The Right Way/Wrong Way on Caps

Three times in the last 35 years, the insurance industry has created liability insurance “crises” for doctors (and other businesses and professions).  Each time this has happened, the insurance industry has tried to cover up its own mismanaged underwriting by blaming the legal system for its sudden, astronomical premium increases.  Like clockwork, following these rate hikes have been frenetic calls for legislative limits on victims’ rights to sue, with state lawmakers viewing the “crisis” as an isolated problem rather than indicative of a broader national problem caused by the cyclical nature of the insurance business.

The first time this happened was the mid-1970s.  On June 9, 1975, Newsweek ran a cover story, "Malpractice - Doctors in Revolt.”  The "revolt" was against sudden malpractice premium hikes.  Sound familiar?  Insurers quickly blamed what they believed was occurring in the country – a “litigation explosion.”  They demanded huge rate hikes from state regulators and convinced lawmakers that the only way to bring rates under control was to limit the legal rights of injured victims , i.e., insurer payouts.  In fact, insurers learned during this period that state regulators would give away the store in rate increases.  They also learned that they could easily take political advantage of the situation by asking state lawmakers to limit victims’ rights.  And it was during this period California enacted the Medical Injury Compensation Reform Act, or MICRA, which placed a $250,000 cap on non-economic damages for malpractice victims.

Yet it turns out that there never was a “litigation explosion.”  After insurers abandoned the medical and product manufacturer lines, the federal government decided to review the situation and not simply accept the insurer’s assertions that litigation was “exploding.”  An inter agency working group was formed under then Federal Insurance Administrator J. Robert Hunter, to look into the crisis and to report back specifically as to whether a claimed “explosion” of medical malpractice claims was causing the huge and sudden jump in premiums that doctors were experiencing.

Hunter’s research immediately found that data was not available to answer this question.  Insurers did not have such data.  Therefore, working with the National Association of Insurance Commissioners (NAIC), they undertook a closed-claim study.  The closed claim study revealed that there was no “explosion” of claims and that there was no justification for the insurer actions.  (See more here.)

But it was too late for California. Incredibly, MICRA has remained on the books for 38 years.  MICRA's $250,000 cap is worth about $65,000 today.  This cap has never once been adjusted for inflation.  Because medical malpractice cases are so expensive to bring and the cap is so low, it’s often impossible for an injured patient to even bring a case in California.  It’s been a bonanza for the insurance industry.  In fact, California’s medical malpractice insurance industry has become so bloated due to this cap, that “as little as 2 or 3 percent of premiums are used to pay claims” and “the state’s biggest medical malpractice insurer, Napa-based The Doctors Company, spent only 10 percent of the $179 million collected in premiums on claims in 2009.”

However, the political lessons learned by the insurance industry were clear: by blaming lawyers and litigation for a crisis that the industry itself had manufactured, the industry could obtain major changes in tort laws – basically, gravy to their bottom line.  Their clients – businesses and doctors – were more than happy to go along.  It is a political strategy that worked in the 1970s, and carried them through the next three decades.

To wit, in 1986, in the midst of this nation’s second liability insurance crisis, Missouri lawmakers were told by insurers the same thing - that the only way to reduce skyrocketing insurance rates was to enact a similar cap on non-economic damages.  And they proceeded to enact a $350,000 cap.  But when the third insurance crisis hit in the early 2000’s, guess what happened?  Claims were down in Missouri, alright.  “New medical malpractice claims dropped 14 percent in 2003 to what the [Missouri Department of Insurance] said was a record low, and total payouts to medical malpractice plaintiffs fell to $93.5 million in 2003, a drop of about 21 percent from the previous year.”   And “[t]he National Practitioner Data Bank, a federally mandated database of malpractice claims against physicians, found that the number of paid claims in Missouri fell by about 30 percent since 1991.  The insurance department’s database found that paid claims against physicians fell 42.3 percent during the same time period.” 

But doctors’ malpractice insurance premiums rose 121 percent! 

