ThePopTort

Cooked-Up Lawsuits and the Agenda Behind Them

If you’ve seen the documentary film, Hot Coffee, you may recall the great soundbite from our very good buddy Victor Schwartz, General Counsel for the American Tort Reform Association, who talks about how false descriptions of lawsuits – or even completely made up ones – are pushed out there by his other buddies.  Not intentionally.  Ahem, cough, cough.  In fact, pushing out false descriptions of lawsuits intended to outrage the reader or listener have been the cornerstone of the “tort reform” movement for years.  In Hot Coffee, you’ll see U.S. presidents as far back as Ronald Regan engaging in this behavior.

It’s not like these PR stunts are any big secret.  Even if you haven’t seen Hot Coffee (HBO Signature is showing it again this month – check your listings!), we know that Snopes.com, a website that debunks urban legends, found that a list of six crazy “real lawsuits” circulating around the Internet since May 2001 was entirely made up, once causing media critic Howard Kurtz to come down hard on U.S. News & World Report owner Mort Zuckerman for repeating them.  See also Stephanie Mencimer’s article, “False Alarm; How the media helps the insurance industry and the GOP promote the myth of America's ‘lawsuit crisis,’” or professors Haltom and McCann’s book Distorting the Law; Politics, Media and the Litigation Crisis, which we talked about here.

Yet it is honestly still surprising to me when members of the media decide not to become the “tort reform” movement’s unwitting agents by promoting misleading, exaggerated or completely wrong descriptions of lawsuits.  So here’s a shout out to Fayetteville, North Carolina reporter Gene Smith, in his blog “Y’Think?”, who bucked the trend with a brutally honest critique of a U.S. Chamber of Commerce Institute for Legal Reform “Top 10 Crazy Lawsuits” BS list.  To wit:

[T[here’s no mention of the disposition of those cases, although the chamber did provide a link to the stories on which its Top Ten were based, and that made further research possible.… I count five dismissals (so far), and predict the same fate for the other plaintiffs.

Some filed their own actions. Why does that matter -- expense? Nah. It doesn’t cost that much to file something. Most who filed their own stuff probably did so because no lawyer would risk his reputation placing that kind of crap before a judge.

More important is that I found no evidence that any of the chamber’s Top Ten meritless cases has cost businesses (Oh: and, of course, pee-pul) anything more than a modest fee to answer the complaint and prepare to finesse it in a single motion if it comes to court. There’s not a bankruptcy on the list -- not even an itty-bitty fine.

And this matters … why?

Because (A) The Top Ten were posted by the chamber’s Institute for Legal Reform, a title that implies a need for a fix, and (B) the Institute’s annual roll call “helps to remind us that abusive lawsuits affect real people and real businesses, and can have harmful results to lives, jobs, and even our economic growth."

Please specify the harm to lives, jobs and economic growth caused by the 10 cases the chamber found representative of what it would have you believe is the norm or, at least, commonplace.

In North Carolina, you’re too late. We’ve already “reformed” because it’s hard not to become an instant convert (see above) if you stop thinking too soon. In addition to the “contributory negligence” doctrine that keeps you from recouping your full losses from an auto accident, our state now sports a new limit on liability if you’re wronged by a surgeon or some other provider of a product or service. (Nationally, we do the same for oil spills and nuclear mishaps.)

Feeling more secure yet? Enjoy the yuks. You’re the one who'll be paying the bill.

Ironically, this comes just as this year’s poster-child case for dreadfully-irresponsible reporting of jury verdicts was actually dismissed altogether, a case covered in the Center for Justice & Democracy’s report, Headline Blues, on which we reported here.  As noted in the report, while every headline about this case at the time  mentioned the eye-popping $322 million asbestos verdict, rarely was there any mention in the stories "the fact that state law automatically and severely caps both non-economic and punitive damages in Mississippi.  The highest any punitive damages award can be in Mississippi -for companies worth more than $1 billion - is $20 million.  And non-economic damages are capped at $1 million.”

People deserve to know the truth, right?  They sure don’t deserve to be played by PR campaigns and lobbying agendas.  At least Mr. Smith figured it out.

Film Screenings Galore

Last night’s DC premiere of the Alliance for Justice’s wonderful new short film, A Question Of Integrity: Politics, Ethics, And The Supreme Court  reminded us that it’s par-teh time! 

