ThePopTort

Military Contractors Off and On the Hook

Sunday is such a busy TV night that articles have been written about how to deal withy the DVR overload.  So I’m not sure if you caught “The Good Wife” last night, but there was a fascinating episode about “a male defense contractor accused of sexually assaulting a female officer,” who has sued him for civil damages.   First, the storyline had the contractor trying to assert absolute immunity under the Feres doctrine, which we’ve covered on this blog mostly in the context of medical malpractice and which effectively bars U.S. military personnel from suing the government for injuries caused by “the negligence of others in the armed forces.”   

But that kind of defense for contractors just about never works and it didn’t work for the storyline.  (Turns out the contractor had entered the military minutes before the sexual assault.  Wonder how often that happens?)  Anyway, the Congressional Research Service put it this way in April 2001, report:

The Feres doctrine currently does not bar suits against government contractors working for the military, although some contractors have argued that it should be extended to preclude such suits, and some commentators have asserted that the Feres doctrine leads service members to seek damages from contractors that they could not recover from the government. Contractors have also attempted to assert derivative Feres or “intramilitary” immunity, although with little success. Where a party is immune from suit, the court cannot exercise jurisdiction over the claim against it.

Contractors indeed are doing some horrible things to U.S. soldiers, with the Pentagon often picking up the tab.  Coincidently, last Friday, a jury in Portland Oregon ordered contractor KBR “to pay $85 million after finding it guilty of negligence for illnesses suffered by a dozen Oregon soldiers who guarded an oilfield water plant during the Iraq war.”  Writes AP:

The suit was the first concerning soldiers’ exposure to a toxin at a water plant in southern Iraq. The soldiers said they suffer from respiratory ailments after their exposure to sodium dichromate, and they fear that a carcinogen the toxin contains, hexavalent chromium, could cause cancer later in life.

Rocky Bixby, the soldier whose name appeared on the suit, said the verdict should reflect a punishment for the company’s neglect of U.S. soldiers.

“This was about showing that they cannot get away with treating soldiers like that,” Bixby said. “It should show them what they did was wrong, prove what they did was wrong and punish them for what they did.”

Each soldier received $850,000 in non-economic damages and $6.25 million in punitive damages.

Another suit from Oregon Guardsmen is on hold while the Portland trial plays out. There are also suits pending in Texas involving soldiers from Texas, Indiana and West Virginia.

KBR’s appealing.  Meanwhile, here’s the full episode of "The Good Wife."

An Open Letter to Sanjay Gupta and America

Dear Dr. Gupta and Everyone,

 Why do some doctors order unnecessary tests? (I know PopTort fans, you’re probably thinking “Unnecessary tests?  I can’t get my HMO to cover tests that I actually need.”  Whatever.)  I know this question is on your mind, Dr. Gupta.  Just last week, you lamented in a New York Times op ed, “It is a given that American doctors perform a staggering number of tests and procedures, far more than in other industrialized nations, and far more than we used to.”  You say that many of these tests are unnecessary because they are “meant less to protect the patient than to protect the doctor or hospital against potential lawsuits."  Your theory is supported by one survey of orthopedic surgeons, who claimed that "24 percent of the tests they ordered were medically unnecessary."

It being Olympic summer and all, I thought it might be a good idea to add up the points on both sides of this debate and see who’s winning.  Here’s the question, as best put by Dr. Fred Hyde, Clinical Professor in the Department of Health Policy and Management at Columbia University’s Mailman School of Public Health:

“In contravention of good medical judgment, the basic rules of Medicare (payment only for services that are medically necessary), threats of the potential for False Claim Act (prescribing, referring, where medically unnecessary), physicians will, as a group, act in ways which are possibly contrary to the interests of their patients, certainly contrary to reimbursement and related rules, under a theory that [1.] excessive or unnecessary prescribing and referring will insulate them from medical liability,” (i.e., “defensive medicine”), or 2. they make more money by prescribing more tests thanks to “fee-for-service” medicine, which underlies our entire health care system.

