ThePopTort

Ohio’s Transparently Anti-Victim Asbestos Bill

It was what, maybe 6 months ago, that we posted a story about a federal asbestos bill, the proponents of which publicly argued was “needed” for “transparency,” but what they meant was really this:

OK, we’ve gone out of business and set up underfunded trusts (per bankruptcy laws) to pay compensation to the sick and dying, but the process is just too quick and easy! And that’s especially true for dying mesothelioma patients! So we need to make the process even more onerous by demanding that these trusts greatly increase their unnecessary paperwork, requiring a whole lot of new pointless personal information about victims –meanwhile victims die waiting for what’s owed them.

What we didn’t mention in our post was that this wasn’t just any asbestos bill. This one came Straight Outta ALEC (apologies to N.W.A.) although you’d never know that from the general media coverage of this issue.  ALEC (you may know), or the American Legislative Exchange Council, is the influential, secretive organization that writes state bills to promote the agenda of corporate America. The bill is part of the agenda of ALEC’s very active Civil Justice Task Force, co-chaired by Victor Schwartz, General Counsel for the American Tort Reform Association (ATRA), a corporate group seeking to limit the liability of its corporate members. The legislation generated by this Task Force provides huge legal advantages for our nation’s most negligent and callous companies, many of which have been successfully sued over and over for recklessly causing death and injury to their customers.  (See also, CJ&D’s report, America’s Worst Top Model as well as CJ&D’s Spotlight on Justice on the sordid past of the asbestos industry.) 

While the federal bill ultimately went nowhere in Congress, states influenced by ALEC have been a different story altogether. Yesterday in Ohio, four state senate Republicans joined all 10 Democrats in trying to block this very same bill at the state level, but it wasn’t enough to defeat the legislation, which now moves to Gov. John Kasich’s desk. One of the bill’s major proponents was Sen. Bill Seitz (R-Cincinnati), who co-chairs ALEC’s Civil Justice Task Force with Victor Schwartz.  So there’s that, too.

Writes the Ohio’s Toledo Blade,

Critics of the bill … accused majority Republicans of throwing up more obstacles to asbestos victims, a decade after passing a law that made it tougher for those exposed to the substance to sue.  About 90 percent of some 40,000 asbestos cases pending in Ohio courts at the time were dismissed because the plaintiffs could not demonstrate substantial impairment of their health beyond simple changes in a chest X-ray.

“This legislation is again another example of the 129th General Assembly’s war on Ohio workers,” said Sen. Mike Skindell (D., Lakewood). “It is a piece of legislation brought to us in part by the corporate-influenced American Legislative Exchange Council, otherwise known as ALEC.…

Most manufacturers of products containing asbestos, including Toledo-based Owens Corning, long ago went through federal bankruptcy proceedings that resulted in the creation of more than 60 trusts against which asbestos victims could make claims. This bill is primarily focused on aiding other companies like Perrysburg-based Owens-Illinois that did not go through bankruptcy and are still fighting asbestos-related lawsuits more than 40 years after the fibrous substance was pulled from the market.

The Asbestos Victims Coalition is asking people to call Governor Kasich today. It’s urgent.  Here’s their statement. Once again, it all comes down to Ohio.

The Real Fraudsters

If you happen to live in a black or Latino neighborhood in a swing-state city like Cleveland, Ohio, you may have noticed Clear Channel’s screaming “Voter Fraud is a Felony” billboards. These billboards, “'stigmatize the African-American community by implying that voter fraud is a more significant problem in African American neighborhoods than elsewhere,’ [even though voter fraud is a myth ] and the billboards ‘attach an implicit threat of criminal prosecution to the civic act of voting.’”  The cowardly rich folks who paid for these billboards won’t come forward. Of course not.

We bring this up because one of the burdens of being disadvantaged in the country is having to live with the indignity of being regularly accused of committing fraud.  Yet, it’s the power elite themselves who commit most of it – and often victimizing the disadvantaged while doing it. 

