ThePopTort

A Civil Justice Top 10 Thank You List

Here’s our Thanksgiving gift to you because sometimes things do go our way and we need to talk about that! Everyone feel better, and Happy Thanksgiving.

1. Congress quit “tort reform.” For 15 years, there has not been a serious “tort reform” effort in Congress. That’s when, in 2006, the last of seven bills to cap damages for medical malpractice victims was brought to the floor and decisively killed in the U.S. Senate even though the “tort reform” party controlled Congress, “tort reformer” in chief George W. Bush was President, and members of Congress were under enormous pressure to succumb to medical and insurance industry pressure. (Doctors had been suffering through four years of unnecessary price-gouging by medical malpractice insurers.) That happened because civil justice advocates effectively pushed back. While the U.S. House may pass bills now and then, they now arrive DOA in the Senate irrespective of who's in charge.

2. Judicial progress. Yes, the federal courts were decimated during the Trump/McConnell years. But the Biden/Schumer years have made much headway turning things around. Quoting our good friends at the Alliance for Justice, “President Biden has already seen more judges confirmed in his first year than the past five presidents, and he shows no signs of slowing down. With each slate, we see his continued commitment to bringing more professional and demographic diversity to our courts.”

3. Support for civil justice is bi-partisan. The “tort reform” movement finds itself no longer fighting just its traditional opponents - Democrats and progressives - as they had been for the first 30 years of the “tort reform” movement. They are now fighting people of their own political party and conservatives – and they are losing. Conservatives helped stop a bad class action bill and federal tort reform, and are now supporting a bi-partisan bill to ban forced arbitration clauses for sexual harassment cases. Who thought we’d ever see that?

4. Forced arbitration is backfiring. Speaking of forced arbitration, who saw this coming? As we wrote last July, “Amazon decided to give up its ‘forced arbitration’ requirement and allow itself to be sued in court. Why?  Because they were outsmarted. Specifically, rather than dropping claims, more than 75,000 Echo users, who were very angry that these Alexa devices were recording them without permission, filed for arbitration, hitting Amazon with a bill for ‘tens of millions of dollars in filing fees.’” Yet smart lawyering isn’t the only trigger for this development. Other big companies, like Google, have also dropped their forced arbitration clauses following major grassroots organizing. The company-by-company approach can’t replace Congress’ much need action on the FAIR Act, but the public education that has surrounded these developments can’t be overstated.

5. Unlikely courts have struck down caps. While not every state supreme court has struck down caps on damages, several surprising decisions have done so in conservative states and/or in states where courts had earlier ruled differently (e.g., Kansas, Oklahoma, Oregon). As a result, less than half the states (24) have laws that specifically cap non-economic damages in medical malpractice cases, which is the most popular kind of “tort reform” proposal. And only nine cap non-economic damages generally.

6. Research comes through. Often the insurance industry can bamboozle politicians despite the best efforts of civil justice advocates. (See what just happened in Louisiana.) But enough time has passed since many “tort reform” laws have been on the books, that credible, in-depth academic research about the impact of these laws is possible. And it’s showing “tort reform’s” failure at every level. That’s true even when it comes to the most common “talking point” in support of such laws: bringing down costs. Caps on damages, for example, cause system costs to actually increase, not decrease! See the book Medical Malpractice Litigation: How It Works, Why Tort Reform Hasn’t Helped, written by six top medical malpractice researchers, published by the conservative Cato Institute, no less. And let’s not forget survey-type research, like this one from one “tort reform” lobbying group. They say that for small businesses, the issue of “lawsuits” is of less importance than almost any issue small businesses could possibly face, or on which they want lawmakers to focus. 

7. New media is smarter. Gone are the days when press releases from manipulative industry PR operations with a lot of money, sent to traditional media outlets, become the only way people hear about civil justice issues. If you want to see how that used to happen, catch the documentary film Hot Coffee, which showed the destructive impact of that PR machine. But there is much more skepticism these days, and many more popular outlets want the truth. Take, for example, the very popular podcast “You’re Wrong About That,” which consistently ranks at the top of podcast episode and show lists. Here’s what they tweeted when they re-ran this year their episode on the McDonald’s Hot Coffee case which (like the film), debunks many anti-civil justice myths about this case: “This is by far our most requested episode! We're a little reluctant to do it simply because the ‘you're wrong about’ narrative is so well-known at this point. But maybe it's worth looking into anyway!” It's not the mid-1990s anymore.

8. Insurer price-gouging not working for them. Volcanic eruptions in insurance premiums for commercial customers (businesses, doctors) occurred the mid 1970s, again in the mid-1980s, and the early 2000s. While lawsuits had nothing to do with why premiums suddenly jumped, each time the industry responded by successfully pushing states to enact “tort reform” laws stripping victims of their legal rights. Now we are in the fourth such cycle. Insurance prices have been rising since 2019. But unlike in the past, today insurers have been unable to exploit their own mismanaged underwriting to push for similar “tort reform” laws. Why? Perhaps it’s because no one believes lawsuits caused insurance premiums to rise in a year when the civil courts and juries were essentially shut down. Or maybe it’s that the industry is sitting on a record-breaking trillion dollar surplus. Or maybe, people are just wising up to how this dishonest industry operates..

