ThePopTort

Workin' Woes in Wyoming

Wyoming isn't nicknamed the “Equality State” for nothing. It’s the first state to grant women the right to vote (1869).  The first woman was elected to statewide office there in 1894!  Compare that to the sorry record of a big state like New York.  But I wish I could say the same about the rights of workers in the great state of Equality.   

Today, the New York Times is reporting on a pretty shocking report identifying “Wyoming, with its growing oil, gas and mining industries, [a]s one of the most dangerous places in the United States to work.”

Dr. Timothy Ryan, an epidemiologist, was hired by the state to study this problem and has since quit because of inaction by the state.  His report, issued January 3, says, among other things:

Over the last year I have analyzed 17 years of occupational fatality data (1992-2008), read through fatality case reports, and have spoken with hundreds of employees working for various sized companies in the major industries in Wyoming.  The common theme throughout is the lack of a “culture of safety” in Wyoming. Safety occurs as an afterthought. Greater than 85% of the fatality reports indicate that safety procedures were not followed. …

 Wyoming averaged a fatality every ten days over the last ten years.

What's more, he notes, “Currently, OSHA inspections occur annually in less than 2% of Wyoming establishments. The inspections that do occur are primarily based on known incidents, employee  complaints and those companies with a high level of workmen’s compensation claims.” 

Writes the Times,

The report also noted that Wyoming had the highest workplace fatality rate in the country for all but one year from 2003 through 2008. In 2010, the last year that data was provided, Wyoming’s estimated occupational death rate was three and a half times the national average, the report said. …

To be sure, Wyoming’s oil and gas boom, which began in the 1990s, has drawn thousands of people with high-paying but dangerous jobs. In August, three workers were killed in Converse County after an explosion at an oil storage site. …

Oil and gas rig workers and their families are often itinerant, hold little political clout and fear that reporting safety problems could get them fired, said Laurie Goodman, a Wyoming lobbyist who has worked on occupational safety issues.

As we’ve noted before and is addressed at length in this Center for Justice & Democracy report, because the workers comp system fails to keep employers on any kind of legal "hook" for these conditions, the system itself perpetuates a culture of non-safety. The paper reports,

In 2009, Ms. Goodman and worker advocates tried unsuccessfully to get state lawmakers to pass a bill that would have made it easier for workers to file lawsuits after an accident.

“We have a system where there’s no accountability, where the employer has no incentive to be responsive,” said John Vincent, a former mayor of Riverton, who has represented the families of dead and injured oil and gas workers in his law practice and has worked on the legislative effort. “People are afraid to sue. They won’t report injuries. They’ll just stay at home until they get better.” …

 “It seems like people die out there all the time. They’re leaving wives and children,” Ms. [Natlie] Moss, [whose young husband was killed] said. “What 26-year-old should have to plan a funeral?”

Indeed. 

Fair Warning – When Worker Safety Ain’t Blow’ In the Wind

If you’re feeling a little lazy over the holidays and the corporate attacks on our judiciary (including publishing judges’ photos to alert every extreme-right wingnut in America – shameful, ATRA) isn’t quite enough to get your juices boiling again, I’ve got just the trick.  Check out the new journalistic endeavor from former Los Angeles Times award-winning investigative journalist Myron Levin, called Fair Warning, a non-profit news web site covering the latest “news of safety, health and corporate conduct."

We remember Levin at the LA Times, of course, covering everything from the tobacco industry (“The country’s leading smokers’ rights group has built a fat war chest despite minimal support from the 3 million people it claims as members, according to public records and internal documents that suggest its only significant backer is Big Tobacco.” ) to auto safety (“How much should General Motors Corp. spend to keep people from burning to death in fiery crashes? In a memo nearly 30 years ago, a young GM engineer, Edward C. Ivey, suggested that the answer was: Not much.”) to dishonest PR tactics behind the so-called “tort reform” movement ( “Legal Urban Legends Hold Sway; Tall tales of outrageous jury awards have helped bolster business-led campaigns to overhaul the civil justice system.”)

Fair Warning breaks new ground with stories like today’s expose of the wind power biz, which “has fallen short on worker safety.”  To say the least.   Writes Levin,

Thousands of the giant wind machines violate a federal requirement to give technicians who work inside the towers enough maneuvering space to get up and down their ladders safely. The standard says the space near the ladder should be free of permanent obstructions that could cause serious head or back injuries if a climber slips or is moving fast...

