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Leaked Memo from the U.S. Chamber of Commerce!

Hey, look what just appeared in our inbox!

Confidential Memo

From: The U.S. Chamber of Commerce

To:  Our Unceasingly Persecuted Members

Re: Those Unhinged State Attorneys General

Date: May 14, 2013

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I don’t know about you, but when I think about “Attorneys General” these days, the word “deranged” comes to mind.  I’m not even talking about Eric Holder.  Stealing confidential info?   Big deal, that’s our specialty!   (He should have asked for our help, am I right?)

I am talking about the AG variety coming out of radical states like South Dakota, where the state AG is wasting taxpayer money “spending a lot of time” (his words) trying to prevent people from being scammed by so-called “bad people” from Canada who are calling and telling people they have an error on their tax returns.  Don’t people know that if a Canadian calls they shouldn’t pick up the phone?

Or Missouri, where the tree-hugger AG has filed a lawsuit against the owners of the Bridgeton Sanitary Landfill for violating environmenal laws just because they leaked hazardous chemicals in the air and black liquid leachate into groundwater, upsetting area residents who “for years have been putting up with the stench of a burning landfill.”  Duh, why don't they just move?

And now, 43 state AG’s are asking the FDA to “place a ‘black box warning’ on labels of the opioid category of prescription-pain relievers to alert pregnant women that use of such drugs may harm infants.”  They say that “the use of opioids ‘has increased at alarming levels,’ triggering more cases of a condition known as Neonatal Abstinence Syndrome.”  Let me just say that the federal government doesn’t need any “help” from the states.  Don’t they know that the FDA is perfectly able to handle any and every little safety hiccup that comes along? 

All I can say is, thank you (in advance) U.S. Supreme Court.  As luck would have it, next week, the Justices are meeting to decide whether to take a couple cases that could – hopefully - once and for all block a bunch of AG lawsuits.  (Well, at least make it far more difficult for any AG to bring one.)  Writes Reuters today:

A federal statute passed in 2005, known as the Class Action Fairness Act (CAFA), aimed to give federal courts jurisdiction over lawsuits involving large numbers of plaintiffs. But it is not clear whether the statute was meant to apply to suits filed by state attorneys general seeking to recover damages for their citizens.

Oh, it will be clear soon enough. Because if history is any guide, we know that SCOTUS won’t hesitate to decide what Congress “really meant to say” even though they forgot to actually write it in the statute.  (Like here.)  Especially if that means flooding the federal court system with even more lawsuits that it cannot possibly handle.  SCOTUS will do anything to protect us, that much we know. 

Continues Reuters:

[The states say that] CAFA makes no reference to lawsuits filed by state attorneys general and that imposing federal jurisdiction on their lawsuits would infringe on their sovereignty. They also argue that as states, they should not be considered "citizens" for diversity purposes under CAFA.

So far, only the 5th Circuit has agreed with corporate defendants. In the price-fixing case brought by the Mississippi attorney general against LCD makers, the court adopted a so-called "claim-by-claim" approach that analyzes who would benefit from a lawsuit, not simply who brought it, when deciding jurisdiction.

In his petition to the Supreme Court, Mississippi Attorney General Jim Hood argues that the 5th Circuit's decision conflicts with Supreme Court precedent.

“This Court has consistently held that a state’s overall interest in the case it has brought in its name is the determinative inquiry, not who may ultimately benefit from the relief sought,” wrote lawyers for Hood's office.

Silly AG.  Precedent?   Don’t they know who’s in charge now?  

For Senior Citizens, The Good and the Bad

For seniors, I’ve got some good news and some bad news today.  The good news first.

AARP has started an online dating service!  Actually, AARP members qualify at age 50 (much to the dread of every person who, the day after they leave their 40s, starts receiving AARP membership solicitations), so this isn’t exactly senior-exclusive news.  I mean, The Rolling Stones are celebrating their 50th anniversary as a band.  Am I right? 

Unfortunately, though, today’s senior citizen bad news is a little more overwhelming.

