ThePopTort

Child Safety, Regulatory Agencies, and the Ongoing Importance of Lawsuits

We’ve noticed a lot of stories in the news lately about federal regulatory agencies like the CPSC and the FDA cracking down on companies that sell and manufacture harmful products to kids.  Massive recalls have taken place affecting strollers that cause fingertip "amputations," and drop side cribs that pose suffocation hazards, not to mention heightened federal scrutiny of bisephenol-A (BPA), an industrial chemical often found in baby bottles.

Of course, this all comes as great news, particularly in light of the Bush Administrations comparatively lax (and grotesquely corporate-friendly) regulatory standards.  Still, as encouraging as this might be, it’s worth emphasizing that regulations after the fact don't do much to help already injured children, some of whom have been mutilated—nor does it help the families of those killed due to corporate negligence.  Lawsuits provide often catastrophically injured victims with the means to pay for excessive medical bills and other injury-related expenses.  Even the U.S. Supreme Court has recognized this “distinct compensatory function that may motivate injured persons to come forward with information.”  Lawsuits can ensure such regulations are followed and increase awareness, which in turn, informs busy parents about dangers that are hard to see. 

So bravo that federal agencies have been taking more aggressive steps to help protect America’s kids.  But let’s not forget that the civil justice system is a crucial complement to our regulatory structure. 

Stork Craft Cribs, Melamine and American Civil Justice

We came upon a positively awful story today about a Louisiana family whose 7-month-old son was killed by one of the 2.1 million Stork Craft drop-side cribs that were deemed hazardous (and recalled) by the Consumer Products Safety Commission recently.

Understandably, the child’s parents were devastated by the senseless loss and the sickening details of their child’s death.  And the company’s recall and offer of a “free kit to convert the cribs” did nothing to compensate them for their terrible suffering, or that of their child who suffered before he died.  So in hopes of obtaining some semblance of  justice, the parents filed a wrongful death lawsuit against Stork Craft.

Against that tragic backdrop, we also came upon an update of a horrible story we’ve touched upon before, involving some 300,000 babies who were injured in China (6 of whom died) after drinking melamine-tainted infant formula last year. 

As we reported then an “internal memo” had surfaced from the Chinese government to its courts saying melamine cases brought by these devastated parents were “not to be heard.”  Unfortunately, one year later, the government’s directive seems to be holding true. 

Chinese courts have thus far accepted only six such cases.  Meanwhile, “[p]arents and lawyers have reported pressure from government officials not to pursue lawsuits,” but instead, accept a one-time government payout which, in American currency, amounts to $293 to $29,000, “depending on the severity of the case.”

So with that in mind, and in wary anticipation of more Stork Craft crib injury reports, it’s worth remembering that the American civil justice system is a unique and amazing thing for which we should all be profoundly grateful—one that holds negligent companies accountable and helps deter future wrongdoing, while allowing legitimately injured people and their families a genuine shot at the peace and justice they so richly deserve.

Actor James Woods Sues a Rhode Island Hospital Over Brother’s Death

Celebrities are often thought to be more or less immune from the everyday challenges of common folk, but as Dennis Quaid, the late Ed McMahon, Dana Carvey, and others have shown, they can be victims of medical malpractice just like anyone else.

Now Academy Award-nominated actor, and Rhode Island native, James Woods is suing Kent Hospital in Rhode Island for the wrongful death of his 49-year-old brother, Michael, who died in 2006 after going into cardiac arrest on a hospital gurney in the hospital’s hallway.

Woods, who is bringing suit on behalf of his deceased brother’s estate and teenage son, said he is doing so to seek “justice.”  

As we noted in our previous post on negligence at Rhode Island hospitals, whatever happens, at least he has the opportunity to bring this action - unlike states like California where so-called "tort reform" prevents many cases from going forward, or greatly limits the accountability of hospitals.  Ask Dennis Quaid about that.

Huff Post: Americans Suffering Enough from So-called “Tort Reform” and Don’t Need More

One of the more underreported, though no less important aspects of this past weekend’s Congressional health care debate (which preceded the historic passage of the U.S. House’s health care reform bill)  was related to attempts by some seeking to “derail” the bill by arguing it didn’t contain enough restrictions on injured patients’ rights (i.e., “tort reform”).  Thankfully, this tactic was soundly defeated, 247-187, but there have already been indications that it will probably reemerge, in one form or another, when the Senate takes up its version of the bill in the days ahead.

Against that backdrop, the Center for Justice & Democracy’s Joanne Doroshow wrote a pretty eye-opening op-ed for today’s Huffington Post, pointing out that most states already have such anti-patient legislation on the books, and underscoring the suffering endured by those currently being victimized by it (like Steven Olsen, pictured, whom we’ve written about here, and who you can read more about here).