Two field technicians have sought to draw attention to the issue, saying they were stunned by the prevalence of the problem.

“Between my friends and I … we’ve been in thousands of wind turbines and haven’t found one that’s compliant with this issue,” said Ed Oliver, 47, of Dana Point, Calif.

Let’s just say that the treatment of these technicians - who are trying to save workers from serious injury or death and even offered the industry “their own version of a safety device” - has much to be desired, while OSHA has no idea what it’s doing.

Brian Sturtecky, OSHA’s area director in Jacksonville, Fla., and chairman of its wind energy task force, said enforcement activity is on hold while OSHA prepares a “Letter of Interpretation” to clarify how the standard will be applied.

The result could be a mandate for the industry to retrofit thousands of towers. Or, the industry could get a pass if the agency decides the hazard can be controlled by other measures, such as training.

The task force is examining other safety issues in the industry in the wake of some serious accidents.

In August, 2007, a worker was killed and another injured in the collapse of a tower at a wind farm near Wasco, Ore. Also, OSHA fined Outland Energy Services $378,000 for safety violations after an employee suffered serious electrical burns at an Illinois wind farm in October, 2010.

Fair Warning, which should be on your "must read" list for 2012, stands in the best muckraking tradition of Lincoln Steffans and populist tradition of Woody Guthrie.  We even think Dylan would be proud.

A Tale of Two (or Three) Settlements

If Charles Dickens were to come back to earth, I’ve got a great novel idea for him because let me tell you, the plight of the French peasantry has nothing on these folks.

As we’ve been covering here at ThePopTort, the horrendous situation created by Indiana’s $5 million overall incident “cap” on damages is finally hitting home.  Yesterday, Ken Feinberg, who has done such a bang up job for victims of the Gulf oil spill on behalf of BP (not really), and who was tapped to do the same on behalf of the state for victims of the Indiana State Fair stage collapse, announced yesterday that the families of the seven people killed will get $300,000.  And get this (not that we should be surprised).  Just as he did for BP,  Feinberg is pressuring these families to sign quickly and requiring a complete liability release, so if they take this paltry sum, these families can’t even challenge the cap in court:

If families and victims agree to the payments, they wouldn't be allowed to sue the state. Indiana law caps the state's liability at $5 million, and some victims' families have already filed lawsuits challenging that limit. The offers must be accepted or rejected by Monday....

Attorney Mario Massillamany said his client Lisa Hite suffered head injuries and a fractured heel but was offered only about $7,000. Her medical bills are already six times that amount, let alone her lost wages and future bills.

Plus they offered "$500,000 to a 17-year-old boy who suffered full-body paralysis."  Yet Indiana isn’t alone in its cruelty.  On Monday a Philadelphia area jury awarded $14 million to a young women who had to have her leg amputated while still a high school student, when a school bus plowed into a group a students.  But Pennsylvania has a $500,000 liability cap for municipalities and school districts, so the judge is going to have the ignore the jury (whose award included $3 million so she can get things like prosthetics) and reduce the award to the cap – if she’s lucky.  As AP writes, like Indiana’s law,

The $500,000 cap applies to all awards stemming from a single incident. And seven others have sued over injuries from the crash. If the cap is upheld, Zauflik could be left to share the $500,000 with any others who win damage awards.

Meanwhile, yesterday a big settlement was announced for the families of those 29 miners killed last year in the Massey Energy Upper Big Branch mine explosion in West Virginia.  The company, now owned by Alpha, will pay $46.5 million to the families of those killed and to the two co-workers who lived.  That’s $1.5 million per family.  The company will also “spend $80 million to boost safety in all of its underground mines and set up a $48 million fund for mining-safety and health research. Alpha Natural Resources also agreed to pay $34.8 million in fines and fees that Massey Energy owed to the Mine Safety and Health Administration.”

CBS reports,

“The settlement was bitterly criticized by some of the dead men's relatives, who said they won't be satisfied until charges are filed against those they consider responsible for the catastrophe, the nation's deadliest mine accident in 40 years.

Gary Quarles, whose son Gary Wayne Quarles died in the disaster, said: "I want to hear names, and I want to know what they're going to be charged for. Today would have been a fine day for them to have told us.” The families still want criminal prosecutions.

Yes, the settlement begs for more.  But compared to victims of disasters caused by government entities, at least they’ve left the starting gate.