First up, the “defensive medicine” side.

Let’s discuss the “survey of orthopedic surgeons cited by you, Dr. Gupta.  This was a “survey” of 56 (according to American Academy of Orthopaedic Surgeons’ on-line summary of presentations) or 72 (according to the Academy’s news release) Pennsylvania orthopedic surgeons presented at the Academy’s annual meeting in San Diego on February 16, 2011.  The Center for Justice & Democracy requested Dr. Hyde to review this study and here’s what he found:

• In searching for the actual paper containing these findings, it turns out that there is no paper, much less one peer reviewed prior to publication.  Instead, this was a podium presentation by a medical student, accompanied by a faculty supervisor.
• The methodology, according to news and public relations reports, was this: to ask the ordering doctor whether or not he or she was ordering a test for reasons having to do with “defensive medicine.” However, the moderator of the presentation suggested other possible explanations for tests.   He noted, for example, that MRIs and other imaging studies are frequently ordered “unnecessarily” for reasons other than malpractice avoidance. 
• No mention was made of the potential for fraudulent billing if the MRI studies ordered were not for the benefit of the patient.  So here’s the question:  Were the physicians really uninterested in the results of the MRI tests, and willing to risk sanction?  Or did they “check the box” to “show support” without realizing that it might indicate a potentially fraudulent act? 

We can guess.  In fact, there are no “studies” of defensive medicine that do not almost entirely rely on anonymous physician “surveys” to establish its widespread existence.  This is true even for studies that try to put dollar figures on the health care costs involved.  That includes the Congressional’ Budget Office, which found a paltry reduction in “defensive medicine" - totally 0.3% in overall health care costs - should the nation enact a panoply of Draconian “tort reform” measures.”

These physician “surveys” are usually conceived by organized medicine lobbying for “tort reform.” In 2003, the General Accountability Office condemned their use as extremely unreliable. The GAO also noted that “some officials pointed out that factors besides defensive medicine concerns also explain differing utilization rates of diagnostic and other procedures. For example, a Montana hospital association official said that revenue-enhancing motives can encourage the utilization of certain types of diagnostic tests, while officials from Minnesota and California medical associations identified managed care as a factor that can mitigate defensive practices.”  Moreover, “According to some research, managed care provides a financial incentive not to offer treatments that are unlikely to have medical benefit.” 

So, I don’t know what you’d score the “defensive medicine” side of the argument.  Let’s be generous and give them a 1.

Next up - the profit motive side. 

Perhaps today’s front-page, 3,000-word article, New York Times article, “Hospital Chain Inquiry Cited Unnecessary Cardiac Work,” says it all. 

It all started with a complaint by a caring nurse to “chief ethics officer of the hospital giant HCA,” about cardiologists who were “performing heart procedures on patients who did not need them, putting their lives at risk.”  Found the Times:

[T]he nurse’s complaint was far from the only evidence that unnecessary — even dangerous — procedures were taking place at some HCA hospitals, driving up costs and increasing profits.

HCA, the largest for-profit hospital chain in the United States with 163 facilities, had uncovered evidence as far back as 2002 and as recently as late 2010 showing that some cardiologists at several of its hospitals in Florida were unable to justify many of the procedures they were performing. … In some cases, the doctors made misleading statements in medical records that made it appear the procedures were necessary, according to internal reports. …

[T]he documents suggest that the problems at HCA went beyond a rogue doctor or two.…

Cardiology is a lucrative business for HCA, and the profits from testing and performing heart surgeries played a critical role in the company’s bottom line in recent years.

What’s more,

In a recent statement, HCA declined to provide evidence that it had alerted Medicare, state Medicaid or private insurers of its findings, or reimbursed them for any of the procedures that the company later deemed unnecessary, as required by law. … HCA also declined to show that it had ever notified patients, who might have been entitled to compensation from the hospital for any harm.  Some doctors accused in the reviews of performing unnecessary procedures are still practicing at HCA hospitals.