There’s nothing more fun that bringing together your friends, relatives, colleagues (and very smart pets) to sit together on a comfy sofa and watch an important film while downing savory snacks, right?  In fact, here is AFJ’s page, telling you how to host a screening for A Question Of Integrity.  Do it soon. Yesterday's Salon tells more:

As Common Cause and Alliance for Justice have documented, the past activities of Justices Clarence Thomas, Samuel Alito and Antonin Scalia raise questions about the propriety of some of their extracurricular experiences. In September, the two groups, along with more than 100 law professors and ethicists, called upon Congress to require the nine justices of the high court to apply to themselves the existing ethical code of conduct rules covering all other federal judges, and to require them to publicly provide valid reasons rejecting recusal for alleged conflicts of interests. As the professors pointed out, the Supreme Court now has no policy on recusal. The justices simply decide for themselves if they have a conflict of interest.

At a time when all government officials are held in diminishing repute, one would think the Supreme Court would not need to be told that it, of all institutions, is not beyond the law and is subject to meticulous standards over which it alone should not be the exclusive decision-maker.

Meanwhile, we would be remiss not to mention that the feature length documentary Hot Coffee, which we’ve discussed many times (e.g., here, here ) came out on DVD yesterday.  So now you don’t need HBO to host your own private screening.

The only problem we have with the Hot Coffee DVD is the cover art (so we're not posting it here).  Hundred dollar bills flowing out of a coffee cup is more what you’d expect from the U.S. Chamber of Commerce.  On the other hand, maybe all those “tort reform” types will be fooled by this image, think it’s their own film, purchase the DVD and do their own screenings.  Now that would be interesting. 

Goodbye Andy Rooney, and Thank You for Reading Our Letter!

Andy Rooney signed off on 60 Minutes last night, you may have heard.  So allow us to dig back into the Center for Justice & Democracy archives for a curmudgeonly charming Andy Rooney story, which we’ll preface with part of the interview between Andy and Morley Safer on last night’s show:

Safer: You-- you've gotten tons of mail over the--

Rooney: I get---a lotta mail. I--more mail than---most people.

Safer: Do you answer any of them?

Rooney: Not much, no. I mean, who would wanna answer an idiot who has the bad sense to write me a letter? I mean, it's a certain kind of person who writes and they're not my kind of people, usually.

Safer: Well, they are your kind of people.

Rooney: Well--

Safer: They're the people who are--

Rooney: I suppose. But I-- I-- every once in awhile I answer one. But not very often.

You know, that’s what we thought too.  But back in November 2002, we were not very happy with a piece Andy did called “I'm Going To Sue,” which was full of so many inaccuracies and inflamed rhetoric about the civil justice system that he may as well had the U.S. Chamber of Commerce or American Tort Reform Association substituting as guest commentator.

So CJ&D wrote Andy a letter, politely but firmly challenging virtually every statement in his entire piece, figuring it would end up in some intern’s trash bin.  But we were very wrong.  Andy did read the letter.  Not only that, he called CJ&D, said he liked the letter and was going to mention it on the air.  And sure enough, on January 13, 2003, he said in a most curmudgeonly endearing way:

ROONEY: (Voiceover) This is from Joanne Doroshow at the Center for Justice & Democracy, whatever that is.

She complains, but it's a good letter.

(Footage of letter)

ROONEY: (Voiceover) 'Your commentary did a disservice to the debates over the importance of the civil justice system.'

Well, maybe it did and maybe it didn't, but next time that woman buys takeout coffee at McDonald's, I'll bet she'll have it with milk.

(Hopefully, he caught Hot Coffee on HBO this summer!)

Meanwhile, not the same can be said for Morley Safer, who also in 2002 did a disgraceful piece about the civil justice system in Mississippi.  In a similar letter, CJ&D wrote to Mr. Safer:

It was not enough that the piece simply parrots the outrageous claims of the business and medical communities that Mississippi jurors are rendering large verdicts against negligent drug companies and doctors not because jurors have listened to the evidence in a case (unlike Mr. Safer, I might add), but because they are poor, dumb, uneducated and black (or, in an equally unbelievable allegation, redneck and trying to render “payback for the Civil War.”)  But you don’t stop there. You allow an unidentified man to make a completely outlandish, highly inflammatory and unsupported statement that jurors in Mississippi were being paid for their verdicts. So they’re not only poor and dumb, they’re also crooks.

This letter apparently did end up in the 60 Minutes trash heap. But the program was sued over this piece,  and incredibly, the person who told Safer that juries were being paid off, "since told local reporters he was joking and thought the cameras were off, according to local reports. 60 Minutes, which has stood by the story, said in its report that it tried to contact several jurors, but none would talk.” Wow, not exactly the kind of response what might expect from the paragon of journalistic integrity that 60 Minutes thinks it is.