Workplace Safety Goes Missing

The other day, Newt Gingrich called child labor laws “stupid.”  We report this not to make a statement about presidential politics, but to show where some people are when it comes to workplace priorities these days.  (Or as David Letterman’s put it, "this is the man we need to lead us into the 18th century.")  

Safety isn’t much of priority for many firms, which makes Newt’s idea especially wacky.  In fact, let’s “Span the World” of OSHA highlights this week (And yes, somebody got hurt.)

For the sixth time, OSHA (that is, the U.S. Department of Labor’s Occupational Safety and Health Administration) has cited a Wisconsin Rapids carbon steel foundry “for overexposing workers to crystalline silica, a known hazardous material.”

In upstate New York, OSHA cited the Wisconsin-based Briggs & Stratton Power Products Group,

for alleged repeat and serious violations of workplace safety standards at its Munnsville manufacturing plant. The lawnmower manufacturer faces a total of $125,000 in proposed penalties, chiefly for mechanical, electrical and fall hazards identified during an inspection begun in June by OSHA's Syracuse Area Office.

The sizable fines proposed in this case reflect both the gravity of these hazards and the fact that several are substantially similar to conditions cited in an earlier OSHA inspection," said Christopher Adams, OSHA's area director for central New York. "It's imperative that this employer not only corrects these latest hazards but also takes effective steps to ensure that they are corrected once and for all."

Down in Hot Lanta, OSHA cited Midsouth Steel Inc., "a general contractor performing steel fabrication and roof decking ... for four safety violations following an inspection that found workers exposed to fall hazards,” specifically, “allowing them to work at heights of 35 feet in an aerial lift without requiring the use of fall protection, exceeding an aerial lift's load capacity and failing to provide fall protection for employees working on a steep pitched roof.”  Three of these violations were “willful,” that is, “committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health."

In Illinois, OSHA cited “Igor Jerema Construction Co. in Buffalo Grove for four willful safety violations after a worker applying stucco at a home under construction in Burr Ridge fell off a scaffold and sustained a fatal head injury in May.”

In Texas, OSHA cited "Houston, Texas-based oil and gas drilling contractor Nabors Drilling USA LP for two alleged workplace safety violations after a worker was electrocuted at a Williston job site in May.”

Then of course, there’s retaliation against whistleblowers who report safety violations:

[OSHA] filed a lawsuit against the Angels With Paws animal shelter in Lakewood on behalf of an employee who was terminated in violation of the whistleblower provisions of the Occupational Safety and Health Act. The employee had complained about safety and health hazards to the animal shelter's management before filing a formal complaint about the hazards with OSHA. The employee was later discharged and then filed a whistleblower complaint with OSHA alleging retaliation by the defendants in violation of Section 11(c) of the OSH Act. OSHA's Whistleblower Protection Program conducted an investigation and determined the former employee's allegations had merit.

Mix that all up with a little bit of anthrax in the workplace (the federal government just settled with the family of Robert Stevens, a tabloid photo editor in Florida who was killed after receiving an anthrax letter in 2001), and voila!  A perfect place to send the kids!

Here’s the whole Letterman monologue. (As we’ve said before, we take no position on this election, but sometimes, well, we just can't resist the comedy.)

The Private Hell of Military Contractor Employees

This week, it’s “Mission Accomplished” for private military contractors in Iraq and Afghanistan.  No silly, not actual military accomplishments.  (Fool me twice, shame on me, right?)  This has to do with what’s apparently the other mission of these private miliary contractors – to mistreat their workers. 

This week, ProPublica reports that “private contractors injured while working for the U.S. government in Iraq and Afghanistan filed a class action lawsuit” against private contracting companies and their insurers for refusing their medical treatment and disability payments.  They say that in order to boost profits, companies like insurers AIG and contractor KBR “routinely lied, cheated and threatened injured workers, while ignoring a federal law requiring compensation for such employees.” (See the earlier investigation by ProPublica, the Los Angeles Times and ABC’s 20/20). 

Hundreds of thousands of civilians working for federal contractors have been deployed to war zones to deliver mail, cook meals and act as security guards for U.S. soldiers and diplomats. As of June 2011, more than 53,000 civilians have filed claims for injuries in the war zones. Almost 2,500 contract employees have been killed, according to figures kept by the Department of Labor, which oversees the system.