Fast forward to 2013. 

Today, Missouri’s cap is no longer on the books because the Missouri Supreme Court struck down the law as unconstitutional 26 years after it passed. Over the weekend, the St. Louis Post-Dispatch wrote a blistering editorial, strongly opposing the effort by some Missouri lawmakers to reinstate the unconstitutional cap, and referencing the recent case of Regina Turner, whose neurosurgeon operated on the wrong side of her brain leaving her severely disabled.  

And just last week, a major new effort got underway in California to, if not repeal MICRA, at least properly adjust the 38-year-old $250,000 cap for inflation. Here’s some of what the campaign “38 Is Too Late” folks say: 

MICRA has a disproportionate impact on people who have little or no income, including children, the elderly, stay-at-home parents and working class Californians.

• Victims of medical negligence can collect the estimated cost of actual economic damages, such as loss of income resulting from their injuries. On the surface, that may seem fair. But the law has a disproportionate impact on people who have little or no income, including children, the elderly, stay-at-home parents and working class Californians. The reason is that these citizens have little or no economic losses resulting from lost income.
• Despite having no impact on health care or insurance costs, non-economic damages caps have a tremendously negative impact on the permanently injured, especially, for example children who may live for 70 years with brain damage or other catastrophically debilitating injuries. California’s 1975 cap on non-economic damages is worth $61,525 in 2009 dollars. A patient would need to recover $1,018,201 in 2009 for the equivalent medical purchasing power of $250,000 in 1975.

It’s been over three decades since California went down a very cruel road.  It's time to do something.  Go here to help.

Health Care: Look Who’s Not Talking and Whose Job Is it Anyway?

So much focus of medical liability system “reformers” these days is about “communication.” Patients would be safer if doctors were more honest about their “mistakes,” the theory goes.  Hhmm. I’m not saying that couldn’t happen, but when you’re talking about “communication” in a hospital setting, the concerns of patients don't seem particularly urgent.

Take what’s happening in Wisconsin. There, the medical lobbies are pushing legislation to change state law to lessen what doctors must tell their patients. The standard now is “what a reasonable patient would want to know” but some lawmakers want to change the standard to “what a reasonable physician would tell a patient.”

“The last thing you want to do is roll back the way we get information and how much information we get,” said Martha “Meg” Gaines, director of the Center for Patient Partnerships and an associate dean at the University of Wisconsin Law School.

The proposal would move away from what patients want and need to know, she said, to what doctors think patients need to know.…

Informed consent should be what the patient wants to know - not what a physician thinks the patient should be told, she said.

In a hospital setting, patients are always at an enormous disadvantage when it comes to getting information about their own care let alone protecting themselves from getting hurt. There’s an effort now to burden patients with the responsibility of keeping doctors and nurses from infecting them.  Patients are supposed to keep asking health care providers if they’ve washed their hands. That’s because “healthcare workers comply only about half the time…and one in 20 patients will acquire an infection while in the hospital.”  So, it should be their job to ask this question, even though it is well-recognized that “speaking up for yourself in that setting is not an easy thing to do"?

“No one wants to be confrontational with the person you hope will save your life,” said Dr. Michael Bell, acting director of the division of healthcare quality promotion at the U.S. Centers for Disease Control and Prevention in Atlanta.

Plus, as one expert noted, “In some ways it says to patients, ‘This is your responsibility for us to do things safely for you, including hand hygiene. Why should it be the job of the patients or family members to make sure everybody cleans their hands? That’s the job of the system.” Ya think?

And not to mention that fact that sometimes, doctors (especially surgeons) can be, well, bullies. USA Today had a story last week about this problem:

Every workplace, like every schoolyard, has its bullies. But when the workplace is a doctor's office, hospital room or surgical suite — when doctors throw charts at nurses or nurses throw insults at trainees — it isn't just a workplace problem. It's a patient-safety issue, these experts say.

