ThePopTort

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.

Health Care – What More Can We Say?

First, let’s start with the funny.  Below are TPM’s hilarious mash-up of CNN and Fox News’ credibility-defying erroneous reporting of the health care decision AND The Daily Show’s take.  As John Stewart put it after Wolf Blitzer began trying to correct CNN’s mistake by claiming “widely different” accounts of the decision, “Yes, widely different.  There's what you've been saying, and then there's what happened.” 

Then there was the “I’m moving to Canada” movement by folks unhappy with the decision, which actually started as a joke.  But it did produce some pretty funny responses (“Saying you’re moving to Canada cause you’re upset about Obamacare is like saying you’re moving to Hogwarts cause you’re upset about magic.”)  Yet it seemed believable, no doubt because it was so reminiscent of that legendary Tea Party placard, “Government, keep your hands off my Medicare!” 

Now for the not-so-funny.  Check out Huff Post’s blazing headline, HORROR IN THE COURT: Conservative Justices Offer Frightening Dissent.  Too shrill?  Maybe.  But had these four justices gotten their way, the entire law- even portions already in effect – would have been invalidated, and the Court’s right-wing politization would have been fully realized (following Bush vs. Gore and Citizen United).  John Roberts may have essentially saved the democracy - not a minor point.  Not to mention the fact that this would be horrible for any one of us trying to get health coverage with pre-existing conditions, or for women (who now get free checkup), young adults who can stay on their parent’s plans until age 26, or the sick who can’t be dropped or denied continuing coverage. See more here.

The Court’s endorsement of a very restricted federal role under the Commerce and Spending clauses of the constitution is of concern to many people.  For example, see Kevin Russell’s entry on SCOTUSblog: “I think it is very likely that one of its major impacts will be to revive claims that several significant civil rights statutes, enacted under Congress’s Spending Power, are unconstitutional.”  One very favorable consequence, however, is that the decision keeps firmly in place the federalism arguments against use of the Commerce clause to justify federal “tort reform” bills, like the anti-patient H.R. 5.   So there’s that.

And there’s also the litany of other profit-making institutions that will benefit from the law once it’s fully in effect, so free-market types better not complain.  Hospitals and drug companies will benefit from new patients who have decent health care coverage who will no longer get their primary care through expensive, often unreimbursed ER emergencies.  Health insurers will certainly benefit from the boatloads of new policyholders despite some of the law’s restrictions.

So to all the cranky health care opponents in Congress who are vowing to take action to repeal the law (thinking the nation supports them) – beware.  As Frank Rich put it: 

That the law was largely upheld allows Obama the miraculous opportunity to get right what he screwed up before and after the bill was passed: a fresh chance to explain to voters exactly what this bill is and what is good about it. …

After Obama endorsed same-sex marriage, it started to rise in the polls, a direct reflection of what the presidential imprimatur meant to some who had been on the fence. The same will be true of the Court’s endorsement of the Affordable Care Act. It’s still a Good Housekeeping Seal of Approval to some voters — particularly, I suspect, to independents and to those who don’t follow politics all that closely (e.g., independents). At the very least, undecided voters will give the law another close look, which is why it’s so important that Obama seize the moment to make it absolutely clear to all what Americans will gain from it.

It’s already happening.

 

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Challenging the Barbarity of Caps

In honor of Memorial Day, here are a few patriotic factoids.  The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. 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.  What has happened to our nation's respect for civil juries?

We’ve covered the tragic case of former student Ashley Zauflik, who was the victim of an out-of-control school bus, which mowed down about 20 kids.  Ashely lost her leg, and a jury awarded her $14 million.  But because the bus was owned by the school district and not a private company, an outrageous and frankly cruel law was triggered, which caps total compensation to her at $500,000.  Yesterday, the judge in the case was forced to cap her award at this amount, even though the school district has an $11 million insurance policy.  The judged practically begged the state Supreme Court to do something, saying,

“There is no dispute that the circumstances of this case create an unfair and unjust result” Bucks County Judge Robert J. Mellon said while upholding the liability limit on school districts and municipalities. A “reevaluation of the constitutionality of the statutory cap on damages … is necessary.”

Pennsylvania, step in line.