And speaking of KBR, this week a federal judge slammed KBR’s revolting attempt to force Jamie Leigh Jones to pay them $2 million in attorneys fees after Jamie failed to win her rape case against one of her KBR co-workers in Iraq.  She lost even though she was unconscious (due to drugs or alchohol, what’s the difference?) during a sexual encounter that her alleged attacker says was “consensual.”  (Sound familiar?)  However, although the judge clearly didn’t want to do it, he was forced by statute to order her to pay KBR $150,000 in court costs.  He stated in his order, “The fact that Jones presented prima facie claims of sexual harassment and hostile work environment highlights the impropriety of an award of attorneys’ fees in this case.”  Of course, the hostile work environment for women at this company could hardly be more clear but the jury never heard about it.  And you wonder why she lost? 

So after assassinating her character and getting away with not having to defend itself for what they put Jamie and other women through (check out the film Hot Coffee for more about Jamie when the DVD comes out in November), KBR and its corporate lawyers now want her to pay them money.  This is reprehensible on so many levels, but we like how Gawker put it:

In July, Jamie Leigh Jones lost her federal civil trial against KBR—one of America's most capable government contractors—when a Houston jury determined that her coworkers had never drugged, raped, and shoved her into a shipping container. Or maybe they had, but she'd been asking for it—you know, like KBR said.

Originally KBR had asked for $2 million from Jones, an IT worker whose claim stemmed from an incident that allegedly took place in Baghdad in 2005 (you can find the complaint here). But the presiding judge dropped attorneys fees from her bill, so now all she owes is $145,073.19—money she reportedly does not have, this being America. (I bet you $145,073 that KBR would quibble over the 19 cents.)...

[This is] the result of KBR taking advantage of its right under the federal Civil Rights Act to collect from Jones. However, the company could have decided against pursuing the costs (because they're already super-loaded), or possibly sought to recoup them from the government (because having taxpayers foot the bill for corporations is how we do business).

A Miraculously Ironic Texas

Remember when Alanis Morissette got panned for the single “Ironic” because she used examples that weren’t, well, ironic?  Irony is sometimes hard to spot, so I’m not quite sure how you would describe the following: irony, oddity, an incongruous set of events or just plain paradox? Whatever it is, it’s a good story.

You may recall our coverage of the HBO documentary film, Hot Coffee, especially the lame response by the corporate lobbies to a film that interferes with their greedy view of the world.  For those who haven’t seen the film, one section deals with how “tort reform” groups have used costly public relations campaigns to turn the American public’s mind against their own constitutional rights, and to breed fear, anger and contempt for everyday Americans who go to court and fight corporate misconduct.  One method these groups use is creating their own “astroturf” (i.e.,fake) groups called “Citizens Against Lawsuit Abuse” or “CALAs”.  These groups really have no people in them but rather are run through corporate PR firms, which purchase expensive media like billboards, radio and TV ads.  The tobacco industry funded much of this effort in the early 1990s, while Karl Rove was a consultant to Philip Morris, and who eventually turned this issue into a cash cow for George W. Bush.  And we know how that turned out.

So what popped up in the Summer 2011 bulletin of the Houston CALA? An article blasting Hot Coffee, citing as authority their own op ed that was published in a newspaper owned by the “tort reform” wing of the U.S. Chamber of Commerce.  In other words, a film that exposes how tort reform groups get their message out through fake groups and by purchasing media is being critiqued by a fake group and a media outlet they they have not just purchased - they created and own!  (In the same Summer 2011 bulletin, you will be happy to read that CALA's fall fundraiser features Karl Rove. What would you call that?)

Meanwhile, to show how great things are in Texas now (that’s sarcasm), check out the following.

First, Texas Watch reports on what happens when a state like Texas wipes out the rights of injured patients (Thanks Texas Watch and Protect Consumer Justice for the great research!):

Corpus Christi neurosurgeon Stefan Konasiewicz is on trial in Minnesota this week for medical malpractice.  Konasiewicz left a trail of medical incompetence in Minnesota that has resulted in nine medical malpractice lawsuits, some involving patient deaths, as well as a public reprimand by the Minnesota Board of Medical Practice.

Rather than face the music in Minnesota Konasiewicz fled to Texas where lax oversight and a broken legal system allow bad doctors to keep seeing patients, turning our state into a safe haven for dangerous doctors like Konasiewicz.

The Texas Medical Board, which is tasked with policing the medical profession, isn’t required to disclose – or even look into – cases of medical malpractice when a doctor moves from another state.  So, patients have no way of knowing what their physician’s track record is.  On top of that, if you are injured (or worse), the law is structured such that most patients and their families have no way of seeking justice through the legal system.

