ThePopTort

Sexual Assault and Civil Justice, Except for Servicemembers

In the Center for Justice & Democracy’s new report, The Importance of Civil Justice to Sexual Assault Survivors and the Devastating Consequences of “Tort Reform,” you will learn about recent civil cases filed after sexual violence by all types of assailants: Boy Scout leaders, clergy and religious instructors, doctors, Uber drivers, entertainment moguls, massage therapists, restaurant employees, school employees and students, security guards, and sports coaches.

But here’s what you won’t find in that 50-page report: a single case brought by a servicemember. That would include the nearly 15,000 (women and men) members of the military who are sexually assaulted each year, sometimes more than once. 

In every other instance of sexual violence, civil cases can be filed to help ease the financial burdens of an assault, expose abusers and provide a forum to hold perpetrators directly accountable. But if you are a servicemember, who pledged to die for your country and was raped while doing so, there is almost nothing you can do about it.

We have written about this before, but there are good reasons to remind us of the issue again, not the least of which is the change in Congress. It is up to Congress to fix this, and by “this,” we mean the Feres doctrine.

Feres is a 69-year-old policy – created out of whole cloth by the U.S. Supreme Court in 1950 – which bars U.S. military personnel from suing the government for personal injuries suffered while they are in the armed forces. It applies even in the case of a sexual assault. Read more about Feres here and in this great new article, Rethinking Feres, by Professor Andrew F. Popper of American University’s Washington College of Law. 

Dwight Stirling, the CEO of the Center for Law and Military Policy (CLMP) wrote about the injustice of this law shortly after Senator Martha McSally (AZ-R), the first female pilot to see combat, recently said she had been raped by her commanding officer. Noted Stirling,

Fearing career retaliation, some estimates say 90 percent of sex assault victims, like McSally, don't even bother to report.…

It is outrageous that sexual assault is characterized as an occupational hazard of military service. …The only way to fix the system is to empower the victims of military sexual assault to hold their assailants accountable in civil court …It is absolutely the only way.

In January, Rep. Jackie Speier, D-Calif., new chair of the House Armed Services personnel subcommittee, said this would be a priority issue for her. Writes Military Times,

[T]he panel’s guiding focus will be to tackle “critical issues that impact not only our service members but their families who also bear the burden of sacrifice and commitment to our country.”…

[T]he Feres Doctrine debate could lead to some of the most dramatic military policy changes to come out of Congress this year. Speier has been following a handful of court challenges to the legal precedent in recent months, and is planning a hearing on the issue early this session.

This couldn’t come soon enough!

Civil Justice – The Next Big Shiny Object?

Some may wonder why we write about issues that seem so obscure considering the tweeting mob boss in the White House, his allied dictators and fake national emergencies, the obsessions of cable news hosts (“can a sitting president be indicted after all?"). or pick whatever shiny “objet du jour” you like.

Indeed, while news-followers were fixated on Michael Cohen or maybe even Kim Jong-un this week, we watched as Congressperson and Senator after Congressperson and Senator introduced major new legislation – literally bill after bill - to ban the insidious use of forced arbitration clauses and class action waivers in consumer, employment and small business contracts.

Here's the coalition letter in support of the main piece of legislation, H.R. 1423/S. 610, the "Forced Arbitration Injustice Repeal (FAIR) Act." It has 147 House co-sponsors and 32 Senate co-sponsors, and counting. Wow! (See some coverage of the major news conference here, here, here.)

But being in such great company is not the only reason why we stay focused on the civil justice system. Here’s why we really do it.

In 2018, the U.S. Chamber of Commerce spend $95 million lobbying (far more than anyone else), a third of which was spent by the their “tort reform” branch (Institute for Legal Reform); the Chamber’s #1 issue in terms of lobbying reports was “torts;” the Chamber’s #1 bill was H.R. 985, the anti-class action bill, and Mayer Brown (their pro-forced arbitration law firm), led their outside lobbying expenditures. Liability and tort issues may not be shiny but they sure are big in Congress. We need to keep talking about them and hope someone hears.