9. Law students emerge as a force. Law students have never been more politicized and active on civil justice, corporate accountability and court issues as they are now. People's Parity Project has emerged as a critical new voice on these issues, growing out of a movement at some of the top law schools in the nation. The [F]law is a new publication from Harvard Law School students, with a mission “to share stories that reveal how corporate law and power create social problems and systemic injustices.” And there’s been a huge jump in law school enrollment due to a number of factors including “continuation of what is called ‘the Trump bump’” and “what happened in 2020 — including the police killing of George Floyd and the racial justice movement that arose from it — spurred more applicants, she said, as did the death of Supreme Court Justice Ruth Bader Ginsburg and the confirmation of a controversial successor.” Can’t wait to see what these students do when they make it into the workforce.

10. Finally, we are thankful for everyone who pays attention to ThePopTort, the work of the Center for Justice & Democracy, and all the amazing advocates we work with. Have a very Happy Thanksgiving!

Harry Houdini Has Nothing on the Pharmaceutical Industry

Poll question: Who’s the greatest escape artist of all time? Harry Houdini? Criss Angel? After this week, I’m going with the drug industry (which the Center for Justice & Democracy writes about in its new report, PILLS; Big Pharma, the FDA, and Problem Medicine). Let’s review.

Escape Trick #1: It has been remarkably difficult to hold gigantic drug companies legally accountable for creating the public health disaster known as the opioid crisis. Criminal laws and sanctions fall vastly short. Even if criminally liable, you can’t throw an industry in jail. Yet in terms of the number of deaths and the costly toll on local communities – law enforcement, health care systems, etc. – the harm has been staggering. So states and communities have had to get creative.

They thought they had it, at least in one state – Oklahoma, where state officials said the industry (and in this case, Johnson & Johnson) was liable for creating a “public nuisance” - that being oversupplying opioids to the state. Lower courts agreed. But this week, the Oklahoma Supreme Court threw out the public nuisance case, ruling in the drug company’s favor. A California lower court had done the same thing earlier this month. This isn’t the end of opioid litigation or settlement talks, of course. But now a major legal theory, one with real promise for holding accountable the pharmaceutical industry for this crisis, may be dead.

Escape Trick #2: In October, Johnson & Johnson, with a net worth of about $420 billion, filed for Chapter 11 bankruptcy in order to cheat customers it poisoned with asbestos in J&J talc powders, including baby powder. This was after engaging in a decades-long cover-up of this corporate crime. Rather than face its victims in court, J&J has decided to take advantage of a loophole in Texas law that allows companies to split in two - one with all the company’s assets, the other with all the liabilities for the harm they caused. The company with all the liabilities then filed for bankruptcy and some tens of thousands of claims got dumped into bankruptcy court. Sick and dying victims became nothing more than creditors in a bankruptcy.

Interestingly, J&J filed for bankruptcy in North Carolina for no reason other than they assumed they’d get a favorable judge there. Fortunately, the NC judge kicked the bankruptcy case back to J&J’s home state of New Jersey where it belongs - along with a 60 day stay so a new judge can get “up to speed.” We will see what happens. Meanwhile, Congress is also trying to deal with this kind of bankruptcy abuse, with legislation supported by more than 50 groups to prevent companies from using bankruptcy laws to escape responsibility to customers they harm or kill.

Interestingly, this isn’t J&J’s only “split” of late. It’s also now splitting its health care products from its pharmaceuticals. Not sure what the escape plan is with this move, but I’m sure they’re up to something.

What is Reuters Doing Here?

No, this isn’t a blog about a frivolous lawsuit being filed against a small nonprofit group (us). There was no lawsuit and based on what we know about this situation (that would be a lot) there never would be - but there was certainly a threat.

This is a blog about a news organization - Reuters - that seemed to license one of their photos to a large and wealthy foundation – the World Economic Forum - which represented on its Wiki Commons page that they obtained access to this photo with Creative Common rights so others could use it in their little blogs. (See excerpt from this page).

Licensing photos with Creative Common (CC) rights is something WEC seems to take pride in doing and something that we would otherwise appreciate. Did they fail to do it here despite what they represented? I guess we will never know. 

Because when told Reuters came after us for using one such photo, WEC failed to help (or even respond) and allowed a company working for Reuters to demand that we not only take it down, but also pay an exorbitant fee for “past use,” threatening to refer the case to a law firm and “wait until you see the fees they’ll charge you!” (Although it could have been worse. In the tradition of the finest used car salesman, the company placed a sticker on the payment website offering an enticing 40 percent discount if we pay now.)

