ThePopTort

Get Out of our Bodies, Johnson & Johnson

Yesterday, a New Jersey jury ruled in the first of about 1,800 vaginal mesh cases pending in that state against Johnson & Johnson and its subsidiary, Ethicon.  The jury could not have been more clear: $3.35 to a South Dakota nurse, who was surgically implanted with a Gynecare Prolift vaginal mesh.  This device injured her so severely that she’s already undergone 18 operations to try to repair the damage. From our earlier coverage of vaginal meshes: 

The FDA approved surgical meshes for procedures like abdominal surgery.  But J&J began marketing them for use in a women’s vaginal area, treating problems like incontinence.  Subsequently, hundreds of women became severely injured and some died as the meshes began disintegrating, growing into tissue and becoming impossible to remove.

Meanwhile, the company’s Securities and Exchange Commission filing revealed last Friday that the United States attorney’s office in Massachusetts and the civil division of the Justice Department are investigating J&J's marketing of its its ASR hip replacements.  That’s the Frankensteinian device that J&J finally recalled in 2010 even though it apparently knew the device was failing and releasing high levels of metallic ions, and which it is now defending in a bunch of lawsuits. See some of our previous coverage here. 

And also last Friday, the U.S. Food and Drug Administration said it has “notified healthcare professionals of a Class I recall, the most serious type,” of J&J’s LPS Diaphyseal Sleeve, used in reconstructive knee surgery.  Apparently, says the FDA, this device as the “potential for fractures” and the FDA has already received 10 reports of the device malfunctioning: 

A fracture in the sleeve at the joint of it could lead to loss of function or loss of limb, infection, compromised soft tissue or death, the FDA said.

From now on, Johnson & Johnson needs to stick to cotton swabs.  The outer ear is as far inside the body we would like J&J products to go, thank you very much.

Hurricane Homeowners Also Victimized by Ambiguous Insurance Policies

There are some aspects of the insurance industry’s response to Hurricane Sandy that would almost be funny if not so tragic. Take the Traina’s of Staten Island. Their flattened home “was crushed in part by falling trees and its wreckage pushed back from the street by sanitation trucks.”  Despite this, their insurer Allstate is claiming all by $10,000 of damage was caused by flooding, and claim that their homeowner policy’s standard “flood exclusion” shields Allstate from paying any more than $10,000. The Traina’s are desperately trying to get a fair settlement out of this company, which so far refuses.  But here’s the incredible part (since so far, the story is fairly typical.)  Allstate is using the Traina’s flattened home in TV commercials touting its “you’re in good hands” slogan!  Really, have they no shame at all?  (Rhetorical question.)

It’s a undeniable fact that insurance companies are quick to deny responsibility for most of the damage its policyholders suffer from Hurricanes. (See our prior coverage here,) Immediately following Katrina, some tried to argue (although unsuccessfully) that these flood exclusions in homeowners policies should be void because, by their very nature, they are designed to leave people stuck after a hurricane.  You can see the point. This is so confusing for policyholders because flood exclusion clauses are contradicted by other sections of the same insurance contract. 

For example, many policyholders are asked to sign “hurricane endorsements” with clearly labeled “hurricane deductibles" (usually for some percentage of the property value), while at the same time, flood damage connected to hurricanes is purportedly excluded elsewhere in the policy. This misleading language is often compounded by the fact that the flood exclusion is never explained to the policyholder, or that many people are told by their insurance agents that they do not need to purchase federal flood insurance because their homes are not in flood zones. Newsday reports, for example, that “fewer than half of the 95,500 buildings damaged in Nassau and Suffolk counties by superstorm Sandy were covered by flood insurance.”

Ambiguous policy language is supposed to be construed in favor of the policyholder, since it is drafted by the insurer and presented to the consumer on a take-it-or-leave-it basis.  But clearly, more needs to be done to help policyholders BEFORE they sign these contracts.  That’s why we were so glad to see that in New Jersey, a bill has been introduced “that would require home insurers to provide New Jersey policyholders with a one-page summary about what their insurance covers, and what it does not" (although the bill reportedly got a pair of amendments that “made the measure more palatable to the insurance industry,” i.e., they will “prevent the summary from being read or construed as part of one's policy.” Oy.)  But here’s what the bill will do:

The proposed summary would list “notable” events that are covered or excluded from one’s homeowner’s policy. It is intended to dispel some of the confusion that arose after Hurricane Sandy, when many homeowners were surprised to find out their insurance did not cover their homes to the degree they expected. For example, standard homeowner’s policies do not cover flood losses, while separate flood insurance, which is underwritten by the National Flood Insurance Program, is subject to many limitations.