That’s why we are proud to tell you about the new Loyola Consumer Law Review article from the Center for Justice & Democracy, which discusses the Chamber's push to pass that terrible class action bill in the last Congress, H.R. 985, showing it to be a corrupt and ultimately failed effort. The article shows how the forces actually running things in Congress, like the U.S. Chamber of Commerce, hope you never pay attention to us. They’d prefer to bulldoze over your legal rights with as little notice as possible, thank you very much. 

Not this time, suckas!

Our Love but Mostly Hate for Tech Companies

Have you noticed the latest TV craze? No, not sitcom reboots. Shows are trying to stick into their titles the most “scatological” of the “seven dirty words.” Schitt’s Creek, for example. Or the latest hilarious episode of Documentary Now, "Batshit Valley."

But when I think of that word, I think about how many tech giants really don’t give a “that word” about their customers. Now you might say “hey, didn’t Google just end their practice of forcing their employees to arbitrate all disputes in private, rigged arbitration systems?” Yes they did - after an vigorous and perilous effort by their employees. Writes Bloomberg:

The shift is a victory for Google employees who’ve been organizing on several fronts, including workplace harassment, the treatment of contract workers and what kind of work the company does for government and military groups. The Mountain View, California-based company won’t require third-parties that employ sub-contracted staff for Google to institute the same changes, though. About half of those in Google’s total workforce aren’t official employees of the company.

But it’s something, and it’s something the rest of the tech industry has not yet done (not to mention every other industry.)

But then again, how many times have you clicked “I have read and agreed to the Terms of Service” before conducting your latest online transaction, without any idea that the company just forced you, their loyal customer, into these same kind of "forced arbitration" agreements? That means you can’t sue them in court if, say, they use your personal data illegally or otherwise violate your privacy. Public Citizen put together this “Forced Arbitration Rogues Gallery,” so you can see some of the companies that make you "agree" to this. (Check out this article too, which cites a 2011 class action lawsuit that might be far more difficult to bring today over Google’s current products. The case, In re Google Buzz Privacy Litigation, led to an $8 million settlement with Gmail users “arising out of Google’s disclosure of personally identifiable information without authorization through the defunct site, Google Buzz.”)

We all know that tech companies do a terrible job protecting your privacy and can’t be trusted to self-regulate. That’s why last year, California enacted the California Consumer Protection Act, the strongest privacy law in the nation. As described by Consumer Watchdog:

It would, for instance, allow a private right of action – though with some limits -- in data breach cases.  No such right currently exists. The law ensures:

• The right of Californians to know what personal information is being collected about them.

• The right of Californians to know whether their personal information is sold or disclosed and to whom.

• The right of Californians to say no to the sharing or sale of personal information.

• The right of Californians to access their personal information.

• The right of Californians to equal service and price, even if they exercise their privacy rights.

• That businesses cannot sell personal information of consumers under the age of 16 without explicit consent.

Tech companies like Google fought this law, but they lost. And they are likely to lose again when California moves to close up certain loopholes in last year’s legislation, problems made clear by the recent massive Starwoods/Marriott hack.  Specifically, the bill would “expand[] the requirements for companies to notify users or customers if their passport and government ID numbers, along with biometric data, such as fingerprints, and iris and facial recognition scans, have been stolen.”

As Neema Singh Guliani, senior legislative counsel at the American Civil Liberties Union, pointed out in the Washington Post,

It has often been state legislatures — not Congress — that have led efforts to protect consumer privacy. California was the first in the nation to require that companies notify consumers of a data breach (other states have since followed suit), the first to mandate that companies disclose through a conspicuous privacy policy the types of information they collect and share with third parties, and among the first to recognize data privacy rights for children. Illinois set important limits on the commercial collection and storage of biometric information, such as fingerprints and face prints. Idaho, West Virginia, Oklahoma and other states have passed laws to protect student privacy.

But now, “companies like Amazon, Apple, Facebook and Google are pushing hard for federal digital privacy legislation in 2019, and not quite out of the goodness of their hearts. … Central to all these proposals is the notion that a federal bill should preempt any statewide legislation—like, say, California's—from taking effect.”  Some bills have already been floated.