It’s a shame because as we also noted in our letter to Safer, “In the 1980s, 60 Minutes engaged in some ground-breaking journalism with correspondent Ed Bradley and producer David Gelber that exposed myths about juries and the civil justice system, which were then and continue to be perpetuated by the insurance industry, drug companies, tobacco companies, medical lobbies and other special interests seeking to limit their liability from lawsuits.”

We never said thanks to Andy Rooney so we'd like to say it now, and under the circumstances, we’re bound to miss him even more.

"Tort Reform" and Jobs - No Link At All

In this weeks’ Business Insurance magazine, a trade publication for the insurance industry, our friends at the U.S. Chamber of Commerce have announced their new, or rather recycled PR messaging trying to link the relatively infrequent litigation by consumers against corporations, and job loss.  And that's so they can justify their campaign to strip everyday Americans of their legal rights - so-called "tort reform."

Nothing like trying to exploit the country’s economic crisis with myths and fear-mongering to pad the bottom line of their members.  Seem like a shrill thing to say? 

Well, we decided to see what businesses themselves really think about this argument, as opposed to their lobbyists and PR spokespeople.  If any sector of the business world were going to care about this, it would have to be small businsses, right?  So we checked out the most recent “Small Business Problems & Priorities” survey issued by the National Federation of Independent Businesses (NFIB), a “small business” lobby group that is one of the Chamber’s closest allies in their fight to limit corporate liability for wrongdoing.  We started to look down the list of 75 issues that are important to NFIB’s members.  And we looked.  And we looked.  Finally, we hit #65: “Cost and Frequency of Lawsuits/Threatened Lawsuits.”  That’s right, this issue ranked 65 out of a possible 75 matters that small businesses care about, just below "Solid and Hazardous Waste Disposal."

Wow, that's some crisis.  The Chamber is right about one thing though.  There’s nothing new here.  They’ve been trying to make this failed argument for years.  Check out this 2004 White Paper from the Center for Justice & Democracy, Small Business and “Tort Reform”: Much Ado About Nothing and Congressional testimony here.

The Economic Policy Institute looked at this issue as well.  Here’s what they found: 

There is no historical correlation between the inflated estimates of the costs of the tort system and corporate profits, product quality, productivity, or research and development (R&D) spending. Evidence suggests that the tort system, without the proposed restrictions, has actually been beneficial to the economy in all these areas.… [S]ignificant tort law change would be more likely to slow employment growth than to promote it. Endlessly repeating that so-called ‘tort reform’ will create jobs does not make it true.”

Regulations, Litigation and the Audacity of Corporate Hypocrisy

Political “tort reform” hypocrites, like House Speaker John Boehner who was featured earlier this week, may be a dime a dozen these days, but there's nothing like the sheer hypocritical gall of the Big Business community.  While working throughout the nation to strip everyday Americans of their legal rights and immunize themselves for harming consumers, they’re constantly kicking down the courthouse doors to get in.  To wit, check out The Blog of the Legal Times article yesterday about two new hires at the rabidly anti-civil justice yet audaciously hypocritical U.S. Chamber of Commerce's – wait for it – “National Chamber Litigation Center!” 

It seems that two former Bush administration lawyers have been hired by the Chamber to “battle against Obama-era regulations” in light of “a tidal wave of regulatory burdens for business.” Said the National Chamber Litigation Center’s executive vice president, "The Chamber is really going to step up its activities in that area."  That would be in addition to the 21 Supreme Court cases the Chamber is already involved with this term. 

But wait again.  Battling Obama-era regulations?  Are they kidding?  Just today, the Associated Press reports that the White House is making hundreds of regulatory changes “to ease regulatory burdens on business,” thanks to the Administration’s anti-regulatory cost-benefit czar Cass Sunstein. (See earlier coverage of Mr. Sunstein here.) 

These changes include “eliminat[ing] requirements in some states for vapor recovery systems at gas stations,” “easing the amount of information doctors and hospitals must file to medical databases,” and “appl[ing] certain railroad safety equipment rules ‘only where they are actually needed.’”  We’re guessing “never” might be the National Chamber Litigation Center’s view on this. 

This makes us wonder if the National Chamber Litigation Center might also have behind the “thoughts” of these executives at Massey Energy, which was responsible for the Upper Big Branch mine explosion in April 2010 that killed 29 miners:

Executives of Massey Energy Co believed President Barack Obama had a secret agenda to bring down the coal company after 29 men were killed in an accident at one of its mines last year, a lawsuit shows.

