ThePopTort

Abuse and Civil Justice

It’s hard to talk about Penn State’s sexual abuse and cover-up scandal/tragedy without becoming physically ill, but that’s certainly no excuse for sweeping any aspect of this story under the rug.  So we’ll approach the angle that we know best – civil justice.

Today’s Philadelphia Inquirer has a piece about Penn State's potential liability, “broad parameters” of which were laid out by state Attorney General Linda Kelly who “has charged athletic director Tim Curley and Gary Schultz, university vice president for finance and business, with failure to report the abuses and lying to a grand jury.”  And, “on at least one occasion, alarming information was made known to legendary football coach Joe Paterno and university president Graham Spanier.”

The school’s legal liabilty comes in because much of this happened on school premises. Because abuser Jerry Sandusky, "who retired in 1999 but held emeritus status, had wide access to university athletic facilities and other areas of the campus …. 'the legal issues are relatively simple,'" said one attorney.

The university had known that a dangerous condition existed on its premises but did not take steps to correct it.…

"My goodness, they had notice of particularly dangerous conduct as it relates to defenseless 10-year-old children and not only do they not take steps to remedy the condition but they provided him with the means to perpetrate these acts."

And while news coverage of this scandal may eventually fade, stories about horrific abuse by Catholic priests clearly is not ending anytime soon.  Yesterday, a Florida jury awarded $10 million in compensatory damages and $90 million in punitive damages in a case against one such priest.

Unlike many other lawsuits brought against the church, this one was against the priest himself, Rev. Neil Doherty.  The Miami Herald writes:

This is the first case of more than 20 filed against Doherty that has reached a jury — dozens of others have been settled out of court for around $50,000. Even more uncommon was the fact that Doherty, not the archdiocese, was named as the defendant in the case.

Jessica Arbour, one of the lawyers representing [Andres] Susaña, said her firm, in an unusual move, decided to explicitly name Doherty in the lawsuit, filed earlier this year.

“This was a chance for [Susaña] to be empowered and hold Father Doherty personally accountable for what he did,” Arbour said.

The dozens of other cases filed by Arbour’s law firm have sued the Archdiocese of Miami, accusing it of covering up Doherty’s abuse and putting him in a position where he could further abuse boys.…

Jeff Hermann, an attorney also representing Susaña, said the jury’s decision sets a benchmark for future cases.

“Now, we have a measure about what a jury thinks a victim should receive,” Herman said. “It sends a message … we hope the message this sends can protect other children in the future.”…

Susaña said for him, the lawsuit was less about money and more about seeking justice: “There isn’t any amount of money that can make up for what I’ve been through.”

For more about Penn State, see video below.  Sigh.

 

Football Helmet Injuries and NOCSAE Knuckleheads

How’s this for circular reasoning?  The industry-funded group that is supposed to establish helmet safety standards won’t develop helmet safety standards because the industry is probably negligent for failing to establish adequate helmet safety standards.  I think that’s a conclusion you can draw from an enormous front page New York Times story today. 

Helmet standards are “written by the National Operating Committee on Standards for Athletic Equipment, or Nocsae, a volunteer consortium that includes, and is largely financed by, the helmet makers themselves.”

The concussion standard (see our prior coverage), “has not changed meaningfully since it was written in 1973, despite rising concussion rates in youth football and the growing awareness of how the injury can cause significant short- and long-term problems with memory, depression and other cognitive functions, especially in children.”  The Times writes, 

Moreover, used helmets worn by the vast majority of young players encountered stark lapses in the industry’s few safety procedures. Some of the businesses that recondition helmets ignored testing rules, performed the tests incorrectly or returned helmets that were still in poor condition. More than 100,000 children are wearing helmets too old to provide adequate protection — and perhaps half a million more are wearing potentially unsafe helmets that require critical examination, according to interviews with experts and industry data.

…

However, “Manufacturers and schools, equipment managers and the coaches — the whole football industry — don’t want to go after or even criticize the security blanket of Nocsae,” said Sander Reynolds, Xenith’s vice president for product development. “If there’s a lawsuit, they all look to Nocsae to say, ‘Hey, see, the product met the set standards.’ They’re all ultimately on the same side when it comes to liability. Nocsae exists for two reasons — to avoid skull fractures, and to avoid liability.”