The proposed one-page document would come packaged with a person’s homeowners policy and subsequent renewals, alongside other consumer information about hurricane deductibles and flood insurance.

This won’t solve every problem, clearly.  But one thing at a time, I guess.

Road Safety Tips, PopTort Style

The National Safety Council has issued a lovely statistic for this Thanksgiving holiday (which, for their purposes, runs from 6:00 p.m., Wednesday, November 21 until 11:59 p.m., Sunday, November 25.) They estimate that 451 will die on the road and about 48,300 will have “nonfatal medically consulted injuries.”  Ah, Thanksgiving, a.k.a., the deadliest time to be out driving.  So we’d like to offer PopTort fans some holiday tips to stay safe.

First of all, don’t be drivin’ in red states. You heard us!  In one of the more curious car crash stats out there, it seems like, 

To an extent that mystifies safety experts and other observers, federal statistics show that people in red states are more likely to die in road crashes. The least deadly states – those with the fewest crash deaths per 100,000 people – overwhelmingly are blue.

Lots of theories on why this may be: speed limits, access to trauma centers, long rural roads, Chris Christie yelling at New Jerseyans. 

But to be serious about this, there’s also the very grim reality of distracted driving (texting), which is now involved in one in four accidents despite 38 states banning it. In fact, speaking of New Jersey, courts there are grappling with an interesting new twist in civil litigation theories about texting-related crashes. A decision is expected soon (Friday according to this CBS report) on an appeal brought by a couple horribly injured by an 18-year-old driver, who slammed into their motorcycle while he was texting. David and Linda Kubert, who both lost legs in the crash and are now in serious financial straits, settled with the teenage driver for $500,000.  But they have also sued his girlfriend Shannon Colonna, who they say was the one who kept texting the boy, knowing he was driving (although she denies this).

The argument is that while “Colonna was not physically present at the wreck, she was ‘electronically present.’” They argue, “Colonna knew, or should have known Best would have been driving and was therefore partly liable. [Their attorney] said her actions constituted aiding and abetting negligence and that she was ‘virtually present’ at the scene of the accident.”

At this point, they are just asking for the case to go to a jury. It’s on appeal because earlier this year, a lower court judge dismissed the case against Colonna on summary judgement, a first-of-its- kind case at the time. We expect it won’t be the last.  Drive safely, everyone.

Civil Justice Has Left the Building

Actually, the exact quote could be found on stickers worn by union reps outside LA’s downtown courthouse last week: “Justice has left the building.” But if you’re in California, or for that matter, if you’re poor anywhere, it’s really “civil justice” that’s not only left the building but has essentially flown off to wherever Elvis himself is these days.  And I don’t mean Vegas.

Responding to a severe statewide budget crisis, on Friday the Los Angeles County court system began a series of extraordinary layoffs and cutbacks affecting “431 employees and 56 [mostly civil] courtrooms in a county that's home to nearly 10 million people.”

Presiding Judge Lee Smalley Edmon said it was one of the saddest days in the history of the Los Angeles Superior Court. She expressed concerns for the people laid off as well as consumers who will face a slowdown in resolving civil cases.

"Could we be heading toward five year delays getting to trial?" Edmon asked. "I certainly think so."

While it’s the largest county affected, it’s not the only county affected: 

In Fresno County, seven branch courthouses in outlying areas are being closed. Residents in those rural areas will have to travel longer distances to file lawsuits.

In Ventura County, as in Los Angeles County, the services of court reporters are being eliminated for civil trials. Litigants will have to hire their own court stenographers and in some cases judges are being told they may have to take notes on their own cases rather than rely on a printed record. …

The union representing state and municipal employees – the American Federation of State, County and Municipal Employees – called Friday's action a "freeze on justice in Los Angeles" and warned that the county would experience "an end to timely justice" with cases being delayed for years, particularly in civil courts.

