ThePopTort

An Unbelievable Week in Review

We haven’t posted much this week.  That’s not because of the scarcity of civil justice news but rather the opposite - we were overwhelmed by the significance of it.  Finally, here is a quick review.

We’ll start by noting that April 20 marks the third anniversary of the Deepwater Horizon oil rig explosion in the Gulf.  The Coalition for Sensible Safeguards has a good wrap-up.  Ken Feinberg, the lawyer who was hired by BP to administer its highly-controversial victims’ compensation fund, the Gulf Coast Claims Facility (now taken over by the court), has been hired to distribute funds to the Boston Marathon victims.  This money has been donated by various charitable sources.  It’s our view that victim compensation funds are far more appropriate where there is no discernable wrongdoer capable of compensating for mass casualties - a wrongdoer that should be held accountable in court, like BP.  We’ll see how Mr. Feinberg does in his new role. 

The United States has had some of the best and, under some circumstances, the only laws available to human rights survivors to obtain some sort of redress, and legally to hold abusers accountable.  These laws include the Alien Tort Statute, a law which (you would think) should be a source of pride in this country, especially when you see what happens in other countries like Guatemala.  (There, corrupt leaders just stopped the genocide trial against war criminal Rios Montt.)  But the U.S. Supreme Court substantially chipped away at the ATS this week by greatly limiting its reach. (See more in Scotusblog and from the Alliance for Justice.)

Turning to Texas, it’s clear lax regulation was largely to blame for the tragic fertilizer plant explosion.  The Dallas Morning News put it this way: “[T]his much is clear: The explosion came after years in which state and federal agencies overlooked the potential for what some say was a preventable catastrophe.” More here. And, "A soil scientist at U.C. Berkeley says the deadly Texas explosion is another example of a troubling pattern; a lack of proper oversight to ensure public safety. Professor Garrison Sposito is not the only scientist or engineer to make the same connection. He says you can see it in the Deepwater Horizon oil spill …”  So back to that again.  And that's not all.  Texas corporations also know that if they kill or injure people, it's unlikely they'll ever be held fully accountable in court. 

Texas is also home to one of the most startling medical malpractice news stories of the week.  After years of trying (falsely, we might add) to convince the public that enactment of draconian “tort reform” in Texas caused doctors to flood into the state, this week Texas lawmakers took up emergency legislation to fix - wait for it – the state’s critical doctor shortage.  

And that’s not the only unbelieveable med mal story this week.  Anyone who thinks profit isn’t the primary cause of our nation’s horrendous patient safety problem better take a look at the New York Times this week, which reported on a JAMA study finding that, “Hospitals make money from their own mistakes because insurers pay them for the longer stays and extra care that patients need to treat surgical complications that could have been prevented.…”

Dr. Barry Rosenberg, an author and a managing director of Boston Consulting, said the study came about because his firm was working with Texas Health Resources to find ways to reduce its hospitals’ surgical complication rates, which, at 5.3 percent, were in line with those reported by similar hospitals. Part of that work involved analyzing the costs, and he said the team was stunned to realize that lowering the complication rates would actually cost the hospital money.

“We said, ‘Whoa, we’re working our tails off trying to lower complications, and the prize we’re going to get is a reduction in profits,’ ” Dr. Rosenberg said in an interview. …

In an editorial, Uwe E. Reinhardt, an expert on medical economics from Princeton University, called the study’s findings “troublesome but not surprising.” He called the current payment system “untoward,” adding that it “can tempt otherwise admirable people into dubious conduct.”

Dubious, and sick.  And speaking of sick, let’s not forget guns.  You all know about the shameful Senate gun vote this week.  As if the gun industry couldn't get any more sickening, this industry, which already is immune from liability for gun violence, started blocking Boston bomb investigators because apparently the reach of their extensive legal protection wasn’t infinite enough for the NRA.

Extremism cannot be maintained.

Sporting Terror

There’s a great Mr. Rogers quote running around the Internet today: “When I was a boy and I would see scary things in the news, my mother would say to me, ‘Look for the helpers. You will always find people who are helping.”  For those of us who were in Lower Manhattan on 9/11, we know that’s true.  Thank you to the helpers.  Our hearts go out to everyone in Boston today.