“Right now,” writes Doroshow, “the medical profession has more liability protections than any profession in the nation.  They don’t need more, and we don’t need more.”

Hypocrisy Alert: NYC Sues Grandmother of a Girl Burned by its Own Playground Mat

New York City Mayor Mike Bloomberg has never stopped complaining about injured people who sue New York City.  As late as this year, he testified in Albany in favor of Draconian “caps” on such suits, even those most payouts by the city are due to egregious malpractice at city hospitals.

How ironic then to see this next item involving a 20-month-old Queens girl who was severely burned after running barefoot toward a city sprinkler by way of a rubber playground mat (that had reached 165 degrees in the summer heat).

“As soon as she had put her feet on the mat, ultimately the second her foot had touched the ground it immediately melted the skin on her feet," said the girl’s father.

After spending five days at the Cornell burn unit, the girl’s parents decided to take action in hopes of preventing other children from sustaining similar injuries—so they filed a lawsuit against the city.  Indeed, this is an ongoing safety problem at New York City playgrounds, and as Center for Justice & Democracy noted in a recent report, “More than a dozen kids are treated for severe burns from this equipment annually, yet the city has done nothing to make these surfaces safer.”

So how did the city respond? By fixing the problem?  No, they responded by suing the little girl’s grandmother!  

"I was kind of surprised to see the response was to countersue a little old lady who quite simply was just enjoying a day in the park with her granddaughter," said the injured girl’s father. 

We wish we could say the same—but we’ve become a bit jaded after seeing the old “lock the courthouse doors to everyone but me” routine so many times (here, here, here). 

According to the injured girl’s father, the city has since posted a sign warning visitors of the Queens park to wear appropriate clothing when the weather gets hot.  Whether or not that’s adequate remains to be seen given how many kid are burned each year.  But as for grandma…the city will see her in court!

Chemicals, Drugs, Unsafe Cars, Lead Paint, Tobacco, Asbestos Ads - Need We Go On?

We loved this great blog item from The Consumerist called “Top 10 Ironic Ads From History” and just about all of them have an ironic civil justice angle too.  And some aren’t so “historical”.   (But they are somewhat hysterical.) 

Take, for example, the ad for the Bhopal India chemical plant, which ended up causing the worst industrial accident in the world.  Had civil lawsuits against Union Carbide been allowed to proceed in U.S. courts, hundreds of thousands of injured people would have received a lot better justice.

Or one for the Corvair, a very dangerous GM car.  What, GM sometimes puts unsafe cars on the road?   No way.  Way.

Or the Big Asbestos cover up.

Or the drug Thalidomide.  The FDA never approved Thalidomide but it did approve Accutane, which led to similar birth defects.  That drug was JUST taken off the market.

Or Dupont - not our favorite company.  See here and here for some examples why.

Or lead paint.  How about lead paint on toys?  How about today?  

Or drug companies pushing heroin.  OK, maybe not heroin today.  But how about other unsafe drugs?

Or the Ford Pinto.  Only because of litigation was this dangerous car taken off the market.

Or tobacco.  And in particular, Big Tobacco’s role in limiting the legal rights of injured consumers

Gotta laugh, right?

Chrysler and GM Bankruptcies Could Bankrupt Those Injured by Defective Vehicles

Last week, we told you about the many consumers severly injured by design and manufacturing defects in Chrysler vehicles, who could go uncompensated as a result of Chrysler’s proposed bankruptcy.  Well increasingly, the news has been filled with stories that put faces with those numbers, and the results have been gut wrenching.

Consider the case of 8-month-old Joshua Flax who was killed as a result of a defective seat design in his family’s Dodge Caravan.  On Tuesday, the U.S. Supreme Court importantly let stand a decision ordering the company to pay for this child’s death, including $13 million in “punitive” damages for its perilously-designed and lethal seat.   (Thanks to the Center for Constitutional Litigation for their help on this case.)  Yet if Chrysler’s proposed bankruptcy agreement is approved without changes to help these victims, this family would receive nothing for their baby’s death.

Then there’s the story of Joseph and Jeanne Polio, a retired couple from East Haven, CT.  In July of 2005, their Jeep was involved in a crash (not their fault) which landed on its roof and crushed down on Jeanne, and her leaving herparalyzed from the chest down.  Their attorney says that Jeanne’s injury was due to roof crush standards that “have been unchanged for 30 years and are ‘grossly inadequate.”’ The couple now lives off of Joseph’s modest city police officer pension, and has already incurred $175,000 in costs to modify their home to accommodate Jeanne’s wheelchair.

Finally, there’s the case of Robert Dinnigan, who is suing GM because a failed seat belt left his 8-year-old daughter quadriplegic.  After a crash, she was “nearly strangled” as “the adult seat belt and shoulder restraint snapped her neck.” She has “no feeling, can't breathe on her own, can hardly move her head.”   Dinnigan estimates Amanda’s health care costs to be $500,000 a year.  "It's a very big concern right now," said Dinnigan, 47.  Dinnigan, who works as an ironworker, has had to construct a “mini-intensive care unit” in his Smithtown, L.I., home to care for Amanda.