We were given 10 days to pay or else. It did not matter that the Reuter’s rep failed to even try to find out if WEC obtained access to this photo on the condition that they obtained CC rights, as they represented. Of course Reuters would also have this information. On this point, both organizations blew us off.  

It did not matter that the Reuter’s rep refused several requests from us for proof of the photo’s copyright registration, an expensive and often not-taken step which is a pre-requisite to suing as explained in this recent LA Times piece about celebrity photos (we hear you Lisa Rinna).  

Nor did it matter that the law considers it to be copyright abuse to not first consider our “fair use” claim before sending a “take-down” demand.

So what is Reuters doing here? And for that matter, what is the World Economic Forum doing?

My advice for anyone interested in engaging in the marketplace of ideas: stay clear of (and shame on) both.

Where Have All the Juries Gone?

There’s an enlightening and engaging new article out from UC Berkeley School of Law’s Civil Justice Research Initiative, called The Civil Jury: Reviving an American Institution. Written by renowned jury and civil justice experts Valerie P. Hans of Cornell Law School, Bob Peck from the Center for Constitutional Litigation, and Richard L. Jolly of Southwestern Law School, the piece consolidates some of what we’ve known about the history and importance of this “pivotal institution,” and updates it all with recent information about the worsening anti-civil jury trends in today’s world. They also makes common sense suggestions about how to reverse this troublesome situation.

They write:

[L]egal, political, and practical attacks and challenges over time have hollowed the constitutional promise and role of the civil jury. As noted herein, these include:

• Procedural changes stripping juries of their fact-finding authority and empowering legislatures and judges in ways beyond their expertise and constitutional role

• Political and social elites, buoyed by moneyed interests, engaging in a decades-long campaign to denigrate the democratic role of juries in civil dispute resolution

• Recently, COVID-19’s unique constraints on the empaneling and use of civil juries, grinding trials essentially to a halt

Here’s the shocking result (footnotes omitted):

Starting in 1962, the year when federal judicial statistics become most reliable, a consistent decline has been readily apparent in the percent of civil cases disposed of by jury trial. That rate was 5.5% in 1962; 3.7% in 1972; 2.6% in 1982; 1.9% in 1992; 1.2% in 2002; 0.81% in 2012; and finally reaching its nadir of 0.48% in 2020. A similar pattern has been experienced in state courts. In those states that kept accurate statistics, between 1976 and 2002 civil jury trials fell threefold from 1.8% to 0.6% in courts of general jurisdiction. And the most recent data from the Court Statistics Project shows that of those reporting states in 2019, juries disposed of a median of only 0.09% of civil disputes. Simply put, civil jury trials are the very rare exception and not the rule.

Indeed, “The majority of civil disputes today are resolved not by laypeople serving as jurors but through private and publicly funded settlement and arbitration proceedings.” And as we know, arbitration as a method of resolving important disputes is generally not chosen by harmed consumers or workers, but is rather forced on them by the very companies that hurt them. (Here’s our most recent post about that.)

What we also found interesting was how the authors connect this to a far broader trend, i.e. attacks on our democratic system of government. Take note anyone who cares about our nation’s recent precipitous slide towards anti-democratic laws and institutions. They write,

Still, in this time when the future of American democracy is in greater peril than we have ever experienced in our lifetimes, which coincides with our slow emergence from the ravages of a life-changing and deadly pandemic, we cannot forget that jury service provides a form of public participation and grassroots governance that the Founders considered as important in maintaining a democratic republic as voting itself.

Also, take note anyone who is wary of centralized government and privileged classes, and believes in juries as the essence of local governing. No matter ones political perspective, it should seem dire that the “civil jury has fallen into disrepair and neglect, ceding authority reposed by the Constitution in the people to unrepresentative judges, legislative bodies with little regard for our system of justice, and private actors who have locked the courthouse doors.”

The article debunks many myths about civil juries and then proposes some reforms, “focused on removing barriers to jury access and enhancing fair and accurate jury fact-finding.” These reforms include:

• Eliminate legislation capping the jury’s damage-setting authority
• Expand the use of innovative procedural tracks, such as expedited jury trial projects
• Ensure that juries represent the communities from which they are drawn
• Require the use of twelve-person civil juries
• Adopt active jury reforms

 Given the breadth of support for the civil jury system from all sides of the political spectrum, these should be no-brainers.

September 11, Two Memos

Twenty years ago, the PopTort’s offices (at the Center for Justice & Democracy) were just blocks from the World Trade Center. As part of what we remember that day and during that month, here are two emails that we sent to CJ&D’s friends in September 2001. We weren't sure we'd make it but we did, thanks to all the wonderful support we received. We are grateful. (Photos are near CJ&D offices, taken by Joanne Doroshow, September 16, 2001.)