So while it has a clear role providing legal cover for helmet manufacturers that are producing unsafe helmets, the Times reports that “Nocsae accepts no role in ensuring that helmets, either new or old, meet even its limited requirement.”  Neither does anyone else, it seems:

Nocsae’s annual budget of about $1.7 million is funded mostly by sporting-goods manufacturers whose products bear the Nocsae seal of approval. The largest share of that comes from football helmet makers and reconditioners. “That’s pretty scary,” said Dr. David Price, who is heavily involved with youth football as a sports medicine physician for Carolinas Medical Center in Charlotte, N.C. “You would think there would be some sort of third-party oversight.”

…

“I have been calling for a new standard to be written for football helmets for years, and Nocsae has been sitting on their duffs,” [NOCSAE VP, Dr. Robert Cantu of the Boston University School of Medicine], said. “Everyone’s afraid of being sued, because if you say that certain helmets are better, you’re saying that millions of them out there now aren’t safe.”

Well, yeh.  And well, tough.  If you’re a parent and your child suffers a serious head injury due to an unsafe helmet, shouldn’t you have recourse in the courts against whoever is at fault?

Meanwhile, some of these companies think the whole safety thing is just hilarious.  Check out this odd video demonstration:

Congressional Stalls

The last time we remember anyone talking about Congress and stalls in the same sentence, the topic was the men’s room at the Minneapolis-St. Paul International Airport and a certain "wide stance" Senator.   

Ah, those were the days.  Now, the headlines go something like “Senate Bill on Food Safety Is Stalled.”  This is lot more serious.  

Seems like despite numerous food safety scandals (some of which we’re covered here, here, here,) Tea Party fav Senator Tom Coburn (R-OK) has decided to single-handedly block a food safety bill that “has broad bipartisan support, is a priority for the Obama administration and has the backing of both industry and consumer groups.”  

Meanwhile, the New York Times' editorial yesterday blasted similar politicking that has kept the Senate from passing critical mine safety legislation following the many mine tragedies, most prominent the Upper Big Branch mine explosion in West Virginia that killed 29 (here, here).  The Times also mentions that Congress is stalling passing legislation to help the families of 11 workers killed in the explosion, which we wrote about last week, not to mention raising the total liability cap from $75 million, . 

But that’s not to say everyone in Congress is stalling.  For example, last week the U.S. House Energy and Commerce Committee’s Health Subcommittee passed a bill to fix something we’ve covered here: “the growing concerns about concussions and other serious head injuries among school-aged children.”  This bill passed the sub-committee after a hearing with “student athletes, trainers, sports doctors and brain injury specialists at the home of the New Jersey Devils.” (There’s a full Committee hearing this week.)

Then it goes over to the Senate.  There go those flushing sounds in my head again! 

NFL Fumbles Concussion Data

In the last couple years, the dirty little secret of football brain injuries - concussions that cause brain damage and significant cognitive decline in players – has been kicked out of the closet.  It’s a significant problem, for example, diagnosed in all 12 former college and N.F.L. players of various ages that Boston University had tested for the condition.

In 2009, the NFL began a testing program of football helmets and concussions, but the testing was so corrupt (“poor methodologies” and “inherent conflict of interest” that were “not acceptable by any modern standards”) that all members of research group ultimately resigned “after strong criticism of their conduct from the House Judiciary Committee and outside medical experts.”

A new research committee was appointed and in June, two prominent neurosurgeons who chair it, “accused a fellow doctor of minimizing solid evidence of the dangers of football concussions” and “concurred that data collected by the N.F.L.’s former brain-injury leadership was ‘infected.’”  They made “clear they planned to chart a new course.”  Specifically, “The doctors said the old committee’s ongoing studies on helmets and retired players’ cognitive decline …would not be used in any way moving forward.”

But Friday, they went forward with it anyway, releasing these infected data, and claiming that based on them, “3 of 16 helmet models — two by Riddell, an official league licensee, and one by Schutt — had performed best in testing” yet insisting that these data "cannot be extrapolated to collegiate, high school or youth football.” 

But as the New York Times reports, “the public designation of three helmets as 'top performing' in tests thought to simulate only the highest 1 percent of forces to cause concussions, at a time when football head injuries are national news, led critics to fear that the safety of the nation’s four million youth football players would be compromised.”

“I believe that the document is accurate and that every word in it is true, but they imply something to the lay reader — namely that these top-performing helmets are safer against concussion,” said Dr. Robert Cantu, a senior adviser to the N.F.L. committee and director of the Neurological Sports Injury Center at Brigham and Women’s Hospital in Boston.

