ThePopTort

Where Corporate Money Failed - Kilbride, Braley and 1082

Add us to the list of blogs doing election round ups today, but let’s say ours is a bit more exclusive.  In addition to the big picture races, the impact of which on civil justice issues and the legal rights of victims is kinda up in the air (e.g., new “Speaker” John Boehner vs. newly-elected Senate Majority Leader Harry Reid), there are three races that we’d like to note for voters’ repudiation of corporate attacks on the legal rights of injured people.

First is the retention of Illinois Supreme Court Chief Justice Thomas Kilbride (see our earlier coverage here).  This judge’s only sin was siding with the court’s majority in striking down an unconstitutional “cap” on compensation for medical malpractice victims.  But you wouldn’t know that from the sleazy, inaccurate “anti-crime” ads run against him.  These were not funded by law enforcement organizations but by state and national corporate-backed "tort reform" groups.

The Chicago Tribune reported: 

Kilbride was portrayed as soft on crime in visceral radio ads that featured actors portraying rapists and murderers. The campaign prompted a backlash from other judges, lawyers and legal scholars who pointed out Kilbride's opinions were based on legal procedures and points of law.

While the campaign focused on what Kilbride calls “gross distortions” of his record, the acknowledged aim of the Illinois Civil Justice League was to dump a judge they see as unwilling to stop large jury awards given to plaintiffs in malpractice and other negligence lawsuits.

League President Ed Murnane conceded tonight that the organization would not stop Kilbride. But he said they will continue to try and unseat judges they view as opposed to jury award limits.

Pretty disgusting.

Congressman Bruce Braley (D-IA) seems to have eked-out a victory, fighting off a huge onslaught of corporate money to win reelection in Iowa (although his opponent still won’t concede). 

Braley is one of Congress’ strongest civil justice supporters, even to the point where he was viciously attacked by right-wing members of Congress for standing up for patients’ rights during the health care debate.  The secret corporate money dumped in the campaign against him and the barbarous, inaccurate ads they funded even led the New York Times to editorialize against those efforts.  

Finally, Washington voters said no to I-1082, which (as we recently wrote), was an insurance industry sponsored measure that would have “allowed private insurers into the remarkably efficient Washington State workers compensation non-profit public system, and then ruin it with greater costs for employers, smaller benefits for injured workers, and increased burdens on the state."

Now, onto dealing with the crummy stuff … 

ThePopTort’s Combined Halloween/Election Special – We Can’t Say Much But …

Or rather, we can’t say much because we actually respect the Internal Revenue Service that allows us to be a tax-exempt organization!  We don’t “electioneer” unlike some groups, who shall remain nameless (but if you really want to know). 

Anyway, there are a couple things we can comment on.  First are voter initiatives.  We’re allowed to say to all Washington State voters: There’s a terrible initiative on the ballot – I-1082 – that was written and sponsored by the insurance industry.  It would allow private insurers into the remarkably efficient Washington State workers compensation non-profit public system, and then ruin it with greater costs for employers, smaller benefits for injured workers, and increased burdens on the state.  Check out Americans for Insurance Reform's report on this. Major editorial boards in the state say, "VOTE NO."  I think you know what to do!

Second, extreme-right corporate lawyer David B. Rivkin, Jr. and a really right-wing guy named Andrew M. Grossman have penned a truly reprehensible attack on former Supreme Court Justice Sandra Day O'Connor in the Wall Street Journal. They attack her for her involvement in efforts to remove the grotesque amounts of money now flooding into judicial elections – often from out-of-state corporate front groups - and supporting a Nevada voter initiative that would replace such a system with merit selection of judges.  

This kind of nasty piling on, driven by callous corporate interests, is gonna get a whole lot worse if people don’t come out to vote. And that’s a whole lot scarier than Halloween this year!  We’ll just leave it at that.

Medical Malpractice in Illinois: Is the Chicago Tribune On a New Path?

When it comes to the Chicago Tribune’s historical take on patients’ legal rights, it’s been like sitting through ad nauseam versions of the 1999 flick 10 Things I Hate About You.  Their editorials over several years have repeatedly endorsed draconian caps on compensation for patients (August 26, 2005 editorial "Ending the Exodus"), criticized Illinois courts for striking down caps as unconstitutional (February 5, 2010 editorial “A Disastrous Decision") and giving comfortable platforms to business-backed tort reform groups to recap the paper’s editorial position on all of the above (February 10, 2010 op ed, “Court Hands Victory to Trial Lawyers.”)