Memo 1

To: Friends of the Center for Justice & Democracy
From: Joanne Doroshow, Executive Director
Re: An overwhelming experience
Date: September 16, 2001

Our office is several blocks from the World Trade Center, and I went there today (Sunday) for the first time since September 11 to retrieve some things.  I was allowed there because we are in an area, close to the New York stock exchange, that is in relatively good shape. It was an overwhelming experience.  The air was bad, buildings were still covered in soot, police, utility workers, troops in camouflage wearing gas masks were everywhere.  I left the area as quickly as I could. 

Our hearts go out to our Lower Manhattan neighbors who lost so many people.  We are also terribly sad for the small businesses that may not survive, like our printer, Fitch Graphics, almost directly across the street from the WTC, and Big Apple Copy Center, also very close to the towers.  The people who work there are wonderful -- both had been doing major jobs for us at the time of the disaster. 

In addition, several Center for Justice & Democracy supporters have law offices in the direct vicinity of the WTC.  Out of respect for their privacy, I won’t mention their names here.  But please know that for now, the lives of everyone working in this area has been monumentally changed. 

I would like to note with special appreciation the staff of the New York State Trial Lawyers Association, whose offices are 3 or 4 blocks from the WTC.  Last Tuesday morning, I was on my way to check our post office box mail when the planes crashed into the WTC.  Our post office, Church St. Station, is right across the street from the WTC.  I ran to the NYSTLA office because it was very nearby -- closer than my own office -- and stayed with the staff through the harrowing collapse of the WTC, our eventual evacuation and the 5 hour ordeal to get uptown and home. 

After the first building collapsed, NYSTLA staff opened their offices to people from the street who were trying to escape suffocation.  They ushered people into their CLE classroom, offering them water, snacks and access to news.  At the time, NYSTLA staff did not know whether there would be enough oxygen for themselves, let alone another 50 people.  But they allowed people in nonetheless, keeping them safe through the second building collapse, and until NYSTLA eventually evacuated. The NYSTLA staff deserves to be commended for this. I thank them very much. 

Like all businesses and non-profit groups around us, our work routine has been permanently disrupted and only time will tell what the lasting damage may be.  I hope not much, but we may need to call on our friends for a little help.  At a minimum, some of our work has been put on hold.  But we hope to be back in our offices, full-time, later this week.  Thanks so much to everyone for their thoughts and concerns.

Memo 2

To: Friends of the Center for Justice & Democracy
From: Joanne Doroshow
Re: An Update
Date: September 21, 2001

Lower Manhattan is gradually coming back.  For the first time, I saw no troops on my way to work this morning.

Yesterday was the first day one could get close to the World Trade Center area, especially the Southeast corner.  It's hard to describe so I won't try.  I was there because it's where the subway stopped.  Sadly, this is our neighborhood.  Still no electricity on one side of the street.

As far as our post office is concerned, that's over.  It will be at least a year before that opens again.  Miraculously, the building is still standing.  We must go to the main post office -- 33rd. and 8th Ave. -- to get our mail now.  But when I went there yesterday, even though I had to stand in a long line, it was all worth it when the goofy guy I usually deal with at our old post office appeared.  I was just so happy to see that he made it.  Same goes for our printers who came by yesterday.  They have a satellite office and they are trying to survive. Their main offices were destroyed, and their employees witnessed horrors that are unbearable to mention, but tragically not unusual.

There's been a noticeable change in all New Yorkers.  As someone said, people seem human again.  Everyone's helping everyone, no one complains.  But there's also an quiet sadness over everyone and everything, especially down here.

We are all back to work again.  Our phones and email work intermittently, so if you are having a hard time getting through, please keep trying.  Hope all is well where you are.

Get Ready for the Next Great Insurance Escape

The trailer isn’t out yet for the Hurricane Ida sequel to the “The Great Insurance Escape” (not to be confused with the “1963 American epic adventure suspense war film”). “Horror” is a more apt genre for this film, and it’s one we’ve seen many times before.

Here’s a synopsis: policyholders who dutifully pay premiums for years, expecting claims will be paid when a catastrophe hits (like a hurricane or a pandemic) find insurers denying claims and forcing policyholders into court. And the pleas of public officials – even U.S. Presidents – to insurance companies to quickly pay these claims, are proven worthless.

In this true film, former bully-in-chief Donald Trump is no match for the profiteering bullies at the property-casualty insurance industry. Back in April 2020, he urged companies to pay COVID-related business interruption claims, saying,

“You have people that have never asked for business-interruption insurance, and they’ve been paying a lot of money for a lot of years for the privilege of having it… And then when they finally need it, the insurance company says, ‘We’re not going to give it.’ We can’t let that happen.”

Oh, but it did happen. Businesses collapsed and insurance industry profits soared. (Learn more here.)

