ThePopTort

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.

The Constitution of Arkansas, 1; Corporate Wrongdoers, 0

Article 5, Section 32 of the Arkansas Constitution prohibits the legislature from “limiting the amount that can be recovered for injuries resulting in death or for injuries to persons or property.”  Now, if I were a “founding father” of the State of Arkansas and you asked me if that provision meant that the legislature could go ahead and cap “the amount that can be recovered for injuries resulting in death or for injuries to persons or property,” I’m pretty sure I would have said “no.”  I mean, it could hardly be more clear. 

But of course, the founding fathers of Arkansas are long gone and instead we have corporate special interests with which to contend, whose answer to this question would most likely be “Constitution?  What, that old thing?”  So in 2003, these special interests got the State of Arkansas to cap punitive damages, specifically to whichever is more: $250,000 or three times compensatory damages not to exceed $1,000,000.  So basically, it’s a slap on the wrist to any billion dollar company that comes in and recklessly does enormous damage to the people of Arkansas.

I bet the German conglomerate Bayer thought they were all set when they came into Arkansas, contaminated the state food supply and hurt crop prices by introducing a strain of genetically altered rice seeds.  Or more specifically,

Bayer developed an experimental strain of rice called LibertyLink to withstand its Liberty herbicide. Federal regulators had not yet approved it for human consumption when trace amounts were found mixed with conventional rice seed in storage bins in Arkansas and Missouri. No human health problems have been associated with the contamination, but that wasn't known at the time. The fear that the rice was unsafe, along with the notion that genetically altered rice was somehow impure, quashed sales in major markets. Rice futures plummeted by $150 million immediately after the contamination announcement. European nations quit accepting shipments of rice from the U.S. that hadn't been extensively tested to show they weren't contaminated. Japan banned all American rice.

So an Arkansas jury hit Bayer with a $42 million punitive damages award, along with $5.9 in actual damages, which was the least it could do yet higher than the cap.  And in a unanimous decision today, the Arkansas Supreme Court struck down the cap as unconstitutional, just as many other states have done.

You can learn more about punitive damages - extremely rare yet vitally important - here.

Incarceration Tensions

Two incarceration stories have lots of people on edge today.  First comes breaking news that the two U.S. hikers - Josh Fattal and Shane Bauer – who have been locked up in Tehran’s Evin prison, have finally been released.  At the same time, everyone from “a former FBI director, former President Jimmy Carter and Pope Benedict XVI” to European lawmakers are urging that the execution of Georgia death row inmate Troy Davis be stopped, since he’s likely innocent.  He's set to die tonight.

So in terms of incarceration news items, the following story may get a little buried. 

You may not know this, but we have been privatizing our prison systems for years now.  When prisons are privatized, they are run for a profit. You can imagine the results.  Actually, no imagination is needed. 

One of the biggest players in prison privatization biz is the Corrections Corporation of America (CCA), an innocuous-sounding company which describes itself as “the nation’s leading provider of correctional solutions to federal, state and local government” and which boasts of, among other things, “rehabilitating inmates, giving back to communities, and bringing innovative security to government corrections – all while consistently saving hardworking taxpayers’ dollars.” 

CCA just settled a lawsuit brought on behalf of inmates at one of CCA’s Idaho prisons, the notorious Idaho Correctional Center.  Apparently, this prison,

[W]as so violent it was dubbed “Gladiator School,” and that guards used inmate-on-inmate violence as a management tool and then denied prisoners medical care as a way to cover up the assaults.  … “The unnecessary carnage and suffering that has resulted is shameful and inexcusable,” the ACLU wrote in the lawsuit. “ICC not only condones prisoner violence, the entrenched culture of ICC promotes, facilitates, and encourages it.”

CCA denies this, but that denial only goes so far since “the agreement is governed under the Prison Litigation Reform Act, which only applies in cases in which prisoners' Constitutional rights have been violated.”  CCA has agreed to do better, make improvements and face more litigation if they don’t.  If that happens, maybe CCA should consider relocating.  I’m sure the Iranian prison system could use their expertise.

