ThePopTort

Justice Brennan and Tort Reform?

There’s a new book out about the late U.S. Supreme Court Justice William Brennan, called Justice Brennan: Liberal Champion.  It was written by former Wall Street Journal reporter Stephen Wermiel and Seth Stern.  The story behind the publishing of the book is almost as interesting as its subject matter.  Mr. Wermiel apparently had unprecedented access to Justice Brennan beginning in 1986, but Wermiel was unable to finish the book until now – long after Brennan’s 1990 retirement and 1997 passing.  He also needed to bring in Mr. Stern to actually write the book.  That is some writer’s block! 

The New York Times reported that while researching the book,

Mr. Wermiel told no one but his family and The Journal’s Washington bureau chief. Under the terms of the deal, though, the paper had to forgo what could have been spectacular scoops.

In 1987, for instance, the court heard a $10 billion dispute between Texaco Inc. and the Pennzoil Company. “I could have told you three months before it came out how that was going to come out,” said Mr. Wermiel, who now teaches constitutional law at American University Washington College of Law.

Ah yes, remember that case?  Huge jury verdict in a fight between two huge oil companies, yet not the kind of case ever targeted by so-called “tort reform” laws because, as we’ve noted before, hypocrisy isn’t something that seems to bother this movement. 

So what would Mr. Brennan have thought about so-called “tort reform” anyway?  We're guessing, not much.  On several occasions, Justice Brennan noted the fundamental right that all Americans share: that for every wrong there must be a remedy.  For example, he notes this in his famous constitutional tort decision, Bivens vs Six Unknown Named Agents, and its progeny   A number of state Supreme Courts have struck down tort reform laws for this very reason - because they violate the fundamental right to a remedy, a right that is even stronger under many state constitutions. (For a sampling of examples, go here.)

Mr. Justice Brennan, how much we miss you!

Suing for Justice in Schools

At the PopTort, we love finding fissures in the conservative movement and its generally disparaging views about the civil justice system.  For example, we did a blog recently called “Conservatives Who Sue” and we are beyond impressed with some very strong anti-“tort reform” writings from the very conservative Center for a Just Society.  

Andrew Sullivan is one conservative blogger who, for his own reasons, doesn’t always follow the party line on this (as pointed out here).  Today, he is featuring a reader’s comment responding to a video campaign by Dan Savage directed at LGBT teens, trying to reassure them that no matter how badly they are bullied in school, things will get better if they “just hang in there.”  But for now, he says, “We can’t help them.” 

Sullivan's Daily Dish reader disagreed, making about as forceful an argument as we’ve seen for using the civil justice system in situations like this.  He writes:

There is absolutely something we can do.

In 1995, Lambda brought a case on behalf of Jamie Nabozny against the high school that allowed him to be relentlessly and brutally bullied for four years.  Students urinated on him, pretended to rape him during class, and when they found him alone kicked him so many times in the stomach that he required surgery. Although they knew of the abuse, school officials said at one point that Nabozny should expect it if he’s gay. For the first time, in this case, a court issued an opinion finding that a public school could be held accountable for not stopping antigay abuse. The case went back to trial and a jury found the school officials liable for the harm they caused to Nabozny. The case then settled for close to $1 million.

We need a national campaign to sue the crap out of these schools.  The disgusting and bigoted principals and administrators may be afraid to stand up for a gay kid, but they won't hesitate to protect themselves against a six-figure damages claim.

So let me ask readers this: What are real problems in our schools today?  Bullying that leads to suicides  and violence is certainly one.  If you’ve been following all the hoopla around the movie Waiting for Superman (yes, Oprah has done two shows on this already), the problem is bad teachers.  Of course, bad teachers sometimes teach in the suburbs too, where kids get a far better education than in the cities portrayed in the movie, so let’s say another big problem is money.  Here’s what no one thinks is the problem – lawsuits.  Say like the one directed at Jamie Nabozny’s school. 