There’s really little more to say on a day like this.  But some PopTort readers may find the latest newsletter from the Center for Justice & Democracy somewhat interesting.   It deals with the topic of sports and its lead story is about spectators at sporting events.  The article discusses one of Congress’s first responses to 9/11 - an immunity law, called The Safety Act of 2002.  While really aimed at the developers of anti-terror technologies and usually bestowed on defense and security companies, sports venues are now qualifying for immunity too.  Indeed last year, Yankee Stadium became the first big sports venue to earn this Department of Homeland Security special designation, “meaning that the facility has passed a battery of tests and won approval from DHS, giving the franchise broad immunity against lawsuits stemming from a terrorist attack on the stadium.”  And since that time, NFL and Superbowl venues have received liability protection, as well.

Sadly, just one more thing to think about. 

The Twists and Turns of Gun Liability

In its infinite wisdom, Congress decided in 2005 that when protecting most of the gun industry from liability for gun violence, it shouldn’t actually protect gun dealers who break the law. So when an 18-year-old went on a shooting rampage at a Utah shopping mall a few years ago, victims were able to bring suit against the pawn shop that illegally sold a pistol-grip shotgun to this kid -in violation of federal law.  (And the Second Amendment survived, if you can believe it!)  Late yesterday, it was reported that,

Carolyn Tuft settled her lawsuit against Sportsman’s Fast Cash and its parent company in February. Tuft was shopping at Trolley Square with her daughter, 15-year-old Kirsten Hinckley, on Feb. 12, 2007, when 18-year-old Sulejman Talovic opened fire on shoppers with a pistol-grip shotgun.

Five people died, including Hinckley, and four others were wounded before police arrived and killed Talovic. … Tuft was hit multiple times [and] continues to suffer from her injuries, which included a gaping hole in her back and muscle torn from her arm. … [L]ead pellets from the gunshots could not entirely be removed and remain embedded in Tuft’s body near her spine, leaching into her major organs.

The company agreed to settle the case, as it did with another victim who was rendered paraplegic while shopping for a Valentine’s Day card for his wife. In all cases, the company insisting on confidentiality so we’ll never know much more.

Meanwhile in Missouri, a bill has been introduced by state Rep. Caleb Jones, “who wants private businesses that post signs banning guns to be liable for injuries that occur on their property,” in other words, "punish businesses that maintain gun-free zones and reward those that allow concealed-carry in instances of violence.” 

The bill specifically says:

Any private business that displays signage which prohibits public invitees, business visitors, and employees from carrying a concealed weapon on the premises owned or occupied by such private business shall be liable for any injury or damages incurred by such public invitees, business visitors, and employees as a result of such prohibition if such public invitee, business visitor, or employee establishes by a preponderance of evidence that having access to a firearm may have prevented his or her injury or damage.

Any private business that does not prohibit public invitees, business visitors, and employees from carrying a concealed weapon on the premises owned or occupied by such private business shall be immune from any liability arising from its decision to permit concealed weapons to be carried on business premises.

Judging by the comments on the article’s website, readers of the Riverfront Times are not amused.  And that’s not all:

And there has been plenty of proposals in Missouri this cycle designed specifically to counter gun-control efforts, including a ban on federal executive orders, a rewriting of the Constitution to make gun rights "inalienable," an effort to criminalize fellow lawmakers who even propose gun control -- and a lot more.

Twisted hardly describes this. 

It’s the Texas Insurance Industry, Stupid

Debunking myths about the impact of Texas “tort reform” is clearly a favorite PopTort pastime.  (Like here, here.)  Admittedly, we’re a little obsessed by this, but what are we supposed to do when articles like this keep popping up?  

The Austin American-Statesman is carrying a dynamite op ed by professors Bernard Black, David Hyman and Charles Silver, discussing their forthcoming article (currently being peer reviewed), which finds “no evidence that physicians fled Texas in great numbers prior to tort reform or returned in droves thereafter. To the contrary, by comparison to other states, Texas had a below-average physician-to-population ratio before tort reform and has a slightly worse ratio today.”  And here’s the kicker:

Why doesn’t Texas have more doctors? We can only speculate, but one reason could be related to the number of Texans who lack health insurance. Demand for medical services from insured patients is a strong lure for physicians. To attract more physicians, Texas’ leaders will have to address this issue, or identify another factor that explains why Texas remains well below the national average in physicians per capita.