In the News

The mother of a deceased infant whose body was lost by a northern New Jersey hospital (and never found even after a search of dumps in 3 states – can you imagine?) has filed suit against the hospital and others – New Jersey state regulators have fined the hospital.

Beazer Homes USA Inc., four of its top executives and its auditor, Deloitte & Touche, agreed to settle a class-action suit brought by the Carpenters Pension Trust Fund for Northern California and others, over illegal mortgages (which the company continues to deny).

Ed McMahon and Cedars-Sinai Medical Center finally settled his medical malpractice suit we told you about several months ago.  Poor guy.

New York AG Andrew Cuomo is asking Chevron execs if they’ve been honest with shareholders (like the New York State and New York City Pension funds) about the company's potential liability for decades of pollution in Ecuador.

A confidential settlement has been reached between a Knoxville, TN Days Inn and the parents of a young woman who was raped and murdered by a motel employee who had a master key. 

Wal-Mart will pay an unspecified sum to victims hurt in the “Black Friday” stampede that left one temporary worker dead and several others hurt in Nassau County, NY.

The Missouri Supreme Court has granted a new trial to a man who was injured, and the widow of a state trooper who was killed, when the trooper’s patrol car exploded in a crash due to, they say, a defective fuel tank.

CPSC to Get Great New Leadership, as the CPSIA Follies Play On…

Excellent news on the consumer advocacy front!  President Obama has finally gotten around to replacing Bush-appointee and industry chum, Nancy Nord as head of the Consumer Products Safety Commission (CPSC).  He is also seeking a 71 percent budget increase for the troubled agency and naming an additional commissioner.

Obama’s choice to replace Nord is Inez Moore Tenenbaum, the former elected State Superintendent of Education in South Carolina.  From what we can tell, this is a great choice and one consumer groups like Consumer Union, which publishes Consumer Reports, applaud.  And while we don’t know that much about her views on, let’s say, the CPSIA, we do know she once ran against Senator Jim DeMint, who not only was one of only three Senators who voted against this landmark consumer protection law, but is now trying to change it!

Another thing we know about her is that the meticulously mustachioed civil justice hypocrite John Stossel attacked her a couple of years ago on 20/20—which we consider something of a badge of honor and a very good sign, indeed!  As for the other new commissioner Obama is adding, it’s a wonderfully inspired pick—Robert S. Adler.  Bob is a longtime consumer advocate with a stellar resume that, among other things, used to advise both the CPSC and Congress on consumer issues, and was elected six times to the board of directors of Consumers Union.  Anyway, lots to be optimistic about…

Meanwhile, with respect to other CPSC news, the agency has granted a two-year CPSIA enforcement stay on youth model all-terrain vehicles (ATVs).  The groups opposing the CPSIA pushed hard for this, but are they happy?  Of course not!  They're still complaining, one of whom even called the move "Kafkaesque."  It's not the consumer groups but the CPSIA-haters who argue that the enforcement stay violates the law. Talk about Kafkaesque!  Memo to the Kafka crowd: the CPSC just did something that benefits you—you may want to button it before the agency decides to change its mind.

Also worth noting: the Specialty Vehicle Institute of America, the same ATV advocacy group that originally lobbied for CPSIA-style regulation, is calling the agency’s enforcement stay “laudable,” but still demanding to be liberated from it.   Here’s hoping the new CPSC leadership will put an end to this madness once and for all!

“Say Whaaaat?” Award to Forbes Magazine!

As loyal readers of ThePopTort know, we occasionally hand out a special award to those who express views that so defy human comprehension that all we can think of to say is, “Say Whaaaat?”  (here, here, here).   

Well, we have a new winner–Forbes Magazine!  Forbes, which normally slams trial lawyers at the slightest opportunity (here, here, here) recently published a column by one of its editors, William Baldwin, called “Needed: Tort Lawyers.”  This column touts the virtues of trial lawyers and litigation in keeping us safe from tainted food.  Even the American Bar Association was taken aback.  (And just in case you’re wondering, we’re pretty sure he’s not the same William Baldwin  who’s Alec’s brother, though he does seem to have an excellent head of hair).

Now, don’t ask us why Mr. Baldwin also suggests that there’s a difference between the value of tainted food cases and some others like, say, asbestos suits, which he gratuitously knocks.  In fact, maybe we won’t give him and Forbes our highest “Say Whaaaat?” honor, but instead, just a mini-award.  (And if they feel the need to pawn it to help pay for say, a crash course in the importance of asbestos litigation, we won’t be offended—really, we won’t.)