Today comes word out of Lumberton Mississippi that the U.S. Department of Justice is joining a whistleblower lawsuit against a former south Mississippi nursing home operator who “charged Medicare and Medicaid for services that he didn’t provide or for services so bad they were ‘effectively worthless.’”  To put it mildly.  Writes the Associated Press, 

Douglas K. Mittleider and companies he controlled ran the nursing home from October 2005 until May 2012. The suit says Mittleider and his companies withheld employees and supplies, letting the nursing home run down while providing only the bare minimum of cash to operate. Among items that were supposedly rationed to save money were towels, garbage bags, laundry bags, medical tubing and oxygen bottles. Staff members were sometimes asked to delay cashing their paychecks.

The suit says residents suffered pressure ulcers, falls, dehydration and malnutrition. In one case, a snake was found in the bed of a patient complaining of leg pain. Residents complained of being hungry and one administrator used personal money to buy them snacks, the suit says.

This was apparently part of a “nationwide scam by Mittleider to bilk nursing homes for money while stiffing creditors.”   He could “face triple damages for all the money his companies have received from federal programs, plus civil penalties.”  

As if that weren’t bad enough, last week, a medical malpractice lawsuit was filed against an Illinois nursing home after 57 maggots were discovered in the ear of a 90-year-old Alzheimer’s patient. 

And the plight of nursing home residents during Hurricane Sandy, revealed in this terrifying New York Times story last week, continues in the news.  Here’s yesterday’s letter to the editor from Suzanne Mattei, Executive Director of New Yorkers for Patient and Family Empowerment:

Your revealing investigation of the hazards suffered by nursing home residents after Hurricane Sandy raises many disturbing questions. How many residents failed to receive needed medication? How many suffered health effects from the “cold, wet darkness” that ensued when the power went off?

And what effects have been suffered by the people in the affected communities who live at home but need home care or other assistance? Let’s remember that the power failure affected people both inside and outside the evacuation zone.

These and more questions about our health care system’s preparedness and response must be examined in public settings. We will need all of our elected officials — at both the state and the local level — engaged in ferreting out the facts and finding solutions for the future.

One thing is certain: This should never happen again.

Boy, let’s hope not.

Don’t Fool with Consumer Watchdog, and Other Election Observations

If you’re one of the 18 to 29-year-olds who made up 19 percent of voters this year (a higher percentage youth vote than in 2008! Yay!), you are mostly likely unfamiliar with an annoying 1970s Chiffon Margarine TV commercial that goes “It’s Not Nice to Fool Mother Nature!”  But whether you’re 18 or 85, that universal “don’t fool with me” sentiment seems to have marked a number of election contests this year, even besides the obvious (i.e., women, gays and pot!) 

Let’s start with the California’s insurance industry. Don’t mess with the 1988 insurance reform initiative, Proposition 103, and the consumer group behind it, Consumer Watchdog. Billionaire Mercury Insurance Chairman George Joseph just wasted $17 million on his Proposition 33, which would have repealed Prop. 103’s provision preventing insurance companies from charging more to drivers who had a lapse in insurance coverage. This is about what Joseph spent almost exactly two years ago on basically the same ballot measure. Yet despite being outspent by Joseph 70 to 1 (the Consumer Watchdog coalition had only about $275,000), Prop 33 went down!  Next up for Consumer Watchdog: the health insurance industry! 

Speaking of the insurance industry, seems like they’re a little nervous that their influence-peddling in Congress may be in need of some new targets. Reports the National Underwriter’s website,

Rep. Judy Biggert, R-Ill., was defeated for re-election, a victim of redistricting. She headed the Subcommittee on Insurance, Housing and Community Opportunity of the House Financial Services Committee, and was expected to be a big player on insurance issues. She shepherded the [National Flood Insurance Program] bill through its tortuous, five-year path to a long-term extension. The bill was finally enacted in July. It is unclear who will succeed her as chair of the insurance subcommittee. Biggert was also expected to be a key player on regulatory issues as well as in gaining passage of A Terrorism Risk Insurance Act extension.  Joel Wood, senior vice president of congressional affairs of the Council of Insurance Agents and Brokers, called Biggert's defeat, “extremely disappointing to the insurance industry.”

I can see why they’re anxious.  Between escaping payment for climate-related floods and getting bailed out for terrorist attack losses, this industry clearly needs some friends.  

