ThePopTort

Huff Post Repost: U.S. Chamber of Commerce Sells Out Small Businesses and Local Communities

Last week, a student walked into the offices of the South Carolina Small Business Chamber of Commerce, asking to see the organization's public 990 tax forms. Odd, thought Frank Knapp Jr., the organizations' president and CEO. There was nothing legally wrong with this request, of course. But this was the first time in 10 years that anyone had asked.

After a few polite questions, the student finally spilled the beans. He'd been sent from The McNair law firm, one of the most politically connected corporate firms in the state, and recently honored by Chambers USA, America's Leading Lawyers for Business. As Mr. Knapp wrote on his blog, "[the student] understood that someone from out-of-state had asked McNair to obtain information on us." Why would a Chamber-friendly law firm covertly send a student to collect information on a local chamber of commerce?

Keep reading.

Punitive Damages – The Silly Season

There’s been a lot of silly talk about “punitive damages” lately – the kind of damages awarded when hideous misconduct is involved - so we thought this might be a good opportunity to revisit this misused and misunderstood topic. First, some of the silly talk.

Lanny Davis, former Clintonista turned corporate lobbyist (or even worse) gave a Wall Street Journal interviewer his views about medical malpractice, arguing that judges and juries shouldn’t be allowed to handle them.  His argument was based on so-called “facts” like this:

The problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages. That’s when you penalize a doctor for gross negligence or recklessness. … After all, negligence is not an intentional act. It’s an unintentional act. If it is intentional, then it moves into the realm of the criminal, and that’s really not what people are worried about here.

Worried about?  Who’s worried about punitive damages in medical malpractice cases?  They barely exist.  There were six in the entire state court system in the last year the Bureau of Justice Statistics looked at this. SIX!  And no doubt, they were in cases of horrible misconduct or abuse, and hopefully will still be available when and if families file their civil suits against the Delaware pediatrician who (allegedly) raped and sexually abused 103 children. Hopefully, Delaware does not go down the road of capping punitive damages overall, a direction in which South Caroline may be headed right now, even in the face of “runaway Toyotas.”

Here is what else the Bureau of Justice Statistics has to say about the frequency of punitive damages:  Punitive damages were sought in only 13% of the approximately 14,000 general civil trials with plaintiff winners in 2005; Punitive damages were awarded to only 5% of plaintiff winners, and the median overall punitive damage was $64,000! 

Indeed, a couple of stories recently showed just how reluctant juries are to award punitive damages even against huge corporations, let alone doctors.  First, a story we told you about last week concerning the corporate hog farm, the stench of which was impossible to live around.  No punitives.  The second came in a Louisiana verdict Friday against Exxon Mobil.  The case was brought by 16 former employees because "offshore drilling pipes they cleaned over decades contained radioactive contamination.”   While awarding “nearly $1.2 million as compensation for the increased risk they face of developing cancer … jurors declined to award the workers punitive damages.”  This is even after an earlier jury actually did award punitives in a similar case, an award that was later greatly reduced even thought the court found Exxon’s behavior “reprehensible.”

So where exactly is the crisis?  To paraphrase a certain Senate Majority Leader, people are entitled to their opinion about punitive damages, but they’re not entitled to their own facts.  Go sit in the corner, Lanny!

The Wrong Respone to Toyota

Have you heard the latest about Toyota's problems?  It now seems the company’s sudden acceleration” fixes” aren’t working. This comes after evidence that the company tried to cover up problems by withholding discovery documents in litigation.  Could it get any worse? 

Oh yes, thanks not to the company, but to our elected leaders.

There have been some very serious questions raised about the National Highway Traffic Safety Administration’s handling of the Toyota debacle, something we have written about here. 

