ThePopTort

Immunity Backlash

Well that didn’t take long. Our last PopTort, Immunity Madness, focused on the push to immunize the nursing home industry from liability, removing the financial incentive for nursing home owners – including for-profit companies –  to maintain safety. No sooner did we post this than Big Business lobbyists started pushing hard to immunize all unsafe businesses, with Senate Majority Leader Mitch McConnell demanding that the next federal stimulus bill contain complete immunity for negligent companies. But his “red line,” as he called it, is now being called a “pipe dream.” (Malaphor alert!)

Starting with nursing homes, a New York Times article skewered Governor Andrew Cuomo for slipping nursing industry immunity into his budget, writing,

In New York, 5,300 nursing home residents have died of Covid-19. The nursing home lobby pressed for a provision that makes it hard for their families to sue.…

Advocates for nursing home residents said there were three longstanding safeguards against bad homes: family members who frequently visit; regular inspections by government regulators; and, as a last resort, lawsuits that can hold negligent homes accountable. But families can no longer visit. Regulators have largely stopped inspecting.

“All of the systems there to protect people are gone,” said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “To me, the combination — rules are waived, protections are waived, nobody is going in to check. And now immunity? That is a lethal combination.”

As if that weren’t enough, Nils Lofgren, E Street Band guitarist for New Jersey’s “pre-eminent hero,” came to realize that his neglected and infected mother-in-law was in a facility that had also been granted immunity by New Jersey’s Governor. Not giving up, he said,

We’re just horrified that people’s first reaction is, ‘Well we’re making a lot of money, but now let’s make sure we’re not liable for what we promised to do, in writing’.…Don’t forget, they look you in the eye and say your loved one will be cared for.… It’s unconscionable and immoral and disgusting.…It’s like their true colors are coming out, and I hope we can hold them accountable.

Editorials in other states started popping up urging lawmakers not to grant nursing home immunity. 

Then in Utah, which actually did go the next step and grant immunity to unsafe businesses, the impact of rewarding bad actors with immunity quickly became pretty obvious: 

Nearly half of the employees of a Utah County business tested positive for COVID-19 after the business instructed employees to not follow quarantine guidelines and required staff who had tested positive to report to work, according to a written statement from county executives.

The statement, which was released Monday evening and was signed by Utah County Commissioners Tanner Ainge, Bill Lee and Nathan Ivie and the mayors of each city in the county, said that 48% of employees of the unnamed business tested positive for COVID-19. 

Then, the Republican-led U.S. Senate Judiciary Committee held a hearing on the immunity issue. But rather than providing a forum to discuss McConnell’s “red line,” everyone rather chose to emphasize the far more urgent need for clear, science-based, and enforceable reopening guidelines. If that were done, liability – a red herring issue anyway - would take care of itself.

Unfortunately, so far all we have seen from the Trump administration is a politicized guidelines process, resulting in weak and biased guidelines. Even the CDC has been forced to step back from its public health recommendations.  

But the good news is, these immunity developments have now crystalized thought and analysis about it, leading to strong “anti- immunity, pro-strong regulation” editorials. See, for example, the New York Times. The Boston Globe. The Orlando Sun-Sentinel. The San Francisco Chronicle. The Waco Tribune-Herald. 

It also appears that the nursing home immunity issue was a bit of a bellwether, showing both the tragic public health impact and the potential political cost for politicians thinking about business immunity. In fact, when the issue of business immunity came up at Cuomo’s press conference last week, he punted to Congress and fell back on the message made clear at the Senate hearing: businesses should just comply with the regs.

Q: if businesses start to reopen, is there liability if there is an outbreak and should that we waived?

Cuomo: There is federal legislation now pending that is going to deal with this liability issue all across the board but it is a big question. If I’m advising the business owners, I say make sure you take all the required guidance and you follow the guidance. And the guidance is quite specific. So I would urge that they all do that. 

Mitch McConnell, you’re gonna lose on this. Move on.

Immunity Madness

Frontline health care workers - our indefatigable, exhusted, terrified, sick and dying heroes - are dealing with a mind-boggling number of crises that are making their lives hell, all of which could have been prevented or at least minimized had the federal government not wasted months. 

Between trying to solve multiple health care crises and dealing with an economic collapse, lawmakers have more than enough to do right now without being burdened with lobbyist demands over pretend problems.