The Times also notes that HCA has had a history of committing Medicare fraud, already paying the Justice Department over $1 billion in fines and repayments. 

That physicians profit by prescribing tests should be nothing new to regular PopTort readers (see,e.g., here, here, here).  Nor should the fact that real academic studies demonstrate the utter failure of “tort reform” measures to have any impact whatsoever on doctors’ testing behavior.  Nor should the fact that when physicians decide to be honest about it, they admit that eliminating the risk of lawsuits has no impact whatsoever on their testing behavior.  Nor should the fact that when cornered at congressional hearings about whether they are actually billing Medicare and Medicaid for supposedly unnecessary “defensive medicine” tests, they stumble into an embarrassing heap of denial.   (See video below)

So, profit motive?  We'll give it a perfect 10.

And that will do it for us this summer, PopTort fans.  We’ll be back after Labor Day, but hopefully today’s extra long post will provide you with a lasting summer treat to get you through the dog days of August.  And Sanjay Gupta, please pay attention.  You’re almost there.

Weekend Update, PopTort Style

We’ve invited SNL’s city correspondent Stefon to tell you what you need to know about ThePopTort’s hottest story updates this weekend! (If you don’t know Stefon, here’s one of his recent New York City club recommendations: “New York’s hottest club is Taste. Nightlife designer Tranny Griffith is back with an all-new club that answers the question Huh?!? Don’t look for a bouncer – there isn’t one. Instead the door’s guarded by ten jacked homeless guys in old-fashioned bathing suits. And inside it’s just sick: ice sculptures, winos, Germufs – German smurfs – a Teddy Ruxpin wearing mascara, an old lady wearing Kid 'N Play hair, and none other than DJ Baby Bok Choy.”) Ok, here goes.

Back in October, we told you about the Center for Justice & Democracy’s new study, Headline Blues: Civil Justice In The Age Of New Media. This report shows how the media are producing a deeply skewed and distorted understanding of our civil jury system.  Along those lines, this week’s hottest irresponsible media story was coverage of a medical malpractice jury verdict in Colorado. This verdict will be drastically cut due to the state’s cap on non-economic damages but you’d barely know that thanks to news articles like this and this. Coverage of this verdict has everything: screaming headlines of an eye-popping verdict, sensationalization of the verdict throughout most of the articles, irresponsible placement (i.e. far down into the articles and in one case the very last paragraph) of the fact that state law “caps” damages regardless of what a jury awards.  

Next, we told you last year about the painful impact of Indiana’s state liability “cap” as applied to the Indiana State Fair state collapse.  This tragedy had everything: 7 deaths, many injuries, some catastrophic. A state law that capped damages at $5 million for the entire incident, upped to $6 million by the General Assembly. And now this week, we learn that anyone who accepts a paltry state settlement must also accept a limited private settlement from companies that built the stage along with a complete waiver of liability for any claim against them. And victims are given a whopping two weeks to act. 

Finally, one of the U.S. Supreme Court’s hottest cases next term is Kiobel v. Royal Dutch Petroleum, which we last covered here.  This case presents important issues for a Court hell bent on immunizing corporate wrongdoers from liability.  This includes the possible (some think likely) drastic curbing of the age-old Alien Tort Statute. The ATS is a remarkable federal law that until now has allowed people from countries outside the United States to sue foreign individuals and multinational corporations that commit human rights violations abroad - like torture, crimes against humanity, war crimes, genocide, disappearances, summary execution, etc. Thompson Reuters provides a new analysis here, noting that “the State Department's legal adviser, former human rights litigator Harold Koh, refused to sign the Justice Department's recent amicus brief advocating certain limits on the ATS's reach overseas.”  That should tell you something right there. 

On the other hand, and for no particular reason, here are some great NYC club recommendations.  Have a great weekend!