See how that works?  Doctors understandably don’t want to practice where people can’t pay them.  And writes Texas Watch,

We are dead last in the percent of individuals with health insurance and are near the bottom in the percent of workers with employer-based health insurance.”  [Plus (and no offense to my Texas friends),] “Texas ranks near the bottom in the rate of home ownership, a fact that is exacerbated by our low personal credit scores, and high rate of subprime mortgages.  Plus, with the highest home insurance rates in the nation, more of our money is going to pad insurance company profits. 

In fact, the padding of Texas insurer profits has become a virtual tradition, dare I say "sport," under the reigns of the last two Governors.  (If you yearn for the days of Governor Ann Richards like I do, catch the Broadway show Ann, extended through September 1!) But back to insurance. Yesterday, a Texas insurance company was indicted in Virginia for defrauding Virginia Tech students, if you can believe that.  Writes the Richmond Post Dispatch: 

A Texas company that provided health insurance to Virginia Tech students fraudulently overstated claims by more than $9 million to boost its profits, according to a 57-count federal indictment unsealed Tuesday.

The grand jury indictment in U.S. District Court in Abingdon charges GM-Southwest Inc. and its former owner, John Paul Gutschlag Sr., with racketeering, conspiracy, money laundering and fraud.

The indictment says that by overstating claims, the company was able to charge higher premiums to Virginia Tech and its students and discourage competitors from bidding to provide the service.

As if those students don’t have enough pain in their lives.

Hot Pop Topics

If you’ve ever watched The View, you know that every show starts off with Hot Topics,  where the hosts (whoever's left of them) discuss the latest hot news items. No doubt today’s show will address Margaret Thatcher and while they’re on the topic of “death”, probably last night’s Mad Men. 

If there’s any time left on the show, we’d like to suggest a couple other very hot news items (at least in our world) that definitely need discussing! 

The U.S. House Intelligence Committee apparently had a committee staff call briefing with Congress’ paymasters, the U.S. Chamber of Commerce, telling the Chamber that it’s set to pass the highly-controversial cybersecurity bill that not only violates the privacy rights of everyday people (the ACLU calls it a “privacy disaster), it also immunizes big corporations that engage in this behavior. Writes Bloomberg,

Many of the House bill’s corporate supporters are among the top 20 contributors to [Committee Chair Mike] Rogers’ 2011-2012 campaign committee, according to the Center for Responsive Politics, a Washington-based research group. They include AT&T, Verizon Communications Inc., Boeing and Lockheed Martin Corp. employees and their families.

[Ranking Democrat C.A. “Dutch”] Ruppersberger’s top contributors in the same period also include Boeing and Lockheed employees and their families, according to the center.

The American Civil Liberties Union and other advocacy groups have stoked online opposition to the House bill, saying it would allow Americans’ personal data to be shared with the National Security Agency and the military, and let the government use that data for undefined “national security” purposes.

Meanwhile, there’s a medical malpractice case out of Nevada that medical malpractice and insurance expert, Professor Tom Baker at University of Pennsylvania Law School called a possible “sea change” for managed care companies. Specially,

A Nevada jury on Thursday found Nevada affiliates of UnitedHealth Group Inc responsible for infecting two patients with hepatitis C, a disease that attacks the liver. The patients claimed they became infected because their gastroenterologist used allegedly unsafe injection practices for an endoscopy. The third plaintiff was the spouse of one of the patients.

Typically in medical malpractice cases, plaintiffs can only recover damages from the doctor and the hospital. But in the Nevada lawsuit, the plaintiffs argued that UnitedHealth Group should be held responsible because the accused gastroenterologist was part of the company's network and that the insurer should have known about allegedly unsafe practices.

If the plaintiffs' theory of liability is upheld on appeal and adopted elsewhere, it would represent a major change for the insurance companies, and likely increase the scrutiny insurers place on doctors within their network, experts said.

Although the case rests on Nevada state tort law, other state courts could follow Nevada's lead, forcing insurers to make significant changes to their oversight of member doctors, and either raise premiums or further restrict their networks of doctors, said several professors who specialize in medical malpractice law.

Dr. Arnold Rosen must be all ears hearing this news!  (Sorry, bad Mad Men joke.)