Seems like the only one who keeps saying this is the anti-litigation corporate lawyer Philip K. Howard, recently featured in a David Brooks column and who recently complained – once again – (this time in the Daily Beast), that  “Fear of lawsuits has poisoned human interaction in … schools.”  In other words, a real problem in our schools is that teachers are afraid to touch students. Except, of course, when they're not.

All I can say is, I hope Philip K. Howard sticks with his day job, corporate lawyer, where he’s doing enough damage already, and stays out of our school systems, where he could do even more.

Prop 8., Ground Zero and Joe the Plumber: Conservatives Who Sue

We just thought this might be a good day to remind everyone that our civil courts don’t discriminate.  Even conservative extremists who rail against lawsuits (we’ve covered a bit of that phenomenon here, here) are allowed to sue in civil courts, and they do so all the time!  Even if their sole purpose is to score political points!

Yesterday’s decision striking down California’s Prop 8, the gay marriage ban is a fascinating match up between conservatives: well known conservative Ted Olson, who argued and won the case vs. Protect Marriage, the religious and conservative groups that sponsored Proposition 8, who are immediately appealing it.

With all the hoopla about this decision yesterday, you may have missed the fact that also yesterday, Joe the Plumber’s retaliation lawsuit was thrown out of court.  "What lawsuit"? (you must be asking yourself).  Turns out that right-wing personality Samuel "Joe" Wurzelbacher had sued the Ohio Department of Job and Family Services Director Helen Jones-Kelley and two others, claiming he was retaliated against "for speaking out against Obama" and that his privacy was violated, i.e., his constitutional rights.  No dice, said the judge. Guess it's back to plumbing and writing books for Sam, er Joe.

And in New York City, a conservative group called the American Center for Law and Justice (ACLJ), has sued the New York City Landmarks Preservation Commission, which denied landmark status to an old Burlington Coat Factory building.  The group doesn't like the fact that this clears the way to begin construction on an Islamic cultural center in Lower Manhattan. 

One way or the other, that’s what courts are for!

How Do You Solve a Problem Like John Stossel?

Remember in the Sound of Music, when the nuns sing, “How do you solve a problem like Maria?” … “How do you find a word that means Maria?  A flibbertijibbet! A will-o'-the wisp! A clown”? 

I’m not quite sure what a flibbertijibbet exactly is, but I do know a will-o'-the wisp clown when I see one.  That would be the Fox Business Network's new Thursday night start, John Stossel.  John Stossel is a problem that clearly needs solving.

Take his latest weird diatribe last night (“Parasitic Tort Lawyers”) and accompanying column, which he begins with the words, “Tort lawyers lie.”  And he then goes on to trash the entire profession of attorneys who try to hold corporate wrongdoers accountable in court on behalf of injured people.  I suppose that might be believable coming from a guy who once said “Enron is an example of how well the market worked for people.”  Except well, turns out, like all good hypocrites, he has no problem running to court himself when he feels like it, like when he once sued a pro wrestler who hit him after Stossel implied pro wrestling was fake, and he got $200,000 for his pain and suffering.

So I guess Stossel’s problem isn’t himself.  It’s everybody else who uses the court - and their attorneys who “say their product liability suits are good for us. But their lawsuits rarely make our lives better.” OK let’s see. 

How about lawsuits that have saved thousands of womens’ lives?  How about just children?  Communities living around toxic pollution?  Food safety?  (Even CNN’s Sanjay Gupta came through on this one.)  Cars, airplanes, cleaning products, we could go on – and on – and on.  And actually we did, a few years ago, here.

When he says all the fun of playgrounds and such were “taken away” because of lawsuits – that’s a lie. 

And when he says lawsuits are stifling innovation, that’s a lie.

And when he suggests that without lawsuits, savings due to “defensive medicine” would be anything more than 0.2% of health care costs, that’s a lie.

I know we keep using the term "tone deaf" to describe these people, but really now? 