As Guliani put it, “This seeming willingness to subject themselves to federal regulation is, in fact, an effort to enlist the Trump administration and Congress in companies’ efforts to weaken state-level consumer privacy protections."

And not only that. Imitating the (failed) strategy of Big Tobacco, tech companies are now pressuring Congress to pass some sort of “grand bargain” that would not only preempt state laws, but also would repeal:

…every other existing piece of federal privacy legislation, including landmark laws like Health Insurance Portability and Accountability Act (HIPAA) and Family Educational Rights and Privacy Act (FERPA). Every sector- or issue-specific privacy law would be removed, and state and local lawmakers would be unable to draft stricter, more specific regulations in the future.…

The Children’s Online Privacy Protection Act (COPPA) would be one of the repealed laws. It was authored by Sen. Ed Markey (D-MA) in the late ‘90s, and IT was one of the first pieces of legislation governing the collection of data. The law imposes requirements on companies when it comes to collecting data on children under 13 years of age, which has become a sticking point for a number of tech companies. Both Google and Facebook have been sued multiple times for violating COPPA, and the law is one of the main reasons many web services cut off at age 13.

“As Congress works to provide the American people with a comprehensive federal privacy law, we should build upon—not dismantle—existing safeguards,” Markey said, responding to ITIF’s proposal. “Getting rid of COPPA is literally like throwing the baby out with the bath water.”

Babies? What in the world does Google care about babies?

Happy President's Day!

Some things just speak for themselves.

When Negligent Hospitals and Doctors Aren’t Accountable, We All Suffer

The late Cornell Law School legal scholar, Theodore Eisenberg, once wrote this about the epidemic of medical errors in this country: 

One possible factor contributing to the continued high rate of errors is that doctors do not expect to bear the full cost of harms caused by their negligence. …and [h]ospitals do not bear the full costs of the harms caused in them even though hospitals directly and indirectly influence patients’ risk of medical error.

In other words, if you know you're not going to be held accountable for causing harm, might you be less careful? Lawmakers are often asked the question this way (if we might paraphrase): “With medical negligence still occurring at alarming rates in this country, is it a good idea or a bad idea to cap compensation to injured patients, and further reduce the accountability of negligent doctors and hospitals?”

The answer seems so obvious. However, such things are often hard to prove. But no more.

In 2014, we wrote about several just-released empirical studies showing that when a state caps damages for injured patients, the result is more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” These studies, which are not easy to do and in fact take years of data collection, have recently been updated. Damn if they don’t show the same thing. 

Just this week, SSRN published the newly-updated “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform," and once again, researchers found “that patient safety gradually worsens after cap adoption.” The authors found “strong evidence that a reduction in liability risk leads to a reduction in safety,” which “is consistent with general deterrence, in which lower liability risk leads hospitals to invest less in safety and physicians to be less careful in general.”  

To put it another way, “Liability for harm induces greater care and relaxing liability leads to less care.” Moreover, add the authors, “This paper also contributes to the literature on the deterrent impact of legal liability for personal injury more broadly.”

As to the impact of caps on health care costs, we covered another updated study in our last PopTort PopQuiz. Med Mal True or False Edition!  Here's the quiz question again:

TRUE OR FALSE?

1. After a state caps damages for the purpose of decreasing unnecessary tests and procedures (i.e., reducing "defensive medicine"), common tests like cardiac stress and imaging tests do, in fact, decrease.

False. Instead, such tests appear to increase, as does Medicare Part B lab and radiology spending. Researchers say,“If the policy goal is to limit healthcare spending, damage caps are simply the wrong tool.… [A] core message from our findings is that writ large, the ‘adopt damage caps, reduce spending’ story lacks empirical support. Instead, measures to reduce overtreatment will need to be carefully targeted to particular areas of concern.”

So, we good now? 

Tort Reform: Victimizing Assault Victims a Second Time Around

We are so happy to see that Sen. Rand Paul (R-KY) is enjoying the benefits of Kentucky's state Constitution, which prevents the state from capping non-economic and punitive damages for injured victims. (See Section 54.) Paul, you see, is suing his neighbor for both, for over a million dollars no less “in compensatory and punitive damages for his medical treatment and ongoing discomfort.” (Paul’s neighbor, Rene Boucher, pled guilty to felony assault, having attacked Paul as he hopped off his lawnmower.)(Update: Paul just won over half a million dollars.)