And speaking of elections, here are a few other interesting outcomes:

• The U.S. Chamber of Commerce finally got their wish in West Virginia, ousting consumer-friendly AG Darrell McGraw who had held office for 20 years, “perhaps marking the start of major changes to West Virginia consumer protection litigation… [McGraw] has won the state more than $2 billion in consumer protection lawsuit settlements against pharmaceutical, coal and tobacco companies and unscrupulous lenders, according to his office.”
• They also got supermajorities in states like Indiana, Wyoming and Tennessee (both Houses), North Carolina (one House plus Governor) and won back majorities in states like Wisconsin. (See more here and here.) But the good news is that state houses flipped the other way in Colorado, New York, Maine, Minnesota, and Oregon (where there had been a tie), with apparent supermajorities in California and Illinois!  And that awful New Hampshire Speaker who pushed through that horrendous anti-patient medical malpractice bill (which we covered here) is no longer speaker since the Democrats took over!  Let’s hope a repeal is on the way!

As far as Supreme Court races, here’s some of what we know:

• Three Florida Supreme Court justices retained their seats in retention votes despite organized campaigns by conservative organizations to oust them.
• Iowa retained Justice David Wiggins, the Supreme Court Justice who had ruled on same-sex marriage with a 54% retention rate.  (This is in counter to two years ago when 3 of Wiggins’ colleagues were thrown out by voters.)
• In North Carolina, incumbent Supreme Court Justice Paul Newby won over appellate Judge Sam “Jimmy” Ervin IV thanks to an unprecedented and disturbing amount of outside money from business interests and conservative groups. 
• In Mississippi, attorney Josiah Dennis Coleman won over pro-consumer attorney Richard Phillips due to nasty outside money:  "The out-of-state special interest group Law Enforcement Alliance of America ran advertising in north Mississippi blasting Phillips as a trial lawyer who had filed a lot of lawsuits against business. …Phillips said the Virginia-based LEAA was trying to buy a seat on the court. He said such groups can put out negative ads that distort the truth without disclosing who are the individuals paying for the ads."

It’s not nice to fool Mother Nature, or with the truth.

Challenging the Barbarity of Caps

In honor of Memorial Day, here are a few patriotic factoids.  The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.  What has happened to our nation's respect for civil juries?

We’ve covered the tragic case of former student Ashley Zauflik, who was the victim of an out-of-control school bus, which mowed down about 20 kids.  Ashely lost her leg, and a jury awarded her $14 million.  But because the bus was owned by the school district and not a private company, an outrageous and frankly cruel law was triggered, which caps total compensation to her at $500,000.  Yesterday, the judge in the case was forced to cap her award at this amount, even though the school district has an $11 million insurance policy.  The judged practically begged the state Supreme Court to do something, saying,

“There is no dispute that the circumstances of this case create an unfair and unjust result” Bucks County Judge Robert J. Mellon said while upholding the liability limit on school districts and municipalities. A “reevaluation of the constitutionality of the statutory cap on damages … is necessary.”

Pennsylvania, step in line.

Florida’s high court is now considering that state’s non-economic damages cap in medical malpractice cases.  The case, “McCall v. U.S., concerns 20-year-old Michelle McCall, who bled to death while giving her birth to her son” due to the negligence of the medical staff. Among the damages awarded in that case was $2 million in non-economic damages, including compensation for her son’s pain and suffering. The cap reduced this to $1 million.

“The Florida judiciary has already determined in the past that damages caps violate the state constitution because they don’t provide access as everyone has understood it,” says Robert Peck, the lawyer representing McCall’s estate in the case. “Access means full redress for the injury received. So a person who receives $1 million when full compensation should have been $2 million did not have that access.”

Meanwhile, in April, the Missouri Supreme Court upheld that state’s wrongful death cap, but a new challenge has now reached the court.  At the end of March, writes Tort Prof Blog,

[T]he Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution.  In 2011, a jury decided that physicians failed to act when an unborn child showed signs of distress in the womb.  The child was born with cerebral palsy and will not progress beyond the mental capacity of a three-year-old.  The jury awarded $4,821,000 in total damages.  Of that amount, $1.45M was non-economic and was reduced to $350,000 pursuant to the cap.

And in Mississippi, a local judge ruled in April that Mississippi's cap was unconstitutional, noting, "The issue is not whether the limits imposed under the statute are reasonable. Rather, the issue is whether the Legislature has the authority to impose any limits, reasonable or not."  He said the framers of the constitution created the civil justice system and put the courts in charge of it.  Meanwhile, the state Supreme Court is already considering the constitutionality of the cap, after the question was certified to it by the U.S. Court of Appeals for the Fifth Circuit in a case against Sears.  In that case,

Lisa Learmonth sued Sears, Roebuck and Co. after she was in a collision with one of the company's vans near Philadelphia, Miss., in 2005.