Health Care – What More Can We Say?

First, let’s start with the funny.  Below are TPM’s hilarious mash-up of CNN and Fox News’ credibility-defying erroneous reporting of the health care decision AND The Daily Show’s take.  As John Stewart put it after Wolf Blitzer began trying to correct CNN’s mistake by claiming “widely different” accounts of the decision, “Yes, widely different.  There's what you've been saying, and then there's what happened.” 

Then there was the “I’m moving to Canada” movement by folks unhappy with the decision, which actually started as a joke.  But it did produce some pretty funny responses (“Saying you’re moving to Canada cause you’re upset about Obamacare is like saying you’re moving to Hogwarts cause you’re upset about magic.”)  Yet it seemed believable, no doubt because it was so reminiscent of that legendary Tea Party placard, “Government, keep your hands off my Medicare!” 

Now for the not-so-funny.  Check out Huff Post’s blazing headline, HORROR IN THE COURT: Conservative Justices Offer Frightening Dissent.  Too shrill?  Maybe.  But had these four justices gotten their way, the entire law- even portions already in effect – would have been invalidated, and the Court’s right-wing politization would have been fully realized (following Bush vs. Gore and Citizen United).  John Roberts may have essentially saved the democracy - not a minor point.  Not to mention the fact that this would be horrible for any one of us trying to get health coverage with pre-existing conditions, or for women (who now get free checkup), young adults who can stay on their parent’s plans until age 26, or the sick who can’t be dropped or denied continuing coverage. See more here.

The Court’s endorsement of a very restricted federal role under the Commerce and Spending clauses of the constitution is of concern to many people.  For example, see Kevin Russell’s entry on SCOTUSblog: “I think it is very likely that one of its major impacts will be to revive claims that several significant civil rights statutes, enacted under Congress’s Spending Power, are unconstitutional.”  One very favorable consequence, however, is that the decision keeps firmly in place the federalism arguments against use of the Commerce clause to justify federal “tort reform” bills, like the anti-patient H.R. 5.   So there’s that.

And there’s also the litany of other profit-making institutions that will benefit from the law once it’s fully in effect, so free-market types better not complain.  Hospitals and drug companies will benefit from new patients who have decent health care coverage who will no longer get their primary care through expensive, often unreimbursed ER emergencies.  Health insurers will certainly benefit from the boatloads of new policyholders despite some of the law’s restrictions.

So to all the cranky health care opponents in Congress who are vowing to take action to repeal the law (thinking the nation supports them) – beware.  As Frank Rich put it: 

That the law was largely upheld allows Obama the miraculous opportunity to get right what he screwed up before and after the bill was passed: a fresh chance to explain to voters exactly what this bill is and what is good about it. …

After Obama endorsed same-sex marriage, it started to rise in the polls, a direct reflection of what the presidential imprimatur meant to some who had been on the fence. The same will be true of the Court’s endorsement of the Affordable Care Act. It’s still a Good Housekeeping Seal of Approval to some voters — particularly, I suspect, to independents and to those who don’t follow politics all that closely (e.g., independents). At the very least, undecided voters will give the law another close look, which is why it’s so important that Obama seize the moment to make it absolutely clear to all what Americans will gain from it.

It’s already happening.

 

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Hot Coffee Does #McDStories

We’ve blogged here many times about the HBO documentary film, Hot Coffee, which, among other things, contains shocking footage of third-degree burns and skin grafts suffered by the late Stella Liebeck after scalding McDonald’s coffee spilled in her lap, and shows that McDonald’s knew their coffee was as hot as a car radiator and had already scalded at least 700 people, and that the verdict was slashed by the judge and then she settled for even less. 

We’ve never properly honored McDonald’s for the way it handled this case, so today, we’d like to invite all PopTort fans to show McDonald’s exactly what you think of them by tweeting using their brilliant hastag #McDStories.  As the Huffington Post reports today, the company started this hashtag as a company promotion, but from there, hilarity has ensued!