Caught in the Insurance Industry Shuffle

The insurance industry spends about $6 billion a year trying – largely unsuccessfully - to get drivers to switch their car insurance policies. (This is a $160 billion market and the big carriers control half of it.) Never-ending expensive TV commercials - that’s what most people know about insurance companies – until, of course, their lives have been wrecked by something they thought was covered by policies, for which they’ve been paying for years. Let’s take a look at a few recent episodes. 

Homeowners.  Homeowners whose lives were shattered by Superstorm Sandy are still engaged in perpetual battles with insurers to get their flood insurance claims properly paid.  The situation is no better for homeowners claiming under their non-flood policies, with insurers putting homeowners’ money into escrow accounts and then micromanaging repairs. Writes one policyholder, “No matter insurance company has documentation already and has approved repairs. No matter repairs have been made and homeowner just wants reimbursement.… TD Bank has this policy. So does Wells Fargo. Problem is you don't know this until u go to deposit insurance check.”

Business interruption insurance.  All kinds of businesses where shut down after Superstorm Sandy, but insurers aren’t paying the claims, saying buildings were closed due to flooding (so not covered by their policies). But others say that’s ridiculous.

“It was not water related," says Andrea Katz, interim development director at [radio station] WBAI. “It was a restricted building that we were not allowed entry to and therefore could not do business as usual.”…

“It seems like they have lawyers that write these things out, and everything’s so opaque that they can just find a way to get out of it,” says Norman James, co-owner of Space Salon.…

The New York State Department of Financial services is now investigating these and other business claims from Hurricane Sandy.

Meanwhile, many businesses are seeking legal counsel, getting ready for a fair fight.

Fire insurance. 

Victims who lost everything in [Colorado’s] Waldo Canyon fire last summer asked lawmakers at the Capitol on Tuesday to go even further in their reform of the insurance industry that they say left them in the lurch. …

It took Steve Price, who lost his roughly 5,000-square-foot home … two months to get a certified copy of his insurance policy after the fire. It took another two months to get copies of underwriting documents. “It’s a pattern among our insurance companies to delay, deny and ignore,” Price told a Senate committee considering House Bill 1225. “These contracts are unfair to begin with.”

The bill would require insurance companies doing business in Colorado to comply with a number of new mandates, including that a copy of a policy be provided within three days of the homeowner’s request. Policies would also have to be written on a 10th grade reading level and written notifications of changes in policy would be required. Price said he was very well prepared for a disaster, with photos documenting his home’s current state and contents, and he still was still about $10,000 underinsured.…

Ideally, he said Colorado should become one of 19 states that require insurance companies to pay out the maximum value of a policy in the event of a total loss — known as valued policy laws.

Incredible that this should even be an issue.

Health Insurance.  Health insurers are “letting millions of Americans renew their current coverage for another year — and thereby avoid changes under the federal healthcare law” and “critics say this maneuver could undermine government efforts to remake the insurance market next year and keep premiums affordable overall.…”

“Insurers are onto this, and the big question is how many will try to game the system,” said Timothy Stoltzfus Jost, a law professor and health policy expert at Washington and Lee University.

Some of the nation's biggest health insurers are looking to take advantage of this delay, and Arkansas officials are encouraging companies to do this by resetting customers' renewal dates for the end of December. There's also concern that some insurers and agents could rush to sell more individual policies before year-end so they could be extended in 2014.

Some policy experts are expressing concern about this practice for fear that insurers will focus on renewing younger and healthier policyholders and hold them out of the broader insurance pool next year. Their absence could leave a sicker and older population in new government insurance exchanges, driving up medical costs and premiums there.

Meanwhile, California’ awesome insurance commissioner, Dave Jones, seems to be the only commissioner in the country actually looking out for policyholders by consulting with a respected consumer organization, Consumer Watchdog, on how to protect small businesses from unneeded rate hikes. The group already has a spectacular record of saving California policyholders billions of dollars. The industry is complaining about this. They seem to prefer that the commissioner consult only with insurance industry-connected actuaries (like every other commissioner does), ensuring that price-gouging of California’s businesses remain uninterrupted.