And as bad as this all is, it’s nothing compared to what’s happened to the poor in the country.  NPR ran a heartbreaking story on Friday about the state of crisis in which Legal Services finds itself because “the number of poor people who need legal advice has gone through the roof — more senior citizens and more homeowners who lost their jobs” while at the same time there are severe funding cutbacks.  NPR started the story with a key observation:

Nearly 50 years ago, the Supreme Court ruled that people accused of a crime deserve the right to a defense lawyer, no matter whether they can afford to pay for one. But there's no such guarantee when it comes to civil disputes — like evictions and child custody cases — even though they have a huge impact on people's lives.

For decades, federal and state governments have pitched in to help. But money pressures mean the system for funding legal aid programs for the poor is headed toward a crisis.

Legal Aid offices are being closed all over the country.  People are being turned away in droves. “Imagine that a woman being abused who comes in to seek a protective order against an abuser who may have a lawyer himself, and she's turned away because there aren't children involved, ” said Jim Sandman of the Legal Services Corp.

Looks what’s happening in New Jersey, for example.  According to a new report by Legal Services of New Jersey:

Fewer than one in 10 poor adults in New Jersey are able to get a lawyer to represent them when they're threatened with eviction, foreclosure or other serious legal problems.

That means an estimated 400,000 people go without the legal representation they need,. And the consequences can be catastrophic, the report adds.

“The inability to afford a lawyer or get legal help too often determines whether a family is evicted from an apartment, if a home is foreclosed, if an ailing man gets disability benefits or even if child-custody payments are sufficient to feed and clothe the children of a broken home,” said Melville D. Miller Jr., president of Legal Services.

The solution proposed to address this is to increase fees plaintiffs pay to file civil cases (see today's Philly Inquirer editorial ), although I have to say that ironically, increased filing fees will probably chill access to the civil courts for some.

Bottom line here is summed up in the quote from Legal Services Corp.’s Jim Sandman:

"We're talking about access to justice here.  Access to justice is a fundamental American value. We have a great legal system in the United States, but it's built on the premise that you have a lawyer. And if you don't have a lawyer, the system often doesn't work for you." 

(And BTW that goes for contingency-fee lawyers, too, who are unable to represent the injured in far too many states because of fee caps and other “tort reforms.”  Just sayin'.) 

Johnson & Johnson – A Tall Order Even for Don Draper

Last week watching Mad Men, when I heard Don Draper’s pitch to Dow Chemical about the wonders of Napalm (coincidently just as the country was recognizing the 40th anniversary of that iconic photo), I thought, "wow, if Don Draper were alive today – er, I mean a fictional TV character today - have I gotta company for him"!

Most people probably know Johnson & Johnson, the $44.6 billion (in gross profit) pharmaceutical giant, for its baby shampoo and Q-tips.  But today, Bloomberg is reporting:

Johnson & Johnson (JNJ) has agreed to pay as much as $2.2 billion to settle U.S. probes of the marketing of its Risperdal antipsychotic drug and other medications [i.e., the heart-failure drug Natrecorand the anti-psychotic medication Invega].

The settlement, which might be announced this week, will include a misdemeanor plea and criminal penalty of as much as $600 million…  The accord also would resolve civil claims that J&J paid kickbacks to Omnicare Inc. (OCR), a company that dispenses drugs at nursing homes, the people said. 

Read more here.

This comes on the heels of the company agreeing to stop selling vaginal mesh implants, which it improperly put on the market (see our earlier coverage here) and which subsequently injured or killed hundreds of women.  And as if that were not enough:

• J&J faces over 6,000 lawsuits from patients severely harmed after receiving a DePuy artificial hip known as ASR.  According to victims, the ASRs – 93,000 of which DePuy recalled worldwide in 2010, including 37,000 in the U.S., since more than 12 percent of the devices failed within five years – caused joint dislocations, infections, bone fractures and other painful injuries.
• Thousands of cases are pending in federal and state courts over J&J’s alleged failure to adequately warn consumers about the risk of tendon damage and tendon ruptures associated with the antibiotic Levaquin.
• In April 2011, J&J reached a $70 million settlement over federal charges that it paid bribes and kickbacks to win business overseas.  Under the agreement, the company pledged to pay a $21.4 million fine to settle Justice Department criminal charges and more than $48.6 million to settle SEC charges.
• In March 2011, J&J’s McNeil subsidiary and two of its executives reached a consent decree with the FDA and the Justice Department over the company’s repeated unwillingness to comply with federally-mandated manufacturing practices.  The agreement put McNeil’s Las Piedras, PR, Fort Washington, PA and Lancaster, PA plants under FDA supervision, required the company to adhere to a strict timetable to bring those facilities into compliance and threatened thousands of dollars in fines for decree violations, up to $10 million annually.
• In January 2011, the company recalled nearly 50 million bottles and packages of consumer products, including Tylenol, Benadryl and Rolaids, due to lax cleaning procedures and other problems at its McNeil Fort Washington, PA manufacturing plant.
• Also in January 2011, the state of Oregon filed a lawsuit, alleging that J&J and two subsidiaries endangered public health and safety by failing to notify consumers and retailers about defective Motrin for more than a year before recalling the product.  According to state AG John Kroger, the companies conducted a “phantom recall” – hiring contractors to go into stores to secretly buy vials off shelves to avoid negative publicity – in direct violation of the state’s Unlawful Trade Practices Act.  This Motrin buyback program came to light during a 2010 congressional investigation into recalls of over-the-counter McNeil drugs.
• In December 2010, J&J recalled over 13 million packages of Rolaids after metal and wood particles were found in the antacids, causing vomiting, gum and tooth injury in some cases.
• In May 2010, J&J’s McNeil unit pled guilty to a federal misdemeanor and was ordered to pay a $6.14 million criminal fine for promoting off-label use of its anti-seizure and migraine medication, Topamax. An affiliate of McNeil also agreed to pay over $75 million for illegally promoting the drug and causing false claims to be submitted to the government for unapproved uses. 
• In April 2010, J&J’s McNeil recalled more than 135 million packages of children’s and infant’s Motrin, Tylenol, Benadryl and Zyrtec for possible bacterial contamination and the presence of small metal parts. The tainted pediatric drugs had been produced at McNeil’s Fort Washington, PA plant.

The company even endangered babies with its signature Baby Shampoo line.  In November 2011, J&J  finally agreed to phase out the use of potentially cancer-causing chemicals in its baby products. 

And that's just the recent stuff. 

Last but by no means least, there's the problem of J&J’s longtime association with the tainted American Legislative Exchange Council (which we last covered here ). ALEC has already “lost the support of 18 corporations in recent months,” and J&J is being pressured to become #19. (See today’s op ed by Rashad Robinson, executive director of ColorOfChange, the largest online black civil rights organization. )

My guess?  Even Don Draper would agree with that.

UPDATE: J&J has dropped ALEC!

ALEC’s Tort Reform Agenda Finally Gets Some Sunshine

Blood-sucking Vampires aren’t afraid of much.  Silver stakes, for sure.  They apparently don’t like garlic.  But nothing says “fear” to a Vampire like sunshine.  “Sunshine,” said Supreme Court Justice Louis Brandeis back in the day (1913 to be exact), “is the best disinfectant.”  So we couldn’t be more pleased to see a heavy dose of sunny disinfectant shining down these days on the demon known as the Americans Legislative Exchange Council (ALEC), the corporate, right-wing group that sponsors a terrible array of state bills, which we’ve discussed many times (most recently here). 

Now, as much as we might hope this new sun exposure would kill-off the dangerous ALEC fiend, we’ll take whaever maiming we can get.  And there’s been a lot, lately.  (For example, check out the lastest former ALEC corporations and legislators who’ve escaped this evil demon.)

Yesterday, Common Cause filed a complaint with the IRS, asking the agency to audit and penalize ALEC because of how connected to legislative lobbying this outfit actually is (which they deny).  Nothing wrong with lobbying, of course. But if you are a 501(c)(3) tax-exempt “charitable” organization, lobbying clearly can’t be your main mission.

As part of that complaint is Exhibit 5, which is something we’ve try to find out for a long time.  It's spreadsheet tracking all of ALEC’s “tort reform” legislation.  We don’t know how Common Cause got this document, but all we can say is, “Thank you, sunshine!”  It’s definitely worth a peruse.