One of the problems, clearly, is that that agency is dangerously underfunded and understaffed.  Ralph Nader wrote in Sunday’s Los Angeles Times that even in the midst of the Toyota situation, “President Obama actually recommended cutting NHTSA's motor vehicle safety budget next year by $8 million.”  (By the way, this is at the same time the President wants to spend another $50 million to support creation of completely unnecessary new court systems to handle medical malpractice cases that our courts currently handle just fine at relatively small cost.)  Nader writes:

Former NHTSA Administrator Joan Claybrook has testified to the need for an immediate budget increase of $100 million just to assure that NHTSA has the technical personnel and capability to meet its obligations in the areas of safety standards, defect recall, enforcement and research.

At a time when about 40,000 Americans die in cars each year and hundreds of thousands more are injured, NHTSA's motor vehicle safety budget is a mere $140 million. By comparison, taxpayers will pay more than four times as much -- about $675 million -- to guard the U.S. Embassy in Baghdad.

Meanwhile, the South Carolina House has just passed a bill to severely cap punitive damages to “$350,000 or three times compensatory damages, whichever is greater.”  In arguing against the bill, opponents cited “runaway Toyotas” as among reasons why punitive damages should not be capped legislatively.  Punitive damages "send a message to corporations about protecting consumers…. ‘Let me tell you what this is truly about; it's corporate greed,’ said Rep. Chris Hart, D-Richland, who talked about how one insurance company made $58.1 billion in profits last year.”

Indeed,  although extremely rare, punitive damages have critical social and financial importance lying not in their frequency, but in the “signals” they send.  As we’ve mentioned before, history shows that companies will sometimes balance safety against profits in determining whether to redesign or recall a defective product, clean up a toxic waste site or end a dangerous practice. Juries know that, to a multibillion-dollar company, even a $1-million punitive damages award is barely a slap on the wrist.

Given the rash of corporate abuse in this country, including the Toyota disaster, a punitive damages “cap” seems like the worst possible idea at the worst possible time.

Blink 182’s Travis Barker Settles Plane Crash Suit; DJ AM’s Estate Still Pursuing

If you haven’t heard, there’s an update on a story we’ve been following for over a year now.

Blink 182 drummer, Travis Barker, has settled his lawsuit against those responsible for the September 2008 plane crash which severely injured him and DJ AM (who died in August 2009 of an accidental drug overdose) and killed four others. 

It’s a tragedy that could have been prevented, according to the National Transportation Safety Board, which found that “the thrust reversers — devices on the back of jet engines that divert their thrust forward, helping to slow a plane or force it backward — were not in the right position to help slow down the plane.”

Compounding the tragedy of this crash is, of course, what happened to DJ AM months later.  His estate believes that “medication [he] received during his stay in the hospital, as well as the trauma from the crash, were the main reasons why [DJ AM] started using drugs again after a decade of sober living.”  That’s why his estate is continuing to pursue their claim.  A mediation conference is scheduled for this Thursday.

We hope this gives the families some peace.

Ken Starr - He's Back!

Ever wonder what Ken Starr, the guy who wrote the report that led to Bill Clinton's impeachment over the Monica Lewinsky scandal – has been up to lately?  Well, in addition to defending California’s Prop 8, the gay marriage ban, he’s also been helping insurance companies fight sick workers in court - and losing! (at least so far).

Seems like in South Carolina, Starr has now lost a appeal in a class action, which insurance companies have dragged out for six years, brought by “a group of mostly state employees who claimed two insurance companies cheated them out of payments related to their cancer treatments.” A federal judge has now awarded $7.8 million to 182 workers.  (Six have already died.) Starr is continuing to appeal, so we'll see if that number grows. Goodness.

For Docs, DJ AM, and Parents, A Very Civil Justice Vaca!

One thing we’ve learned here at ThePopTort is that the pursuit of justice through our civil courts seems to never take a vacation, not even during the holidays. 

Not even for some Wyoming neurosurgeons who have brought a 14th Amendment equal protection lawsuit against a medical center for, among other things, defaming them. (Yes, you heard right, doctors are suing - again.)  Of course, the medical center is saying the docs can’t sue claiming qualified immunity. (Hey docs, let us know how that feels!) 