Reports the LA Times,

In its first report Tuesday, the Santa Monica group accused Anthem of padding its profits and overcharging small-business customers by about $17 million. … Jones criticized Anthem Blue Cross for raising rates on about 7,000 small businesses as much as 23% and said the company rejected his request for lower rates. Anthem said its average rate increase of nearly 11% for these 45,000 employees and their dependents was necessary to cover rising medical costs.

Jamie Court, president of Consumer Watchdog, said the group's proven track record in challenging insurance company practices made it an ideal choice for the state. Consumer Watchdog says it has saved Californians $2.3 billion since 2003 by successfully disputing rate hikes for property and casualty insurance under Proposition 103, the 1988 ballot measure the group championed.

"We are the foremost expert on health insurance rates," Court said. "This grant allows us to pull back the curtain and show how the wizards at Anthem and other companies are manipulating Oz. We want to prove that rates are too high."

Insurance-industry commissioners. Meanwhile, former and hoping-to-be-reappointed Texas insurance commissioner, Eleanor Kitzman, is decidedly not on the side of policyholders. She’s hoping to win reappointment from Governor Rick Perry, but not if consumer advocates have anything to do with it.

One of the loudest critics, Alex Winslow of the consumer advocacy group Texas Watch, said that home insurance rates had “skyrocketed” during Kitzman’s term and that she had rolled back rules created to inform doctors and patients about high out-of-network expenses before those charges were incurred. Winslow can and does go on about what he sees as her shortcomings, but the important thing is that few in the Capitol or the insurance industry — which was initially full of praise for her — are leaping to her defense.

And a final observation: If only policyholders could demand that their billions in premium dollars pay for legitimate claims instead of TV commercials. 

Civil Justice - Unattainable Pipedream?

You may have heard that ginger blowhard Donald Trump has voluntarily withdrawn his lawsuit against comedian Bill Maher, which he says he filed because Maher did not follow through on a bet (part of a Tonight Show bit) by paying “$5 million to a charity of Trump’s choice if the businessman provided a birth certificate proving that he’s not ‘spawn of his mother having sex with orangutan.’”  But don’t worry.  Trump’s lawyer says that “the lawsuit was temporarily withdrawn to be amended and refilled at a later date."

To people like Donald Trump, the civil justice system is just another expensive plaything.  But to many everyday people with real grievances and real harm, this system is becoming a castle in the sky.

Yesterday, the Supreme Court “wiped out” an appeals court ruling in favor of consumers who had filed a class action over defective Whirlpool front-loading washing machines, which were emitting bad odors.  The Court said the lower court decision “had to be reconsidered in light of the Supreme Court's 5-4 ruling last week” in the Comcast case where “the court said 2 million subscribers in the Philadelphia area could not sue Comcast as a group.”  And now, Whirlpools’ lawyers say similar claims against other washing machine manufacturers, like GE and Sears, should suffer a similar fate.

But there’s more:

The justices also ordered on Monday that another case pending before the court, involving employee wage claims against Charter One Bank, should be reconsidered in light of the Comcast ruling.”

The Chicago-based 7th U.S. Circuit Court of Appeals ruled that the claims could go ahead.

The bank said there was insufficient evidence to show that there was a unofficial policy to deny workers overtime. The official policy is to pay overtime to anyone who worked more than 40 hours in a week.

The Comcast case, which was decided last week, was another 5-4 decision that continued the Courts “punishing blows to the class action mechanism since the 2011 Wal-Mart gender discrimination loss.”  (Also, don’t forget the Concepcion case, which we just covered again last week.)

About Comcast, Think Progress wrote: 

The Comcast v. Behrens case involved a class of some 2 million plaintiffs in the Philadelphia region who argued that Comcast monopolized the regional market by exchanging territories with competitors — enabling everyone to charge higher prices. Plaintiffs who file class lawsuits must establish that they can prove their injury and damages on a classwide basis, and the majority in this case said they hadn’t met that burden. …

This decision is one of many by the Roberts Court to limit the class mechanism and erode corporate accountability through procedural rulings, but it may be the first in this string in which any justice, let alone two, read their dissent from the bench – an infrequent practice that typically connotes particularly strong disagreement with the majority decision. On this Wednesday morning, Justices Ruth Bader Ginsburg and Stephen Breyer had a particularly large and rapt audience for their scathing oral dissent, with court-watchers there to witness landmark arguments on marriage equality. What the audience got is a lesson on how obscure procedural cases with major implications for consumers are susceptible to manipulation.…

Whether this case’s ruling rejecting the plaintiffs’ methodology for determining damages will have impact on future class questions is not clear. According to the dissenters, this case sets no new precedent and should have no application outside of this particular case. According to lawyers who defend these cases, the ruling will make it still easier for companies to beat back class challenges. The primary take-away is that Comcast found an ally in the Roberts Court, whose five conservative justices remain virulently hostile to the class mechanism. At a minimum, the ruling deprived at least 2 million consumers of the opportunity to challenge an alleged Comcast practice that no one consumer could take on alone.