President Biden has pushed harder against this industry. For example, in a disaster as devastating as Hurricane Ida, the availability of insurance can literally become a matter of life or death, especially regarding the promise of temporary living expenses under “loss of use” clauses in homeowners policies, which many residents have. Following Ida, Biden was able to get a concession from at least a few companies that they won’t misuse their power to deny living expenses to those who voluntarily evacuated. He also said,

"I'm calling on private insurance companies: Don't hide behind the fine print and technicality. Pay what you owe your customers, cover temporary housing costs in national disasters and help those in need. That's what we should all be doing now.”

We should, but they won’t. Hiding behind fine print is essentially their business model. Take hurricane policies. The common understanding of a hurricane is a windstorm generating copious amounts of water. Homeowner policyholders who want to make sure they’re covered if a hurricane hits often sign “hurricane endorsements” with clearly labeled “hurricane deductibles,” thinking they have full coverage beyond the deductible in the event of a hurricane. They would be wrong. Elsewhere in those very same policies, insurers will expressly exclude payment for flood damage in all of these policies. To get flood insurance, homeowners must purchase separate policies from the federal flood insurance program. Except if someone is living in an actual flood plain, an insurance agent probably won’t explain any of this.

In 2005, immediately following Hurricane Katrina , many individuals were left destitute, without food, water or a roof over their heads. The insurance industry quickly denied responsibility for most of the damage its policyholders were suffering, wasting little time disseminating the message that most damage was flood-related, whether or not it was, and claiming it would not be responsible for this. The entire world watched this horror unfold on their television screens.

Fast forward to this year’s Hurricane Ida. Bob Hunter of the Consumer Federation of America explained the situation today:

Fortunately, Louisiana has one of the highest percentages of residents who carry flood insurance in the nation so most people who had flood damage from this storm in Louisiana will be covered by flood insurance.  Almost all wind-damaged homes have homeowners policies covering wind but insurers have been steadily increasing hurricane wind coverage deductibles and imposing other, sometimes draconian, homeowners insurance policy limitations. This shift of costs to consumers under homeowners insurance policies may take some by surprise, since disclosures of coverage changes are often buried in renewal paperwork that consumers may not understand or even read. Because so many consumers in Louisiana experienced severe claims problems in the wake of Hurricanes Katrina, we urge homeowners dealing with losses caused by Hurricane Ida to be vigilant with their insurance companies, including the insurers settling National Flood Insurance claims, to ensure that that they receive a full and fair settlement.

As to how we might expect insurers to behave towards East Coast policyholders devasted by Hurricane Ida’s massive flooding, let’s look back to 2012’s Superstorm Sandy. As we wrote in 2013:

Homeowners whose lives were shattered by Superstorm Sandy are still engaged in perpetual battles with insurers to get their flood insurance claims properly paid.  The situation is no better for homeowners claiming under their non-flood policies, with insurers putting homeowners’ money into escrow accounts and then micromanaging repairs. Writes one policyholder, “No matter insurance company has documentation already and has approved repairs. No matter repairs have been made and homeowner just wants reimbursement.… TD Bank has this policy. So does Wells Fargo. Problem is you don't know this until u go to deposit insurance check.”

Yet the problems were worse than we could have imagined. As we wrote in 2016 after an expose by 60 Minutes:

Two and a half years after Hurricane Sandy, “[t]housands of [victims'] claims have still not been resolved and there is evidence that many homeowners were victims of what appears to be wide-scale fraud where original damage reports were later changed to make it look like the damage wasn't as bad.” The facts uncovered in this piece are horrendous.

Certainly, we commend both President Biden and consumer groups trying to help. Their assistance and advice are critical. And right now, the media spotlight is shining on the insurance industry, which might incentivize them to do the right thing for a little while. But once the cameras are gone, victims of these catastrophes may be left to struggle on their own, once again.

Patients and Andrew Cuomo – Our Parting Shot

As New York City residents, we at ThePopTort were mesmerized by part 1 of Spike Lee’s astonishing NYC Epicenters 9/11-2021½, which began airing last night on HBO. But I fully understand if you missed it. It was a bit like watching someone else’s home movies. Also, it forces us to rehash the horrors of a few unpleasant characters  - although seeing the hilarious way Spike chyroned “a certain former President from Queens” was worth the whole thing. There’s actually a lot of humor in this series.

Peppered throughout, of course, is New York Governor Andrew Cuomo, who leaves office today. Just like his dad Mario, Andrew used his (10!) years as governor to do damage to the rights of patients harmed by negligent health care. This mission of his began as soon as he stepped into office and ended with the pandemic. ThePopTort was there for all of it so we decided that now would be a good time to do an Andrew Cuomo retrospective. For history, you know.

