ThePopTort

Workplace Safety Goes Missing

The other day, Newt Gingrich called child labor laws “stupid.”  We report this not to make a statement about presidential politics, but to show where some people are when it comes to workplace priorities these days.  (Or as David Letterman’s put it, "this is the man we need to lead us into the 18th century.")  

Safety isn’t much of priority for many firms, which makes Newt’s idea especially wacky.  In fact, let’s “Span the World” of OSHA highlights this week (And yes, somebody got hurt.)

For the sixth time, OSHA (that is, the U.S. Department of Labor’s Occupational Safety and Health Administration) has cited a Wisconsin Rapids carbon steel foundry “for overexposing workers to crystalline silica, a known hazardous material.”

In upstate New York, OSHA cited the Wisconsin-based Briggs & Stratton Power Products Group,

for alleged repeat and serious violations of workplace safety standards at its Munnsville manufacturing plant. The lawnmower manufacturer faces a total of $125,000 in proposed penalties, chiefly for mechanical, electrical and fall hazards identified during an inspection begun in June by OSHA's Syracuse Area Office.

The sizable fines proposed in this case reflect both the gravity of these hazards and the fact that several are substantially similar to conditions cited in an earlier OSHA inspection," said Christopher Adams, OSHA's area director for central New York. "It's imperative that this employer not only corrects these latest hazards but also takes effective steps to ensure that they are corrected once and for all."

Down in Hot Lanta, OSHA cited Midsouth Steel Inc., "a general contractor performing steel fabrication and roof decking ... for four safety violations following an inspection that found workers exposed to fall hazards,” specifically, “allowing them to work at heights of 35 feet in an aerial lift without requiring the use of fall protection, exceeding an aerial lift's load capacity and failing to provide fall protection for employees working on a steep pitched roof.”  Three of these violations were “willful,” that is, “committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health."

In Illinois, OSHA cited “Igor Jerema Construction Co. in Buffalo Grove for four willful safety violations after a worker applying stucco at a home under construction in Burr Ridge fell off a scaffold and sustained a fatal head injury in May.”

In Texas, OSHA cited "Houston, Texas-based oil and gas drilling contractor Nabors Drilling USA LP for two alleged workplace safety violations after a worker was electrocuted at a Williston job site in May.”

Then of course, there’s retaliation against whistleblowers who report safety violations:

[OSHA] filed a lawsuit against the Angels With Paws animal shelter in Lakewood on behalf of an employee who was terminated in violation of the whistleblower provisions of the Occupational Safety and Health Act. The employee had complained about safety and health hazards to the animal shelter's management before filing a formal complaint about the hazards with OSHA. The employee was later discharged and then filed a whistleblower complaint with OSHA alleging retaliation by the defendants in violation of Section 11(c) of the OSH Act. OSHA's Whistleblower Protection Program conducted an investigation and determined the former employee's allegations had merit.

Mix that all up with a little bit of anthrax in the workplace (the federal government just settled with the family of Robert Stevens, a tabloid photo editor in Florida who was killed after receiving an anthrax letter in 2001), and voila!  A perfect place to send the kids!

Here’s the whole Letterman monologue. (As we’ve said before, we take no position on this election, but sometimes, well, we just can't resist the comedy.)

Louisiana Rips the Mask Off U.S. Chamber of Commerce Smear

Louisiana's Chief Justice Catherine Kimball is blasting the bogus and destructive “survey” released by the U.S. Chamber of Commerce’s Institute for Legal Reform this week that “ranks” court systems and business climates based on the views of out-of-state corporate lawyers.  Remarkably, the Chamber has chosen to attack Louisiana for years as it has struggled to recover from Hurricane Katrina. The Times-Picayune reports:

"I strenuously object to the ILR's taking the opinions of just a few attorneys who may never have set foot in Louisiana and making pronouncements about our courts," [Chief Justice] Kimball said in a statement released this week. "Whether we're rated highly or poorly, this survey is not a valid measure of the efficiency or fairness of Louisiana's courts." …

Kimball noted a study by Cornell University law and statistics professor Theodore Eisenberg, who said the Chamber survey "lacks elementary social scientific objectivity." The respondents to the survey are not required to have any experience in the states they rank but only need to say they are "somewhat familiar" with a state, Eisenberg said.

"A person can be 'somewhat familiar' with a state's courts because of a single high-profile case or because of a novel or movie based in that state," said Louisiana Supreme Court Justice Greg Guidry, who is on the ad hoc committee. "Those might be honest perceptions, but they have no validity."

Kudos to justices Kimball and Guidry for standing up to this spurious affront to the state of Louisiana, knowing how difficult this is for any judge to do.  Indeed, one of the more outrageous things about these “rankings” is that they take advantage of a courts’ general reluctance to discuss politics.  Judges themselves are barred by ethical rules from saying anything related to issues that might come before them.  It is a longtime problem for judges who have been attacked in increasingly nasty, costly and sometimes deceitful judicial election campaigns (which we covered yesterday) – and by similarly invalid “reports” from other tort reform groups. 

