ThePopTort

"Really!?! with Seth and Amy", Ground Zero Edition

"Really!?! with Seth and Amy" isn’t my favorite SNL Weekend Update sketch, but I have to say, it came to mind immediately when I heard that Sheila Birnbaum was appointed by the Justice Department today to  oversee distribution of the new $2.5 billion fund for sick and dying Ground Zero workers.

Really?  The only person in America who could do this job was a State Farm insurance company corporate lawyer who fought Katrina victims who were left destitute because State Farm and other insurers refused to pay their legitimate claims?  And then she discussed her successes at a Web Seminar for the extreme-right  Washington Legal Foundation?

Really? The only person in America who could do this job was a lawyer who has been so successful at crushing the claims of corporate negligence victims on behalf of her corporate clients that she has been dubbed the “Queen of Torts?”  Really?

I mean really, the Administration believes this individual will be better at helping sick and injured workers than any lawyer with actual experience helping the sick and injured?  And who generates media coverage like this from the Wall Street Journal?

Companies have often turned to Birnbaum, a former law professor and fourth-grade teacher, in times of distress. In 2004, she represented Chiron after the company received negative publicity for its flu vaccine. “Sheila was my quarterback,” said Nancy Koch, formerly a senior lawyer at Chiron who worked closely with Birnbaum during the crisis. Ultimately, the SEC formally closed its investigation without taking any action, a securities-fraud lawsuit was settled and the product-liability actions were dismissed.

Birnbaum has also helped State Farm in other big cases. In 2005, Birnbaum helped convince the Illinois Supreme Court to dismiss a class-action judgment of more than $1 billion against the insurer. She also represented State Farm before the Supremes in the big 2003 ruling that placed caps on punitive damage awards, a decision seen as a big win for corporate America.

“Sheila Birnbaum has been one of our most effective advocates in litigation for a number of years and has played a central and significant role in Hurricane Katrina litigation,” said Kim Brunner, State Farm’s general counsel.

Now, I don’t know Sheila Birnbaum and I realize that she has mediated some wrongful death and injury lawsuits on behalf of some 9/11 victims.  And Ground Zero worker spokesperson John Feal, who worked tirelessly to get Congress to pass the $2.5 billion fund, has hopes for Ms. Birnbaum even though this was not his choice, so we have to be hopeful too.   

But, really?

(You can learn more about State Farm’s despicable post-Katrina behavior by listening to testimony from former Mississippi Congressman Gene Taylor.)

The Courts Are Actively Ruling on Katrina Cases (In Case Anyone's Paying Attention)

Who here remembers Comedy Central’s early 90’s John Stewart-hosted show, Short Attention Span Theater?  No, me neither, but I can think of a few issues today that would make great segments.

A few days ago, we featured a piece from Countdown with Keith Olbermann about BP’s courtroom delay tactics that, as he puts it, “buys them time for the public to forget.”  Given our Short Attention Span, who doesn’t think “forgetting” is virtually a guarantee? 

In fact, unless you live in the Gulf, the continuing devastation caused by BP has pushed the continuing devastation caused by Hurricane Katrina off the front pages and cable news shows (except for the recent five-year anniversary and Spike Lee).

So today, we thought we’d bring you up to date on a few court cases from the storm that are still winding through the courts, and that reached important milestones this week.

First, “residents and property owners suing Jefferson Parish, former Parish President Aaron Broussard and his administration over widespread flooding in the wake of Hurricane Katrina scored a victory Wednesday when they were granted class-action status in the 24th Judicial District Court in Gretna.”

The lawsuits “blame the flood damage on a decision within Broussard's administration to evacuate 220 pump operators to Washington Parish as the major storm approached the Gulf Coast.”  It should be noted that  “Broussard testified in November 2007 that he did not deliver the order to evacuate the pump operators and told the court that he was ignorant of a ‘doomsday plan’ that called for such a decision.” We’ll see what happens.

Meanwhile, “a federal judge has thrown out nearly all constitutional claims in a lawsuit against Gretna and Jefferson Parish law enforcement agencies for their controversial decision to block stranded people from walking across the Crescent City Connection to the West Bank after Hurricane Katrina.… Several lawsuits related to the bridge blockade remain in New Orleans Civil District Court.”

Also, the Louisiana Supreme Court has “upheld a lower-court ruling tossing out Louisiana Citizens Property Insurance Corp.’s $35 million settlement of a class action suit because the deal was unfair to some policyholders.”  The lawsuits “stemmed from delays in adjusting and settling claims from hurricanes Katrina and Rita.… In its 33-page decision issued Friday, the Supreme Court ruled that Citizens erred in settling one lawsuit and then claiming that agreement covered the plaintiffs in another class action lawsuit.”

And finally, “a three-judge panel of the U.S. 5th Circuit Court of Appeals ruled Tuesday that an Army Corps of Engineers contractor was not entitled to immunity from being sued for its actions in removing debris on the east bank of the Industrial Canal next to a section of floodwall that failed during Hurricane Katrina. The decision means that the lawsuit filed against Boise, Idaho-based Washington Group International Inc. engineering and construction firm by flood victims in the Lower 9th Ward, eastern New Orleans and St. Bernard Parish returns to the courtroom of U.S. District Judge Stanwood Duval for further action.”

We'll keep an eye out.

 

Katrina Hospitals Victims “Literally dead in the water”

Since Hurricane Katrina in 2005, much has been written about deaths that could have been prevented but for the negligence of various institutions.  We’ve covered the responsibility of the Army Corps of Engineers,  and its “monumental negligence” for not maintaining the levees that collapsed.  But now, we are finding out that many excruciating deaths in hospital and nursing homes could have been prevented too.