Within weeks of taking office in 2011, Andrew set up a task force under the guise of Medicaid “redesign,” primarily as a ruse to give New York’s powerful hospital lobby a way to force “tort reform” onto injured patients when clearly such laws would never pass on their own. The task force “recommendations” were two-fold: a $250,000 cap on non-economic damages, and a state fund to pay for the medical care of babies catastrophically harmed due to negligence at birth. Note that qualifying families would have to have already won their legal case and should already be entitled to full compensation. Instead, these families would have to beg the fund for money. Imagine putting such additional burdens on families that already face unimaginable challenges caring for a profoundly disabled child - while leaving the responsible hospital essentially off the hook.

Cuomo’s task force team, dominated by his hospital friends who would financially benefit from these laws, met secretly and made recommendations that went straight into the governor’s budget. The Center for Justice & Democracy filed an ethics complaint against Cuomo’s task force for this. His response was two-fold: publicly attack and try to bully CJ&D via his large bully brigade; privately, feeling the political heat, pull the damages cap out of this budget. But unfortunately, the baby fund stayed. It’s really what the hospitals wanted anyway.

Once the hospitals got their big prize, things calmed down a bit. Not completely, of course. For example, we wrote about how Cuomo later stuck a provision into his executive budget to make it easier for incompetent doctors to hide their malpractice records. But at least “tort reform” seemed to be off the table for a while.

Then came COVID. Cuomo almost immediately immunized hospitals and nursing homes from liability during the pandemic, slipping this immunity law into his budget at a time when almost no one noticed – except, of course, his hospital lobbyist friends who wrote it. This, by the way, included hospital systems that kept suing patients throughout the pandemic over unpaid medical bills. Cuomo’s immunity law became the blueprint for many states, often expanding immunity even beyond New York’s law with disastrous results particularly for nursing home residents. Cuomo's friends also went to Washington to help Sen. Majority Mitch McConnell write a national immunity bill. McConnell then held the nation hostage by demanding that Congress pass corporate immunity before allowing the country to get any stimulus relief.

Fortunately Cuomo’s friends didn’t get their way in DC. Their NY law was eventually reversed by the NY legislature and Cuomo’s nursing home legacy, as bad as it looks now, has yet to be finally written. But he’s finally out. Or as CJ&D Executive Director Joanne Doroshow put it to Mr. Cuomo back in 2011, “after you apply the facts to the law, that sound you'll hear is the steel trap closing on you.”

See ya!

A Civil Justice Story

Today, I’m reminded of that old-timey cop film/TV show called The Naked City, which famously ended the film and each episode with the line, "There are eight million stories in the naked city. This has been one of them." That’s more or less the context for today’s PopTort. There have been millions of notable civil justice cases brought over the years. This is one of them.

Before we get into the case, let’s talk briefly about the importance of the contingency fee system (and for more on that, see this study from Center for Justice & Democracy.). This unique fee system provides those with injury or death cases, regardless of their financial means, with access to an attorney. The attorney takes a case without charging any money up front and is paid as a percentage of any successful judgement or settlement – the standard percentage being one-third.

Many state laws unfairly and arbitrarily limit these fees, which make it impossible for attorneys to take certain cases. But it is also true that sometimes, trial lawyers voluntarily reduce their fees in order to help a client obtain an better settlement. That’s according to research from Professor Herbert Kritzer, the leading academic on contingent fee representation. His work can be found in Seven Dogged Myths Concerning Contingency Fees.

For injured victims, a better settlement doesn’t always mean more money even though a smaller monetary settlement means less money for both them and their attorney. Americans often sue for reasons that have little to do with money. Many sue primarily to hold a wrongdoer accountable, forcing them to make changes to their dangerous product or unsafe practice so others don’t have to suffer. That is also why many attorneys take such important cases - to make a difference. Many examples of such cases can be found LIFESAVERS 2021, which documents and explains how lawsuits and the tort system can lead to important changes that protect us all from dangerous or illegal practices.

One area where lawsuits can be particularly important is when it comes to exposing and hopefully stopping law enforcement practices like excessive force and brutality. One such case caught our eye recently. It concerns the settlement agreed to by the family of 38-year-old Jacob Bauer, whose 2018 death at the hands of Pleasanton California law enforcement involved horrendous instances of excessive force, brutality and misconduct.

Jacob was an individual who had been sliding into severe mental illness to such an extent that his worried parents, John and Rose Bauer, took the extraordinary step of alerting local police about it – four times. Their fear was that “their son would be hurt or killed if he ever came in contact with officers. They pointed out two other mentally ill men had been killed by Pleasanton police officers in the previous two years.”

Three days after the Bauers last met with police, who told them “not to worry,” police officers killed Jacob. This occurred after an incident at a grocery store where Jacob was acting erratically. “[O]fficers handcuffed him, took him to the ground, tased him, punched him, and piled on top of him while he laid in the prone position.” He was “also restrained in a full-body wrap with a spit mask and at one point had eight officers leaning on him.”  When he screamed he couldn’t breathe, the officers essentially mocked him. Then he died.

