ThePopTort

U.S. Civil Justice in Free Fall

The 30-year mission of corporate America to weaken the U.S. civil justice system -  with “tort reform” like contingency fee limits, mandatory binding arbitration and other proposals to force people into alterative compensation systems (which we have criticized specifically for their bias here, here) - has finally yielded exactly the results they seem to want.

The World Justice Project issued a new report today ranking the “rule of law” in 35 countries, including the United States. Full report here.

One of the four “universal principles” WJP examined was “access to justice,” defined as “access to legal representation and access to the courts,” calling these principles a “critical cornerstone for the implementation of policies and rights that empower the poor.”  As to civil justice, WJP  notes,

Access to civil justice requires that the system be affordable, effective, impartial, and culturally competent.  Impartiality includes absence of arbitrary or irrational distinctions based on social or economic status, and other forms of bias, as well as decisions that are free of improper influence by public officials or private interests.

Accessibility includes general awareness of available remedies, availability and affordability of legal advice and representation, and absence of excessive or unreasonable fees, procedural hurdles, and other barriers to access formal dispute resolution systems. Access to justice also requires fair and effective enforcement.

In ranking a country’s “Access to Civil Justice”, WJP considered eight factors:  

8.1 People are aware of available remedies

8.2 People can access and afford legal counsel in civil disputes

8.3 People can access and afford civil courts

8.4 Civil justice is impartial

8.5 Civil justice is free of improper influence

8.6 Civil justice is free of unreasonable delays

8.7 Civil justice is effectively enforced

8.8 ADR systems are accessible, impartial, and effective

In every single one of these categories, U.S. civil justice was worse (e.g., more biased, harder for victims to access the courts and legal counsel) than in countries in Western Europe and North America as a whole, and other “high income” nations throughout the world.  In fact, overall, the U.S. ranks last (7 out of 7) in the region, and last (11 out of 11) among high-income nations.  That's right.  LAST!

Access to civil justice has clearly sunk dramatically in the United States.  In fact, we've noted before this supreme irony: that while U.S. business and medical lobbies are running around trying to strip victims of their legal rights, China – one of the world’s worst human rights abusers – let alone having a pretty bad record on civil justice – is working to greatly broaden access to civil justice for its citizens. 

"Tort reform" is not the only cause of the poor U.S. ranking, of course.  The disgraceful demise of legal service programs in this country is certainly a huge part of it. 

But when corporate and professional lobbyists continue to try to limit injured people’s access to counsel as well as the power and authority of judges and juries, or replace the civil justice system with statutory administrative structures over which corporate money can have more control, look for things to get even worse. 

Once a shining light in the world, the U.S. civil justice system is no more.  Thanks for nothing, corporate America.

Paint Companies Try to Squeeze Rhode Island for Lead Paint Costs – Judge Says No Way

Though much was known about the dangers of lead in paint (which causes irreversible brain damage in children) as early as the 1930s, the United States did not ban lead paint until 1978.   Paint manufacturers, knowing of the danger, marketed themselves as kid-friendly and safe in America, while providing Europe with lead-free paint and protecting farm animals from the effects of lead poisoning. 

The paint companies, fully aware of the health effects, profited immensely from their deadly paint.  Moreover, most of these companies still exist in some form and continue to profit from their past misdeeds.   At the same time, many children live in pre-1978 housing and are therefore tragically at risk for lead poisoning.  State and local governments have borne substantial costs enforcing safety measures that protect children from being poisoned.

Things were worse than usual in Providence, Rhode Island. It was known as “the lead-paint capital of the country because so many children were poisoned.”

Enter former Rhode Island Attorney General Sheldon Whitehouse and later his successor, Patrick Lynch.  These pioneering AG’s sued Sherwin-Williams and two other companies, seeking to hold them responsible for some of the overwhelming health care and housing costs associated with lead-poisoned children.  They knew that, as with the tobacco cases, the state would be swamped with delay tactics if they attempted such large-scale litigation without help.  Such tactics had already squashed smaller private plaintiff lawsuits in cases involving lead paint poisoning.  So the AG’s office hired outside counsel to aid them in the massive lawsuit, the Motley Rice firm.  And they won!

In February 2006, a jury returned a multibillion-dollar verdict against the three companies - the first state lead paint verdict ever!  The verdict mandated that the companies fund the removal of lead paint from more than 300,000 Rhode Island homes.   When the case moved to the state Supreme Court on appeal, 16 states supported Rhode Island.

But much to the dismay of child safety advocates and the state, the Court reversed the verdict two years ago.  Since then, the paint companies have been trying to force the state and Motley Rice to pay their legal costs. And luckily, yesterday the judge's response was the right one: NO WAY!

He ruled that the case ‘“brought significant attention to the serious harms of lead poisoning in Rhode Island, leading to an increased awareness in both the public and state officials.’ As a result, he said, the rate of lead poisoning declined by 76 percent from 1995 to 2004, and the General Assembly passed a new law designed to further reduce the poisonings.” In other words, “the state’s claims were ‘neither frivolous, nor made in bad faith.’”  Moreover, “The judge said ordering the companies to be reimbursed could deter the state from bringing public health lawsuits in the future.” AP reports:

Attorney General Patrick Lynch called the judge's decision "courageous" and said the companies' request for reimbursement was about more than just costs.