Given yesterday’s ruling, the Court majority seems to think they did something very precedent setting, indeed. 

Forced Arbitration and the Supreme Court’s Stealth Annihilation of Civil Rights

I do hate taking any focus off Prop 8 and DOMA today. To quote that famous legal scholar George Clooney, “At some point in our lifetime, gay marriage won't be an issue, and everyone who stood against this civil right will look as outdated as George Wallace standing on the school steps keeping James Hood from entering the University of Alabama because he was black.” (“Outdated” being a polite euphemism here.)

However, also this week, there was a Supreme Court argument to which few paid any attention. The case was Oxford Health Plans LLC v. Sutter.  We thought it worth mentioning for a couple of reasons.  First, it is one in a series of cases constituting the Supreme Court’s long march to eradicate class actions, and for that matter, to eradicate access to the civil courts.  (See more in the Center for Justice & Democracy’s new FAQ, “Vanishing Rights and Remedies Under Forced Arbitration.")

Second, because of the 2011, 5-4 decision, AT&T Mobility LLC. v. Concepcion, which upheld contracts with forced arbitration clauses and class action bans, Oxford involves what may be one of the last class action lawsuits by doctors against a managed care company – a device that physicians have made widespread and somewhat hypocritical use of.  But likely, not for long.  Maybe now organized medicine will understand what it means to have one’s legal rights stripped away.    

Here’s how Daniel Fisher at Forbes explained the case:

The Oxford case involves a dispute between doctors and the insurance company over payments. …

In Oxford, the judges must decide whether an arbitrator was out of line by allowing a class action to proceed on behalf of some 20,000 doctors even though there was no provision for class actions in the arbitration agreement between doctors and Oxford. The court seemingly decided this question three years ago in Stolt-Nielsen vs. Animal Feeds, when it held class arbitration couldn’t be forced on parties if they didn’t agree to it. The decision, by Justice Samuel Alito, left open a very slim question over whether under different circumstances an arbitrator could determine that the parties might have agreed to class actions although not in the explicit terms of the agreement.

Court observers believe Oxford will win this.  Of course, the impact of the decision will extend far beyond these 20,000 doctors. Fisher again: “One of the biggest impacts may come in employment law, where class-action attorneys are pressing lawsuits on behalf of thousands and even millions of employees over wages, hours, discrimination and working conditions.”

So, you know those civil rights that Mr. Clooney was talking about?  Just watch.

UPDATE: Wow, as if by clockwork, the Court today threw out yet another class action in a 5 to 4 Scalia-written decision, drawing strong dissents. 

Doing Violence to the Legal System

Lots of talk over the weekend about guns. On Saturday night, 3,000 house parties and a national town hall discussion took place, hosted by MoveOn.org with Michael Moore and a panel of experts following the screening of the Oscar-winning documentary, Bowling for Columbine.  Yoko Ono’s heartbreaking twitter photo of John Lennon’s bloody glasses went viral. And the New York Times covered the new $12 million national advertising blitz by New York City Mayor Michael Bloomberg, which “focuses on senators who he believes might be persuaded to support a pending package of federal regulations to curb gun violence.” Bloomberg said on Meet the Press that he’s “optimistic” that Congress will pass something. NRA head Wayne LaPierre said the Mayor is trying to “buy America.” I guess when you represent a lobby group that thinks it already owns America, such a thing must be hard to reconcile.

And among the things that apparently Mr. LaPierre thinks he owns when it comes to guns, is the legal system. It was his lobby group that forced upon the nation a law that not only immunizes gun manufacturers for gun violence at the national level, but also prevents state officials seeking to protect their own citizens, from establishing any meaningful legal accountability for gun violence.  It was this same federal law that made it impossible for Colorado lawmakers to include in its recent gun control package some legal accountability for the gun violence that has already devastated that state.