The Bauers sued. John Bauer also began “going to City Council meetings to speak about de-escalation training for officials who interact with the mentally ill,” according to one of attorneys, Gary Gwilliam. So when Pleasanton agreed to settle the case for $5.9 million, it may be no surprise that compensation was not all the Bauers requested. Said attorney Gwilliam, “What the Bauers want is to try and make sure that this doesn’t happen again, and that their son’s life will have some meaning, that it wasn't in vain. So in the settlement agreement, the Bauer’s demanded simply that the police finally listen to them.”

According to the settlement, the virtual “listening session” must be arranged within 30 days of the settlement being signed by all parties. The Bauers will have 10 to 20 minutes to explain what they would like to see happen when Pleasanton police officers respond to a mental health crisis. Police officials will then have a chance to talk about what has changed in the department since their son's death.

“Jacob lost his life over a few broken bottles at a grocery store," Rose Bauer said in a statement. "I hope this settlement creates real changes to stop police from using excessive force against the mentally ill.”

Notably, attorney, Gwilliam, said that “he was confident they could have gotten more in the settlement but that the Bauer family preferred to secure the meeting with police.

“I want everyone to remember that his death did not happen in vain, and maybe the terrible death and the terrible grief this has caused his parents might save someone else’s life someday,” Gwilliam said in an interview Monday.”

Maybe now they’ll listen.

 

In Medical News Today, Too Few Lawsuits Means Too Many Deaths

Too many people are dying of medical malpractice, or in dangerous nursing homes, or after being implanted with unsafe medical devices - because not enough people are suing. There I said it. Not enough lawsuits. Preventable death is what happens when accountability is weakened and information stays hidden. And politicians who kowtow to the insurance and medical lobbies are mostly to blame for this. And I’m sick of it. I’m sick of whiny insurance companies, sitting on boatloads of money while they raise rates on doctors and then falsely blame injured patients who rarely file lawsuits. Yet insurers still work to take away their rights.

I was reminded of this recently as the fog of COVID health care immunity laws began to lift and articles started surfacing about the ongoing state of patient safety.

Preventable Medical Errors are Rampant

Medical harm is “so widespread, so frequent, so massive, and so continuous that it rarely makes headlines,” wrote authors Michael Saks and Stephan Landsman recently in STAT (based on their new book). Put another way,

Death by medical error or accident is the nation’s leading cause of accidental death, exceeding all other causes of accidental death combined. Medical error and accidents kill approximately as many people each month in the U.S. as Covid-19 did before vaccines became available.

How have states responded? But stripping patients of their legal rights and then looking the other way, leaving patients to die. Take Dr. Death in Texas, one of the rare cases that actually did make headlines and even more unusually, has received Hollywood attention. Billy Corriher wrote in Facing South: 

"Dr. Death," a new drama on NBC's Peacock that was inspired by a true story, offers a disturbing look at the life of an incompetent Texas neurosurgeon named Dr. Christopher Duntsch, played by Joshua Jackson, and the patients he maimed.…

In the sixth episode, the show lays out how Texas law makes it nearly impossible to sue health care providers, meaning there's little accountability for negligent care or hiring decisions. A widower named Earle Burke, played by Grainger Hines, says that "no lawyer would take up the case" against Duntsch because of Texas' "tort reform" laws that make it harder to sue negligent doctors. 

Nearly half of all medical errors are preventable. In other words, a large chunk of patients (44%) would have a case if they could – or wanted to - go through the time, trouble and expense of going court. Yet almost no one sues. If they do decide to go to court, it’s extremely hard for patients to win these cases. And even if they do win, injured patients are generally severely undercompensated. (Lot’s of studies about this here.) And to top it all off, medical lobby groups have such control over public officials that even the worst, most incompetent physicians practice with impunity. 

Nursing Home Infection Controls Are STILL Bad

Could there be anything more tragic than the lack of COVID (and other) infection controls in nursing homes? Yet deadly COVID is still a problem as too many staff members remain unvaccinated. If only a strong civil justice system were available to ensure some accountability for nursing home negligence. But between dual “get out of jail free” cards of (COVID-related) legal immunity laws passed in most states and forced arbitration clauses used by most nursing homes, patients and families are faced with enormous legal hurdles if they try to hold a nursing home accountable for making these frail residents live in lethal Petri dishes.

Implanted Medical Devices Are A Horror Show

A new ProPublica article exposes a problem that actually is shockingly common: defective implanted heart devices that are allowed by the Food and Drug Administration (FDA) to go horribly wrong, and leaving patients (and surviving families) with neither medical nor legal recourse. This particular piece is about the HeartWare Ventricular Assist Device, or HVAD. As ProPublica writes,

The HVAD was implanted into more than 19,000 patients, the majority of whom got it after the FDA found in 2014 that the device didn’t meet federal standards. By the end of last year, the agency had received more than 3,000 reports of patient deaths that may have been caused or contributed to by the device.