Not even for celebs like DJ AM who joins Travis Barker  in suing over the plane crash that severely injured them and took the lives of others.

Not for parents of a 12-year-old girl who was beaten and arrested by three police officers who say they thought the girl was a prostitute, and who have now filed a federal lawsuit.

And not for the mother a man killed in the September Los Angeles Metrolink train crash that killed 25 people and injured 135.

Let's hope 2009 is a better year for all.

Planes, Trains, Fees, and Trees

Today’s entry is something of an ode to holiday fruitcake—well, not really, but like any good fruitcake, it is filled with an interesting array of ingredients (i.e., stories).  So pour yourself a glass of eggnog (or whatever one drinks with fruitcake) and get ready to chow down.

The Travis Barker/Blink 182 Plane Crash Story Continues: We’ve written about the terrible plane crash that seriously injured Blink 182 drummer Travis Barker and killed several others, as well as Barker’s lawsuit against those responsible.  Now the surviving wife of Barker’s assistant, “Lil” Chris Baker, who apparently suffered quite a bit before he died from the crash, is suing the same companies that Barker did last month.

Immunity for Railroads—Chugging Toward a Station Near You: Just when you thought the Bush Administration had run out of corporate wrongdoers to try to immunize from lawsuits in its last days in office, now they’ve decided to try to protect railroad companies.  Yet another thing that civil justice advocates will need to fix next year!

Another Contingency Fee Cut:  Remember the story about a federal judge who arbitrarily cut an agreed-upon attorney’s fee, and the fear that this might chill important and difficult cases from being brought?  Well, it’s happened again in New York, this time by a state judge.  The attorney whose fee was cut represented several  people who were riding in a Dodge Caravan when one of its tires blew, causing it to roll over, become “airborne” and ejecting seven children.  One woman was killed.   Connolly’s suit named DaimlerChrysler as a defendant for installing a defective lift-gate latch (something the Center for Auto Safety says has inspired recalls in the past) as well as Fred Flat Fix for improper tire repair.  Ironically, the court had nothing but praise for Connolly's work.

Good News Regarding the “Dollar Tree” Story: Here’s a happy update to a story we told you about, involving a Dollar Tree employee whose survivors were being denied her Workers’ Comp death benefits after she was randomly stabbed to death by a racist attacker.  After a mountain of bad press, the Dollar Tree now says it will pay the full benefits because “this is the right thing to do.”  Amen!

Travis Barker and the Chamber of Horrors

Today, I bring you two seemingly unrelated, yet noteworthy news items—one involving former Blink-182 drummer Travis Barker, and the other, the U.S. Chamber of Commerce Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce that focuses on wiping out the legal rights of consumers injured by corporate misconduct.

The Chamber story is short and obscenely familiar.  In a nutshell: the Chamber spent $9 million lobbying the federal government in the third quarter alone, attempting to convince every federal agency it could to wipe out corporate liability.  According to the AP, “Besides Congress, the institute also lobbied the departments of Justice, Commerce and Treasury, the Consumer Product Safety Commission and the Securities and Exchange Commission.”

Meanwhile, Travis Barker has unwittingly become a spokesperson for those the Chamber, with all of its money, would seek to prevent from having their day in court. 

Last week, Barker filed a lawsuit against Bombardier Inc., Clay Lacy Aviation, Global Exec Aviation and Inter Travel Services, and Goodyear Tire and Rubber, over the South Carolina plane crash that occurred last September, leaving Barker and DJ AM with second- and third-degree burns, and killing four others. The suit alleges that “many parts of the plane ‘were not airworthy’ and that the pilots’ negligence ‘was a substantial factor in causing the crash.’” (Listen to Air Traffic Control Tapes here.)

"If something goes wrong that's not supposed to go wrong or you fall victim of it, I think you should be compensated," Barker explained.

"You know, I wouldn't have third-degree burns all over my body or be prohibited to do certain things. I can't go swimming; I can't do some of the things that normal people can do. I didn't ask for that to happen."