That’s right, Texas has a virtually impenetrable layer of legal protection that allows doctors to avoid legal accountability after a patient has been harmed.  In 2003, lawmakers enacted severe and arbitrary restrictions on the ability of patients to sue a dangerous doctor or careless hospital for medical malpractice.  This has made it practically impossible for most patients to bring a case against a dangerous physician in our courts.

And the Huffington Post reported yesterday on the so-called Texas jobs “miracle” touted by Governor Perry, emphasizing that if you want to be killed on the job, or hurt with no benefits, Texas is definitely the place to go:

“Texas still ranks as the most dangerous state for worker safety. An April study [PDF] produced by the University of Texas and the Workers Defense Project stated that one in five construction workers were injured on the job, while only 45 percent had workers' compensation. The study also noted that a worker dies every 2.5 days and the state sees 16,900 job-related accidents annually.”

The Catch-22 of Wal-Mart Discrimination

Did you know that “Catch-22 (logic)” has its own Wiki page?  To wit, “[C]oined by Joseph Heller in his novel Catch-22, is a logical paradox arising from a situation in which an individual needs something that can only be acquired by not being in that very situation; therefore, the acquisition of this thing becomes logically impossible.”

I wonder what Joseph Heller might think about today’s U.S. Supreme Court decision Wal-Mart Stores v. Dukes (which we covered here).  One thing for sure – it made it virtually impossible to hold accountable Wal-Mart for sex discrimination.  In other words, according to Justice Scalia who wrote the Court’s opinion, there was no “companywide discriminatory pay and promotion policy.” The class action case was brought because of the policies of local store managers.  But now, thanks to this decision, you can’t bring a class action for the policies of local store managers because there was no “companywide discriminatory pay and promotion policy.”  Therefore it is logically impossible to ever bring a suit like this!

(Well, I guess that’s not completely true.  As AP reports, “Now, the handful of women who brought the lawsuit may pursue their claims on their own, with much less money at stake and less pressure on Wal-Mart to settle.”  In other words, there is no longer any financial incentive for massive employers like Wal-Mart to settle with victims and stop pervasive discrmination like this.)

I guess who didn’t see this coming?  The U.S. Supreme Court reversed a lower court placing even further limits on the use of class actions lawsuits for those seeking justice against corporate malfeasance.

Writes AP:

The justices divided 5-4 on another aspect of the ruling that could make it much harder to mount similar class-action discrimination lawsuits against large employers.

Justice Antonin Scalia's opinion for the court's conservative majority said there needs to be common elements tying together "literally millions of employment decisions at once."

But Scalia said that in the lawsuit against the nation's largest private employer, "That is entirely absent here."

Justice Ruth Bader Ginsburg, writing for the court's four liberal justices, said there was more than enough uniting the claims. "Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores," Ginsburg said.

Here are some excerpts from the opinion of Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan joined, concurring in part and dissenting in part:

"The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture...

"The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro-motion policies are discriminatory...

"Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (internal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16(internal quotation marks omitted)."

The impact? “Supporters of the women feared that a decision in favor of Wal-Mart could remove a valuable weapon for fighting all sorts of discrimination.”  Little doubt about that.

Sending Good Thoughts to Jamie Leigh Jones

When Margaret Mead famously said “Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has,” I’m sure even she couldn’t have envisioned a young woman named Jamie Leigh Jones.  As a 20-year-old, Jamie experienced some of the worst horrors one could imagine but rather than cower in the corner feeling helpless and defeated, she has used that experience to change the world. 

After a 6-year battle, Jamie’s lawsuit finally has begun (with opening statements today) against military contractor KBR, a former Halliburton subsidiary.  As we’ve noted here before, Jamie filed suit for a 2005 gang-rape and other horrendous acts committed against her by the company and some of its employees while she was working in Iraq. The company’s response was to try to keep her out of court entirely, claiming:

... Jones signed an agreement that required all of her work-related claims to be resolved through private arbitration.

The Jones suit has long been viewed as a test case regarding the reach of workplace arbitration clauses.  ...

The Fifth Circuit in 2009 ruled that Jones can pursue her case in court, concluding that her rape allegations “do not touch matters related to her employment.” ...

“Jamie has waited six years to have her day in court and she’s happy to finally talk to a jury,” her attorney, Lannie Kelly, told AP.