How fortunate that Paul, a leader in the “repeal Obamacare movement” who’s about to travel to socialized-medicine-Canada for hernia surgery (yes, you read that correctly), doesn’t live in neighboring Ohio or Tennessee. Those states cap both kinds of damages, protecting assailants and criminals who commit assault. A few years ago, we showed how devastating caps on damages can be to an Ohio assault victim: 

“Jessica Simpkins was raped at the age of 15 by her church pastor – a man hired by Grace Brethren Church in Sunbury despite the knowledge that he had previously sexually abused two girls. In a civil suit, a jury awarded Simpkins $3.5 million for pain and suffering, but the amount was reduced to $250,000 due to a state law that caps damages.” 

This is one of the dirty little secrets of “tort reform.” When a state caps damages, it usually covers every kind of personal injury case, including when injuries are the result of a criminal assault. That includes situations where your neighbor beats you up. It also includes cases of sexual assault. It also includes the sexual assault of children. Which brings us to our next story.

When it comes to sexual assault especially of children, there is another tort limit that often blocks the ability of survivors to sue: overly-restrictive state statutes of limitations. Most state laws require someone to file a lawsuit within a very short period of time of their assault. Gradually, states are starting to lift those restrictions for sexual assault survivors – particularly for child victims. New York is the big story on this today.

For years, as we’ve covered before, the New York Senate had blocked bills to increase the state’s archaic statute of limitations in these cases. Then the 2018 elections happened, and the clouds parted. So this week, the NY legislature finally passed the Child Victims Act (which the Governor will sign soon): 

The Child Victims Act will allow child victims to seek prosecution against their abuser until the age of 55 in civil cases, a significant increase from the previous limit of age 23. For criminal cases, victims can seek prosecution until they turn 28. The bill also includes a one-year window during which victims of any age or time limit can come forward to prosecute.

"New York has just gone from being one of the worst states in the country to being one of the best," in terms of the statute of limitations for child sex abuse cases, said Marci Hamilton, CEO of Child USA and a professor at the University of Pennsylvania.

Fortunately, New York does not cap damages for injury victims. But too many states do. Time to start changing those laws, too.

The First Annual PopTort Film Festival!

It’s January, so like much of the country we’re cold and staying in. But luckily, there’s a small critical mass of really excellent documentary films available to watch at home, which cover issues of great concern to PopTort readers (and our mothership, the Center for Justice & Democracy). So with that, start poppin’ the popcorn as we introduce The First Annual PopTort Film Festival!

 

Bleed Out. When if comes to medical malpractice, there’s no better film than Bleed Out, by our friend Steve Burrows. The film is on HBO, and streaming on HBO Now and HBO Go. 

At times funny, at times tragic, this entertaining and completely relatable story shows: how medical errors and negligence destroy patients' lives and ruin families; in incredible detail the astronomical medical costs of negligence including costs to taxpayers; the stupidity of “tort reform” and the enormous challenges facing lawyers and clients trying to bring cases especially where tort limits exists; and the completely messed up health care system made far worse by the colossal number of preventable errors. 

Marty Makary of Johns Hopkins, who first figured out that medical errors are the third leading cause of death, is the film’s expert. You can find many of his articles in the Center for Justice & Democracy's Medical Malpractice Briefing Book. By the end of the film, you how the system can allow crooked, lying, unethical health care providers to get away with horrendous negligence, and is rigged against injured patients and their families. 

 

By the way, there’s another new patient safety documentary out, called To Err is Human, which you can rent on various streaming services including iTunes and Amazon Prime. We have not seen this film yet – it may be more aimed at medical audiences based on the screening schedule. But it is endorsed by our good friend Helen Haskell, Founder of Mothers Against Medical Errors, who is a great advocate for patient safety and protecting the legal rights of injured patients.