Back in 2000, the New York Times covered the issue of attacks on judges, quoting Georgia Supreme Court Justice Leah J. Sears who noted the difficult challenge for judges: “[T]he target of false accusations in a race for the bench cannot fully respond to them: in addition to the rules forbidding candidates to mislead voters, Georgia, like most states, has rules that bar judicial candidates from discussing how they would vote on issues that might come before them. 'He could pretty much say anything,’ Justice Sears said of [her judicial election opponent], 'and I could not answer. As a judge, I am stuck.’”

Similarly, Eisenberg, who is Professor of Law and Adjunct Professor of Statistical Sciences at Cornell, noted in his withering critique of the Chamber’s rankings: “[T]he Chamber attacks an institution that is not accustomed to defending itself.  State judiciaries lack the resources to respond to the Chamber’s media campaigns and professional norms prevent the judiciaries from fully responding even if they could.”

Speaking of Professor Eisenberg, whom Cornell cites as one of the “foremost authorities on the use of empirical analysis in legal scholarship” (his reputation and work speak for themselves), the Chamber got Humphrey Taylor, Chairman of the Harris Poll, to try to smear Prof. Eisenberg with the suggestion he may have been paid to do his critique – which he clearly was not and has said so. Check out the comments here.

Dare we paraphrase Joseph Welch at this point? (“Let us not assassinate this lad further, Mr. Taylor. You've done enough. Have you no sense of decency, sir?)

"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.

Emergency Room Immunity Picks Up Support

Well, the Georgia Supreme Court has spoken today, upholding a state statute that makes it very difficult for victims of emergency room medical malpractice to get access to the courts.  

Hope these ER immunity laws aren’t a new trend but we fear they might be.  The kinds of malpractice that can occur in an ER is truly horrendous, and many cases involve children.  (See a few examples, here.)  They are also more likely to involve the uninsured.

In its seminal study To Err is Human (which said that that up to 98,000 die in hospitals each year due to malpractice), the Institute of Medicine (IOM) found that ER’s are the hospital location with the highest proportion of negligent adverse events (52.6 percent).  It's well known that this is where people without health insurance often go for primary care.  In another study called Care Without Coverage: Too Little, Too Late, IOM said that uninsured persons with traumatic injuries are less likely than those with insurance to be admitted to the hospital, receive fewer services if they are and are more likely to die.

We also know that litigation improves patient safety, especially in hospitals.   ER immunity- another example of patient safety gone wrong. 

 

Another GM/Chrysler “Bankruptcy Loophole” Update

As promised, we’re continuing to follow the Chrysler/GM bankruptcies (and in particular, developments involving the “bankruptcy loopholes” which effectively immunize both companies from lawsuits should defects in the “old” pre-bankruptcy Chrysler GM/vehicles injure or kill people).  Here are some notable press items from the past few days…

Attorneys General from Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Vermont, and West Virginia are standing up for injured consumers, filing objections to the GM bankruptcy last Friday (here, here, here, here).

We hear that other states' AG’s will be coming in to raise similar objections soon.

The Detroit News adds to the ever-growing list of heart wrenching tales about Chrysler/GM defect victims, profiling 20-year-old former athlete, Stevie Beale, who was paralyzed from the waist down due to a faulty seatbelt design in her Pontiac Bonneville.

Lynn LoPucki, a professor and bankruptcy expert at UCLA Law School, who is quoted in the article, said, "They should assume liability for their cars. Instead, they give people a very good reason to not buy their cars”

The Atlanta Journal-Constitution and Macon Telegraph both tell the tragic story Nell and Jimmie Davis whose Jeep Cherokee flipped over, crushing the (defective) roof of the vehicle, and killing Jimmie just eight days before the couple’s 48th wedding anniversary.  Nell sued Chrysler, but like so many others, her case is unlikely to go anywhere. “They got all their taxpayer bailout money and now they’re not responsible for anything?” she said.

In the News

Class action suit says taking care of luggage is not British Airways’ “bag.”

On average, Americans spend more time (16 hours a year) watching “often misleading” drug ads on TV than talking with their primary care doctors.

Unlike efforts in the aviation industry, patient safety measures have yet to take flight.

Massachusetts AG seeks to foreclose a “foreclosure-assistance” scam.  Other federal and state officials are doing the same.

Meanwhile, Atlanta may soon join the list of big cities (like Baltimore; Buffalo, Cincinnati, Cleveland, and Memphis) in taking reckless mortgage lenders to court.

“Bullish on America”?  Merrill Lynch has agreed to “settle a class-action lawsuit by employees who lost money investing in Merrill stock through their retirement plans.” 

Congratulations, you’ve just won a free vacation—not! (says Texas AG’s lawsuit).

Drug Company Immunity Remains Status Quo in Michigan Unless Legislature Acts

Cheers can still be heard around the country since yesterday when the US Supreme Court refused to immunize pharmaceutical companies from liability when their drugs harm or kill people.  Luckily, state legislation like the bill introduced in Georgia last month, may also benefit from this ruling (although rumor has it that bill was DOA anyway).