Negative tweets about the fast food giant began to proliferate, prompting the New York Observer to remark that "some stories are better left untold." Tweets ranged from tweeting about being high while eating McDonald's to throwing up the food.

If you agree with us that seriously injuring their customers and then viciously fighting them in court is at least worthy of a tweet, then please add your thoughts.  #McDStories!  And the go get yourself a Hot Coffee DVD.

UPDATE:  Yup, that's right.  As hot as a car radiator. 

Cooked-Up Lawsuits and the Agenda Behind Them

If you’ve seen the documentary film, Hot Coffee, you may recall the great soundbite from our very good buddy Victor Schwartz, General Counsel for the American Tort Reform Association, who talks about how false descriptions of lawsuits – or even completely made up ones – are pushed out there by his other buddies.  Not intentionally.  Ahem, cough, cough.  In fact, pushing out false descriptions of lawsuits intended to outrage the reader or listener have been the cornerstone of the “tort reform” movement for years.  In Hot Coffee, you’ll see U.S. presidents as far back as Ronald Regan engaging in this behavior.

It’s not like these PR stunts are any big secret.  Even if you haven’t seen Hot Coffee (HBO Signature is showing it again this month – check your listings!), we know that Snopes.com, a website that debunks urban legends, found that a list of six crazy “real lawsuits” circulating around the Internet since May 2001 was entirely made up, once causing media critic Howard Kurtz to come down hard on U.S. News & World Report owner Mort Zuckerman for repeating them.  See also Stephanie Mencimer’s article, “False Alarm; How the media helps the insurance industry and the GOP promote the myth of America's ‘lawsuit crisis,’” or professors Haltom and McCann’s book Distorting the Law; Politics, Media and the Litigation Crisis, which we talked about here.

Yet it is honestly still surprising to me when members of the media decide not to become the “tort reform” movement’s unwitting agents by promoting misleading, exaggerated or completely wrong descriptions of lawsuits.  So here’s a shout out to Fayetteville, North Carolina reporter Gene Smith, in his blog “Y’Think?”, who bucked the trend with a brutally honest critique of a U.S. Chamber of Commerce Institute for Legal Reform “Top 10 Crazy Lawsuits” BS list.  To wit:

[T[here’s no mention of the disposition of those cases, although the chamber did provide a link to the stories on which its Top Ten were based, and that made further research possible.… I count five dismissals (so far), and predict the same fate for the other plaintiffs.

Some filed their own actions. Why does that matter -- expense? Nah. It doesn’t cost that much to file something. Most who filed their own stuff probably did so because no lawyer would risk his reputation placing that kind of crap before a judge.

More important is that I found no evidence that any of the chamber’s Top Ten meritless cases has cost businesses (Oh: and, of course, pee-pul) anything more than a modest fee to answer the complaint and prepare to finesse it in a single motion if it comes to court. There’s not a bankruptcy on the list -- not even an itty-bitty fine.

And this matters … why?

Because (A) The Top Ten were posted by the chamber’s Institute for Legal Reform, a title that implies a need for a fix, and (B) the Institute’s annual roll call “helps to remind us that abusive lawsuits affect real people and real businesses, and can have harmful results to lives, jobs, and even our economic growth."

Please specify the harm to lives, jobs and economic growth caused by the 10 cases the chamber found representative of what it would have you believe is the norm or, at least, commonplace.

In North Carolina, you’re too late. We’ve already “reformed” because it’s hard not to become an instant convert (see above) if you stop thinking too soon. In addition to the “contributory negligence” doctrine that keeps you from recouping your full losses from an auto accident, our state now sports a new limit on liability if you’re wronged by a surgeon or some other provider of a product or service. (Nationally, we do the same for oil spills and nuclear mishaps.)

Feeling more secure yet? Enjoy the yuks. You’re the one who'll be paying the bill.