"It was meant to intimidate and silence any attorney or jurisdiction that would dare to demand that they be accountable for the products they put into the marketplace," Lynch said in a written statement.

Sherwin-Williams attorney Charles Moellenberg said the company will appeal the judge's decision to the state Supreme Court.

Wonder how many homes the paint companies could have cleaned up by now with the time and money being spent on this effort.  Stay tuned.

Florida Needs Terminator Lawyers Against BP

Honestly, we don’t mean to repeat ourselves.  But there’s another weird converging of topics going on, which like yesterday’s BP/Law Clinic post, also involves BP.  I guess when corporate wrongdoing becomes this huge, it spills over into all kinds of areas. 

Question.  What happens when a legislature caps a plaintiff's (i.e. an injured victim, like you perhaps) lawyers’ fees?  

Answer.  A defendant (corporate bad guy) can hire the best lawyers around to fight you.  You, on the other hand, can’t.  Which, of course, is the point of all misguided and one-sided legislation to cap plaintiff's “contingency fees”

Under a contingency fee arrangement, a lawyer can take a case without expecting any money up front.  In return, the lawyer is entitled to a percentage of money collected if the case is successful – usually one-third.  If they are not successful, the attorney receives no fee at all.  Without such a system, injured people could never find attorneys to fight insurance companies. Most injured people lack funds to pay next week's rent, let alone hourly attorney's fee.

Some states limit contingency fees by capping them way below one-third, or sometimes drastically as judgments increase.  Obviously with caps in place, it is far less likely attorneys can afford to risk bringing the more costly and complex cases, providing practical immunity for many wrongdoers, especially large corporations and institutions like unsafe hospitals, or the drug or tobacco industries.  

Fee caps also handcuff state Attorneys General, many of whom are underfunded and understaffed and/or can't hope to take on big industries without hiring outside counsel under a contingency arrangement.  As we noted in the context of financial reform, remember that these lawyers are hired at no cost to the taxpayer – fees are paid by the wrongdoer if the state is successful - and their work often results in states recovering billions of dollars from corporate wrongdoers.

In the BP case, states need “terminator litigators,” as one Florida columnist put it.  But Florida won’t get one now.  That’s because, “[s]ix days before the Deepwater Horizon rig exploded and the wellhead a mile beneath it began gushing oil, [Florida Governor] Crist signed into law [Attorney General] McCollum's chief legislative priority. The law that goes into effect July 1 caps contingency fees at $50 million on contract work for the Office of the Attorney General.”

This is almost as shortsighted as the $75 million liability cap for economic damage caused by oil spills that Congress put in place in 1990. 

Business groups have set up entire organizations dedicated to undermining AG's consumer protection role, and often, their main tactic is to make it financially impossible for states to bring on the best attorneys, who must front millions of dollars to bring a case – money that states don’t have. 

But BP sure does. 

Speaking Out from Within: Toyota Exec and West Virginia Miners

Whenever there is a major corporate disaster and cover-up, you hope someone on the inside has the courage to come forward and talk.  But anyone who has ever known a “whistleblower” knows the terrible risks they take for doing so.  Look what happened to the Texas nurses who spoke out about safety and were criminally prosecuted. With the help of great lawyers like those at the Government Accountability Project, some are able to bring successful lawsuits for retaliation.  Some whistleblower stories even make it to Hollywood (Jeffery Wigand, Karen Silkwood), but most whistleblowers live out their ruined lives in hellish obscurity.  It takes a lot of courage to speak out.

We are now starting to see glimpses of courage from those inside both the Toyota "sudden accleration" and West Virginia mine tragedies.  First, we learned yesterday that on January 16, 2010, Irving A. Miller, then the group vice president for environmental and public affairs at Toyota Motor Sales U.S.A, sent an email to a Japanese colleague in which he “urged his colleagues to ‘come clean’ and admit it had mechanical problems with sticking accelerator pedals three days before the company met with federal authorities to discuss a recall.”  He said, “We are not protecting our customers by keeping this quiet… The time to hide on this one is over. We need to come clean.”  Mr. Miller retired from the company shortly after he sent this. 

Then last night, NBC news reported that West Virginia miners are coming forward, anonymously so far, to confirm what many news reports have been speculating – that the mine was so unsafe it should have been shut down at least until it could be made safer.  One miner spoke in silhouette, fearing retaliation.  It is a difficult admission for anyone whose livelihood depends on working at these mines.  Given the circumstance, it took a good deal of courage.  You can watch it here:

A Great Lesson on Attorney’s Fees Via the U.S. Senate!

Good news out of the U.S. Senate yesterday. 

A cynical amendment to the Senate health care bill sponsored by Senator John Ensign (R-NV) that would have effectively slammed the courthouse doors on countless numbers of injured patients was soundly defeated by a strong bi-partisan vote of 32-66.

The amendment would have imposed national wage caps on fees for attorneys' representing injured patients—that is, the percentage attorneys may earn if their client prevails.