Could the paper be having a change of heart?

This week, the paper published several articles about doctors who sexually abuse patients (talk about medical malpractice!), and the failure of regulators to do anything about it.   That leaves the civil justice system as the last line of defense.

For example:

A Tribune review found that it took at least four patients coming forward with complaints of sexual assault and abuse before Ricardo Arze was charged in criminal court and had his license suspended. By that time, the family physician had allegedly assaulted at least 21 women and girls at his Arze Doctors Center in Berwyn, according to records. Berwyn police did not inform state regulators of the 2003 and 2005 allegations against Arze until 2007. State law does not require the department and police to share such information.

Here’s another:

A Tribune review found that 16 individuals on the Illinois registry of sex offenders have held a state medical license within the past 15 years, and not one had his license permanently revoked following his conviction. The department has interpreted the state Medical Practice Act to mean it cannot permanently revoke a physician's license unless a doctor has been twice convicted of felonies involving controlled substances or public aid offenses. Nercy Jafari, who was convicted of sexually abusing a patient, was never punished by the department in any way. In response to the Tribune report, the state Department of Public Health moved to shut down the Grand Avenue Surgical Center in Chicago, where Jafari serves as medical director.

And there’s more:

A Tribune review found Bruce Smith, a Chicago gynecologist, was allowed to continue practicing for years despite multiple allegations of rape and sexual abuse. Authorities were dismissive of three patients who came forward with allegations of rape. And state regulators did not seek sanctions until a seventh woman alleged misconduct. The state's response was to suspend Smith's license for a minimum of nine months. Following the Tribune story, the state's attorney's office charged Smith with sexual assault in one of the cases. According to prosecutors, a rape exam of the alleged victim turned up semen in 2002, but officials did not initially request a DNA sample from Smith. In May, the state crime lab determined his DNA profile matched the semen.

It goes on and on and on.

But this devastating series isn’t the only surprise in the paper this week.

A few days ago, the paper endorsed the retention of Illinois Supreme Court Justice Thomas Kilbride, even though his ouster is a priority for tort reform groups.  Justice Kilbride sided with the majority in striking down Illinois’ unconstitutional cap.  The paper wrote, “we’re casting our vote to protect every judge's independence. An honest interpretation of the law, even if we disagree with it, is not reason to bounce a judge from the bench."

I don’t know if we’re on the road to revolution here, but as the Chinese Taoist Philosopher Lao Tzu once said, “A journey of a thousand miles begins with a single step.”

The Michigan Supreme Court’s Peaceful Revolt

You don’t often think about judges and justices engaging in passive resistance.  But what do you call a court that wants to make things right for hard working men, women, and children but is faced with a wrongly-decided decision that overturned longstanding precedent, to the benefit of insurance companies who dodge their obligations?  I call them the Michigan Supreme Court!

Rodney McCormick, a Flint-area GM employee, “had sought damages for pain and suffering after he was run over by a loading truck while on the job and missed 19 months of work."  Seems like a no-brainer, but unfortunately in 2004, when the court was the most consumer unfriendly, anti-environment, anti-victim, precedent-disregarding court in the land, it ruled in the Kreiner v. Fischer case that only “permanently” harmed people were entitled to this type of compensation, reversing law that had been in effect basically since the 1960s when Michigan’s no-fault law passed.  

But yesterday, Mr. McCormick won his case, with the court saying the Kreiner decision “required a ‘strained’ reading of the statute that resulted in more restrictions on lawsuits than the Legislature intended or enacted.”

As one attorney put it, under the earlier 2004 Kreiner decision, “pain doesn’t matter. ‘Periods of near total incapacitation and recuperation after surgery do not make a difference. An entire year off of work and of being physically unable to enjoy the activities that are most important to a person – are not enough’ to meet the law's threshold.”  As a result, “Kreiner has resulted in the dismissal of 79 percent of car accident victims' lawsuits. And since Kreiner was decided, there have been 250 unpublished appellate decisions, revealing only 51 cases in favor of auto accident victims; and a staggering 198 cases in favor of auto insurance company defendants, according to Michigan Lawyers Weekly.”