The charge came in a class action suit by investors who seek to block Massey's pending $7 billion takeover by Alpha Natural Resources Inc as they press their claims for about $1 billion in losses from alleged Massey mismanagement.…

Last week, an independent inquiry into the April 2010 blast that killed 29 miners at Massey's Upper Big Branch coal mine in West Virginia concluded it could have been avoided and blamed it on safety failings. An inquiry by the federal Mine Safety and Health Administration (MSHA) is still pending.

In the suit unsealed in Delaware on Tuesday, the plaintiffs noted that for more than five years, "Massey has incurred record numbers of citations for serious safety hazards."

It said Don Blankenship, Massey's former chief executive, and Chairman Bobby Inman gave depositions in which they "firmly believed the company was being targeted by the government."

Inman, a former CIA deputy director, "was unequivocal in his assertions" that MSHA, unions, lawyers "and President Obama himself harbored a secret agenda to destroy Massey."

The large numbers of safety violations Massey received were proof of the conspiracy, according to the suit. Between 2005 and 2009, Massey's total safety violations increased from 4,698 to 10,653, while violations that posed a serious threat to worker safety increased from 54 to 246, the suit said.

That’s it.  We’re speechless.

ALEC Hides Out

Who doesn’t know that corporate “pay-to-play” politics permeates our political system these days.  Some of this is obvious.  Take the uber-rich U.S. Chamber of Commerce and its “Institute for Legal Reform,” which issues easy-to-follow instructions for states seeking to wipe out the legal rights of people injured by corporate wrongdoing while smearing certain state business climates and selling out small businesses. (By the way, Chamber chief Tom Donohue is speaking this morning.  Be on the lookout for bogus claims blaming the country’s joblessness on lawsuits by injured people.)

But some of this is not so obvious.  Forbes has an article this week called “The big political player you've never heard of,” about one of the most secret: the American Legislative Exchange Council, which exists for the purpose of inserting the agenda of corporate America and the political right into state legislative activities and “is quietly having an enormous influence on how state laws are made.” Says Forbes,

The organization, founded in 1973 and funded mostly by corporations and conservative foundations, exists to bring business-friendly state lawmakers together with lobbyists for corporations, including AT&T (T), Exxon Mobil (XOM), Wal-Mart (WMT), and Johnson & Johnson (JNJ). It drafts model bills related to its goals of free markets and limited government. Issues that ALEC has influenced include Arizona's anti-immigration law, tort reform in Mississippi, and the opposition to Net neutrality.

In fact, ALEC’s membership, who work together to draft bills, consists of conservative state legislators, who pay little to join, and corporations who pay hefty membership fees - up to $25,000 or more to participate in ALEC’s issue-focused “task forces.”  Yet ALEC insists that it:

is a charity, a status it justifies because of its educational mission. The designation allows the group to collect tax-deductible contributions, and it eases lawmaker travel to ALEC events. Says Edwin Bender of the National Institute on Money in State Politics: "Corporations can implement their agendas very effectively using ALEC."

In the 2009 legislative session, by ALEC's reckoning, state lawmakers introduced 826 bills the group conceived -- 115 of which made it into law. That's quite a record, and it's going to get stronger. One overlooked aspect of the Republican resurgence has been its revolution at the state level. The GOP picked up more than 700 seats in state legislatures and now controls 25 of those bodies outright, from 14 before November.

Here’s another one of ALEC’s priorities: wiping out the rights on injured people.  According to a report from the Center for Justice & Democracy, ALEC’s civil justice priorities deal with drug industry liability in the wake of Wyeth v. Levine, asbestos, wrongful death, attorneys fees, fee arrangements with state attorneys general, class actions, procedural rules and many standard “tort reforms” including non-economic damages and joint and several liability.  Contact us if you’d like to learn more.

(Hey, no offense to the cute pup.)

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.

A Tort Law Celebration!

It was a patriotic weekend to remember! New laws took effect that expanded the rights of people to “sue for damages following medical accidents, road accidents, harm from pollution, mental distress” and so on.  Huh? OK, so I did watch John Adams reruns on HBO this weekend, but I promise this is no 1791 flashback (that being the year the Bill of Rights passed, including that pesky Seventh Amendment guaranteeing the right to civil jury trial).

No, actually, I'm talking about China, which, as we have pointed out before, has one of the world’s worst human rights records but has now greatly broadened access to civil justice for its citizens. China’s new Tort Liability Law “has been seen as one of the key laws within China's legal framework of civil rights protection.”  It has overwhelming support of the citizens.  Must be nice.