"The impact in health care is significant because you are dealing with patients' lives," says Peter Angood, CEO of the American College of Physician Executives in Tampa. Patients who experience or witness boorish behavior have every right to speak up ... because the quality of their medical care may depend upon it.

But who’s gonna do that? For example, should it have been patients' job to question the medical judgment of Dr. Faisal Albania, the St. Louis area neurosurgeon who apparently performed so many risky surgeries on spines, necks and brains, causing “permanent nerve damage, chronic pain and lost income” (and death) that he’s now “a defendant in about 50 lawsuits?  Meanwhile, Dr. Albania was allowed to keep practicing “even after the state’s highest court upheld key findings by the Missouri medical board against him.”

“I think he’s hurt a lot of people,” said Alvin Wolff Jr., a lawyer from Clayton who filed a suit last year on behalf of Gary Cotter of Pinckneyville, Ill., that accused Albania of performing an unnecessary surgery on his spine in 2010 that left him in permanent pain and hunched over. “Why do the hospitals let a guy like this on staff? Why do they let a guy like this stay on staff?”

Good question. Where was the hospital here? Where was the state medical board? (Indeed Missouri’s board is sadly typical – check out what’s going on in California.) They clearly weren’t asking the right questions or taking steps to save patients lives.  Reminds me of the hospitals featured in last night’s 60 Minutes, which had evidence they’d hired a serial killer nurse, told no one about it, and then gave him a "neutral" reference.

Caught in the Insurance Industry Shuffle

The insurance industry spends about $6 billion a year trying – largely unsuccessfully - to get drivers to switch their car insurance policies. (This is a $160 billion market and the big carriers control half of it.) Never-ending expensive TV commercials - that’s what most people know about insurance companies – until, of course, their lives have been wrecked by something they thought was covered by policies, for which they’ve been paying for years. Let’s take a look at a few recent episodes. 

Homeowners.  Homeowners whose lives were shattered by Superstorm Sandy are still engaged in perpetual battles with insurers to get their flood insurance claims properly paid.  The situation is no better for homeowners claiming under their non-flood policies, with insurers putting homeowners’ money into escrow accounts and then micromanaging repairs. Writes one policyholder, “No matter insurance company has documentation already and has approved repairs. No matter repairs have been made and homeowner just wants reimbursement.… TD Bank has this policy. So does Wells Fargo. Problem is you don't know this until u go to deposit insurance check.”

Business interruption insurance.  All kinds of businesses where shut down after Superstorm Sandy, but insurers aren’t paying the claims, saying buildings were closed due to flooding (so not covered by their policies). But others say that’s ridiculous.

“It was not water related," says Andrea Katz, interim development director at [radio station] WBAI. “It was a restricted building that we were not allowed entry to and therefore could not do business as usual.”…

“It seems like they have lawyers that write these things out, and everything’s so opaque that they can just find a way to get out of it,” says Norman James, co-owner of Space Salon.…

The New York State Department of Financial services is now investigating these and other business claims from Hurricane Sandy.

Meanwhile, many businesses are seeking legal counsel, getting ready for a fair fight.

Fire insurance. 

Victims who lost everything in [Colorado’s] Waldo Canyon fire last summer asked lawmakers at the Capitol on Tuesday to go even further in their reform of the insurance industry that they say left them in the lurch. …

It took Steve Price, who lost his roughly 5,000-square-foot home … two months to get a certified copy of his insurance policy after the fire. It took another two months to get copies of underwriting documents. “It’s a pattern among our insurance companies to delay, deny and ignore,” Price told a Senate committee considering House Bill 1225. “These contracts are unfair to begin with.”

The bill would require insurance companies doing business in Colorado to comply with a number of new mandates, including that a copy of a policy be provided within three days of the homeowner’s request. Policies would also have to be written on a 10th grade reading level and written notifications of changes in policy would be required. Price said he was very well prepared for a disaster, with photos documenting his home’s current state and contents, and he still was still about $10,000 underinsured.…

Ideally, he said Colorado should become one of 19 states that require insurance companies to pay out the maximum value of a policy in the event of a total loss — known as valued policy laws.