The Detroit Free Press wrote, "The McCormick decision immensely pleased one formerly injured motorist. Richard Kreiner, of Attica, became synonymous in Lansing with the higher threshold for pain and suffering damages when he lost in the 2004 case. Kreiner said even today, 15 years after his accident, he still has back pain and can’t work at his construction job as much as he once did.  ‘I’m glad that some good came out of it … even if it doesn’t help me,’ he said.”

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?)

Judicial Elections Have Consequences, Especially If You’re Injured

In the 1980s, Ohio enacted a law allowing workers who have been injured in the workplace to sue employers who intentionally harm them or expose them to “a condition or practice almost certain to cause injury.” 

Seems reasonable.  Twice (in 1991 and 1999), the Ohio Supreme Court struck down business and insurance company- sponsored changes to that law that would have made it more difficult for injured workers to bring their case.  But today, in a decision written by Ohio Justice Robert Cupp, the Court decided to ignore this precedent and uphold virtually the same law, passed in 2005.  Now, knowingly putting a worker in harm’s way will not expose an employer to liability.  One Justice dissented, saying the law “purports to grant employees the right to bring intentional-tort actions against their employers, but in reality defines the cause of action into oblivion.”

What a difference a corporate-funded judicial election campaign makes!   Here’s a little Ohio Supreme Court history.

Almost immediately after handing down a 1999 decision striking down as unconstitutional Ohio’s 1996 broad and brutal “tort reform” law, an insurance-industry front-group called “Americans for Job Security” began a viscous media campaign attacking Ohio Supreme Court Justice Alice Robie Resnick.  She was one of two justices up for re-election in 2000. (Notably, while the “tort reform” case was pending before the Supreme Court, another corporate front group, Ohio Citizens Against Lawsuit Abuse, ran an outrageous media campaign directed at influencing the court to try to get the law upheld.)  (See more background here.)

During the 2000 campaign, the Chamber of Commerce, through its front group “Citizens for a Strong Ohio,” flooded the airwaves with attack ads against Justice Resnick.  The Chamber argued that these were “issue ads” allowing it to conceal its corporate contributors.  But the Ohio Elections Commission disagreed, subpoenaing the group in the course of an investigation as to whether the Chamber used illegal corporate money and seeking to find out who financed these attack ads against Justice Resnick.  Anyway, the good voters of Ohio saw through all of this and reelected Resnick. 

But the Chamber and its corporate allies continued trying to remake the court in their image, and the money flowed.

In 2004, Citizens for a Strong Ohio said it raised close to $3 million to support GOP candidates for judgeships in Ohio.  Of the $3 million, the Chamber’s national Institute for Legal Reform contributed $1 million; the American Insurance Association, $375,000; Nationwide Insurance, $200,000; and Procter & Gamble, $160,000. (More background here.)  In that year, the money worked.  Republicans won four Ohio Supreme Court races in 2004, giving them six of seven seats on the state Supreme Court.  The legislature then repassed their unconstitutional “tort reform” package, and in 2007, the Court ignored their own precedent and upheld the law. 

In the meantime, in 2006, Justice Resnick retired and the corporate-backed candidate to take her place was Justice Robert Cupp, author of today’s decision.  In October 2006, the independent Brennan Center reported, “This past week a new political action committee, Partnership for Ohio’s Future, spent $297,615 on television advertising supporting two Supreme Court candidates, Republican Judge Robert Cupp and incumbent Justice Terry O’Donnell.  Since 2000, Ohio has consistently had the most television advertising in Supreme Court elections of any state nationwide.”  Public Citizen listed the major funders of this “Partnership” – mostly insurance companies and banks, with some global corporations thrown in. 

The latest U.S. Supreme Court Justice to denounce this kind of corporate money in judicial election campaigns is Ruth Bader Ginsburg.  She joins former Justice Sandra Day O’Connor, and ironically, once upon a time, Justice Kennedy who wrote the decision unleashing corporate spending in judicial elections.   

Justice Ginsburg would like to see states change their laws.  Perhaps Ohio might be a good place to start?

Judicial Activism - Not.

As many U.S. Supreme Court observers, such as Jeffrey Toobin, have written about the Court’s Citizens United decision, “it is hard to imagine a more activist decision than the Citizens United case.” Actually, we once wrote something similar about the Stoneridge decision a couple years ago,  but we’re happy to give the prize to Citizens United now. 