Ironically, this comes just as this year’s poster-child case for dreadfully-irresponsible reporting of jury verdicts was actually dismissed altogether, a case covered in the Center for Justice & Democracy’s report, Headline Blues, on which we reported here.  As noted in the report, while every headline about this case at the time  mentioned the eye-popping $322 million asbestos verdict, rarely was there any mention in the stories "the fact that state law automatically and severely caps both non-economic and punitive damages in Mississippi.  The highest any punitive damages award can be in Mississippi -for companies worth more than $1 billion - is $20 million.  And non-economic damages are capped at $1 million.”

People deserve to know the truth, right?  They sure don’t deserve to be played by PR campaigns and lobbying agendas.  At least Mr. Smith figured it out.

Fair Warning – When Worker Safety Ain’t Blow’ In the Wind

If you’re feeling a little lazy over the holidays and the corporate attacks on our judiciary (including publishing judges’ photos to alert every extreme-right wingnut in America – shameful, ATRA) isn’t quite enough to get your juices boiling again, I’ve got just the trick.  Check out the new journalistic endeavor from former Los Angeles Times award-winning investigative journalist Myron Levin, called Fair Warning, a non-profit news web site covering the latest “news of safety, health and corporate conduct."

We remember Levin at the LA Times, of course, covering everything from the tobacco industry (“The country’s leading smokers’ rights group has built a fat war chest despite minimal support from the 3 million people it claims as members, according to public records and internal documents that suggest its only significant backer is Big Tobacco.” ) to auto safety (“How much should General Motors Corp. spend to keep people from burning to death in fiery crashes? In a memo nearly 30 years ago, a young GM engineer, Edward C. Ivey, suggested that the answer was: Not much.”) to dishonest PR tactics behind the so-called “tort reform” movement ( “Legal Urban Legends Hold Sway; Tall tales of outrageous jury awards have helped bolster business-led campaigns to overhaul the civil justice system.”)

Fair Warning breaks new ground with stories like today’s expose of the wind power biz, which “has fallen short on worker safety.”  To say the least.   Writes Levin,

Thousands of the giant wind machines violate a federal requirement to give technicians who work inside the towers enough maneuvering space to get up and down their ladders safely. The standard says the space near the ladder should be free of permanent obstructions that could cause serious head or back injuries if a climber slips or is moving fast...

Two field technicians have sought to draw attention to the issue, saying they were stunned by the prevalence of the problem.

“Between my friends and I … we’ve been in thousands of wind turbines and haven’t found one that’s compliant with this issue,” said Ed Oliver, 47, of Dana Point, Calif.

Let’s just say that the treatment of these technicians - who are trying to save workers from serious injury or death and even offered the industry “their own version of a safety device” - has much to be desired, while OSHA has no idea what it’s doing.

Brian Sturtecky, OSHA’s area director in Jacksonville, Fla., and chairman of its wind energy task force, said enforcement activity is on hold while OSHA prepares a “Letter of Interpretation” to clarify how the standard will be applied.

The result could be a mandate for the industry to retrofit thousands of towers. Or, the industry could get a pass if the agency decides the hazard can be controlled by other measures, such as training.

The task force is examining other safety issues in the industry in the wake of some serious accidents.

In August, 2007, a worker was killed and another injured in the collapse of a tower at a wind farm near Wasco, Ore. Also, OSHA fined Outland Energy Services $378,000 for safety violations after an employee suffered serious electrical burns at an Illinois wind farm in October, 2010.

Fair Warning, which should be on your "must read" list for 2012, stands in the best muckraking tradition of Lincoln Steffans and populist tradition of Woody Guthrie.  We even think Dylan would be proud.

Headline Blues: Civil Justice In The Age Of New Media

Here’s a question.  Since Google, Google News, Facebook, Twitter – i.e., the world of new and social media – entered your life, do you think you’re more informed?  OK, maybe you’re spending more time with “news” each day, but that’s not really the question.  What exactly are you learning?