The Daily Shows Skewers Victim Compensation Fund Hypocrites

Just to be clear, we are non-partisan here at ThePopTort!  I'm sure you'll be able to laugh through all party politics of this piece, courtesy of John Stewart. 

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Day 62 - The Strife Aquatic
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

John Boehner: "Tort Reform" Hypocrite

Ah, what to do.  You’ve got a catastrophic disaster that’s the fault of a negligent company and someone needs to pay.  And it better not be the taxpayers!  Sound familiar?  But this isn't about what you think.

The medical device industry is currently immune from all liability (forget liability "caps") for killing or hurting people with defective, implantable medical devices.  This includes companies like Medtronic, many of whose defibrillators were made with defective Sprint Fidelis leads that fractured in thousands of patients causing severe electrical shocks.  A great effort to try to fix this in Congress remains stalled.

Or how about the hundreds of state “tort reform” laws on the books, everything from liability “caps,” to Michigan’s law that eliminates the right of anyone in the state to sue a drug company for marketing an unsafe or lethal drug.

So when House Minority Leader John Boehner suddenly supports lifting BP’s liability cap because, you know, otherwise the taxpayers would have to pay, why did this same guy sponsor a health care bill that would have protected from liability pharmaceutical companies that kill and maim patients, not to mention dangerous hospitals and nursing homes - and forcing taxpayers to pick up the tab? 

What’s the difference between culpable drug and oil companies that kill people and cause damage?  There shouldn't be.  Welcome, John Boehner, official "tort reform" hypocrite. 

Business Hypocrites and their Boatloads of Lawsuits

The social media world was keyed up yesterday about a front page New York Times story about a guy who was is being sued by a company about which he had complained on Facebook:

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

We thought about doing a quick piece on this yesterday but then we thought, “where have we heard about this kind of thing before?”  Oh yeah.  It’s your basic “hypocrisy” tale, and we love those!

Businesses typically think that the courts should be theirs alone, reserved exclusively for their SLAPP (“strategic lawsuit against public participation”) lawsuits like this one, or their patent, trademark, breach of contract and damaged property actions, to make sure they can recover money that they feel they’re owed.  That’s why “tort reform” laws only limit consumers’ ability to recover damages.  They leave companies with unfettered access to the courts to recover commercial losses.  In fact, companies bring thousands of such suits each year, sometimes in an effort simply to browbeat small businesses or individuals into submission – like this one.  Litigation has become a time-honored way for businesses to do business.

 But first, what’s a SLAPP suit?  The Times described it well: “The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.”

 We took a look at the news today and found a few other businesses lawsuits of interest:

For example, we are thrilled to report that Wright Medical Group Inc and Howmedica Osteonics Corp., a subsidiary of Stryker Corp., have resolved their copyright infringement lawsuit!   “The lawsuit, which was filed in 2000, alleged that Wright Medical’s Advance knee implant product violated a patent held by Howmedica, which sought an order of infringement and unspecified damages.”  We thought this one was particularly ironic given that right now, medical device companies are completely immune for any liability for implanting defective devices into people.   How nice that their copyright complaints haven't been touched.

Then there’s the suit filed by producers of The Hurt Locker  against 5,000 “Joe Doe” pirates who allegedly downloaded the film.  Lots of money involved here. “The complaint notes that 'Defendants' infringements allow them and others unlawfully to obtain and distribute for free unauthorized copyrighted works that the  Plaintiff spends millions of dollars to create and/or distribute.” Apparently, the head of Voltage Pictures is really angry at these John Does, reportedly writing an email back to someone who complained about the impending lawsuit:  

I'm glad you're a moron who believes stealing is right. I hope your family and your kids end up in jail one day for stealing so maybe they can be taught the difference. Until then, keep being stupid, you're doing that very well.  And please do not download, rent, or pay for my movies, I actually like smart and more important HONEST people to watch my films.

Speaking of the entertainment business, maybe Carly Simon (who’s suing Starbucks) and Hulk Hogan (who’s suing Post Foods) will join those equally-angry people fighting for access to the courts for everyone – not just businesses and celebs. 