Workers compensation is another example.  In the early 1990s, insurers and businesses began trumpeting up distorted rhetoric around the idea of “fraudulent” workers’ compensation claims, greatly exaggerating the extent of the problem (maybe 1 to 2 percent of claims).  Yet fraud is most likely caused not by workers, but by employers - underreporting payroll, declaring employees as independent contractors, misclassifying occupations, and misrepresenting claims experience.  See more here.

There’s no area where that’s more true than health care fraud.  For example, on Thursday, AP reported on the U.S. Justice Dept.'s announcement of another big health care fraud settlement, specifically,

Boehringer Ingelheim Pharmaceuticals Inc. will pay $95 million to settle allegations that the company promoted three drugs for uses that were not medically accepted.… Thursday's announcement is the latest in a series of settlements with pharmaceutical companies engaging in so-called off-label marketing. In the law enforcement initiative's biggest case, GlaxoSmithKline agreed to pay $3 billion and pleaded guilty to promoting two popular drugs for unapproved uses and to failing to disclose important safety information on a third.

See more here.

Also this week,

The owner of a Miami health care agency was sentenced on Oct. 23, 2012 to 37 months in prison for his participation in a $60 million home health Medicare fraud scheme … Rodolfo Nieto, Jr., 40, of Miami …was the owner and operator of Ronat Home Health Care Inc. According to court documents… from approximately January 2006 to approximately November 2009, Nieto accepted kickbacks in return for recruiting Medicare beneficiaries to be placed at Nany Home Health Inc., a Miami home health agency that purported to provide home health care and physical therapy services to eligible Medicare beneficiaries. The owners and operators of Nany paid Nieto kickbacks in return for allowing Nany to bill the Medicare program on behalf of the patients Nieto had recruited through Ronat. Specifically, as part of the scheme, Nany billed Medicare for home health services purportedly provided by Ronat.

Joining the crowd, “A Dover [DE] psychiatrist who was accused of improperly prescribing painkillers and defrauding the state’s Medicaid program admitted guilt today and was fined and sentenced to a year in prison."

It never seems to stop.  In fact, that was the message of a Today Show segment today, finding that, "Federal agents arrest a health care fraudster nearly every day, charging close to 1,500 people last year alone.”  In many cases, these crooks are billing Medicare for services never provided, and “victims are elderly and disadvantaged.”

If you see Medicare fraud, HHS is asking you to call its tip line: 1 800 hhs tips.  I would image a good tip might be a doctor who bills Medicare for tests that are not "medically indicated or for the health of the patient." They like to call such tests “defensive medicine.” Actually, it’s fraud.  

That number again? 1 800 hhs tips. 

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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.

Prop 8., Ground Zero and Joe the Plumber: Conservatives Who Sue

We just thought this might be a good day to remind everyone that our civil courts don’t discriminate.  Even conservative extremists who rail against lawsuits (we’ve covered a bit of that phenomenon here, here) are allowed to sue in civil courts, and they do so all the time!  Even if their sole purpose is to score political points!

Yesterday’s decision striking down California’s Prop 8, the gay marriage ban is a fascinating match up between conservatives: well known conservative Ted Olson, who argued and won the case vs. Protect Marriage, the religious and conservative groups that sponsored Proposition 8, who are immediately appealing it.

With all the hoopla about this decision yesterday, you may have missed the fact that also yesterday, Joe the Plumber’s retaliation lawsuit was thrown out of court.  "What lawsuit"? (you must be asking yourself).  Turns out that right-wing personality Samuel "Joe" Wurzelbacher had sued the Ohio Department of Job and Family Services Director Helen Jones-Kelley and two others, claiming he was retaliated against "for speaking out against Obama" and that his privacy was violated, i.e., his constitutional rights.  No dice, said the judge. Guess it's back to plumbing and writing books for Sam, er Joe.