Incredible that this should even be an issue.

Health Insurance.  Health insurers are “letting millions of Americans renew their current coverage for another year — and thereby avoid changes under the federal healthcare law” and “critics say this maneuver could undermine government efforts to remake the insurance market next year and keep premiums affordable overall.…”

“Insurers are onto this, and the big question is how many will try to game the system,” said Timothy Stoltzfus Jost, a law professor and health policy expert at Washington and Lee University.

Some of the nation's biggest health insurers are looking to take advantage of this delay, and Arkansas officials are encouraging companies to do this by resetting customers' renewal dates for the end of December. There's also concern that some insurers and agents could rush to sell more individual policies before year-end so they could be extended in 2014.

Some policy experts are expressing concern about this practice for fear that insurers will focus on renewing younger and healthier policyholders and hold them out of the broader insurance pool next year. Their absence could leave a sicker and older population in new government insurance exchanges, driving up medical costs and premiums there.

Meanwhile, California’ awesome insurance commissioner, Dave Jones, seems to be the only commissioner in the country actually looking out for policyholders by consulting with a respected consumer organization, Consumer Watchdog, on how to protect small businesses from unneeded rate hikes. The group already has a spectacular record of saving California policyholders billions of dollars. The industry is complaining about this. They seem to prefer that the commissioner consult only with insurance industry-connected actuaries (like every other commissioner does), ensuring that price-gouging of California’s businesses remain uninterrupted.

Reports the LA Times,

In its first report Tuesday, the Santa Monica group accused Anthem of padding its profits and overcharging small-business customers by about $17 million. … Jones criticized Anthem Blue Cross for raising rates on about 7,000 small businesses as much as 23% and said the company rejected his request for lower rates. Anthem said its average rate increase of nearly 11% for these 45,000 employees and their dependents was necessary to cover rising medical costs.

Jamie Court, president of Consumer Watchdog, said the group's proven track record in challenging insurance company practices made it an ideal choice for the state. Consumer Watchdog says it has saved Californians $2.3 billion since 2003 by successfully disputing rate hikes for property and casualty insurance under Proposition 103, the 1988 ballot measure the group championed.

"We are the foremost expert on health insurance rates," Court said. "This grant allows us to pull back the curtain and show how the wizards at Anthem and other companies are manipulating Oz. We want to prove that rates are too high."

Insurance-industry commissioners. Meanwhile, former and hoping-to-be-reappointed Texas insurance commissioner, Eleanor Kitzman, is decidedly not on the side of policyholders. She’s hoping to win reappointment from Governor Rick Perry, but not if consumer advocates have anything to do with it.

One of the loudest critics, Alex Winslow of the consumer advocacy group Texas Watch, said that home insurance rates had “skyrocketed” during Kitzman’s term and that she had rolled back rules created to inform doctors and patients about high out-of-network expenses before those charges were incurred. Winslow can and does go on about what he sees as her shortcomings, but the important thing is that few in the Capitol or the insurance industry — which was initially full of praise for her — are leaping to her defense.

And a final observation: If only policyholders could demand that their billions in premium dollars pay for legitimate claims instead of TV commercials. 

A Free Market for Gun Owners?

Do not be fooled by the title of this post.  When we say “free market,” we don’t mean a supermarket stocked with shelves of free weapons.  We're talking “Adam Smith!” 

Since the tragedy of Sandy Hook, lawmakers around the country have been trying to figure out what to do about the 2005 law that provides the gun industry with immunity for gun violence, for which the powerful NRA and gun manufacturers lobbied heavily.  (See our post here.)  There are efforts in Congress to repeal the law.

And some lawmakers in Colorado are trying to boost this effort by proposing a state law to hold the industry liable, knowing there may be a conflict but “hop[ing] to help spur an effort to repeal it.” 