 

The Devil We Know, which you can stream on Netflix or rent on various streaming services.This film tells an unbelievable story that we started covering at the ThePopTort in 2008 and through the next seven years, about how Dupont knowingly polluted water supplies of two West Virginia and four Ohio water districts with C-8, the chemical used to manufacture Teflon, and then tried to cover it up.” (Actually, by now they’ve poisoned 99% of humanity.) The film includes a few friends of ours, including brilliant West Virginia lawyer Harry Deitzler, who figured out how to create a valid epidemiological study to nail Dupont by using “the $70 million health and education fund from the [class action] settlement to pay people $400 each to participate” in it. Gotcha, Dupont!

 

The Bleeding Edge, on Netflix. The Bleeding Edge is to dangerous medical devices what Bleed Out is to medical malpractice. Two great films with blood in their title. If you're confused, watch both! We covered The Bleeding Edge last summer. Here’s what we said then – and repeat now:

[There is] a compelling (yet terrifying) new “must-see” documentary now streaming on Netflix called “The Bleeding Edge.” Here’s the Los Angeles Times’ lead paragraph about it:

If body-horror auteur David Cronenberg had dramatized any of the nightmarish stories in Kirby Dick and Amy Ziering’s medical documentary “The Bleeding Edge,” you wouldn’t hesitate to call it a fright film. Such is the grim impact of this investigative, wince-inducing examination of the $400 billion medical device industry, which routinely sends FDA-approved products into the marketplace for use on and in patients without any rigorous clinical safety-testing on humans.

The film shows us the results of this corruption. Not pretty.

 

Dirty Laundry, now available on Vimeo on Demand, is a powerful expose of the vile asbestos industry. The filmmakers tell a very personal and entertaining story, through which they show, “the stark reality of corporate dissembling and apparent disregard for lives lost, and lives still being placed at risk, from the continued manufacture and use of asbestos, the creation of open asbestos waste sites, and the reckless excavation of contaminated ground.”

 

Fahrenheit 11/9, now streaming on Amazon Prime and other places. We recommend this film mainly for the startling explanation of the Flint water crisis, which we’ve covered often (e.g. here here.) (There are other good parts, but allow us to rant a bit. Some parts of the film seem very naive, such as its negative portrayal of hero-of-the-moment, Speaker Nancy Pelosi, ridiculing her as part of an ineffective resistance to Trump. PopTort insiders have always known of her behind-the-scenes genius even when she wasn’t speaker. I can only think these filmmakers were unaware of this and maybe have now woken up to it? Case in point: she ensured that her party stuck together to oppose anti-civil justice bills rammed through the House in early 2017. Because (in part) these bills passed with virtually no bi-partisan support thanks to her leadership, they came to the Senate in a severely weakened state. In fact, none were ever brought up again despite being rushed through the House as high-priority items for the U.S. Chamber of Commerce. Wish the filmmakers understood a little better how Congress works.)

 

Hot Coffee. Finally, there’s the 2011 HBO film, Hot Coffee – an oldie but goodie, which you can still rent on Amazon or stream on Amazon Prime.  We’ve said so much about this film already so if you’ve forgetten, you can read this - or just watch the trailer:

 

So PopTort fans.  Any other film suggestions? Just let us know! 

The Tyranny of an Arcane Federal Law

Many important parts of your life – cell phones, bank loans, credit cards, virtually any online transaction, employment -  are controlled by companies that require you to agree to contracts with “forced arbitration” clauses. You probably have no idea that you’ve agreed to one. It prevents you from going to court to resolve a dispute, instead forcing you into a private, rigged system designed and controlled by the companies themselves.

It wasn’t too long ago that unfair, one-sided forced arbitration clauses were routinely struck down by courts.  Here’s a 2010 employment case, for example, where the Third Circuit Court of Appeals ruled: 

In our view, the pervasively one-sided nature of the arbitration agreement's terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution. Instead, the employer created a system that was designed to give it an unfair advantage through rules that impermissibly restricted employees' access to arbitration and that gave the employer an undue influence over the selection of the arbitrator.