Here’s a pretend problem: COVID-19 patients suing front line workers for medical malpractice. No one’s doing that. Yet you would never know it by reading the overly anxious recent letter to Congress from the “Health Care Coalition on Liability and Access,” a coalition of medical and insurance lobbies whose entire agenda is to push laws that strip patients of legal rights. They claim that the “threat” of medical malpractice lawsuits “remains hanging over their heads like a sword of Damocles.” Really? Watch last night's 60 Minutes about how U.S. doctors and nurses are "risking their lives without the same protective gear many of their counterparts around the world have," and tell me that lawsuits are the problem. In fact, what a preposterous thing to say about any sick and dying COVID-19 patient - far too many of whom are frontline health care workers themselves! 

Even in normal times, almost no one sues for medical malpractice even though they have a legitimate case. (See plenty of studies supporting this fact in the Center for Justice & Democracy’s medical malpractice briefing book.) But now, in the midst of a pandemic caused by a virus with no medical cure, exacerbated by equipment shortages that the health care system did not create, this whole issue is a red herring. As any lawyer who practices in this field will tell you, the standard of care, and what the law reasonably expects of health care professionals in an emergency, is very different than normal times.

Some might say “well, if there aren’t any lawsuits against frontline workers, what’s the harm in immunizing them”? Perhaps there isn’t. But let’s be clear what a law like this means. First, it means Congress would be asking sick and dying patients to give up Constitutionally-protected rights. Taking away Constitutional rights should never been done lightly even in an emergency. Perhaps especially in an emergency. And it’s not just sick patients asked to sacrifice here. States would also be relinquishing authority to decide how to handle this in their state – a mess of a situation that the federal government has otherwise chosen to largely dump on them. Just a wild guess, but of all the many things states need help with right now, preempting their tort law isn't on the list.

Second, the concern about overreach is real. Take a look at some COVID-related state immunity statutes that have already quickly passed, seemingly without a second thought. Some of these laws go far beyond protecting front line health care workers. For example, New York’s law, as well some laws in other states like Illinois, immunizes nursing homes. Some of these homes are run by negligent for-profit chains. Elderly nursing home residents are probably the single most vulnerable population in a state, virtual sitting ducks for this virus. 

Yet these residents, who depend on nursing home competence for their literal survival, are now suffering terribly in this pandemic. Clearly, negligent corporate owners should be on the hook for lethal, preventable failures, as described in this Washington State case against Tennessee-based Life Care Centers of America Inc., “among the largest players in U.S. nursing home care, with more than 200 senior-living centers in 28 states.”

In this case, “Debbie de los Angeles, whose mother Twilla Morin, 85, died on March 4 at the Life Care Center in Kirkland, Washington of COVID-19” is suing because “the company concealed vital facts about the outbreak before her mother died.” Her attorney says, “his client strongly suspects the company knew more about a potential coronavirus outbreak” before it admitted to it. “My client filed a lawsuit to demand answers to important questions,” he said.

Perhaps not surprisingly, in Florida, a state with one of the largest age 65+ populations in the country, the nursing home industry is begging for immunity in a letter sent to Governor “Let-‘Em-Party” DeSantis last month. 

Brian Lee, executive director of Families For Better Care, a non-profit group advocating for nursing home residents, said the letter was the equivalent of "asking for forgiveness in advance."

"It just got my blood boiling. I was shocked by the temerity of the industry to ask for blanket immunity from lawsuits… and to do it during the middle of this crisis. It’s appalling, and it’s a total slap in the face of families," Lee said. "All of their focus should be on saving our families lives, but it shows that, at the end of the day, they care more about their own protections. It's gross."…

A recent USA TODAY analysis of federal inspection data found that a majority of U.S. nursing homes (75%) have been cited for failing to properly monitor and control infections in the last three years – a higher proportion than previously known.

Compared to virtually any other population in America, nursing home residents are the most fragile and at-risk for COVID-19. Whether it’s Congress or the states, the very last thing we should be doing is removing the nursing home industry’s financial incentive to maintain safety for these residents. And when it comes to other kinds of immunity requests, remember that health care and insurance industry lobbyists don’t always tell the truth. If nothing else, we should be able to agree on that.

Confidential Insurance Industry Transcript!

CONFIDENTIAL TRANSCRIPT

April 2, 2020

------------------------

COVID 19 MENTAL HEALTH SUPPORT HOTLINE: Hello, how may I help you today?

ANONYMOUS PROPERTY/CASUALTY INSURANCE INDUSTRY EXECUTIVE: Hello, I need help dealing with my anxiety because my industry is the worstest victim.

THERAPIST: Ok, hmm. Please explain what’s troubling you.