One of those bills is the topic of a great piece yesterday by Evan Wyloge in the Arizona Capitol Times, about legislation that would protect drug companies from punitive damages, even in cases of egregious wrongdoing:

The legislation would shield manufacturers from punitive damage claims — the most aggressive legal recourse allowed against manufacturers — unless very specific negligence can be demonstrated.

The changes are so dramatic that a former Phoenix police officer who was nearly killed when his patrol car exploded in 2001 after it was rear-ended says the proposed law would have made it impossible to sue Ford for punitive damages — even though the car manufacturer ignored information that the fuel tanks in its police cars were prone to exploding.…

The language in the bill is very similar to a 2007 resolution advanced by the American Legislative Exchange Council. The Arizona Chamber is a member of ALEC, a conservative public policy group that is made up of corporations and legislators from across the country.

Also today is a column by Joanne Doroshow, Executive Director of the Center for Justice & Democracy, called “ALEC laws still a threat to N.J.”  Here’s an excerpt: 

Now, ALEC bills are making their way into New Jersey, with the support of the New Jersey Lawsuit Reform Alliance, an organization that has adopted several ALEC bills as its priorities. Not surprisingly, NJLRA and ALEC share members, including pharmaceutical giants such as Johnson & Johnson, Pfizer and Bayer.

There are similarities in the bills they promote, as well. One top NJLRA priority is an ALEC bill to amend New Jersey’s appeal bond process, making it easier for corporate wrongdoers to appeal verdicts against them without making sure that their victims will ever be paid. NJLRA also is promoting an ALEC proposal that would ensure that corporate miscreants can more easily dismiss class-action lawsuits against them. Another priority of both NJLRA and ALEC is making it more difficult for consumers to enforce consumer protection laws.

Let the sunshine in!  And let's hope the weather holds.  Or else, we should all move to Phoenix (provided that bill doesn’t pass)!

Regs Schmegs. Who Needs Consumer Protection Anyway?

The constant drumbeat of the attacks on consumer protection laws by big business and their friends on the editorial board of the Wall Street Journal is making me think, wouldn’t it just be easier to just let corporate miscreants do what they want?  So what that the giant medical device industry keeps paying off doctors to implant dangerous heart devices into patients.  Some measly DOJ fine isn’t gonna stop that, right?

If you’re with me, I want to tell you that there are some great things happening around the country.  In fact, speaking of hearts, in Ohio, the Cleveland Plain Dealer reports,

While we're in the middle of one of the busiest shopping seasons of the year, the Ohio House is preparing to tear up the Consumer Sales Practices Act as a little gift to the state's auto dealers [with] a change that would make it easier for companies that cheat consumers to wriggle out of serious consequences. … It wouldn't do away with the law wholesale. Instead it surgically removes the law’s heart.

Make more sense than giving this law a defective pacemaker.  Then in New Jersey, Sy Larson, President of AARP New Jersey writes in the Daily Record,

Some of the regulations that currently protect all of us, as consumers, may no longer be enforced if some new rules being considered by the New Jersey Division of Consumer Affairs are implemented.

Indeed, these new rules being considered by the division actually would allow businesses, in some cases, to ignore established laws that protect consumers — without notifying the public of the act. …

Consumer protections such as The Used Car Lemon Law and The Telemarketers Do Not Call Act are just two of the many consumer protections that could be rendered essentially worthless.

Look, you know you’re absolutely dying for more telemarketers in your life.  Don’t you lie to me!

Now let’s turn to the property/casualty insurance industry, who were skewered pretty badly by a Huffington Post piece today:

Because of their protective role in the lives of ordinary citizens, insurers have long operated as semi-public trusts. But since the mid-1990s, a new profit-hungry model, combined with weak regulation, has upended that ancient social contract.

Weak regulation?  That's just silly.  It's no regulation, more like it.  In New York, writes the Buffalo News:

Insurers in New York no longer have to file their rates with regulators and obtain approval before issuing commercial insurance policies to companies, nonprofits or government agencies that are considered large and sophisticated.

Ooh, sophisticated!  So in other words, just let the insurance industry regulate itself cause the "free market" works so well when it comes to insurance. 