But the FDA repeatedly failed to insist that the manufacturers, HeartWare and Medtronix, fix the devices’ problems. Even worse,

Patients with HVADs have little choice but to hope the devices keep working: The surgery to remove HVADs is so risky that both Medtronic and the FDA advise against it. The device is meant to be left in place until its wearer gets a heart transplant. Or dies.….

There are [] few documents available in state courts about faulty products, because of restrictions on lawsuits related to medical devices. The restrictions date back to a 2008 Supreme Court decision in a case against Medtronic. The court found that U.S. law bars patients and their survivors from suing device makers in state court, essentially because their products go through such a rigorous FDA approval process.

Congress has still not fixed the law to provide patients with defective heart implants some opportunity to go to court, get compensated, and hold medical device companies accountable in ways the FDA has so miserably failed to do. But sadly I suspect we may be waiting a long time.

Vaccine Hesitancy’s Odd Line in the Sand

I was listening to a news report the other day about the reasons for COVID vaccine hesitancy and one individual articulated an oft-cited concern: “I don’t want to put something in my body that the FDA has, so far, only approved for emergency use.” Some folks seem to feel this way even though the FDA approved emergency use based on clinical trials involving tens of thousands of people and nearly everyone with a medical degree is begging people to get it, having taken it themselves. Many everyday people apparently think that despite this, it’s their best medical judgement (sadly based on lethally- bad information) to risk serious illness and death to themselves and others in order to wait for the venerated seal of full FDA approval.

And then I thought, “should we tell them”?

Most of the drugs and supplements that we all ingest every single day have never gone through anything close to the clinical pre-market emergency approval process that the COVID vaccine already has. Here  are some examples:

Generic drugs. More than 80 percent of the drugs we take are generic. NONE have gone through any sort of clinical trial or pre-market approval process. These drugs are in the marketplace because they are supposed to be “bioequivalent” to brand name drugs, which have been FDA-approved. But despite what is commonly believed, generic drugs often do not match their brand name counterparts. They may contain some lower quality ingredients, which can affect a drug’s absorption into the bloodstream. The FDA sometimes approves a strength or dosage that hasn’t been tested at all. Even small design differences between generic and brand-name drugs can have health consequences. And to top it all off, we have no legal recourse if injured due to a generic drug’s unsafe design or labeling. (And that is thanks to the U.S. Supreme Court ruling against patients with horrendous generic drug injuries.)

Medical devices. As we wrote in 2012,

The FDA has a special rule –510(k) of the Federal Food, Drug, and Cosmetic Act – whereby drugs and devices that are “substantially equivalent” to a device already on the market are not required to go through more rigorous FDA approval.  This allows companies to market dangerous products for uses never really “approved” by the FDA, yet with the stamp of FDA approval!  [For example], the FDA approved surgical meshes for procedures like abdominal surgery.  But [Johnson & Johnson] began marketing them for use in a women’s vaginal area, treating problems like incontinence.  Subsequently, hundreds of women became severely injured and some died as the meshes began disintegrating, growing into tissue and becoming impossible to remove.  … The FDA [much later said] that the company should not have used 510(k) to fastrack these.  Not exactly quick work by the agency.

Supplements. Who here takes vitamins? Or any other kind of herbal or dietary supplement? The FDA doesn’t test any of them before they hit the market. The agency doesn’t even consider them to be “drugs.” As the American Cancer Society writes,

[Supplement] manufacturers are not required to test new ingredients or supplements in clinical trials, which would help find risks and potential interactions with drugs or other substances. The [law] gives the FDA permission to stop a company from making a dietary supplement, but only when the FDA proves that the product poses a significant risk to the health of Americans. This means they are found unsafe only after they cause harm. This is the reverse of the way prescription and non-prescription drugs are handled.

As we wrote in 2013:

Dr. David A. Baker, a professor of obstetrics, gynecology and reproductive medicine who has studied supplements, “called the state of supplement regulation ‘the Wild West,’ and said most consumers had no idea how few safeguards were in place. ‘If you had a child who was sick and 3 out of 10 penicillin pills were fake, everybody would be up in arms.  But it’s O.K. to buy a supplement where 3 out of 10 pills are fake. I don’t understand it. Why does this industry get away with that?’”

Of course, it shouldn’t. The point is, however, that the COVID vaccines are already far more regulated, and proven safe and effective, than nearly any other drug, device or supplement that we put in our bodies today. Plus unlike generic drugs, medical devices and dietary supplements, COVID vaccines have the eyes of the world on them - and they’re working. Not to mention the fact that more than 96 percent of doctors have already been vaccinated, fulling trusting their safety. It’s hard to feel safer than that.