UPDATE: Troy Davis, RIP.

Federal Medical Malpractice – Still Unconstitutional!

Back in January, the U.S. House Judiciary Committee held its very first hearing on what they apparently considered to be the single most important issue facing the nation- taking away the legal rights of injured patients!  This was even before there was a bill – although soon thereafter, malpracticing doctor Rep. Phil Gingrey, (R-GA), introduced one - H.R. 5

But when the bill went to mark-up, a funny thing happened.  Some Republicans launched a full-force, in-you-face assault against H.R. 5 because, well, it would have Congress stepping on one of the most traditional areas of state law – tort law.  I guess everyone has their hypocrisy breaking point.

For example, “Rep. Ted Poe (R-Texas) accused Rep. Phil Gingrey (R-Ga.) of proposing legislation that would violate the Constitution.” The bill was also slammed by other states-rights constitutional experts.  After some fighting, the bill was eventually was marked up and reported out of committee (it was also handled by the House Energy and Commerce Committee) but understandably, it’s stalled in the House.  The issue which began as the new  #1, now no one really wants to touch.

So we were more than a bit surprised to see the issue pop up again in the “Gang of Six” budget proposal, although the specifics couldn’t be more vague: a recommendation to save "an unspecified amount through medical malpractice reform."  I can understand the vagueness.  The constitutional concerns over federal medical malpractice legislation - expressed by some of those very “Gang of Six” members - are still very real.  They are all laid out here by Seventh Amendment Advocate’s Andrew Cochran.  Do check it out!

The Politics of “Tort Reform” Gobbledygook

Your challenge: try to make sense of the following.  But we will have no winners, at least not today.

The U.S. House Judiciary Committee continues its mark up of H.R. 5 on Wednesday, a bill that would massively preempt state medical malpractice laws as bill supporters try to tell states that they do not know best - Congress does.  This will come a couple hours after those same bill supporters denounce the new health care law as unconstitutional after arguing that Congress does not know best - states do.

Some of these same members of Congress just formed a “Civil Justice Caucus,” the goal of which is not to support civil justice but to obliterate it.

Meanwhile, President Obama has decided to use scarce budget dollars to further harm the sick and injured who may already be suffering directly because of his budget.  Specifically, in a budget that fails to provide enough money for housing and heating assistance for the poor, the budget proposed by President Obama includes $250 million for unneeded state programs that will harm patients injured by medical malpractice, jeopardize patient safety and generate more profit for the corporations that control the health care industry.  Some of these measures would eliminate the right to trial by jury in medical malpractice cases and are likely unconstitutional.

And New York Governor Andrew Cuomo – or at least a “Medicaid Redesign Team” that he appointed - appears interested in recommending Draconian restrictions on the rights of patients, specifically targeting brain-damaged babies.  These proposals have nothing whatsoever to do with saving Medicaid money, but instead will generate profit for the corporations that control the health care industry.

Are you as lost as we are?

B is for Bastards and Other Hot News

Lots of interesting non-election stuff in the news, too!  Here’s a little review:

Reuters reports, “A new survey of primary care practices in North Carolina shows nearly one in six patients believed their physician had made a wrong diagnosis or a treatment error, and about one in seven said they had changed doctor as a result.… [E]ight percent said they had experienced ‘a lot’ or ‘severe’ harm from the perceived mistake in care."

Meanwhile, a new study by Carnegie Mellon University researchers found that “telling physicians they shouldn't accept gifts from drug companies is all well and good.  But convincing them that doing so is wrong is another matter... [P]hysicians rationalize such gifts as payback for all the sacrifices they made to get their education -- although they may not realize they're doing it.  The attitude, the researchers said, is one of ‘because I'm worth it.’” 

Here’s another thing some docs may think they’re entitled to do: branding body parts. Smoking Gun reports, “After performing a hysterectomy last year, a California gynecologist used a cauterizing tool to brand his patient’s name on her removed uterus, an unorthodox move that the doctor calls a ‘friendly gesture,’ but which the woman terms ‘despicable conduct’ in a medical negligence lawsuit.”