And we wish everyone good luck in their various lawsuits!

Sanjay Gupta, Lawsuits and Food Safety

We know that CNN’s resident neurosurgeon, Sanjay Gupta, is one busy guy.  Understandably, he doesn’t always have a lot of time to make sure everything he says on the air is actually correct.  Like the pretty deficient work he did leading up to a live on the air attack of Michael Moore’s health care film, Sicko. 

Or perhaps more relevant to ThePopTort, supporting his complaints about medical malpractice litigation by mistakenly saying that the Congressional Budget Office did not factor in the cost of so-called “defensive medicine” when deciding on a tiny 0.5% figure to reflect what would be saved had the health care bill included severe “tort reform.”  Defensive medicine was indeed part of that miniscule CBO figure.

So we were more than pleased to see Gupta’s show this weekend featuring food safety activist and advocate Bill Marler – a fantastic trial lawyer. We’ve written before about attorney Marler and his important work on behalf of poisoned consumers, most recently around that disgusting peanut butter salmonella outbreak that killed at least six people and injured many more.  We're glad Dr. Gupta likes Mr. Marler too, especially his important work as a trial lawyer, getting to the bottom of the most recent E. coli lettuce outbreak and making sure people are compensated.

He seems like such a nice guy so we’re not going to put the label “hypocrite” on Dr. Gupta today.  So no ticket this time.  This one’s just a warning.

Fighting Insurance Abuse in Court

The high profile and, many believe, politically-motivated litigation by a few state Attorneys General (some in defiance of their own Governors) to invalidate the new health insurance reform law is nothing compared to the litigation that will likely be needed to force insurance companies simply to comply with the law. 

Today we learned that “insurance companies are already arguing that, at least for now, they do not have to provide one of the benefits that the president calls a centerpiece of the law: coverage for certain children with pre-existing conditions” – conditions like “asthma, diabetes, birth defects, orthopedic problems, leukemia, cystic fibrosis and sickle cell disease.”  (In other words, they want things to be business-as-usual, like how they handled 10-day-old Houston Tracy, who needed surgery to correct a congenital heart defect and whose insurer initially denied the claim calling the birth defect a “pre-existing condition.”)

The insurers now seem to be saying that rather than refuse to cover treatment for a pre-existing condition, the company “might simply deny coverage for the child or the family” until 2014, when they are required to provide coverage.  Whoa.  The Times writes,

Senator John D. Rockefeller IV, Democrat of West Virginia and chairman of the Senate commerce committee, said: “The ink has not yet dried on the health care reform bill, and already some deplorable health insurance companies are trying to duck away from covering children with pre-existing conditions. This is outrageous.”

The White House says it will try to clarify this through regulations but “lawyers said the rules could be challenged in court if they went beyond the law or were inconsistent with it.”  Gee, an insurance company forcing a case into court? 

Welcome to the world of policyholders and their attorneys, who spend a good chunk of their life trying to get intransigence insurance companies to comply with the law and pay legitimate claims - like the Chinese drywall case that a homeowner recently won in Louisiana.  Remember the ongoing, enormous Chinese drywall mess? (“Many homeowners in southeastern states such as Louisiana and Florida have found that drywall imported from China amid the housing boom and rebuilding efforts after the 2004 and 2005 hurricanes emits sulfuric gases that smell bad, make people feel sick and corrodes metal appliances, wiring and components in homes. Insurers have universally been denying claims.”)

In this new case, a local judge ruled that “the policy exclusions that insurers have commonly been using to deny claims for drywall damage don’t apply.”  For example, insurers were actually trying to get out of covering a homeowner's claim by applying an "environmental damage" exclusion, even though clearly the damage to homes came from defective building materials - not pollution.  The legislature is also considering a bill to prevent homeowners who file these claims from being cancelled. 

Oh, they’ll need that law.  And they’ll need good trial lawyers, too!

"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.