A federal jury in 2008 determined Sears was liable for Learmonth's injuries and awarded $4 million in damages. The parties agreed $2.2 million was for non-economic damages, and the federal judge reduced that part of the damages to $1 million.

Hey, if you want an excuse to escape the relatives this Memorial Day weekend, just tell them that you want to bone up on a very patriotic topic, and then go here.  Much healthier than eating hot dogs.  Happy reading!

ALEC’s New Tactic – Defunding State Budgets

Governors, better start taking good notes.  If you thought you were having money woes already, wait until the American Legislative Exchange Council comes to town  Actually, they’ve probably already been there (and yes, we know you know).

ALEC and the big corporate members who control its agenda have a thing – a very big thing – against state Attorneys General (see more here), especially the ones who target corrupt and harmful corporate practices and force these big corporations to pay the state back – with millions or sometimes billion of dollars.  (Note that these lawsuits don’t cost the state a thing even when the AG brings in outside help, because fees are all paid by the companies – not the taxpayers.)

So for example, in the late 1990s, state attorneys general in 46 states forced the tobacco industry to settle for more than $200 billion to reimburse states for having shelled out huge funds (via state Medicaid budgets) to pay for one of the biggest public health disasters in modern times - the one caused by cigarette smoking.  These lawsuits also exposed the industry’s corrupt practices, uncovering for the first time how it promoted addiction through manipulation of nicotine levels, engaged in a secret campaign to hook teens and even pre-teens and lied to government officials and the public. (See more in this CJ&D fact sheet.) 

Turns out that getting fraudulent and in some cases criminal corporations to pay states back (not to mention taxpayers who were hurt or ripped off) is just something state AG’s do, thank goodness.  There are countless other examples. 

Like in October 2008, when Eli Lilly settled with 33 state AG’s over Lilly’s marketing of the anti-psychotic drug Zyprexa.  Somewhat like the tobacco companies, Lilly had deliberately kept information from doctors and consumers about Zyprexa’s links to severe weight gain and elevated blood sugar, both known risk factors for diabetes, because it would weaken sales.  What’s more, several state AGs pursed individual lawsuits against Lilly, which they only could do with the help of outside counsel. In April 2010, Louisiana Attorney General Buddy Caldwell announced a $20 million Zyprexa settlement with nearly $17 million going to the state’s general fund, $3 million reimbursing the state’s Medicaid fund and the company pledging to significantly change the way it marketed Zyprexa.  In October 2009, South Carolina reached a $45 million settlement with Lilly - over $37 million went to Medicaid/State Health Plan reimbursement, with Lilly pledging to institute significant changes in how it marketed Zyprexa.  As then-South Carolina Attorney General Henry McMaster explained when announcing the settlement, “The Eli Lilly case was handled on a contingent basis by special counsel appointed by the attorney general.  Special counsel paid and incurred all up front costs associated with bringing the case, and their expertise in similar pharmaceutical litigation was instrumental in its successful resolution.”

We could go on and on, but you get the idea. (See more examples here, here.)  So to sum up, AG’s get states large sums of free money from corporate wrongdoers, reimbursing state coffers at no cost to the state.  Enter ALEC.

Yesterday, after refusing to even allow Mississipppi AG Jim Hood to speak at a legislative hearing, Mississippi lawmakers moved at "warped speed" to pass an ALEC bill that strips away significant powers from Hood, a pro-consumer AG and the only statewide Democrat in office.  Mississippi, you will recall, had led the nation in going after the tobacco industry and getting billions back for state governments.  ALEC has made plenty sure that won’t be happening again in Mississippi.  

Responded AG Hood:

"In the past eight years the office has recovered more than $600 million for our taxpayers from wrongdoers without costing the taxpayers one dime ... However, the huge corporate interests that paid for and supported this bill through the American Legislative Exchange Council have decided that they did not like having to pay what they owed the taxpayers of Mississippi."

And in terms of ALEC’s agenda, it gets worse.  At its recent meeting in Charlotte, ALEC discussed its new scorched-earth approach: an unbelieveable bill that would simply stop an AG from bringing any kind of lawsuit unless they get prior state legislative approval. 