On the other hand, look at what the Illinois Supreme Court did yesterday.  This decidedly “non-activist” state Supreme Court struck down a brutal “cap” on compensation passed by the Illinois legislature in 2005 knowing full well that similar caps has already been struck down twice by that Court.  The Illinois Supreme Court, citing its obvious precedent, correctly declared the 2005 cap unconstitutional, as well.

Who’s complaining?  Lots of conservatives, that's who.  Let’s start with the Judge who partially dissented in the case, Lloyd Karmeier, who was elected to the Court in a nasty judicial election funded by conservative business interests – the very interests that worry people like Toobin (“The much bigger implication of the decision is likely to come in judicial elections” where “corporate interests often have a huge stake in the outcome.”), former Supreme Court Justice Sandra Day O’Connor and, ironically, once upon a time Justice Kennedy, who wrote the Citizen Union decision.

Here’s what the Center for Justice & Democracy wrote about the campaign that put Karmeier on the bench:

The [U.S. Chamber of Commerce] also poured $2.3 million into Circuit Court Judge Lloyd Karmeier’s (R) election campaign, mostly through the Illinois Republican Party and the Illinois Civil Justice League. “The Supreme Court race in Illinois is at the top of the list for the business community,” said Sean McBride, a spokesman for the Chamber’s Institute for Legal Reform. “We intend to spend considerable resources there.” Karmeier was elected in November 2004.

The Illinois Supreme Court made the right decision not only because precedent required this, but also because it was the right thing for Illinois and the country, particularly as medical lobbyists continue to try to put this misguided idea into the health care bill.  "'The court's decision is great news for Illinois patients,' said Tammy Schilt of West Salem, who developed a severe infection after a sponge was left in her during the delivery of her son, Kelsey. 'Families like mine often rely on court-determined compensation in order to rebuild their quality of life after a devastating injury.'"  We're just sad that young Martin Harnett did not live to see it.

O’Connor vs. Kennedy With an Independent Judiciary at Stake

You know when the U.S. Supreme Court has turned truly fanatical when former conservative Justice Sandra Day O’Connor is sounding the alarm.  Justice O’Connor, speaking at a DC symposium, said that last week’s Citizen’s United decision unleashing corporate election spending with out restriction, “will energize an ‘arms race’ in judicial elections and be a ‘problem for maintaining an independent judiciary.’” 

No doubt about that. The problem of corporate money polluting state judicial election campaigns has long been recognized as a fundamental problem for our democratic government.  It doesn’t always work for them, but the problem is serious and enormous. In fact, guess who participated in a 2003 documentary for PBS's Frontline called “Justice for Sale” to denounce this very trend?  Why, that would none other than Justice Anthony Kennedy himself! Yes, the same Justice Kennedy who wrote Citizens United opinion.

For example, check out this unbelievable exchange between Bill Moyers and Kennedy:

Moyers: The concern that each of you expressed last year in Philadelphia was in particular about campaign contributions to judicial races. Why do you see that as a threat to independence and neutrality?

Kennedy: Well, in part, it's because the campaign process itself does not easily adapt to judicial selection. Democracy is raucous, hurly-burly, rough-and-tumble. This is a difficult world for a jurist, a scholarly, detached neutral person to operate within. So, the whole problem of judicial campaigns is. . . difficult for us to confront. Now, when you add the component of this mad scramble to raise money and to spend money, it becomes even worse for the obvious reason that we're concerned that there will be either the perception or the reality that judicial independence is undermined.

Moyers: Let me just give you some statistics from a poll conducted by the Texas state supreme court and the Texas state bar association, which found that 83% of the public think judges are already unduly influenced by campaign contributions. 79% of the lawyers who appear before the judges think campaign contributions significantly influence courtroom decisions. And almost half of the justices on the court think the same thing. Isn't the verdict in from the people that they cannot trust the judicial system there any more?

Kennedy: This is serious, because the law commands allegiance only if it commands respect. It commands respect only if the public thinks the judges are neutral. And when you have figures like that, the judicial system is in real trouble. And that's why we should have a national conversation about it.