According to a new Center for Justice & Democracy study Headline Blues: Civil Justice In The Age Of New Media, when it comes to the civil justice system, what you’re learning isn’t so great.  It’s deeply skewed, fueling common misperceptions that civil juries routinely award plaintiffs eye-popping verdicts for frivolous claims.  These “new media” trends, which rely on headlines or brief, sensationalized descriptions, are producing an even more distorted understanding of our civil jury system. 

CJ&D explains how digital news aggregators like Google and social media like Facebook and Twitter function by communicating only the briefest set of words and often just headlines.  These headlines commonly emphasize large monetary awards, which do not reflect typical verdicts, and rarely note the misconduct that led to the verdict in the first place. 

Plus, CJ&D notes, economic pressures facing shrinking newsrooms, combined with the accelerating speed at which news must be produced, means that the public is being exposed to an overwhelming amount of brief, sensationalized and often incomplete coverage of civil jury verdicts.  CJ&D observed, for example, that a verdict subject to state law that automatically "caps" damages regardless of what a jury awards, is clearly something about which readers should be told.  Yet this is not being done, or at least not being done clearly and responsibly. Says CJ&D, this is harming the public discourse about the civil justice system and preventing everyday people from understanding how important this system is to them in their daily lives.

We try here at ThePopTort to counter some of these trends, but we're just one humble little blog. What do you say, fellow bloggers?  Let us know what you think! 

(A copy of the full study is here.)

Goodbye Andy Rooney, and Thank You for Reading Our Letter!

Andy Rooney signed off on 60 Minutes last night, you may have heard.  So allow us to dig back into the Center for Justice & Democracy archives for a curmudgeonly charming Andy Rooney story, which we’ll preface with part of the interview between Andy and Morley Safer on last night’s show:

Safer: You-- you've gotten tons of mail over the--

Rooney: I get---a lotta mail. I--more mail than---most people.

Safer: Do you answer any of them?

Rooney: Not much, no. I mean, who would wanna answer an idiot who has the bad sense to write me a letter? I mean, it's a certain kind of person who writes and they're not my kind of people, usually.

Safer: Well, they are your kind of people.

Rooney: Well--

Safer: They're the people who are--

Rooney: I suppose. But I-- I-- every once in awhile I answer one. But not very often.

You know, that’s what we thought too.  But back in November 2002, we were not very happy with a piece Andy did called “I'm Going To Sue,” which was full of so many inaccuracies and inflamed rhetoric about the civil justice system that he may as well had the U.S. Chamber of Commerce or American Tort Reform Association substituting as guest commentator.

So CJ&D wrote Andy a letter, politely but firmly challenging virtually every statement in his entire piece, figuring it would end up in some intern’s trash bin.  But we were very wrong.  Andy did read the letter.  Not only that, he called CJ&D, said he liked the letter and was going to mention it on the air.  And sure enough, on January 13, 2003, he said in a most curmudgeonly endearing way:

ROONEY: (Voiceover) This is from Joanne Doroshow at the Center for Justice & Democracy, whatever that is.

She complains, but it's a good letter.

(Footage of letter)

ROONEY: (Voiceover) 'Your commentary did a disservice to the debates over the importance of the civil justice system.'

Well, maybe it did and maybe it didn't, but next time that woman buys takeout coffee at McDonald's, I'll bet she'll have it with milk.

(Hopefully, he caught Hot Coffee on HBO this summer!)

Meanwhile, not the same can be said for Morley Safer, who also in 2002 did a disgraceful piece about the civil justice system in Mississippi.  In a similar letter, CJ&D wrote to Mr. Safer:

It was not enough that the piece simply parrots the outrageous claims of the business and medical communities that Mississippi jurors are rendering large verdicts against negligent drug companies and doctors not because jurors have listened to the evidence in a case (unlike Mr. Safer, I might add), but because they are poor, dumb, uneducated and black (or, in an equally unbelievable allegation, redneck and trying to render “payback for the Civil War.”)  But you don’t stop there. You allow an unidentified man to make a completely outlandish, highly inflammatory and unsupported statement that jurors in Mississippi were being paid for their verdicts. So they’re not only poor and dumb, they’re also crooks.