Florida’s high court is now considering that state’s non-economic damages cap in medical malpractice cases.  The case, “McCall v. U.S., concerns 20-year-old Michelle McCall, who bled to death while giving her birth to her son” due to the negligence of the medical staff. Among the damages awarded in that case was $2 million in non-economic damages, including compensation for her son’s pain and suffering. The cap reduced this to $1 million.

“The Florida judiciary has already determined in the past that damages caps violate the state constitution because they don’t provide access as everyone has understood it,” says Robert Peck, the lawyer representing McCall’s estate in the case. “Access means full redress for the injury received. So a person who receives $1 million when full compensation should have been $2 million did not have that access.”

Meanwhile, in April, the Missouri Supreme Court upheld that state’s wrongful death cap, but a new challenge has now reached the court.  At the end of March, writes Tort Prof Blog,

[T]he Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution.  In 2011, a jury decided that physicians failed to act when an unborn child showed signs of distress in the womb.  The child was born with cerebral palsy and will not progress beyond the mental capacity of a three-year-old.  The jury awarded $4,821,000 in total damages.  Of that amount, $1.45M was non-economic and was reduced to $350,000 pursuant to the cap.

And in Mississippi, a local judge ruled in April that Mississippi's cap was unconstitutional, noting, "The issue is not whether the limits imposed under the statute are reasonable. Rather, the issue is whether the Legislature has the authority to impose any limits, reasonable or not."  He said the framers of the constitution created the civil justice system and put the courts in charge of it.  Meanwhile, the state Supreme Court is already considering the constitutionality of the cap, after the question was certified to it by the U.S. Court of Appeals for the Fifth Circuit in a case against Sears.  In that case,

Lisa Learmonth sued Sears, Roebuck and Co. after she was in a collision with one of the company's vans near Philadelphia, Miss., in 2005.

A federal jury in 2008 determined Sears was liable for Learmonth's injuries and awarded $4 million in damages. The parties agreed $2.2 million was for non-economic damages, and the federal judge reduced that part of the damages to $1 million.

Hey, if you want an excuse to escape the relatives this Memorial Day weekend, just tell them that you want to bone up on a very patriotic topic, and then go here.  Much healthier than eating hot dogs.  Happy reading!

The Uniquely American Disrespect for Civil Juries

There was a fascinating article in Bloomberg last week discussing how more and more patients in China are resolving their disputes with malpracticing physicians by killing the doctors.  Not only that, more and more Chinese are happy about it.  This is obviously a terrible, terrible thing.  But there’s a lesson here for us.  And no, the lesson is not to give the NRA any more kooky ideas. (“Hey, now that we’ve got all these great Stand Your Ground laws, lets try to arm more hospital patients!")  Rather, the lesson has to do with what can happen when innocent, injured people – or their parents, their families - know they have no legal recourse or way to seek justice before a fair and unbiased jury.

You might think that we have no need to worry.  We have the Seventh Amendment and state constitutions and laws everywhere guaranteeing the right to civil jury trial.  While that may be true, we are reaching a new level of disrespect for the civil jury system in this country that should start frightening everyone. 

Let’s start with today’s news that the State of Virginia is fighting the two families who won a verdict last week against the State for helping to cause the Virginia Tech massacre five years ago, during which 33 were killed.  The jury found that the State was negligent for delaying alerting the campus that a killer was on the loose.  After listening to all the evidence in the case, the jury said the families deserved $4 million each.  Little did they know – because they were not told – that the state had a $1 million liability cap. Attorneys for the parents are trying to fight the cap, and the state is fighting them – and, we might add, the power, authority and integrity of the jury system.

Then last week, the Dallas Morning News reported that because so much so-called “tort reform" was now on the books in Texas, the civil jury system is virtually disappearing.  Writes the paper:

The right to have disputes decided by a panel of fellow citizens is cited in the Declaration of Independence and explicitly confirmed in the constitutions of Texas and the United States. But new statistics show that the right to “trial by jury” is quietly and steadily disappearing thanks to a mixture of tort reform laws and Texas appellate court decisions that have made it more difficult for parties in a lawsuit to have their disputes decided by juries. 

By the way, this business of not telling hard-working jurors that state lawmakers have “capped” damages is nothing new. Read this story about a heartbreaking California case.  Nor is it news how angry jurors get when they find out that their efforts to be fair and just have been cheapened and devalued by politicians.  And if they’re angry, imagine how angry the families might be. Just sayin’.

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.

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