So what else can be done? 

Turns out that 25 years ago, Nelson Lund, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law (the only Chair in America endowed by the National Rifle Association) proposed a free market idea that would have made Adam Smith very proud - liability insurance for gun owners.  

"My idea was to suggest an idea in which a statute might be drafted that would be designed to inhibit the possession of firearms by irresponsible people and do what liability insurance at least partly does and that is compensate the victims of irresponsible behavior," Lund explained.

Quoting a January 2013 article in the Hartford-Courant, this George Mason University Law School blog post noted:

"Insurance companies 'have the ability to collect the data and they have the analytical approach to understand the risk … This is their business. They make money or lose money over time by their assessment of risk. They aggregate a lot of data and assess risk.'…

"Gun owners, columnist John Wasik said, should be required to pay for the risk that comes with weapons."

"'I'm applying more of a market economics view,' Wasik [said]. 'If we cannot regulate this through constructive means, there are other ways of looking at this in terms of pricing the risk.'"

"The responsible gun owners will not get penalized. The people who are most at risk will pay more."

And according to a February 6, 2013 Reuters article,

California on Tuesday became at least the fourth state to have a liability insurance bill introduced, following Massachusetts, Maryland and Connecticut.

No state has a gun liability insurance law. Since 2003, almost two dozen such bills have been rejected nationwide, 15 of them in New York, according to the National Conference of State Legislatures.…

A Maryland proposal would mandate that anyone possessing a firearm have liability insurance of at least $250,000. It requires anyone selling, renting out or transferring a gun to verify that the person getting it has liability insurance.

Not surprisingly, the “endowers” of the Patrick Henry Professor of Constitutional Law and the Second Amendment Chair, think this infringes on their constitutional rights.  NRA spokeswoman Stephanie Samford said the organization opposed liability insurance for gun owners because it was "economically discriminatory."

"You don't have to carry insurance to exercise any other constitutional right," Samford said.

Maybe they should consult their own Constitutional Law and Second Amendment law professor on that.

Planes, Buses and Automobiles

It’s incredible, when you think about it, that New York City – the nation’s largest city with a population of 8 million people and a metropolitan area of 29 million - ranks only 4th in traffic congestion!  Compare that to the #1 congested city, Washington DC.  Less than 1 million people live there, and its metropolitan area is less than 6 million.  Thank you, New York public transportation! 

It also got me thinking how totally reliant we are on the competence of others to keep us safe while traveling – even if we’re not driving. 

For example, there was a terrible bus crash yesterday in Southern California.  Seems like the brakes may have failed.  The bus was 17-years-old and had a history of brake and maintenance problems.  Writes the Associated Press: 

The bus that was carrying 38 people from the popular Big Bear Lake resort area in the San Bernardino National Forest was slapped with eight violations by safety inspectors in October, for problems ranging from fluid leaks to an improperly installed battery, according Federal Motor Carrier Safety Administration data reviewed Monday. According to the records, the bus was flagged for brake issues in at least three inspections since October 2011.

The cause of Sunday's crash is unclear, but early information pointed to a brake problem. Driver Norberto B. Perez told investigators the vehicle lost its brakes while traveling down the winding, two-lane road. Passengers reported Perez saying the brakes weren't working as he tried to maintain control before the bus hit a sedan, flipped and plowed into a pickup truck hauling a trailer. …

Jackie Gillan, president of Advocates for Highway and Auto Safety, a Washington-based advocacy group, said the crash points to the need for improved roof strength and other safety measures.

"We have a long way to go before we can say boarding a motor coach is as safe as boarding an airplane," she said. Bus passengers "are often riding blindfolded."

Interesting analogy Gillian makes.  Speaking of planes, you may have heard about the grounding of Boeing 787 Dreamliner jets three weeks ago because, it seems, its lithium batteries overheat and cause fires just like they do on your laptop computers and cell phones.  (Shouldn’t someone have figured this problem out by now?)  