And in New York City, a conservative group called the American Center for Law and Justice (ACLJ), has sued the New York City Landmarks Preservation Commission, which denied landmark status to an old Burlington Coat Factory building.  The group doesn't like the fact that this clears the way to begin construction on an Islamic cultural center in Lower Manhattan. 

One way or the other, that’s what courts are for!

Judicial Elections Have Consequences, Especially If You’re Injured

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

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

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

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

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

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

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

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

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

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

The ABC's of Unsafe and Greedy Health Care

Hey kids, its alphabet time!  We thought we’d make this really fun by teaching you just how dangerous the world of pharmaceutical companies, medical device manufacturers and greedy health care providers can be!  Let's begin.

A is for Alpharma, a unit of King Pharmaceuticals, which according to the U.S. Justice Department, “has agreed to pay $42.5 million to resolve allegations that it gave kickbacks to doctors to prescribe the pain drug Kadian and misrepresented its safety and effectivenesss.” 

B is for Boston Scientific.  The FDA says that “questions remain about the accuracy of the company's study of [a new heart device], suggesting in an online review that “patients Boston Scientific studied were less healthy than typical patients with the condition.  As a result, the true benefits of the device may have been overstated.”

D is for Dentist, the one in Massachusetts that the state Attorney General says used “paper clips instead of stainless steel posts inside the teeth of root canal patients while billing Medicaid for the more expensive parts.”   The former dentist has been indicted for assault and battery, larceny, submitting false claims to Medicaid and illegally prescribing drugs.”

I is for Ista Pharmaceuticals, which the FDA says “made misleading claims about Xibrom eye solution in sales material, including overstating the drug's efficacy and omitting and minimizing important risk information."  (Since X is such a hard one, this is for X too!)

M is for Merck, which was criticized this week by Cleveland Clinic cardiology chief Dr. Steven Nissen who said the American Heart Association and the American College of Cardiology were too cozy with industry and that the College “granted continuing medical education credits for a seminar sponsored by Merck,” and was conducted by faculty members who consult with Merck who touted an experimental Merck drug.

P is for Punjwani, Dr. Sohail, that is, who just received a “warning” from the FDA that said he failed ``to protect the rights, safety and welfare'' of children enrolled in clinical drug trials.  Turns out that he was “treating a 7-year-old foster child before the boy committed suicide last year.”  Also, “one girl slashed her wrists while hallucinating" and "another, a 13-year-old, 'experienced sedation and dizziness during the study.'"

V is for Veterans.  That's because “Federal inspectors found medical equipment not properly cleaned or inspected at some of the clinics for veterans in Puerto Rico.… The findings on conditions in the U.S. Caribbean territory come nearly a year after some 10,000 people treated at veterans hospitals across the United States were told they might have been exposed to infections during procedures where equipment was not properly cleaned.”

I think that’s enough learning for today!

We Read the News Today, Oh Boy

It’s that old “lining their pockets” thing again.  In Ohio, Christ Hospital has “settled a federal whistleblower lawsuit accusing its acclaimed cardiac-care center of running an illegal kickback scheme.”  Christ Hospital insists it did nothing wrong, but the government says the hospital “and the Ohio Heart Health Center cardiology practice, which Christ Hospital has since bought, ‘devised a scheme that provided cardiologists improper financial incentives in exchange for generating revenue for the hospital.'’’  Dr. Harry Fry, a cardiologist, blew the whistle.

In the Philadelphia case brought by breast cancer victim Connie Barton against Wyeth for manufacturing their cancer-causing hormone replacement drug Prempro, both sides are appealing a decision that 1. slashed her punitive damages award  from $78.7 million to $5.6, and; 2. became the first Philadelphia case “to uphold a jury finding that drugmaker Wyeth failed to warn a plaintiff's prescribing physician of the dangers of breast cancer from using Wyeth's hormonal drugs.”  There are more than 1,500 similar cases pending.  (For more about that issue, see CJ&D’s report, The Bitterest Pill.)