A joint project of the New York Times and ProPublica has reported on a massive corporate failure at New Orleans hospitals to establish emergency backup power systems, causing patients to slowly die as they “languished for days awaiting transport.”

In fact, three years before Katrina, one of Pendleton Memorial Methodist Hospital’s senior executives wrote in a report that the hospital lacked the amount of generators needed “to accommodate an emergency flood with 15 feet of water,” and that one of hospital’s two main generators would be “nonfunctional in about two feet of flood water.”  The report, written in response to similar flooding that had already occurred in Texas, recommended that a $7.5 million fix be undertaken to avert such a disaster.  That warning was never heeded.

One of the patients who died at Pendelton was 73-year-old Althea LaCoste.  In her family’s lawsuit, they say she died horribly and, in turns out, unnecessarily, in “sweltering heat after nurses spent hours pumping air into her lungs by hand in the pitch dark...". 

Meanwhile, according to Robert Wise, vice-president of the Joint Commission, the accreditation body for most American hospitals, “There are many [hospitals] that still know they have to move their generator,” and that without power, will be “literally dead in the water.”

It seems there’s simply no end to the institutional negligence surrounding Hurricane Katrina.

In the News

Lead story in today’s New York Times about primary care doctor shortages.  Neither medical malpractice  insurance nor lawsuits are even mentioned as reasons for doctor shortages - and none of the typical complaining specialties (OB-GYN’s, surgeons) are mentioned either - except to say that specialties aren’t having shortages!

In the wake of the Wall Street meltdown, U.S. Supremes to hear arguments about whether state AG’s can investigate national banks that discriminate.

Florida Senate considers bill that “seeks to ban vaccines containing mercury” despite a bad ruling. 

South Florida Sun-Sentinel warns that delays in enforcing CPSIA standards mean parents should remain on guard against existing hazards.

And several good stories from last week that we should tell you about:

Major environmental victory as Shell Oil settles air pollution lawsuit—agreeing to reduce emissions from air pollutants by 80 percent within three years.

Utah Supreme Court says a state law that reduces workers’ comp. for people over 65 (who qualify for Social Security) amounts to unconstitutional age discrimination.

Another bad ruling from the U.S. Supremes upholding mandatory arbitration for union members in ageism disputes.

Another Starbucks employee wage dispute may be granted class-action status—this time in Florida. 

Last Thursday, U.S. Senate said no to capping whistleblower awards for citizens who bring False Claims Act lawsuits to recoup taxpayer money lost to fraud. 

Documents filed in lawsuit reveal, “Global Climate Coalition, a group representing industries with profits tied to fossil fuels, led an aggressive lobbying and public relations campaign against the idea that emissions of heat-trapping gases could lead to global warming,” despite receiving contrary evidence from its own experts.

Oklahoma county settles with man whose jailers refused to dispense prescribed medications and kept him in a “restraint chair,” ultimately requiring his legs to be amputated.

Pennsylvania hospital found liable after failing to follow treatment standards for a cyst removal that put a woman in a coma.

Story about dirty VA hospital equipment, which exposed 11,000 vets to infectious diseases, gets worse and worse as frustration mounts over the alleged “lack of information” being provided by the VA.

And finally, here we go again.  As with Katrina and Rita, insurance companies are making life even more unbearable for Hurricane Ike survivors in South Texas.

Katrina Victims Get Their Day in Court Against The Army Corps of Engineers

We’ve blogged before (here, here) about what today’s New York Times is calling “a groundbreaking civil suit,” brought by several Hurricane Katrina victims against the Army Corps of Engineers. 

We certainly don’t need to remind PopTort readers of the magnitude and human suffering caused by this catastrophe: 1,400 deaths (with many more unaccounted for), millions displaced, hundreds of thousands left without jobs or income.  And you may also recall that but for the failure of the levee system built by the Army Corps of Engineers, New Orleans would not have suffered catastrophic flooding during this hurricane.

To make matters worse, Congress immunized the Corps from liability for flood-control failures in 1928,  which has left Katrina victims with no ability to hold anyone accountable for this destructive, man-made blunder – or so they thought.

Turns out that the navigation channel built by the Corps in 1968, known as MR-GO (and pronounced “Mr. Go"), was built to help ships reach the Gulf of Mexico – not to control flooding.  In fact, critics have long referred to the canal as a “hurricane highway,” because it increased flooding by carrying storm surges into New Orleans.   According to the Times, “One geological expert testified on behalf of the plaintiffs that the channel was ‘one of the greatest catastrophes in the history of the United States.’”

Luckily for the hundreds of thousands of Katrina victims, a judge has ruled that the government can’t be immune for the damage MR-GO caused.  Now the case is going forward. 

Jonathon Beuregard Andry, one of the attorneys representing flood victims, said his clients “don’t want sympathy, and they don’t want something for nothing….[t]heir whole life is changed and they should be compensated for that.”

Katrina Victims Pry Out a Little More Justice

We’ve blogged before about the horrendous treatment of Katrina victims by insurance companies that refused to pay out their legitimate claims (see here, here, here).  In fact, Americans for Insurance Reform did a whole report on it.

So you can imagine how happy we were to read that the Louisiana Citizens Insurance Corporation’s board “approved paying up to $35 million to settle a class action lawsuit alleging that the firm took too long to pay off policyholders' claims after the 2005 hurricanes.”  By the terms of the agreement, the 30,000 or so victims in the “class” could get up to $1,000 each.

Even better, assuming the settlement is approved on December 15 by state District Judge Kern Reese, “the settlement would have no effect on other lawsuits against [the insurance company], including those from policyholders who argue the firm paid too little on their claims from hurricanes Katrina and Rita.

Prying the insurance industry’s fingers from its purse strings is rarely easy—but the civil justice system sure does provide a handy crowbar!