Actually, that’s a little tease.  Stay tuned tomorrow – we’ll have a lot more on that!  Promise.

Gotta Laugh.

Gosh, the news has been grim lately. There are shocking levels of poverty in this country and it is only getting worse.  SAT reading scores have fallen to the lowest level on record.  Some people cheer at the notion that someone without health insurance should be left to die.  Economist Paul Krugman tells Steven Colbert that our economy is “functionally like the Depression.” 

Actually, I think it’s more like our brains are functionally in a depression.  I know some people are thinking that a few Tanqueray martinis might be in order but I just heard about a better, healthier solution: just laugh!  Who knew?

There is a new study out about how “the physical act of laughing” itself makes us feel good.  Writes the New York Times, “The simple muscular exertions involved in producing the familiar ha, ha, ha … trigger an increase in endorphins, the brain chemicals known for their feel-good effect.”

We do our best at ThePopTort to find humor in a pretty dry topic – the tort system.  Bor-ing!  So we at least try to mock sanctimonious hypocrites whenever we can.

For example, well-know chemical company Dupont has made no secret of the fact that they dislike being sued or paying punitive damages for causing environmental disasters, which Greenpeace says “continue to jeopardize the lives of about 9 million Americans.”  For example, in 2008 we reported that Dupont would be heading straight to the appeals court to challenge a judge’s ruling that Dupont had engaged in:

wanton, willful and reckless conduct in its operation of the [zinc] smelter in the small town of Spelter, [West Virginia]...Among other things, DuPont was ordered to pay $196.2 million in punitive damages to residents who claimed the company downplayed and lied about health threats from arsenic, cadmium and lead in the air, water and soil for decades.

The company has also made it part of its political mission to push for laws that cut off the legal rights of everyday Americans.  For example, they are a member of the disturbing corporate coalition called the New Jersey Lawsuit Reform Alliance, whose sole mission is to eviscerate the legal rights of New Jersey residents.   

But today, this company took a little break from fighting jury verdicts and went ahead and got one for itself. In fact, some might even call it an eye-popping verdict - more than $919 million - after it sued a South Korea company for one of those life-or-death trade secret violations involving a Dupont fiber.  It’s the third-largest jury verdict on record for this entire year, yet still not enough for this profiteering company.  Now they want punitive damages too!

If hypocrisy like this makes you laugh, we are happy to have helped you today.  If not, well, there’s always Charlie Bit My Finger.

Spin, Sweat and Tone at Your Own Risk

Check out the web site for Powerhouse Gym, the self-described “fastest growing gym licensing organization in the world  … distinguished by our unsurpassed motivating atmosphere, knowledgeable staff and premier exercise equipment, which supports our members in meeting their individual fitness goals.”

Beautiful fitness instructors? Check.  Yummy health café? Check.  All kinds of exciting classes? Check.  Happy kids? Check.  Defective bikes that seriously hurt their members?  Defective bikes?  Anyone?

No, you won’t see those mentioned on Powerhouse Gym promos.  This would include the bike that apparently hurt Gina Stelluti less than an hour after she purchased a membership at a New Jersey Powerhouse club.  According to her lawsuit, which was thrown out of court yesterday, the handlebars on her spin class bike “dislodged as she was instructed to stand on the pedals. Stelluti’s feet remained strapped into the pedals as she fell forward, causing her to suffer chronic neck and back pain, as well as a cracked tooth, according to court papers.”

It’s not that the bike wasn’t defective and caused her injury.  It’s that to join the gym, like most gyms, she had to sign a liability waiver.  This actually included a release of liability by the gym for "the sudden and unforeseen malfunctioning of any equipment."

Somehow, I doubt their “membership specialists” point that out when persuading potential new members to hand over their credit cards.  This is not OK.  And that most gyms force members to sign these waivers shouldn’t make it legally OK, either. In fact, other courts have found these waivers to be against public policy.  (See this 2009 Connecticut decision.)  But the reality is, people unwilling to submit to this immunity would never get a gym membership. 

