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.

Medical Malpractice – Is Anyone Listening?

Here is my first OMG moment of the week, courtesy of the St. Louis Post-Dispatch.  See if you agree with me:

A 5-year-old girl needed surgery to fix a muscle in her left eye.

But Dr. David E. Braverman mistakenly operated on her right eye. And then he tried to cover up his error.

He told her mother that the right eye was bleeding and also needed surgery. She consented. The girl had to be put under anesthesia again. A breathing tube was reinserted. Braverman went back in to do the intended procedure on the left eye.

Later, Braverman altered the girl's charts to justify both surgeries.

The incident went to the state Board of Registration for the Healing Arts, a panel appointed by the governor whose mission is to protect the public.

The botched surgery at Children's Mercy Hospital in a Kansas City suburb in 2003 was another mark on a career that has included at least $2 million in malpractice payments in nine cases, mostly involving diagnosis and treatment errors of children in Kansas and Missouri.

The board let Braverman, a pediatric ophthalmologist, keep practicing without missing a day of seeing patients. His penalty: a reprimand in his file for the Children's Mercy incident. The board won't say whether it investigated any of the other allegations of substandard care.

Sorta says it all about where we are on medical malpractice these days.  Horrible malpractice continues at epidemic levels (see Center for Justice & Democracy’s new fact sheet here).  State disciplinary board doing absolutely nothing to properly police the small number of physicians responsible for most of it (as we've noted before), especially repeat offenders.  And lawsuits are dropping precipitously (see CJ&D's fact sheet mentioned above).

Here’s some other things of note about Missouri, where this occurred. There has been a “cap” on compensation for patients, as well as other tort restrictions, since the mid-1980s.  This has most likely  endangered the lives of patients. And as far as medical malpractice insurance rates, these “caps,” while harming the most seriously-injured patients, have made no difference for doctors.  A study last year from Americans for Insurance Reform compared Missouri and Iowa, two neighboring states.  Iowa has never had a cap.  In the last five years studied by AIR, Missouri’s pure premium increased 1 percent, while Iowa’s dropped 6 percent. 

Not that this should be news to anyone.  But is anyone listening anymore?

Election Results Say Some Interesting Things About Corporate Money in Politics

Tuesday was a big election day but the biggest story may have come by way of the supremely – activist U.S. Supreme Court.  As a charming follow-up to its widely-condemned Citizens United decision that “gave corporations a free speech right to spend unlimited amounts on election races,” yesterday it issued an “emergency order” (no written decision or dissent) invalidating Arizona's Clean Elections Law, a voter-approved initiative “designed to combat corruption in the state legislature.”  The law “provid[ed] public funds for candidates who agreed to abide by limits on spending and fund-raising.”  The immediate impact is on the gubernatorial race in Arizona, where the incumbent is now blocked from receiving public funds to combat an extremely rich challenger who is vastly outspending her in an upcoming primary.

But also yesterday, there were two amazing stories out of California showing that sometimes, voters can see past money-fueled manipulation.  First, California’s Prop. 17, a terrible insurance industry-sponsored voter initiative, has gone down to defeat despite insurers outspending consumer advocates 16 (million) to 1 (million).  This is nothing short of unbelievable. 

The campaign was “heavily financed by the Mercury Insurance Group, the state's third-largest insurer” and “the target of complaints by Consumer Watchdog, the Santa Monica advocacy group that was founded by Harvey Rosenfield, the author of [insurance reform initiative] Prop. 103.”  Rosenfield said “the measure would allow Mercury and other companies to impose surcharges as high as $1,000 on drivers who have not had continuous coverage. … [like] students, low-income and members of the military on duty in other states.”

Second, a candidate for a California Assembly District, Betsy Butler, beat out several opponents to win her primary.  Butler, “who worked in the political arm of the Consumer Attorneys of California, which represents trial lawyers” was the subject of a grotesque smear campaign by big corporations and a California’s “tort reform” group (the Civil Justice Association of California), which distributed fliers accusing her of being in the “pocket of big oil, drug and insurance companies.” (!)  This took smear campaigns to a whole new level considering that those “doing the smearing likely included the big oil, drug and insurance companies themselves. At least one group funding it was, indeed, an insurance organization, the Cooperative of American Physicians.”