As for one of the medical establishment’s best “tort reform” allies, the tobacco industry, they’re having a good day thanks to Supreme Court Antonin Scalia, who granted their request to block “a state court order requiring tobacco companies to pay $270 million for a smoking cessation program in Louisiana.”  We’ll see what happens when the full court gets its hands on this case – a class action that the tobacco industry lost.

And now that we’re on the topic of doctors and tobacco, Texas Magistrate says that Texas' brutal, anti-patient tort reform law, which “capped medical liability for non-economic damages at $250,000, doesn't violate victims' constitutional rights.”   Yeah, the business and medical lobbies took care of that by getting the constitution changed first. 

BP oil fund administrator Ken Feinberg has changed his tune on ruling that certain businesses are ineligible to submit claims based on “proximity.”  That may seem like a victory for some, but not so fast. Check out Olbermann’s Worst Person’s segment last night on MSNBC, skewering BP and its new chief executive, Bob Dudley, over their recent courtroom shenanigans.  Read, or watch, below:

BP's court filings say the fishermen, seafood processors, hotel owner, restaurateur, oyster farmers and the like must first apply to relief from the official BP compensation fund, that they must play that game of bureaucratic red tape before they can begin to sue. Even the lawyers are saying they should wait until next March before which test cases should proceed to trial and which should not. That's moving too fast for BP and now we know why.  BP agreed to the $20 billion fund. Because it buys them time for the public to forget, for the remaining oil to dissipate, for them to potentially lose internal memos and e-mails and text messages and other evidence of their culpability, and especially time for the victims to run out of money with which to pay their lawyers. Bob Dudley of BP, never did figure out what the P really stands for. But the B is clearly for bastards, today's worst person in the world.

Visit msnbc.com for breaking news, world news, and news about the economy

What do Retiring Justice Stevens, Senator Patrick Leahy and Sarah Palin Have in Common?

What a question, right?  The Blog of the Legal Times had an interesting piece about Senate Judiciary Chair Pat Leahy (D-VT)’s comments on a couple TV news shows his week.  They concern some of the extremist (far right) decisions coming from the current Supreme Court that he finds not only objectionable (as did Justice Stevens), but also outright activist.

While we would add a few more to that list (e.g., here, here), one case he raised was the court’s love song to Exxon, when it acceded to Exxon’s demand that the $5 billion Exxon Valdez punitive damage award, which the company fought for 14 years, be cut to one-tenth of the jury’s verdict.   

Now, we were surprised as anyone to see Tina Fey’s doppelganger Sarah Palin agreeing with Leahy and Justice Steven by denouncing this decision at the time (see video below), especially given her general lack of awareness of the U.S. Supreme Court (although her decision to “go rouge” on this must have, on second thought, been a little too mavericky even for her).  But the footage kinda speaks for itself, don’t you think?

In any event, let's hope lots more people start paying attention to this decision.  

"Tort Reform" Hypocrisy that Makes Your Head Explode

As the health care reconciliation package moves to the Senate, Senators from “tort reform” town will again try to amend the bill with limits on patients' legal rights.  Today, at least 12 conservative state Attorneys General will be filing a lawsuit to try to invalidate a portion of the health insurance reform bill that the President signs today.  Big business and their “tort reform” groupies must be thrilled by both developments.  And my head is literally, I mean figuratively, exploding.

First, a big bit of irony.  Aside from the merits of the AG’s case, it needs to be said that no movement hates litigation by state Attorneys General more than the corporate-backed “tort reform” movement.  They have set up entire organizations dedicated to undermining AG's consumer protection role, and sometimes oppose federal legislation largely for the enforcement powers given to state AG’s.

But back to the merits. The AG lawsuits over the insurance mandates are grounded in two parts of the constitution: the Commerce Clause and the 10th Amendment.  Basically the argument is that Congress can only do this mandate if interstate commerce in involved, and it’s not here.  Otherwise, under the 10th Amendment, only the states can act.  Lots of experts believe this is wrong, but OMG! 