And finally, some good news/bad news.  Good news first. The defense appropriations bill provision ensuring that rape victims have access to the courts hopefully won’t be a one-time thing, thanks to President Obama's 2011 defense budget proposal, which includes the same provision for 2011.  Meanwhile, the President is making nicey nice with the destructive U.S. Chamber of Commerce, which opposed this provision, saying they will just have to “agreed to disagree on some issues.”   Oh boy.

New Report: 3400 Americans will be Injured or Killed by Defective GM/Chrysler Cars in First Post-Bankruptcy Year Alone

Just as the number of states’ attorneys general filing objections to the “bankruptcy loopholes”
contained in the Chrysler/GM bankruptcies reaches 11, our friends at Safety Research & Strategies, Inc. have released a new report, which predicts more than 3,400 Americans will be injured or killed by defects in the companies’ vehicles in the first year of the “post-bankruptcy era” alone—yet still have no way of holding those companies legally accountable.

According to the report, which includes a full state-by state breakdown of defect suits, “Texas, California, Florida, Ohio, and New York lead the nation in Chrysler and GM death and injury claims.”

Meanwhile, said Sean Kane, president and CEO of Safety Research and Strategies, “There is every reason to conclude that the injury and death rates will continue” because in this economy, people are holding onto their cars longer. 

Another GM/Chrysler “Bankruptcy Loophole” Update

As promised, we’re continuing to follow the Chrysler/GM bankruptcies (and in particular, developments involving the “bankruptcy loopholes” which effectively immunize both companies from lawsuits should defects in the “old” pre-bankruptcy Chrysler GM/vehicles injure or kill people).  Here are some notable press items from the past few days…

Attorneys General from Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Vermont, and West Virginia are standing up for injured consumers, filing objections to the GM bankruptcy last Friday (here, here, here, here).

We hear that other states' AG’s will be coming in to raise similar objections soon.

The Detroit News adds to the ever-growing list of heart wrenching tales about Chrysler/GM defect victims, profiling 20-year-old former athlete, Stevie Beale, who was paralyzed from the waist down due to a faulty seatbelt design in her Pontiac Bonneville.

Lynn LoPucki, a professor and bankruptcy expert at UCLA Law School, who is quoted in the article, said, "They should assume liability for their cars. Instead, they give people a very good reason to not buy their cars”

The Atlanta Journal-Constitution and Macon Telegraph both tell the tragic story Nell and Jimmie Davis whose Jeep Cherokee flipped over, crushing the (defective) roof of the vehicle, and killing Jimmie just eight days before the couple’s 48th wedding anniversary.  Nell sued Chrysler, but like so many others, her case is unlikely to go anywhere. “They got all their taxpayer bailout money and now they’re not responsible for anything?” she said.

Say It Ain’t So, Joe—America’s Favorite Plumber Goes to Court

Extra, extra, read all about it!

Guess who’s the latest guy running to court?  Why it's Samuel J. Wurzelbacher a.k.a. “Joe the Plumber,” so dubbed by  John McCain  (who later campaigned with the Toledo toilet-fixer).  Seems Mr. Plumber is claiming his “constitutional rights to privacy” were violated when three Ohio state officials engaged in a little oppositional research against him during the presidential race.

(Note to Joe: conservatives don’t tend to like it when you acknowledge the existence of a “constitutional right to privacy,” despite Sarah Palin’s full-throated endorsement of it to Katie Couric.)

Anywho…in a news conference announcing the suit, good old Joe also attacked "mainstream media" outlets he said had "done their best to discredit anything and everything about me.” He also added that he no longer works as a plumber because he fears “bogus complaints” from potential customers who might dislike his politics.  (Or maybe Joe, they just dislike the fact that you don’t have a license to plumb.)

Joe currently works as a "reporter" for Pajamas TV, but says he would like to return to plumbing (presumably, just as soon as he finishes his lawsuit).