Speaking of trial lawyers, Roxanne Conlin, trial lawyer and the first woman president of the American Association for Justice, decisively won her nomination to unseat Sen. Chuck Grassley (R-IA).  

November should be interesting!

Heroes and Losers in Congress Yesterday (Party? Irrelevant)

We will start with the bad news.  Delaware Senator Tom “I am a former governor of Delaware and I care a lot about states rights as a recovering governor” Carper (D-DE), apparently cares a lot more about the Big Banks in his state, because he is trying now to force an amendment into the financial reform bill to wipe out state Attorney General enforcement of financial fraud committed by Big Banks.  (I am sure his own AG, Beau Biden, must appreciate this as he recovers from a mild stroke in Philadelphia hospital.  Get well soon, AG Biden.) 

We had heard this might be coming, but really, tone deaf doesn’t begin to describe this proposal.  We’ve written many times about the importance of state AG’s work in financial fraud, consumer protection and many other areas. (Follow links here.) Here’s is the lead, front page article in the New York Times today, about a new investigation started by New York attorney general Andrew Cuomo againt Goldman Sachs, Morgan Stanley, UBS, Citigroup, Credit Suisse, Deutsche Bank, Crédit Agricole and Merrill Lynch, which is owned by Bank of America, “to determine whether they provided misleading information to rating agencies in order to inflate the grades of certain mortgage securities.”  Unlike the fed’s investigation, “this one expands the scope of scrutiny to the interplay between banks and the agencies that rate their securities.” 

And not to leave out that other party, Senator John Cornyn (R-TX) is going to try prevent understaffed and underfunded state AGs from hiring outside private counsel to help them enforce consumer protection laws.  These counsel, by the way, are hired at no cost to the taxpayer and their work often results in states recovering billions of dollars from corporate wrongdoers.  (See more in Center for Justice & Democracy's report, The People's Champion.)

Now for the heroes.  Watch Rep. Bruce Braley (D-IA) in action yesterday ripping apart the executive from Transocean whose company apparently coerced traumatized workers at the Deepwater Horizon rig explosion into signing legal statements that they never witnessed anything.  (See video below, questioning about a minute in.)

Why aren’t there more in Congress like Bruce Braley?  Just askin’.

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.

Senate Committee to Take Up the Medical Device Safety Act Today

The Health, Education, Labor and Pensions Committee of the U.S. Senate is holding a hearing today about the Medical Device Safety Act that we’ve been talking about  ever since the U.S Supreme Court’s disastrous decision in Riegel v. Medtronic, which immunized medical device manufacturers from liability for deaths and injuries caused by FDA-approved products.

Said Senator Tom Harkin (D-IA), a senior Democrat on the committee, "For a patient to undergo a device malfunction and then learn that they have no legal recourse against the device manufacturer after it fails them is a one-two punch.”

Needless to say, we couldn’t agree more, and you can bet we’ll be watching.  Keep you posted…

Out of the frying pan into oblivion

A few years ago, the American Tort Reform Assocation named West Virginia a so-called "judicial helllhole", in fact # 3 "hellhole" based on a flagrant error.  ATRA said that two Florida law firms had filed class action lawsuits in West Virginia against DuPont over the chemical, Teflon. However, no such suits were filed there. When confronted with its error,  ATRA reportedly dismissed the factual error as inconsequential, posted a correction on its web site, and did not adjust its “rating” of West Virginia.

Well, now, the Teflon suits stand for yet another essential truth (besides untruths by ATRA, that is): without class actions, consumers can't gain access to the courts where a company profited by harming large numbers of people, each of whom have relatively small injuries. Without the class action mechanism, many important lawsuits can’t go forward.  And that, sadly, is the end result of the Teflon litigation, which lawyers for the victims have now dismissed after being denied class action status.  As Wilmington’s News-Journal reported,

The plaintiffs alleged that DuPont failed to warn buyers that Teflon-coated pots and pans, when heated, can emit toxic fumes. They argued that using Teflon cookware could release perfluorooctanoic acid, also known as C8, a chemical used in the production of Teflon that studies have shown may pose health risks. DuPont has denied that Teflon poses a hazard to consumers.