Why on earth is there a legitimate Commerce Clause and states’ rights argument here, but not when it comes to undermining traditional, 200-year-old state laws with federal “tort reform”?  The federal proposals would dictate medical negligence standards to courts in all 50 states, interfering with judgments made not only by state officials, but by local juries and judges as to what remedies should be available for injured patients.  Plus, these proposals would not only overturn countless state laws, they would interfere directly with state constitutions. That would include Georgia, whose state Supreme Court just ruled 7-0 that the state’s “cap” on damages violated Georgia’s constitution.  Georgia.  A unanimous decision.

Thanks for letting me vent.

The Great “Tort Reform” Overreach

There's been some recent news coverage that you don't see everyday.  In all the frenzy to placate special interest lobbyists who want to cut off the rights of average folks to go to court, state and federal lawmakers often overreach big-time, passing truly destructive laws that greatly limit the accountability of wrongdoers – a.k.a “tort reform.”  It's not that this is anything we don't already know, but the media gets it wrong so often that we're always happy to see some honest assessments.

First comes a great editorial from the St. Louis Post-Dispatch about the terrible law passed in 2005 that made worse Missouri’s “cap” on medical malpractice compensation for injured patients, the constitutionality of which is now before the Missouri Supreme Court.  And we quote:

Medical malpractice lawsuits long had been in decline in Missouri when the law was enacted. The best evidence of what was behind the destructive gyrations of premiums costs were boom-and-bust cycles caused by the insurance industry itself.

Nevertheless, the insurance and health care industries saw the chance to save a buck by gaming the system. They used the “crisis” to cut off an entire class of medical negligence victims — capping damages no matter how egregious the injury or reprehensible the malpractice.

With their risk now contained, they have little incentive to settle claims, no matter how legitimate. They are sure to use superior resources and delays to discourage even the most deserving claims. That’s how medical malpractice claims are defended in Missouri’s courts. Anyone familiar with how things work knows this to be true.

Next we have Gary Weiss writing in the business blog Porfolio that Congress screwed up badly when, in 1995, it enacted the Private Securities Litigation Reform Act that made it more difficult for defrauded investors to bring lawsuits.  As a result, “class-action suits haven’t been playing their traditional role in the financial crisis, especially as a means of ferreting out what really happened during the crisis." In fact, there is new data showing that “investor class-action lawsuits declined 24 percent in 2009.”  Pretty terrible timing for that to happen.  He writes:

Class actions ordinarily play a role in the fight against fraud in two ways. One is as a deterrent, to presumably give corporate execs second thoughts before doing stuff they shouldn’t. The second is that class actions result in the discovery process, making it possible for plaintiffs to extract documents and take testimony.

…

It’s a shame that class-action lawsuits are needed at all. In an ideal world, we should have well-motivated regulators ferreting out improprieties by tobacco companies, securities firms, and public companies that cook the books. But the sad fact is that our regulators have become increasingly somnolent in recent years, with the Securities and Exchange Commission and prosecutors bringing far fewer cases during the Bush administration than they did in years past. The SEC is trying to reverse this trend, but it has a long way to go.  Congress can help greatly by rethinking the 1995 law.

An Unlikely Shout Out on Race, Discrimination and Tort Reform

We always like to pay particular note when our friends over at Dick Cheney’s favorite think tank, the Manhattan Institute, decide to give the Center for Justice & Democracy props—especially since we can always use it to bring more attention to an important issue – this time, race discrimination and “tort reform.”

As they noted and we are proud and honored to tell you, a recent CJ&D law review article, The Racial Implications of Tort Reform, was cited by the NAACP in its amicus brief challenging Missouri’s cruel cap on damages!  Take a read to see how tort restrictions weaken our ability combat hate groups through lawsuits (you can find some examples here), how racial and ethnic minorities are subjected to higher rates of preventable medical errors and how patient rights restrictions hit them especially hard, the discriminatory impact of caps, environmental injustices and how throughout recent history, business groups have often targeted juries in minority jurisdictions for baseless attacks.