At the same time, the NRA has rushed into Buffalo court to challenge New York’s new gun control law, which includes “a lower limit on magazine capacity and an expansion of the state's assault weapons ban to include some popular and formerly legal semi-automatic rifles.”

Other provisions require five-year renewals of handgun licenses statewide, direct mental health professionals to notify authorities of patients deemed likely to seriously hurt themselves or others and require federal background checks for private gun sales in New York. It will require registration of ammunition sellers and buyers.

Now, New York Assembly Speaker Sheldon Silver says,

[T]he state will suspend the April 15 effective date of New York’s law banning the sale of magazines with more than seven bullets to give lawmakers time to change the statute.

The changes are happening as [Governor] Cuomo, 55, has been attacked by pro-gun groups who claim the law was rushed through. In January, Cuomo, a Democrat, waived a requirement for a three-day waiting period between a bill’s introduction and vote.

The legislature approved the measure within 24 hours of its introduction. Rich Azzopardi, a spokesman for Cuomo, didn’t respond to an e-mail yesterday seeking comment on the lawsuit.

We’ll have to wait and see if the NRA wins its case.  But in being forced to drop the Colorado bill that would have included a new liability standard for gun owners and sellers – an attempt to get around the federal immunity law - Colorado Senate President John Morse said, "Cleansing a sickness from our souls doesn't come easy. It's gruesome.”

Like a bloody pair of glasses.

Attack of the Caffeinated Monster

Monster Beverage, which is “among scores” of caffeine-laden energy drinks “like Red Bull and Rock Star … that companies are aggressively marketing to teenagers and young people,” has been in the news recently. In fact today, Monster made the front page of the New York Times today. Seems like after being sued by the mother of a teenager who died after drinking lots of Monster Energy, reports surfacing of more deaths that occurred after people drank it, and a group of doctors and public health officials now urging the FDA to protect kids from “serious potential health risks” posed by these dangerous energy drinks, Monster has decided to do what any responsible corporate citizen would do: it is remarketing itself. Specifically, Monster has decided to remarket itself as a beverage (rather than a dietary supplement) so it will “no longer be required to tell federal regulators about reports potentially linking its products to deaths and injuries.”

And unfortunately, the law right now lets them do that! The New York Times notes, “the changes by [Monster] demonstrate the degree to which energy drink manufacturers can decide which rules to follow.” Not that there is much regulation of the dietary supplement industry anyway, but apparently even some of those rules were just too hard for Monster to follow.

But think about that for a moment. A company that’s currently under scrutiny for – and is now being sued for - causing deaths and injuries, is re-marketing itself so that it won’t have to tell anyone if it learns that its products may have killed someone. And no doubt, it will learn such things. Since October, when the FDA disclosed that five deaths occurred after people drank Monster, the FDA has received three more death reports and 14 injury reports. What’s worse is that this product is being specifically targeted at young people.

The doctors and public health officials note that in addition to being potentially linked to deaths, drinks like Monster can cause cardiovascular complications, seizures, and neurological problems in young people. Indeed, the autopsy and medical examiner reports of the teen whose mom is suing Monster say she died of “’cardiac arrhythmia due to caffeine toxicity’ that had exacerbated an existing heart problem.”

Monster is denying any legal responsibility and is fighting this grieving mom in court.  But incredibly, she isn’t Monster’s only legal target. Also on the list is a nutritionist who writes a newsletter for elementary schoolers, who has criticized the energy drink industry – not even Monster Energy or any other product, by name. According to the Times, Monster is now threatening legal action against her, for what they call defamatory statements in a newsletter meant for kindergarteners through fifth graders.  “They are going after me for reaching that segment, and it boggles my mind,” she said.”

Energy drink related emergency room visits have skyrocketed from 1,128 in 2005 to 20,783 in 2011. And children are drinking a lot of energy drinks. In a survey nearly 20% of eighth graders said they use one or more energy drinks every day. Now, Monster won’t have to come forward when it learns its drinks may be linked to injuries and deaths. And at the same time, the company is using the legal system to fight parents and intimidate critics. Let’s hope somebody does something soon.