Of course, this raises a much bigger issue, similar to another one we’ve discussed before (here, here, here) in the context of mandatory binding arbitration clauses, which have become standard in credit card and real estate contracts, applications for bank loans and leasing cars, employment contracts and even HMO policies.  Like arbitration clauses, liability waivers are nothing more than corporate end runs around the civil justice system.  Where Big Business and their political allies have failed to legislatively eliminate the civil jury, they have accomplished exactly the same objective here -- abolishing jury trials and eliminating the American public’s right to sue and hold accountable corporations that cause injuries.  

We couldn’t have put it better than dissenting judge Justice Barry T. Albin, who said,

[T]he court has abandoned its traditional role as the steward of the common law. For the first time in its modern history, the court upholds a contract of adhesion with an exculpatory clause that will allow a commercial, profit-making company to operate negligently — injuring, maiming, and perhaps killing one of its consumer-patrons — without consequence.

We're All "Mom and Pop" Oil Companies Now!

We found this "Confidential Memo" on Huffington Post.  Check it out!

____________________________________________

CONFIDENTIAL MEMO

To: Oil Industry Executives

From: [Redacted name], Chief Executive Officer
[Redacted name] Oil Company

Date: May 18, 2010

Re: We're all "Mom and Pop" Oil Companies Now!

I know your shareholders have been pretty happy lately. With $6 billion in profits just this first quarter of 2010, I know ours have. (And if you have a compensation package anything like mine, well...) I know you want to scream this from the rafters because in this kind of economy, who's making that kinda dough?!

But SSHHHH! Really. Shhh! This is not the time. We're in a fight to keep that puny $75 million liability cap (I know!) on the books for our oil spills, and guess what? It's all those tiny mom and pop oil companies that are saving us! (Actually, I had no idea about them. Must have missed them at the last Minerals Management Service paintball party. By the way, anyone seen my goggles?)

Anywho, turns out whoever they are, they are having a huge impact protecting us. Just today, our buddy Sen. Jim Inhofe (R-OK) stood up on the Senate floor to block these ridiculous attempts to make us pay people up to $10 billion when we have an accident. Sen. Lisa Murkowski (R-AK) did the same marvelous thing last week. Imagine! Who doesn't spill something every once in awhile? The last thing we need are more regulations and more liability. How many times do we have to cry "nanny state, nanny state"? Thankfully, both senators Murkowski and Inhofe could point to all those small independent producers who might never find insurance to cover them if they actually had to pay for the damage they caused. I don't know about that. All I know is, we don't have insurance now and we don't wanna have to buy any. We can manage $75 million just fine on our own and that's what our limit should be! Everyone with me here?

But we really need to watch out for Sen. Robert Menendez (D-NJ). He's not buying the whole mom and pop thing. He told NPR:

Well, you know, at some point there are a lot of smaller companies than BP, but they're not mom and pop companies as we would think of a mom and pop store on Main Street. Several of these independent operators are, you know, $40 billion in net worth. And lastly, the question begs the issue as a public policy, just because we want smaller operators to be able to operate, if they create the same risk would we simply say that the liability should now become that of the public and of all of the Gulf State residents, and of the federal government, because they're smaller?

Better watch out for this guy.

Anyway, none of this oil spill is anyone's fault except the Sierra Club. I heard it on Rush Limbaugh today. That's because "they've been driving oil producers off the land to 'way, way, way offshore.'" (Although I have to admit I am a bit confused by that. I thought those irrational enviros dislike drilling on land too, and support energy alternative that are so terrifying that an oil company might not be able to own them. The sun, the wind - it's chilling!)

Here's another idea. Let's say they're part of that Obama-Pelosi-Reid "secular-socialist machine" that Newt Gingrich says "represents as great a threat to America as Nazi Germany or the Soviet Union once did." Talk about good messaging! And add to that list all the groups that just signed onto this letter, urging Congress to lift that cap and suggesting - actually saying - that "there should be no liability cap at all [because] they allow companies like BP to avoid bearing responsibility for the full cost of damage it inflicts." Just like Senate Majority Leader Harry Reid says! Pay for our negligence? Are they nuts?

Senator Bill Nelson (D-FL) said today that he's gong to make us cry uncle. How do you make a mom and pop cry uncle? Weird. I don't think that's gonna happen. Beside, we may not have adequate safety systems in our oil rigs, but we do have back up plans where it really counts. Start siphoning off some of those mega-profits. November's just around the corner.