ANONYMOUS: So here’s the problem. People think we owe them something.

THERAPIST: Well isn’t that your job? To pay claims? Or, as I’ve seen you guys put it, to be “on our side,” a “good neighbor,” keeping us in “good hands.” 

ANONYMOUS: Hell no that’s just the TV ads. Our job is to collect and pocket money from our policyholders at the highest rate state regulators will allow – and let’s face it, most state insurance departments do nothing when we price-gouge policyholders. Then we get to sit on that money and pocket the interest without returning any of it to our customers, and then fight anyone who tries to force us to pay claims that we owe. And until now, we’ve done spectacularly well with that kind of business model! In fact, going into this global health crisis, we had amassed mind-boggling, record-breaking surpluses. Over $800 billion! 

But now this crisis threatens all of that. Everything’s going haywire. I’m scared.

THERAPIST: Why are you scared?

ANONYMOUS: Well, I feel we're in some danger because people don’t like us very much during times of national crises, which I don’t get. Sure, after Hurricane Katrina we did everything we could to escape our responsibility to homeowners, many of whom were destitute. But how was it our problem that our customers were hungry, exhausted, traumatized and homeless? We had every right to fight them even when we were wrong. And after 9/11, our response was to march into the White House demanding a federal bailout that we absolutely didn’t need, and which keeps getting renewed. But we were just asking to loot the federal treasury like every other industry that had dumped money on politicians over many years. 

And now, the $800 billion in excess profit that took decades for us to stockpile is threatened by businesses who think we owe them when we went out of our way to exempt ourselves from virus-related losses. 

Now granted, we may have missed a few of those policies and forgot to exempt viruses here and there, but that was just an oversight on our part and we shouldn’t be punished for it, right? Businesses need to suck it up and stop suing us.

Plus, those mighty consumer groups are writing to insurance commissioners saying the windfall we are about to receive on auto insurance (since no one's driving) should be returned to policyholders! Check out this letter from the Consumer Federation of America and the Center for Economic Justice, calling for “lower auto insurance premiums for people who have stopped driving and lower commercial premiums for businesses that have dramatically curtailed their business and limited their exposure.”  What kind of game is this?

And speaking of rates, when this pandemic began, we had already started raising rates on our business customers using our go-to never-fail excuse – U.S. juries and their terrible verdicts. In fact, we created our own lingo for this problem  – social inflation. I know, there are compelling reasons why juries decide as they do and for decades we’ve complained about them anyway. And only 2% of cases end up before juries and we win most of them. But blaming juries has always worked whenever we’ve wanted to jack up rates.  So we had to keep up the rhetoric.   

Yet now, the entire civil jury system is on hold and American jurors themselves are sick and dying of a pandemic. It seems suddenly our entire PR effort has become, what’s a good word, insulting? Immoral? Tone deaf?  Depraved? Un-American? We are being treated so unfairly.

THERAPIST.  Well is there any good news you can focus on instead?

ANONYMOUS: Hmm, let’s see. Well there is something. Seems like Congress is interested in expanding the terrorist claims backstop to cover pandemic claims. That means if these claims cut too deeply into our mountains of cash, taxpayers will bail us out. That seems more than appropriate, especially if businesses start winning their cases or, god forbid, anyone forces us to retroactively pay claims. 

And maybe Congress will even set up a business victim compensation fund like they did for families after 9/11. That would be extra sweet. They really should because if they put us in charge of distributing money by deciding which claims are valid, we can promise that no one will get anything! It's a win-win! (I just hope Chairwoman Velazquez took care of this before she got coronavirus.)

THERAPIST: It sound like you’ll be just fine even though no one else will. But why don’t you contact me again in a week to continue our session so I can make sure you’re ok.

ANONYMOUS: Probably not. My insurance won’t cover it.

Our New PopTort PopQuiz - Online Edition!

With so much important focus on health care right now, we thought, “what a great time to test your medical malpractice knowledge!” And we have just the thing: our latest PopTort Pop Quiz, in honor of publication of the Center for Justice & Democracy's newly updated medical malpractice briefing book, as well as CJ&D’s new insurance study, How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation. 

BUT PLEASE DO NOT COME TO SCHOOL! Safety first. For now, all Pop Quizzes are entirely online!

1. Let’s start with emergency rooms. Even before they were stressed with the coronavirus, they had problems. Of medical malpractice claims caused by emergency room errors, how many resulted in death?