“It is recognized that helmets designed to work at high-impact forces, while efficient at protecting against skull fracture, are not necessarily effective at protecting against concussion,” Dr. Cantu added. “The danger in making this public is that even though it’s not stated, some people can infer and imply from this statement that the so-called top-performing helmets are safer.

“I fear that it will be used to market helmets to youth players. In reality, they may be more unsafe for the lower forces known to cause concussions, primarily in youth football.”

Dave Pear played in the NFL for six years as a defensive tackle between 1975 and 1980.  He broke his neck while playing and is facing hip replacement surgery in the very near future. Commentator Evan Weiner interviewed Pear recently:

"What they have done is create a myth," said Pear. "They have misled these young men telling them to be tough and work through injuries. Major League Baseball, the NBA and the NHL guarantee disability, pensions and medical their career. They (the NFL and the NFLPA) have convinced us that we do not deserve it. They have not allowed us access to our benefits which is not right and that has hurt players and players' families." …

Pear is of the opinion that Congress, a class action suit by former players and chipping away at the NFL's image are three areas where the retired players can make the most strides.

The class action suit demanding compensation for injuries would need a law firm with deep pockets willing to take on the NFL and would require players to step up and talk about their problems. It might be easier to find a law firm than getting macho tough guys to go public. There is still a stigma attached even in retirement for players who don't toe the company line.

Let's hope a trial lawyer is paying attention.

A Week of Mixed Messages, Civil Justice Style

In the mid-1980s, both Maryland and Missouri enacted pretty severe “caps” on compensation, which did nothing to reduce insurance rates for doctors. (Among other states.  See Appendix for full list.) While the hopes of Maryland patients were dashed this week when the Maryland Court of Appeals upheld the caps, overturning a lower court decision that had invalidated them, patients in Missouri had renewed hope.  The Missouri Supreme Court heard arguments this week asking that their state’s severe cap be overturned.  This comes after a dynamite St. Louis Post-Dispatch editorial slamming the medical establishment for forcing this cruel law on Missouri citizens, which we wrote about.

Also this week, Senator Patrick J. Leahy (D-VT), who chairs the U.S. Senate Judiciary Committee, as well as 18 other Senators, sent letters to President Obama and leaders in Congress “urging them to repeal the limited exemption for insurers from federal antitrust laws as part of the final version of major health care legislation.”  Incredibly, the insurance industry is the only industry in the country allowed to engage in anti-competitive behavior - except for Major League Baseball, that is.  That’s why, while the insurance industry’s right to price-fix and collude is being condemned, the NFL went to the U.S. Supreme Court this week and asked that the exemption apply to them!  Interesting timing.

And finally, the rabidly anti-civil justice organization, the U.S. Chamber of Commerce, never disappoints with its own brand of mixed messages, announcing again that it may be suing the Environmental Protection Agency over its greenhouse gas policy! Here’s how Chamber CEO Tom Donohue put it: “There are a number of options and processes available both in the courts and in other parts of government.”  How nice for them.  Meanwhile, the Chamber hosted a conference this week on the economy to push its anti-consumer business agenda, in a space constructed by and paid for by AIG.  On second thought, no mixed message there!   

Transportation Misery

Wanna know a great way to prevent plane crashes, horrific deaths and injuries, and, by the way, subsequent litigation?  (Like the suits just filed in last month’s plane crash in Denver?)  How about better government regulation?

NPR did a story about yet another federal agency in bed with the industry it’s supposed to regulate, the FAA.  NPR reports, “In congressional hearings, there were accusations that the FAA had ‘cozied up’ to the airlines they are tasked with regulating, and FAA administrators were blamed for covering up the actual rate of commercial aircraft near misses.”

And speaking of transportation tragedies caused by lax regulation and wily companies, the U.S. Supreme Court is allowing a class action to go forward against GM for defective parking breaks in 4 million trucks and SUV’s.

But lest we focus just on U.S. automakers when they’re down, Japanese car companies are dealing with their own transgressions.  Like false advertising around Honda Civic Hybrid's mileage claims.  One case against American Honda Motor Co. was just reinstated, and a federal class action is pending in California, “which claims that the company inflated the savings and mileage figures Civic Hybrid drivers could achieve."