By never giving up, Jamie's case has not only advanced the important cause of employees' legal rights, but has also

[H]elped put an intense spotlight on the behavior of military contractors overseas, as numerous other women accused KBR employees of sexual assault. Jones’ story eventually led to congressional hearings. ...

Since the organization was established, 42 alleged sexual assault or rape victims associated with or employed by KBR have come forward ...

Kelly also is representing a former KBR employee, Anna Mayo, a 27-year old Austin woman who says she was beaten, choked unconscious and raped at a KBR barrack in Balad, Iraq, last November.

But Jamie has achieved even more. “Due in part to Jones’ case, federal lawmakers in 2009 approved a measure prohibiting contractors and subcontractors that receive $1 million in funds from the Department of Defense from requiring employees to resolve sexual assault allegations and other claims through arbitration.”  

And believe it or not, it doesn’t stop there.  Jamie has also set up a foundation “dedicated to helping United States citizens and legal residents who are victims of crime while working abroad for government contractors and subcontractors.”

Jamie’s courageous story is featured in the new documentary Hot Coffee, which airs on HBO June 27. The film, which we’ve been covering here at ThePopTort, has been getting wonderful recognition, most recently winning the Grand Jury prize at the Seattle International Film Festival. 

You can see a glimpse of Jamie in the trailer, below.  All good thoughts going out to her today.

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.

Punishing Offenders Through the Civil Justice System - From Triangle Shirtwaist Factory to Today

Early twentieth century America, a time of great industrial expansion, was also a time of horribly unsafe working conditions.  At the time, the laws on the books were unfair to injured workers and made it extremely hard for them to get compensation for their injuries (which is ultimately what led to the workers compensation system in this country.) 

One of the most horrendous examples was New York City’s Triangle Shirtwaist Factory fire, in which 146 young immigrant women were killed, either burned alive or they jumped to their deaths, trapped inside due to locked doors. Today we commemorate the 100 year anniversary of that fire. 

The factory owners, Max Blanck and Isaac Harris, were tried and acquitted of manslaughter.  But what is less well-known is that they were also sued in civil courts.  If there were ever a situation where punitive damages were in order, it was this case.  But that was not to be.  Here is a fascinating account of those civil trials:

Twenty-three civil suits were filed against Harris and Blanck by the victims’ families claiming, in  total, some $500,000. Without a guilty verdict in the criminal case, the civil litigation became more difficult.  Again, Harris and Blanck hired Max Steuer to defend them.  Steuer raised a host of common law employers’ defenses, such as claiming that the workers assumed all the risks and dangers of their employment and that whatever injuries they suffered were caused by the negligence and carelessness of their fellow workers.  

As pointed out by Crystal Eastman (a young labor activist) in  an article related to her 1907 study of workplace injury and death, the courts at that time had concluded that there were implied terms in an employment contract under which the worker assumed the ordinary dangers of the work, extraordinary dangers of which the worker was aware, and dangers resulting from the actions of fellow workers.  Thus, employee litigants had to prove “direct, individual, mechanical causal connection between the employer and the injured worker.”   

In the case of Margaret Schwartz, her heirs would have had to prove that it was the locked door and not the panic of her co-workers that caused her death.  The only case that went to trial was brought by Anna Gulla, a survivor who claimed compensation for “nervous disease” she suffered as a result of the fire.  The trial lasted two days; the jury did not agree on a verdict and the case was dismissed.  The families, most of them poverty-stricken, were overwhelmed by the necessities of earning a living and could not afford the cost of litigation.

Shortly after the Gulla verdict, all settled with the Asch Building owners for $75 for each life lost.  But Harris and Blanck had insured the factory against loss, and the amount paid by the insurance company to Blanck and Harris amounted to about $400 per victim.  None of that money was paid to the survivors or the heirs of those who had perished in the fire.  In 1913, Blanck was once again arrested for locking the door in his factory during working hours.  He was fined $20.

Meanwhile yesterday, the Bureau of Justice Statistics released its most recent analysis of the use of punitive damages in the country today.  Here are some interesting statistics: the percentage of plaintiff winners awarded punitive damages in product liability cases?  1 percent.  In medical malpractice cases?  1 percent.  Premise liability?  No percent. The median punitive award?  $64,000. 

With paltry numbers like this, I’m not sure where that leaves us as a country, except to say that in 2011, there probably still are plenty of corporate wrongdoers getting away with murder.