We have also learned that Japan Airlines may ask Boeing to compensate them for having to ground their jets, which they say is costing them about $ 8 million. 

Oh, and Boeing has asked to start flying again.  Think I'll stay home.

Huff Post Repost: The Slow Death of Justice in California

Here's a little known bit of American history trivia: The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. Not only that, the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.

Unfortunately today, the civil jury is an embattled and vulnerable institution in the United States. Beginning in the 1980s and ever since, we have seen a non-stop barrage of legislative and, in some cases, judicial attempts to significantly weaken the civil justice system with laws that corporate America calls "tort reform." And now, the question as to whether this constitutionally protected institution deserves to function at all has been reduced to budgetary and fiscal squabbling.

North Dakota in 1989, and Vermont in 1990, each reacted to state budget squeezes by suspending civil jury trials (although North Dakota's 18 month moratorium was later declared unconstitutional by the North Dakota Supreme Court). Between November 1991 and February 1992, civil jury trials in New York came to a halt when budget cuts left the state judiciary without staff to handle them.

And today, there's California.

Keep reading.

Finally Getting Hip to J&J’s Cover-Up

On March 4, 2009, in its 6-3 decision, Wyeth v. Levine, the U.S. Supreme Court said one of the smartest things the Robert’s Court has ever said about civil lawsuits. (OK, maybe the only smart thing.):

Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs … Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers.  It may also have recognized that state-law remedies further consumer protection by motivating manufacturers to produce safe and effective drugs and to give adequate warnings...

State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.

Promptly?  Hhmm.  That's really a term of art when it come to drug companies.  Perhaps the Court could have more accurately said,"state tort suits uncover unknown drug hazards and prevent drug manufacturers from covering up what they already know about safety risks." 

Take our “friends” Johnson & Johnson, whose recent litany of wrongdoing was highlighted in this post last June, like the time it endangered babies with cancer-causing chemicals in its signature Baby Shampoo line.  But for the adults folks out there more likely to be thinking about “hip implants,” you will be happy to know that thanks to litigation against this company, we have learned the following:

An internal analysis conducted by Johnson & Johnson in 2011 not long after it recalled a troubled hip implant estimated that the all-metal device would fail within five years in nearly 40 percent of patients who received it, newly disclosed court records show.

Johnson & Johnson never released those projections for the device, the Articular Surface Replacement, or A.S.R., which the company recalled in mid-2010. But at the same time that the medical products giant was performing that analysis, it was publicly playing down similar findings from a British implant registry about the device’s early failure rate.

The company’s analysis also suggests that the implant is likely to fail prematurely over the next few years in thousands more patients in addition to those who have already had painful and costly procedures to replace it.

Writes Bloomberg,

The failure-rate estimate came in pretrial testimony of Paul Voorhorst, a biostatistician for J&J’s DePuy unit, which made the hips. A plaintiff’s lawyer, Brian J. Devine, asked Voorhorst about a graph showing the company’s review of 554 implanted hips through September 2011, and how many would fail, requiring follow-up replacement surgery known as revisions.

“That means that 37 percent are expected to fail at 4.57 years, correct?” Devine asked Voorhorst.

“The estimated revision rate at that time would be 37 percent,” Voorhorst said. “That’s correct.”

And there’s more.  Writes the New York Times,

In other pretrial testimony released Friday, a DePuy engineer stated that company officials were aware in 2008 of reports by an English surgeon that the resurfacing version of the A.S.R. was releasing high levels of metallic ions, particularly in women. As a result of the reports, company officials felt they had to move quickly to redesign the implant. 

But J&J didn’t pull 93,000 of these Frankensteinian things from the market until 2010, citing “U.K. joint registry data showing that more than 12 percent failed within five years.”  It now turns out – thanks to this litigation disclosure - that the failure rate was triple that!

Continues the New York Times,

The episode represents one of the biggest medical device failures in recent decades and the forthcoming trial is expected to shed light on what officials of Johnson & Johnson’s DePuy Orthopaedics division knew about the device’s problem before its recall and the actions they took or did not take.