Governors, your move.

BP’s Health Impact – We’ve Only Just Begun

Albert Schweitzer once said, “Happiness is nothing more than good health and a bad memory.”  If you live in the Gulf region, I would imagine you’d need a pretty bad memory to forget the BP oil rig explosion and spill, celebrating it's second anniverary today.  For others, good health may be just as unlikely right now.

Like all environmental disasters, the most serious health effects take time to develop.  Just look at the terrible state of affairs for Ground Zero clean up workers, who are sick and dying more than a decade after 9/11. People are still sick and dying today in Bhopal India, 27 years after a horrendous chemical explosion.  They’re all like this, these catastrophes.

BP’s Gulf Coast disaster is no different.  So much focus has been on the commercial losses suffered by individual and businesses.  Please don’t get me wrong, these are important.  In fact, we note with interest the results of a new audit of the Gulf Coast Claims Facility, commissioned by the U.S. Department of Justice, which found,

Thousands of people affected by the BP oil spill will receive $64 million in additional compensation after an independent audit identified “significant” errors in the claims process set up after the disaster, the Justice Department said Thursday.

The independent audit, conducted for the Justice Department by an outside consulting firm, found that the Gulf Coast Claims Facility (GCCF) did not adequately compensate 7,300 individuals and businesses.

In addition, the audit found 2,600 claims that were wrongly denied, but will not receive additional payments, “because their claim files did not contain information needed to determine whether the claimants sustained a financial loss,” according to an executive summary of the audit.

Notably,

Last month, the Mississippi Center for Justice, which provided pro bono legal services for claimants, said it was helping 7,000 people who were not part of the litigation and were struggling to navigate Feinberg's complex claims process. Martha Bergmark, the center president, said the process needed to be more transparent and equitable.

John Jopling, the center's managing attorney in Biloxi, thanked the Justice Department for a speedy and thorough review, but said the center "hopes it's just the first step to paying tens of thousands of claimants who haven't been paid and may still be awaiting a determination."

Yet those facing health problems are in even worse shape.  So kudos to the Huffington Post, for taking on this issue and, sadly but not unexpectedly, finding some horrendous health problems surfacing - especially among children living close by.  One mom, Nicole Maurer, has several terribly sick children and now, her kitchen cupboard “resembles a pharmacy” with all the medications they need.  Yet until now, her family has had no recourse whatsoever: 

Nicole Maurer’s claims for compensation from BP have so far been “denied, denied, denied,” she says. “Did I say ‘denied?'” Her husband, William, earns a fraction of what he used to as a commercial fisherman, making their plan to move away from the Gulf Coast all but impossible.

… William says he is “sure” he brought chemical dispersants and crude oil home every night while working on the Gulf cleanup. “I never got one piece of protective equipment or clothing,” he says, before erupting into one of his frequent coughing fits and spitting into the garbage can. A lack of protection for the cleanup crews has made its own headlines over the last two years.

I say “until now,” because attorneys working on behalf of the victims have forced BP to cough up some money to help families with chronic health problems and to institute critical medical monitoring.  Kudos to them, because without litigation, BP would have had no motive to do it – especially since they still deny any liability for these claims.

Writes marine toxicologist and Exxon Valdez survivor Riki Ott,

For two years, BP and the state and federal governments denied the epidemic of respiratory problems, dizziness and headaches, horrific skin lesions, and blood problems was linked with the oil and chemical disaster -- despite the fact that medical literature identifies these identical symptoms as characteristic of oil spill exposure. Now under the BP-Plaintiffs' Settlement, BP has agreed to pay literally billions of dollars for medical claims, medical monitoring for twenty-one years, medical services, and community health clinics for underserved populations staffed with specialists in chemical illness treatment -- but with no admission of liability.

Of course not.  What else is new?

Trayvon Martin and James Craig Anderson - Hate Crimes’ Civil Remedies

We’ll soon know whether the U.S. Department of Justice considers the gunning down of Skittles-carrying Florida teen, Trayvon Martin, a federal hate crime.  (See here, here.)  But the national outcry over Florida’s failure to arrest Martin’s killer and the fact that DOJ has had to step in at all, just goes to show how fundamentally flawed our country’s criminal justice system can be when it comes to holding accountable those engaged in bigotry and violence. 