All I can say is, if you think the Chinese government has a hold on political propaganda, wait until the U.S./China Chamber of Commerce starts in, complaining when injured people actually start using their rights to bring lawsuits (like here)!  And if that doesn't shut people down, China’s Supreme People's Court need only glance in this direction once more to learn how to really do it, courtesy of our U.S. Supreme Court.  

China, I'm afraid you ain’t seen nothing yet.

Huff Post Repost: America Wakes Up to the Importance of Liability and the Stupidity of “Caps”

Teachable moments can come almost anytime, from anywhere. The recent history of corporate and professional breakdowns and mess-ups should provide a number of them. Bob Herbert raised the issue in a stinging New York Times column recently when he asked, "Will we learn anything from this disaster ...?" BP was his focus but also on his mind was "how the giant financial firms almost destroyed the American economy" and the "devastating mine explosion in West Virginia -- at a mine run by a company with its own hideous safety record ..."

We'll add to that list the Toyota debacle, drug companies marketing contaminated childrens' medications, builders who pushed defective Chinese drywall into thousands of homes, Delaware doctors who covered-up a pedophile pediatrician who raped children, not to mention more and more dangerous hospitals everywhere. What a couple of months.

Keep reading.

Say Whaaaat?” Award to Alabama Senator Jeff Sessions

It has been way too long since our last “Say Whaaaat?” Award, our own special recognition of those daring soles who say things that practically defy human comprehension.  Today, we are especially thrilled to bestow this prestigious honor to one of ThePopTort’s most, shall we say, confused civil justice opponents – Senator Jefferson Beauregard "Jeff" Sessions III (R-AL), ranking member of the Senate Judiciary Committee. 

Now, I hope Sen. Sessions is more honored to be receiving this rare prize than one of those dime-a-dozen “2009 Legislative Achievement Awards” from the U.S. Chamber of Commerce for relentless efforts to immunize corporate and professional wrongdoers from liability.  I mean, we can think of boatloads of Congresspeople who might qualify for that.  

But it take a real hypocrite to get that Chamber award, and then turn around and “extoll the virtues of litigation” just because the catastrophic negligence (which it denies) of some company (i.e. BP) is about to destroy the livelihoods of thousands of voters in his state.  Wrote Dana Milbank in the Washington Post, quoting Sessions, “’They're not limited in liability on damage, so if you've suffered a damage, they are the responsible party,’ said Sessions, sounding very much like the trial lawyers he usually maligns.”

Now, we’re still a little unsure whether Sen. Sessions’ new-found commitment to his constituents’ legal rights will hold for very long, so here a few issues we’d like to explore further with him:

1. Will he back legislation just introduced by New Jersey Senators Robert Menendez and Frank Lautenberg, and Florida Senator Bill Nelson, called the “Big Oil Bailout Prevention Act,” that would correct a terrible law passed a few years ago and increase the liability cap for offshore oil spills from $75 million to $10 billion?   And, “in addition to forcing oil-spillers to cover the costs of economic recovery, the legislation would require companies like BP to spend future revenues on cleanup and containment costs that exceed the Oil Spill Liability Trust Fund's $1.6 billion. It would also eliminate the $1 billion cap on individual claims against the fund and allow community responders to access the fund for ‘preparation and mitigation up front.’”  The Associated Press wrote:

A law passed in response to the 1989 Exxon Valdez spill in Alaska makes BP responsible for cleanup costs. But the law sets a $75 million limit on other kinds of damages.

Kenneth Baer, spokesman for the Office of Management and Budget, also noted that if BP were found to have acted negligently in the spill or to have violated federal laws, the damages cap under the Oil Pollution Act would be lifted.

Baer said BP could also be held liable under additional federal or state laws.

"You can be sure that BP will be held accountable to the full extent of the law," he said.

Nevertheless, the existence of the liability cap might complicate Obama's commitments to make BP pay for numerous costs anticipated in the Gulf such as shortened fishing seasons and lost tourism. It is not clear how high those costs could rise.

Since BP is denying the accident was its fault ("In terms of the responsibility, I want to be clear, this was not our accident ...") and will no doubt fight falling within these exceptions, passage of this law seems all the more crucial. 

2. Will Sen. Sessions join Alabama’s Attorney General in telling BP to “stop circulating settlement agreements among south Alabamians” that “essentially require that people give up the right to sue in exchange for payment of up to $5,000” and encourage people “seek appropriate counsel to make sure their rights are protected.”

3. And the big hypothetical – what if this calamity happened somewhere else and not in Sen. Session’s backyard?  My guess?  We’d be looking for another awardee!