1. 5%
2. 10%
3. 25%
4. More than 33%

That would be “d. “After analyzing over 1,300 closed medical malpractice claims filed against hospitals between 2014 and 2018 over emergency department care, the insurance provider [Coverys] found that 61 percent of claims involved serious injury, with more than one-third resulting in death.” See more here.

2. How many bad surgical outcomes each year are due to preventable human error?

1. 1,000
2. 10,000
3. 50,000
4. 400,000

The answer is “d.” According to a 2019 JAMA study, ‘There are approximately 17 million surgical procedures performed in the United States each year….  If the adverse outcome rate is about 5 percent, and half of those are due to human error, as seen in our cohort and reported in other studies, it would mean that about 400,000 adverse outcomes could be prevented each year.’” 

3. There is an impending shortage of oncologists in America today. True or False: This shortage is happening because medical malpractice lawsuits and insurance rates are driving doctors out of the profession.

False. Reasons for this shortage have nothing to do with liability. Data from the Centers for Medicare & Medicaid Services, board certification and self-reported information from over 18,000 full-time, board-certified oncologists show that “an imminent wave of retiring oncologists,” coupled with a growing demand for cancer treatment, will cause a shortage of practitioners across the country. 

4. During the last insurance crisis (2002-2005) when doctors were begin price-gouged with skyrocketing insurance rates and insurers blamed claims and lawsuits, insurers were actually overstating their losses by what annual percentage?

1. 0 percent – insurers were being honest about their losses
2. 10 percent
3. 25 percent
4. 33 percent

Yup, the answer is “d.” According to the new study from Consumer Federation of America and Center for Justice & Democracy, How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation, “New evidence shows clearly that doctors were price-gouged during the last hard market (2002 to 2005). Doctors paid increasingly high premiums while paid claims actually dropped. Medical malpractice insurers were misrepresenting their actual losses by an incredible annual average of 33%.” 

5. True or False. Over the last 20 years, while insurers saw major reductions in their losses, they reduced premiums for doctors only $1 for every $3 in reduced claims payments.

That, my friends, is absolutely True. The back-up for this statistics, and many other shocking insurance facts, can be found in How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation. 

Just a short quiz this time. Go home and stay safe out there!

The Devil Wears Asbestos

If the road to hell is paved with good intentions, one can only imagine where bad intentions send you. For the asbestos industry, it’s probably to the Western District of North Carolina.

Back in 2014, a Western District of North Carolina judge – in his first and only asbestos case  – decided to reduce by 90 percent the amount Garlock Sealing Technologies owed its victims, including more than 4,000 Navy service members. Garlock was one of the world’s largest asbestos-containing gasket and packing manufacturers and had poisoned workers for many years. (See more here.)

To strip these victims of compensation, the judge made some highly irregular and incorrect rulings about how to value damages. Soon after he ruled, evidence surfaced that Garlock had “hid evidence from the bankruptcy court and presented false testimony, .... [committing] a fraud upon the court.’” And soon after that, Garlock’s case fizzled, with Garlock and its parent settling with victims for almost four times as much as the judge had ordered and completely dropping its bogus attacks on victims’ attorneys.

But the asbestos industry was still delirious with excitement over this discredited judge’s opinion. They saw in it new opportunities to scam even more dying victims, and Koch Industries stepped right up. Koch’s subsidiary, Georgia-Pacific, made asbestos-containing drywall, which poisoned hundreds of thousands of people. Rather than continuing to pay dying victims what it owed, GP divided itself in two: Company #1 kept all the assets and no liabilities, and Company #2, with no employees, no operations, and no assets, kept all the liabilities, including asbestos claims. That second company became headquartered in North Carolina. And then, in the land of Garlock, it declared bankruptcy and argued that victims who deserved full compensation – which a company like Koch could clearly afford - should get pennies on the dollar.

Other companies followed suit. For example, in January, CertainTeed cement company, which made all kinds of products that poisoned workers with asbestos (including Navy service members), similarly divided itself in two. All the assets (and none of the liabilities) were transferred to CertainTeed LLC and affiliates. All the asbestos liabilities (and none of the assets) were transferred to “DBMP,” a company with an unrecognizable name that domiciled in North Carolina. With no assets, DBMP immediately rendered itself insolvent and it filed for bankruptcy in January.

We can only hope that a judge somewhere refuses to allow a fraud like this to go on. But we do have to hand it to the asbestos industry. There seems to be no bottom to the scams they’ll devise to avoid compensating their dying victims.  And when I say no bottom, I mean all the way down there. The place where flame-retardants won’t help.