…

"The court determined that we did not meet the criteria to have it class-certified," said Kim Baer, a Des Moines attorney representing plaintiffs in Arizona, Nebraska, Iowa and New Mexico. "Given the fact that we cannot proceed as a class action, the cases will not be going forward."

In the News

After receiving some 160 complaints from Indiana residents about obnoxious “Your Warranty Will Expire” robocalls (not to mention receiving a few himself, as have many of you!),  Indiana AG Greg Zoeller announced a lawsuit against two companies and an individual for violating several of the state’s telephone privacy laws.

The Committee on Homeland Security and Governmental Affairs will hold a hearing tomorrow on Cass Sunstein’s nomination to head the Office of Information and Regulatory Affairs for OMB.  Sunstein, unfortunately, is no friend of civil justice (see for example). 

Also taking place on the Hill tomorrow…the House Subcommittee on Health will hold a hearing on H.R. 1346, the Medical Device Safety Act of 2009.

The NY Times offered some advice to the U.S. Senate with respect to its much-anticipated anti-predatory lending mortgage bill:  “The way to discourage irresponsible lending is to hold liable both the mortgage originators and the companies to which they sell their sometimes illegal loans. The risk of being hauled into court would make secondary investors more careful and build accountability into the securitization system.”  We couldn’t have said it better ourselves.

The NY Times’ story about a terrible device that mutilates women, which we told you about, has led the paper to join the ever-growing chorus in expressing doubt about whether the FDA regulates medical devices with “sufficient rigor.”

And here are a couple of stories from last week we should tell you about.

The Washington Post took a subtle dig at the U.S. Chamber’s upcoming movie trailer/propaganda campaign—no offense, but we think ours is WAY funnier.  

Casey’s General Stores in Cedar Rapids, IA has agreed to pay more than $12 million to settle two class-action suits brought by employees who were denied overtime pay.

U.S Supreme Court to Decide: What Should Happen To Prosecutors Who Cook Evidence?

Riddle me this, civil justice fans: in a case of blatant misconduct by prosecutors that results in two innocent people going to jail for 25 years, should the prosecutors be immune from suit?

Back in 1977, in a small Iowa county whose County Attorney was up for re-election, a retired police captain working as a security guard was shot and killed.  The police, with the very active participation of prosecutors, decided to ignore the likely suspect (who happened to be white) and instead go after some kids (who happened to be black). They used both threats and enticements (including a $5000 reward) to get one of the kids, a 16-year-old, to blame two others - even though they didn’t do it.   The two were convicted of first-degree murder, spending the next 25 years in jail, until the Iowa Supreme Court overturned the convictions in 2003 (based on the prosecutors’ misconduct).  And now they have filed suit against these prosecutors.

The law normally protects prosecutors from lawsuits, but not necessarily when their misconduct has to do with their investigating the case (as here) as opposed to just prosecuting the case. Since the courts are somewhat split about this, now the U.S. Supreme Court is going to decide.

Where the high court will eventually come down is anybody’s guess, but notably, the Des Moines Register has come out strongly in support of those filing the suit, stating:

In an age when convicted murderers are being released from death row based on new DNA evidence and when prior criminal convictions are being overturned because of clear prosecutorial misconduct - the most recent being that of former Alaska Sen. Ted Stevens - it's time for the courts to reconsider a rule that gives total protection to prosecutors who abuse their powers.

In the News

A jury ruled that two off-duty Fresno, CA police officers were liable for helping a relative beat up an unsuspecting Christmas tree farmer.

The Justice Department agreed to settle with an Army National Guard member who filed suit after being denied a promotion at work because of her outside military duties.

A contractor and an engineering firm have agreed to settle a lawsuit filed after a Microsoft attorney was killed when a tower crane collapsed onto his Bellevue, WA apartment.

Iowa is a “governor's signature away” from allowing Iowans to sue under its version of the consumer fraud act—however, “insurance companies, banks, lawyers, cable-TV providers, doctors, veterinarians, and architects” will all be exempt from the new law.

A class-action settlement will require New Jersey's largest health-insurance provider, Horizon Blue Cross Blue Shield, to cover claims for treatment of eating disorders.