…

There must be a rededication to the constitution in every generation. And every generation faces a different challenge. We weren't talking about this 30 years ago, because we didn't have money in elections. Money in elections presents us with a tremendous challenge, a tremendous problem and we are remiss if we don't at once address it and correct it. . .

Well, he addressed it alright, by “eras[ing] two of the court's precedents and pan[ning] decades of legislative restrictions on corporate spending in election campaigns.”

Our Fanmail to ATRA!

You may know that every year, the less and less relevant "American Tort Reform Association", which represents hundreds of corporations and their lobbyists that seek immunity from lawsuits, issues a bogus "report" identifying certain areas of the country as "judicial hellholes."  The Center for Justice & Democracy actually used to take this report seriously because some in the media did.  I think the media may be wising up.  Well, let's hope so.  In the meantime, we thought the most appropriate response would be reissuing our "FANMAIL" to ATRA, which we first sent them a couple years ago.  Enjoy.

December 15, 2009

Dear American Tort Reform Association:

Re: FANMAIL

Finally a group has stepped up to plate, grabbed the bull by the horns, and taken the unpopular position of standing up for the little guy.  In the immortal words of Twisted Sister you have said “We’re not gonna take it anymore.”  And like Rocky beating the unbeatable Apollo Creed, you have defied the odds. 

Your courageous “Judicial Hellholes” report at long last draws attention to the many injustices corporations have to face day in and day out.  You have finally given a voice to the “mom and pop” tobacco companies, gasoline conglomerates, and insurance providers.  Frankly, it gives me goose bumps. 

Corporations just like everyone else want to be loved and made to feel secure.  What is so hard about giving them a little positive reinforcement?  An “attaboy” or a “keep up the good work” costs nothing.  Unfortunately, they don’t get this much-needed love. Instead they get attacked – and by a bunch of ungrateful sick and injured folks.

As you so bravely and eloquently point out, your loveable little tikes often face hellish working environments.  States like Florida, West Virginia, New Jersey, Illinois - and even New York City! - are literally hell on earth for corporations just trying to make a buck.  How are they supposed to do that when people keep suing them for chopping off fingers, maiming children or making the air impossible to breathe?

Some may say, “Hey, wait one gosh darn minute…these are huge corporate entities that reap vast profits and don’t care about anything else but the bottom line.”  Pure poppycock.  These companies are the real victims with real feelings and they need to be protected.  Earning a bajillion dollars a year is not what is used to be.  In today’s market a bajil is barely enough to buy groceries.  Tobacco execs need to eat.  Have these naysayers no soul?

Thanks to you, mom and pop corps can eat instead of choosing between their medicine and their groceries.  The world needs more defenders of freedom and seekers of justice like you. 

You have shown unwavering courage and your tenacity reminds me of the “little engine that could.” I know it’s not easy, but stay strong.  Choo choo ATRA. Choo choo, I say.  Bravo ATRA.  Bravo on a job well done. 

You have fought the good fight on behalf of the real victims.  Global corporations. That’s right I said it.  Not you sweatshop laborer and no not you tire factory worker.  Not even you, disenfranchised family below the poverty line.  The real victims are you, the corporations. 

I can’t imagine anything worse than working in a “hellhole.”  It’s not the heat, but the humidity that would kill you.  

 Very sincerely,

 

 ThePopTort

 

Gitenstein - Obama's Business As Usual

When word emerged that the U.S. Chamber of Commerce’s top lobbyist had visited the Obama transition office 16 times, and then “pronounced himself satisfied that the incoming administration will consider the needs of corporate America,” we were left thinking, WTF did that mean? 

Well, here we go.  Obama has chosen Mark Gitenstein to head his Justice Department’s Office of Legal Policy, office overseeing legal policy and judicial nominations.  And as the Los Angeles Times reports, Gitenstein faces ethics problems because he was a lobbyist for the U.S. Chamber of Commerce’s Institute for Legal Reform, a group dedicated to eviscerating the civil justice system, using front groups to funnel dirty corporate money into local judicial and Attorney General campaigns, and using the deplorable practice of funding negative attack ads against pro-consumer judges and AG’s.

The consequences of this choice certainly hit home over the last week with news of U.S. Supreme Court Justice Ruth Bader Ginsburg’s bout with pancreatic cancer.  We wish her well, a full recovery and a very long future life on the bench!