But in 2011 the U.S. Supreme Court invoked an obscure law – the Federal Arbitration Act of 1926, nearly a century old and written to facilitate voluntary arbitration between businesses - and said it proved Congress intended some sort of “preference” for arbitration over constitutionally-protected legal rights. It found no problem with companies writing such clauses as unfairly as they liked, forcing consumers and employees with no bargaining power into agreeing to them, and placing at risk private enforcement of many laws where Congress expressly provided to right to go to court. Laws like the Civil Rights Acts of 1964 and 1991, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Equal Pay Act, the Uniformed Services Employment and Reemployment Rights Act, the Sherman Act, the Truth in Lending Act, and the civil provisions of the Racketeer Influenced and Corrupt Organizations Act.  And hundreds of state laws, as well. And on and on.  No court could do anything about it, and no state could fix it no matter how much they wanted to protect their own residents from illegal corporate behavior.

While some of the initial pro-arbitration decisions were close 5 to 4 votes, the pro-arbitration reasoning is now incredibly entrenched. So much so that a couple weeks ago, a unanimous SCOTUS backed Brett Kavanaugh's first written opinion, essentially finding that the 1926 law prevents a court from interfering with the workings of an arbitration clause even “if the court finds the arbitrability claim ‘wholly groundless.’”

So what are we left with? Not much. But lucky for us, the 1925 Congress - elected when the nation was obsessed with such transportation advancements as the Model T but apparently now controls us all (pictured here) - was concerned about a few things. So it placed exemptions in the law, specifically: “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Well, the U.S. Supreme Court just had a chance to decide whether those literal words meant anything.  Apparently, even this Court – in the words of Neil Gorsuch - was forced to acknowledge that they did. As Slate wrote, “Together, Public Justice [which represented the plaintiff] and the Constitutional Accountability Center provided enough arcane evidence to satisfy Gorsuch” of this. But it took, among other things, something like six early 20^th Century dictionaries to convince him.

As Slate notes, “The justice’s preoccupation with 1925 linguistics is so extreme that it spurred Justice Ruth Bader Ginsburg to write a brief concurrence noting that Congress can ‘design legislation to govern changing times and circumstances,’ using words whose meaning may ‘enlarge or contract [in] scope’ as society progresses.” 

For all you legal eagles out there, here is specifically what RBG wrote in her short concurring opinion:

Congress, however, may design legislation to govern changing times and circumstances. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 14) (“Congress … intended [the Sherman Antitrust Act’s] reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic potential.’” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731‒732 (1988))); SEC v. Zandford, 535 U. S. 813, 819 (2002) (In enacting the Securities Exchange Act, “Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor … Consequently, … the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” (internal quotation marks and paragraph break omitted)); Northwestern Bell Telephone Co., 492 U. S. 229, 243 (1989) (“The limits of the relationship and continuity concepts that combine to define a [Racketeer Influenced and Corrupt Organizations] pattern … cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a ‘pattern of racketeering activity’ exists. The development of these concepts must await future cases …”). As these illustrations suggest, sometimes, “[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U. S. 212, 218 (1999).

Congrats to Public Justice for winning this case. If they hadn’t, we’d know that things were even more corrupt than we thought at the U.S. Supreme Court. Now, if only the full Court would follow RBG’s sage advice and fix its earlier decisions. Ah, to dream.  

California vs. The World

(With apologies to that comic-con darling Scott Pilgrim vs. the World - although there’s nothing funny or juvenile about our story today.)

It’s probably hard to overestimate just how much the Trump administration hates California. It’s almost understandable given how solidly California mid-term voters rebuked him, or that California reps have already started down the impeachment road.

But as we last wrote about this, California has powerfully led the nation against many unpopular Trump Administration policies – so unpopular, in fact, that the Administration has been forced to fight back against California the only way sleazy and corrupt hacks know how: cowardly acts right before holidays.

Take one of the issues we wrote about last October: meal and rest break laws for truckers. As we noted at that time:

For almost two decades, California has had a meal and rest law for commercial truckers, protecting all motorists from highway accidents. But the American Trucking Association has now petitioned the Federal Motor Carrier Safety Administration to preempt California’s sensible law. … The trucking industry wants to prevent the state from having authority in this area. Notably, 20 other states have laws like California’s.

On October 29, 2017, a number of labor, consumer, civil rights, legal and other public interest groups sent a letter to the Federal Motor Carrier Safety Administration urging rejection of the trucking industry’s petition.