In fact, as we’ve noted before, sometimes it’s only through litigation before civil juries that important facts about civil rights violations and hate crimes are discovered—facts that often could not have been obtained publicly through other means.  In these cases, civil trials can allow a more diligent and sustained inquiry into the facts, in addition to, or in lieu of, a probe by government prosecutors.

Actually, buried in the news today is chilling story not unlike the Trayvon Martin case, which makes this point pretty well.

Yesterday, Deryl Dedmon, a young white Mississippi man, pleaded guilty to murder and a hate-crime and was sentenced to life in prison for the 2011 murder of James Craig Anderson, African-American man.  The facts are beyond despicable - or dispute - since a surveillance camera captured most of it:

Anderson died after he was beaten and run over by a truck driven by Dedmon, according to police. Dedmon was part of a group of seven white youths from largely white Rankin County who decided to "go f**k with some niggers," after a night of partying and drinking, law enforcement officials have said, quoting some of the suspects in the case.

Smith has said the evidence indicated the suspects, who ranged in age from 17 to 19, "went out with the intention to harm and, in this case, kill a black man." According to investigators, they drove 16 miles in two vehicles from Rankin County to Jackson, where after exiting the highway, they found Anderson alone in a parking lot about 4 a.m. on June 26.

The white men allegedly beat Anderson repeatedly, yelling racial epithets. After the beating, Dedmon drove his Ford F-250 truck over him, leaving him to die, according to what some of the teens cooperating with police have told authorities.

“I was young and dumb, ignorant and full of hatred,” said Dedmon.  And as reported by the New York Times:

Marches were held and some Jackson residents and civil rights leaders complained that the local police and prosecutors did not act quickly enough to arrest the seven white teenagers from a neighboring county who drove to Jackson in two vehicles on a hot June night with the intention of finding an African-American to harass.

What will happen to those other teenagers is likely to be revealed on Thursday when the results of a Justice Department hate crime investigation are aired in court, according to two people with detailed knowledge of the case.

We’ll see what DOJ decides to do.  But in addition, "The family has filed a wrongful death suit in the case against all seven teenagers who the police say were involved, including two girls."  Said Morris Dees, a founder of the Southern Poverty Law Center, who is working with the family and their lawyer, Winston J. Thompson III, “the family would continue to push for a civil trial so that more about the case could be revealed. ‘You continue to see this around the country, the systematic targeting of black people. That’s what happened here and that’s what happened in Florida.’”

The Southern Poverty Law Center has been the most effective group in the nation using tort suits to bankrupt and shut down hate groups.  So next time you hear folks complaining about lawsuits and wanting to limit victims’ access to the civil courts, it might be good to think about the families of Trayvon Martin and James Craig Anderson, the terrifying rise of hate groups in America today, and how civil litigation might protect us all.

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.

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.

Mississippi’s New Tort Hope

Mississippi is one of those states that Corporate America won’t stop kicking.  Over the last two decades, the state has enacted a seemingly endless number of laws that strip away the rights of everyday folks who live there.  In 2004, for example, lawmakers severely limited the liability of corporate wrongdoers, enacting both non-economic and punitive damage caps and a number of other measures taking away Mississippians’ legal rights.  You would think Corporate America would finally shut up after this, but they just seem incapable of giving it a rest! 

But finally, there may be some relief in sight.  The state Supreme Court heard arguments this week about the constitutionality of its non-economic damages cap.  It is a case that a federal court asked the state high court to hear after “a federal jury in Mississippi found Sears liable for Lisa Learmonth's injuries [after she was in a collision with a Sears van] and awarded $4 million in damages, of which the parties agreed $2.2 million was for non-economic damages.”  The federal judge reduced the non-economic damages to $1 million because of the state cap.  She appealed the reduction, and so the federal court asked the state court “to determine whether the Legislature overstepped its authority in passing the law and whether the law violates a constitutional right to have a jury determines the facts of a case, including damages.”

Not exactly a far-fetched idea. “Caps” on damages have been struck down as unconstitutional by the Supreme Courts of many states, including most recently Georgia and  Illinois. See more examples here.

By they way, speaking of Corporate America’s longstanding attacks on Mississippi Supreme Court Justices, be sure to check out the documentary “Hot Coffee” which airs on HBO June 27 (see our earlier coverage this week) for a look at the incredible story of former Justice Oliver Diaz, who was the victim of bogus political prosecutions that ruined his judicial career.