Capping these fees is a major agenda item of the so-called “tort reform” movement.  The goal is to keep injured patients from getting decent legal assistance, which is why big “tort reformers” like Ensign are behind it.  Here are some important things to know about it:

•    This fee arrangement is tantamount to an injured party’s “key to the courthouse door”. Under a contingency fee system, a lawyer takes a case without expecting any money up front—which is good, as injured patients may be in pain, unable to work, or lack funds to pay next month’s mortgage or rent, let alone an hourly attorney’s fee.
•    Despite much rhetoric to the contrary, the vast majority of contingency fees are a fair 1/3 of the award or judgment, not 40 percent or 50 percent, as often asserted.
•    Conservatives actually LIKE contingency fees because they screen out frivolous lawsuits.  Fees are paid only if the attorney wins.  If the case is lost, the attorney is paid nothing. That is a huge risk! They may spend tens of thousands, even hundreds of thousands of dollars up front on the case, only to finally lose that case and receive nothing.  Can you imagine if you had to work with that kind of financial peril over your head?
•    These proposals never suggest capping fees for defense attorneys, who bill for every minute that they work, and they’re paid every dollar that they charge, whether they win or lose.  Nothing like a little hypocrisy!

U.S. Rep. Bruce Braley Advocates Patient Safety—Gets Shouted Down on House Floor

If you thought U.S. Rep. Joe Wilson’s “You lie!” moment during President Obama’s health care speech to Congress was an aberration, think again.  This past weekend, as Rep. Bruce Braley (D-IA) dared to champion the rights of the millions of Americans killed or injured by medical malpractice in this country, the same Neanderthal tactics were back in full force.  Watch as Congressman Braley stands at the podium of the U.S. House of Representatives and endures the belligerent grunts of those intent on derailing true health care reform at any cost.

Ferry Victim Wants to Pay Attorney’s Contingency Fee, Despite Judge’s Interference

Last September, we told you about a former Fulton Fish Market worker named James McMillan who was left a quadriplegic as a result of the 2003 Staten Island Ferry crash.

The gist of the story was related to McMillan’s fee arrangement with his attorney, Evan Torgan.  Torgan, who had fought and won at trial on McMillan’s behalf, inexplicably had his fee reduced by the judge from 33 percent down to 20 percent (shaving $2.5 million from what Torgan had coming to him).  This left Torgan with roughly the same amount he would have gotten had he ducked the trial altogether and accepted the city’s lowball settlement offer on McMillan’s behalf.

At the time, the judge had said to Torgan, “If the client should give you a gift of two and a half million dollars, I’m not approving or disapproving it.” 

Well, remarkably, nine months later, that is effectively what “the client” McMillan is attempting to do.  McMillan told a New York Federal Court magistrate last Wednesday that he wants to pay Torgan’s original fee—despite the judge’s $2.5 million reduction—even though it would ultimately come out of his own pocket.

"May I just say one thing? It's from the heart," McMillan said to the magistrate judge, his voice "cracking." "I think [the fee cut] is very unfair...This man has walked with me through things that people wouldn't understand."   McMillan added, "I want him to have it. He worked for it."

Planes, Trains, Fees, and Trees

Today’s entry is something of an ode to holiday fruitcake—well, not really, but like any good fruitcake, it is filled with an interesting array of ingredients (i.e., stories).  So pour yourself a glass of eggnog (or whatever one drinks with fruitcake) and get ready to chow down.

The Travis Barker/Blink 182 Plane Crash Story Continues: We’ve written about the terrible plane crash that seriously injured Blink 182 drummer Travis Barker and killed several others, as well as Barker’s lawsuit against those responsible.  Now the surviving wife of Barker’s assistant, “Lil” Chris Baker, who apparently suffered quite a bit before he died from the crash, is suing the same companies that Barker did last month.

Immunity for Railroads—Chugging Toward a Station Near You: Just when you thought the Bush Administration had run out of corporate wrongdoers to try to immunize from lawsuits in its last days in office, now they’ve decided to try to protect railroad companies.  Yet another thing that civil justice advocates will need to fix next year!

Another Contingency Fee Cut:  Remember the story about a federal judge who arbitrarily cut an agreed-upon attorney’s fee, and the fear that this might chill important and difficult cases from being brought?  Well, it’s happened again in New York, this time by a state judge.  The attorney whose fee was cut represented several  people who were riding in a Dodge Caravan when one of its tires blew, causing it to roll over, become “airborne” and ejecting seven children.  One woman was killed.   Connolly’s suit named DaimlerChrysler as a defendant for installing a defective lift-gate latch (something the Center for Auto Safety says has inspired recalls in the past) as well as Fred Flat Fix for improper tire repair.  Ironically, the court had nothing but praise for Connolly's work.

Good News Regarding the “Dollar Tree” Story: Here’s a happy update to a story we told you about, involving a Dollar Tree employee whose survivors were being denied her Workers’ Comp death benefits after she was randomly stabbed to death by a racist attacker.  After a mountain of bad press, the Dollar Tree now says it will pay the full benefits because “this is the right thing to do.”  Amen!