However, in Michigan the mood is slightly more somber as the Wyeth vs. Levine ruling does not overturn their state's drug industry immunity law they've had on their books for over a decade.  This is the only such law in the country right now.

Last year, legislators tried to repeal the 1996 immunity law, but the legislation was held up in the Michigan Senate.  Last week, a trio of bills (HB 4316, HB 4317 and HB 4318) came out of the Michigan House of Representatives with the express purpose of fixing the legislation.  In light of yesterday’s Wyeth ruling, many of the arguments made against repealing this law suddenly no longer have any weight but the legislature will still have to act to restore Michigan citizen’s right to access the courts should they be harmed or killed by dangerous drugs.

Georgia Flirts With Michigan's Big Mistake

Although a lot of politicians have economic stimulus on the brain right now, jump-starting our stalled economy shouldn't come at the expense of consumers' rights.  Which would be exactly what Georgia would be doing to its citizens should a recent piece of legislation get passed. 
 
Senate Bill 101 introduced last week and endorsed by Governor Sonny Purdue would "limit liability for certain drug and medical device manufacturers and sellers."  Which is merely a nice way of saying that a company that markets an unsafe drug or device should be given complete immunity for causing deaths or injuries, as long as the FDA approved the product.  This law supposes that the FDA is both capable and willing to ensure the safety of all products it regulates – which many including those within the FDA itself doubt.  Ah, peanuts anyone?

Regardless we have seen time and time again  how lawsuits have dissuaded companies from continuing to market an unsafe product.  And lawsuits have also had a tremendously beneficial role spurring medical research and alerting the public – and ultimately pressuring regulators – to act on larger health risks and problems.

Unlike what its supporters assume, this legislation would do nothing to create biotechnology jobs in the state.  Michigan, the only state in the nation that has such immunity for its pharmaceutical industry have seen thousands of these high-paying jobs leave their state since Governor Engler signed the bill into law in 1995.  (See the CJ&D report A Tragic Blunder: Michigan's Drug Industry Immunity Law to learn more about Michigan's unprecedented law that prevents its residents harmed by dangerous drugs from gaining access to the civil justice system.)

Thankfully there are groups like Georgia Watch an organization dedicated to improving consumer protections for Georgia families who are staying on top of this issue.  Georgia Watch Executive Director Allison Wall said of the legislation,

"Essentially, this is a desperate bid for new biotech business at the expense of our legal rights," said Wall. "That's a dangerous gamble for the Governor, risking the health and safety of Georgians against the interests of corporations."

The Peanut Butter Plot Thickens…

The company responsible for the salmonella outbreak is finally being hauled before Congress – kicking and screaming, it seems. The U.S. House Energy and Commerce Committee is holding hearings today and asked the president of Peanut Corporation of America, Stewart Parnell, to appear.  He refused, without a subpoena! (which the committee issued Tuesday).  The committee will show that “Even after a major 2007 salmonella outbreak sickened more than 600 and cleared store shelves of peanut butter jars, the Food and Drug Administration didn't increase salmonella testing at another peanut processing facility that is now the epicenter of the latest salmonella outbreak.”

Meanwhile, to update a couple of our early posts (here and here), another former plant employee has come forward saying that he once opened a container of peanuts and discovered several baby mice.  He also said he witnessed coworkers put “new” stickers on buckets of old peanut paste, and seeing bags of nuts with holes in them, apparently caused by burrowing rats. Even worse, said the former employee, “they would put tape on them or sew them up and send them out.”

In the meantime, a new report by the FDA indicating that the company knowingly shipped contaminated peanut butter has led lawyers to tack on a punitive damages claim to its earlier lawsuit.  In fact, on 12 occasions in 2007 and 2008, tests conducted by Peanut Corp. found salmonella contamination in its products—but rather than discard them, the company had them retested until it got the result it liked (i.e., one showing no contamination) and sold the stuff anyway.

And now Kellogg has been added as a defendant.  Apparently Kellogg, which manufactured peanut butter crackers out of the toxic goo, conducted at least two of its own inspections through a third party in 2008, and you guessed it--gave it the thumbs up.

Then We Add Dead Rat to the Peanut Butter, and Let It Bake Right In…

The argument that companies regulated by the FDA should be completely immune from lawsuits brought by sick and injured customers just gets weaker and weaker as more information becomes available about the salmonella-tainted peanut butter scandal.

First, it turns out that the FDA hadn’t inspected the Blakely, GA plant where the toxic nut butter was manufactured since 2001—and it only uncovered the problems by obtaining inspection reports done by the state.

Then we find out that the president of Peanut Corp. of America, the company at the center of salmonella outbreak (and now under criminal investigation), is actually on a board that advises the U.S. Department of Agriculture on peanut “quality and handling standards.”

And finally, in this exclusive CBS report, a former a former plant employee says that roaches were a constant problem, there were rat droppings on the floor, huge holes in the roof, and worst of all—he saw a dead rat dry-roasting in a peanut area.  Bon appetite!