Apparently this new information “represent[s] only a tiny fraction of the information that will become public if the trial proceeds.”  We can’t wait.  10,000 people have sued.  And opening statements in the California case are this Friday. 

Time and again, pharmaceutical companies have violated the public’s trust with devastating results for patients.  The FDA is basically useless in these scenarios.  Only through litigation has the public learned anything. 

There Will Be Oil, and Oil, and Oil

When did oil misfortunes become so popular? Not that this topic hasn’t always been timeless and dramatic. (Like, it’s not every 1927 Upton Sinclair novel - the one called Oil! - so easily lends itself to being turned into an Oscar-winning film 80 years later.  And it’s not every environmental catastrophe - the one created by oil - that’s devastating enough to lure Mos Def, Lenny Kravitz, the Preservation Hall Band, Trombone Shorty, and Tim Robbins simultaneously into the studio! See below.)

But a quick perusal of the news this week makes clear that misfortunes (to put it mildly) created by “oil” are all the rage, these days. Here’s our highlight reel:

On Thursday, the U.S. Justice Department “reached a $1.4 billion settlement ... with Transocean Ltd., the owner of the drilling rig that sank after an explosion killed 11 workers and spawned the massive 2010 oil spill in the Gulf of Mexico.” Notes the Associated Press, “BP PLC, which leased the rig from Transocean, already has agreed to pay a record $4.5 billion in penalties and plead guilty to manslaughter and other criminal charges related to the spill. The deal with BP doesn't resolve the federal government's civil claims against the London-based oil company.” And, “Last month, U.S. District Judge Carl Barbier in New Orleans gave final approval to a class-action settlement agreement between BP and a team of private plaintiffs' attorneys. BP estimates it will pay about $7.8 billion to resolve these claims, but the settlement isn't capped. Barbier also is set to preside over a trial designed to identify the causes of BP's deadly well blowout and assign percentages of fault to the companies involved. The first phase of the trial is scheduled to start Feb. 25.”

Also yesterday, “The House Sustainable Energy and Environment Coalition called on the Interior Department and the Coast Guard to jointly investigate the New Year's Eve grounding of the Shell drilling vessel Kulluk on a remote Gulf of Alaska island, and a previous incident connected to Arctic offshore drilling operations in 2012.”  Writes AP,

"The recent grounding of Shell's Kulluk oil rig amplifies the risks of drilling in the Arctic," they said in a joint statement. "This is the latest in a series of alarming blunders, including the near-grounding of another of Shell's Arctic drilling rigs, the 47-year-old Noble Discoverer, in Dutch Harbor and the failure of its blowout containment dome, the Arctic Challenger, in lake-like conditions."

And speaking of the Associated Press, the newswire just got hold of a Department of Transportation report to Congress (set to be released next week), which finds that 16 pipeline spills “caused by flooding and riverbed erosion dumped 2.4 million gallons of crude oil and other hazardous liquids into U.S. waterways over the past two decades. … Of the 2.4 million gallons of oil, gasoline, propane and other hazardous liquids released, less than 300,000 gallons was recovered,” threatening drinking water supplies.

The massive August 6 Chevron refinery fire in Richmond California (San Francisco’s East Bay) may have been made worse by company firefighters who may have punctured a pipe – a “40-year-old pipe had already been weakened by the heavy sulfur content of the crude oil being pumped through it.” Meanwhile, reports the New York Times, many area residents are furious about,

Chevron’s choice of metal to replace a 5-foot-long, 8-inch carbon-steel pipe that became corroded and sprang a leak in August. The resulting fire sent plumes of black smoke into the air, spewing emissions of sulfur dioxide, as the authorities warned Richmond residents to stay indoors. Thousands went to emergency rooms with various health complaints. Chevron says it will compensate residents with valid claims for medical and property expenses, although it has not said how many of the 23,700 claims it has received will qualify.