But on December 21, the Friday before Christmas, the FMCSA granted the industry petition, promising a new surge of fatigued truckers on the road. Are these people nuts?  Business Insider wrote:

Desiree Wood, who began trucking in 2007, said not giving paid rest breaks could put the safety of truck drivers and typical drivers at risk.

Truckers who are not properly rested are more likely to get into accidents; 13% of commercial-vehicle drivers who get into accidents are fatigued, according to an FMCSA study. Fatigued drivers, in general, are three times as likely to get into a car accident than well-rested drivers.

"It's really a travesty," Wood, who is also president of Real Women in Trucking, told Business Insider. "It truly defies safety. If you really cared about safety, you would want people on the highway who are not stressed out about their pay and who are well-rested."

The Teamsters have now filed a lawsuit to invalidate the agency’s actions. But we just may have to wait this out until we can elect a less corrupt, safety-conscious, worker-friendly President again. In the meantime, props to California for doing whatever it can to stop whatever it can. The rest of us appreciate it.

Duties to Warn

The other day, a couple of federal appeals court judges told a Federalist Society audiece that if they could do one thing to change the federal rules, they would END DISCOVERY IN MOST CASES! Complying with discovery requests is just too much trouble for companies that do bad things, it seems.(Sorry for all the caps, but these are the views of FEDERAL JUDGES!)

But I have to say, this shocking revelation is at least a good reminder of the importance of discovery.  When someone is injured, violated, defrauded or killed, the responsible party has the information and evidence establishing their culbability, not the victim.  Unless the victim has access to this information through discovery, they can’t prove anything. No discovery means no liability. We get it.

The same concept applies to laws requiring companies to warn the public of dangers that the company creates or at least knows about. Only they have that information, but many times, they don’t tell people – who then get hurt. It comes up a lot.

For example, it was reported this week that the family of Parker Waldridge, one of five people killed last January in an Oklahoma gas well explosion, allege in their wrongful death lawsuit that the drilling company, Patterson-UTI Drilling, “ignored multiple warnings that safety equipment … was malfunctioning.”

The lawsuit alleges that at least two days before the explosion, the rig superintendent, manager and several other Patterson employees received email results of a laboratory test warning of problems with the rig's accumulator, a piece of safety equipment that closes part of the well to prevent an uncontrolled release of fluids. The warnings even came with a "skull and crossbones graphic (literally)," the lawsuit said.

(BTW, no doubt this evidence was obtained during discovery, as is true for all the misconduct we’re writing about today.)

Another company that way too often violates its duty to warn customers of dangers is Johnson & Johnson, the world’s largest health-care products company. Reports Bloomberg, Johnson & Johnson has begun settling consumers’ claims that it sold artificial hips knowing they were defective, marking the first settlements in the seven-year-old litigation.” But in addition,

J&J is set to face a trial Jan. 14 in Dallas where five recipients of the Pinnacle hip will press claims that failed to warn customers about the devices’ risks. A similar 2016 case produced a $1 billion verdict for multiple plaintiffs.…

The hip recipients argued DePuy officials rushed the Pinnacle hips to market with little testing and misled doctors about the device’s safety profile, assuring them there was little risk of metal poisoning or tissue damage. J&J has denied these claims and said it developed and marketed the hips responsibly.

Speaking of drug companies, a U.S. Supreme Court argument is coming up in a case brought against Merck over its osteoporosis drug Fosamax, which ironically causes bone fractures. (See our earlier coverage here.) The reporting about that case doesn’t capture it very well so here’s our summary based on the respondent’s SCOTUS brief: 

in the years before Fosamax’s label correctly warned against very serious “atypical femoral fractures,” many people suffered this injury. Merck could have and should have updated its label earlier than it did regarding this problem. But instead, it went to the FDA asking that the agency approve a new label warning against minor “stress fractures.” The FDA said no to this obviously inadequate request. Merck says that rejection was “clear evidence that the FDA also would have rejected a warning about atypical femoral fractures.” That’s ridiculous. But that’s the issue before the Supreme Court.

Bottom line: warnings matter. And it’s a company’s job to make sure that vulnerable consumers and patients receive them.