This letter apparently did end up in the 60 Minutes trash heap. But the program was sued over this piece,  and incredibly, the person who told Safer that juries were being paid off, "since told local reporters he was joking and thought the cameras were off, according to local reports. 60 Minutes, which has stood by the story, said in its report that it tried to contact several jurors, but none would talk.” Wow, not exactly the kind of response what might expect from the paragon of journalistic integrity that 60 Minutes thinks it is.

It’s a shame because as we also noted in our letter to Safer, “In the 1980s, 60 Minutes engaged in some ground-breaking journalism with correspondent Ed Bradley and producer David Gelber that exposed myths about juries and the civil justice system, which were then and continue to be perpetuated by the insurance industry, drug companies, tobacco companies, medical lobbies and other special interests seeking to limit their liability from lawsuits.”

We never said thanks to Andy Rooney so we'd like to say it now, and under the circumstances, we’re bound to miss him even more.

New York Times: The Playgrounds are Too Damn Safe!

Memo

To: Barbara Strauch, Science Editor, The New York Times
From: Your Boss
Re: “Can a Playground Be Too Safe?”
Date: July 19, 2011

Barbara,

I know we’ve been cutting staff like crazy over here, but I hope you agree that brain pieces aren’t the only ones in need of your skilled edited assistance, especially ones that are entirely self-contradictory yet end up on the front page of the Science Times section. 

To wit, today’s article by John Tierney called “Can a Playground Be Too Safe?,” about how today’s safer playgrounds are “stunt[ing] emotional development” and suggesting we should consider going back to the days of much more thrilling prison-style steel playground structures of the 1950s.

Mr. Teirney argues that today’s safer playgrounds aren’t risky enough, and in fact, are “leaving children with anxieties and fears that are ultimately worse than a broken bone.”  A few paragraphs down, he supports his view by quoting an expert who says, “There is no clear evidence that playground safety measures have lowered the average risk on playgrounds.”  In other words, kids are still encountering risks and, we assume, “overcoming anxieties and fears” – just on better equipment.  So to begin, this whole thing is pretty confusing.

The basis for this article is a study done in Norway, England and Australia.  These are countries with no right to trial by jury in civil cases and with universal health care paid for by taxpayers.  So although it’s not stated in the article, we assume their motive for moving to safer playgrounds is the safety of their children and lowering the health care costs of their countries.  Such an explanation is apparently a problem for someone intent on finding any opportunity to take a gratuitous swipe at the U.S. trial bar for no reason.  Like here, when Mr. Tierney writes:

The old tall jungle gyms and slides disappeared from most American playgrounds across the country in recent decades because of parental concerns, federal guidelines, new safety standards set by manufacturers and — the most frequently cited factor — fear of lawsuits.… Fear of litigation led New York City officials to remove seesaws, merry-go-rounds and the ropes that young Tarzans used to swing from one platform to another. Letting children swing on tires became taboo because of fears that the heavy swings could bang into a child.

“What happens in America is defined by tort lawyers, and unfortunately that limits some of the adventure playgrounds,” said Adrian Benepe, the current parks commissioner.

Now that sounds nasty.  So I was more than a bit surprised to read, in complete contradiction to this sentiment, Mr. Tierney continuing, “But while he misses the Tarzan ropes, he’s glad that the litigation rate has declined, and he’s not nostalgic for asphalt pavement.  'I think safety surfaces are a godsend,' he said. 'I suspect that parents who have to deal with concussions and broken arms wouldn’t agree that playgrounds have become too safe.'"

In other words, litigation is working to protect kids, make parents happier and save money.

A little editing would have helped.