And there are more problems in the Gulf of Mexico.  Check out this incredible story:

An oil company admitted Thursday that coffee filters were used to doctor water samples and cover up the fact that it was dumping oil and grease into the Gulf of Mexico on its platform 175 miles south of New Orleans.

W&T Offshore pleaded guilty to a felony and a misdemeanor and agreed to pay $700,000 in fines and $300,000 for community service. W&T, which is based in Texas, announced last month that it would plead guilty to tampering with water samples from its Ewing Banks Block 910 platform and illegally discharging into the Gulf. The guilty plea also included additional details about the company’s crimes.

Those details included the fact that W&T’s contractors used coffee filters to clean the water samples before submitting them to regulators. Also, the company admitted that when they spilled some oil in November 2009, they not only failed to report it to the Coast Guard, but sprayed the oil into the Gulf and then hired a company that worked for three days to clean the platform to make it look like there never was a spill.

Inspectors from the Bureau of Safety and Environmental Enforcement still found oil staining on the platform deck and visible sheen in the water, all of which W&T failed to report as required.

Take it away, guys:

ATRA’s Sad Descent

When the group, the American Tort Reform Association, releases the one thing a year that garners press attention – their “Judicial Hellholes” report – we usually make fun of them because when something doesn’t pass the laugh test, what else are you supposed to do? Other have taken their critiques more seriously and that's fine with us.

But this year, it’s our feeling that the new report is somehow beyond comedy. In fact, I think the authors of the new 2012/13 Judicial Hellholes must be demented or perhaps recently experienced some kind of brain injury. Something like that. I’m not planning to make fun of ATRA this year because people who have such issues don’t deserve ridicule. At this point, I am just sad for them.

ATRA has designated the entire state of California as the nation's Number #1 so-called “Judicial Hellhole.” That means, in its opinion, there are too many lawsuits against corporate wrongdoers in the state of California. Let’s leave aside the fact that ATRA’s members are mostly these very same corporations who have been hauled into court for hurting or killing people (or their trade associations or insurers), so their credibility on such topics is generally nada.

One of the most upsetting developments we’ve seen in the cause for justice in the United States recently has been the California’s court system budget catastrophe. This is not your typical budget problem. This is resulting is the virtual decimation of civil justice for many of California’s wrongfully-injured population. Courthouse after courthouse is closing in California. Here’s San Bernadino. Here’s LA County, where cuts “include the closure of all courtrooms in 10 regional courthouses, including those in Beverly Hills and San Pedro.”

As explained by Judge Michael L. Stern of the Los Angeles Superior Court, “Although there will be some closures and adjustments to criminal courts, constitutional and public safety imperatives dictate that criminal prosecutions will not be much impacted by the reorganization.” In other words, civil cases principally will take the hit:

What's in store for the coming year?

For starters, to maximize courtroom and staff utilization, most civil cases involving a broad range of personal injury, collection, eviction, small claims and probate matters will be shifted from the closed courtrooms to the downtown central civil courthouse, or to a limited number of designated courthouses where various types of cases will be grouped. … Trials could be affected if witnesses are unable or unwilling to testify because they have to travel farther.

What’s more, “A greater financial burden will be placed on litigants, especially the economically disadvantaged, who will have to present their legal issues at distant courthouses. And more staff layoffs, further slowing the judicial process, appear inevitable.”  Good luck ever getting a case to trial.  Even ADR programs will be eliminated.  Writes Judge Stern,

If there were ever a time to pay attention to the quality of justice that we have come to expect and deserve from our judicial system, it is now. The public should not be content with the dislocation and delays in resolving civil disputes caused by court funding shortages. Equal access to justice under the law demands more. It requires action by everyone to make the elected officials responsible for funding our courts aware that the words "equal justice under the law" cannot become just another hollow slogan.

What’s so sad about ATRA’s new report is that the authors actually reference this development – yet still attack the courts and people who try to bring lawsuits there. So sad.