E-Scooters, Steering Right Past Your Legal Rights

Hey, have you heard the one about the injured Georgia man who rented a malfunctioning Bird e-scooter that flung him into an Atlanta street, but whose case was tossed out of court because of the fine print in his rental contract? Yep, that just happened.

There’s been an explosion of injuries caused by e-scooters, which are now in more than U.S. 100 cities. Consumer Reports tabulated injuries from 110 hospitals in 47 U.S. cities between late 2017 through early 2019 and found that at least 1,500 riders had been injured and four had died while using a rentable e-scooter. In June 2019, the number of deaths linked to e-scooters rose to eight. And malfunctioning scooters – not the riders - are often to blame.

When CBS’s 60 Minutes covered “The Great Electric Scooter Backlash” in September 2019, California attorney Catherine Lerer spoke of the kinds of cases she sees: 

“The calls that I get from riders who are injured, they are injured when the scooter malfunctions,” she said.

“Do you get the impression that they malfunction much?” asked [correspondent David] Pogue.

“Very much, all the time,” Lerer said. “The scooters die mid-ride. The brakes lock up. The handlebar post collapses. The handlebars detach. They were never intended to be like rental cars, commercial fleet usage, you know, use after use after use every day. And that’s why they have a lifespan of only 30 to 45 days!”

Knowing they are culpable but don’t want to be held accountable, e-scooter companies force riders to agree to standard boilerplate contracts in order to use their product, all of which contain unfair provisions buried in fine print and legalese that most people cannot possibly understand (let alone try to read). Among those provisions are forced arbitration clauses that require that all disputes be resolved in private, secret, company-controlled, rigged systems.

That’s bad enough. But these company also want to escape liability when non-riders (who are not even parties to a rental contract) suffer e-scooter-related injuries. That’s being litigated too. In the California class action Borgia v. Bird Rides, Inc., injury victims are suing Lime, Bird and scooter manufacturer Segway for gross negligence and aided and abetted assaults by “dumping” thousands of scooters onto California streets and into public areas. (In other words, these are not just eyesores.)

Victims include: a child “who allegedly has seriously damaged eight (8) of his front eight teeth and has required stitches due to a laceration on his lip” after a Lime e-scooter crashed into him; a woman who “tripped over three (3) Lime Scooters that were left on the sidewalk,” leaving her with a broken left wrist and ring finger; and a woman who “suffered injuries to her left hand, both knees, lower back and pelvis” after “she tripped over a Lime Scooter that was left on the sidewalk right in front of the exit of a coffee shop she was visiting.”

To read more about this colossal mess check out the Center for Justice & Democracy’s report, Planes, Trains and Automobiles – and Other Transportation Hazards, which examines both safety risks and disappearing legal rights for commuters and business travelers.  Oh, and #EndForcedArbitration! 

Our Favorite New “Bad Place” Demon – The Insurance Industry

The critically-acclaimed comedy, The Good Place, comes to an end this month and that’s too bad. If you haven’t seen the show, it’s about the afterlife. There’s not just a Good Place. There’s also a Bad Place, populated by demons wearing expensive suits who torture and destroy things. My first thought was, “who does that remind me of? Oh yeah, the property/casualty insurance industry. They torture their policyholders and try to destroy businesses." They'd be perfect for this show. If only there were another season. 

Remember way back in October 2010 when we reposted a Huffington Post blog, “Here's Really Why Your Insurance Rates Go Up - and Then Don't” and urged readers to “bookmark this post and come back to it in a year or so.” I’m sure you don’t so let’s review.

Back then, insurance rates were pretty stable and had been for about four years. Four years earlier, the insurance industry was price-gouging policyholders for no reason other than the fact that the industry had kept rates low for 13 years and investment income was down. It decided it wanted more money, and that it would get it from its policyholders (especially doctors) by suddenly raising rates.

Were they honest about why they were raising rates? Of course not. This is an industry skilled in the art of deflecting blame. Rather than accept responsibility for how it was managing its own underwriting, it rather starting screaming about lawyers, lawsuits, judges and juries. Doctors were only happy to join in. No matter what the data clearly showed, i.e., that claims and payouts were completely stable, lawmakers were scared into giving the industry anything it wanted. So during the time between 2002 and 2006, both doctors (who were forced to pay way too much money in premiums) and patients (whose rights were stripped away in 19 states) were badly harmed. The “Bad Place” Demons couldn’t have orchestrated it better. (See more here.)

But by 2010 when we wrote our piece, the insurance industry was sitting on so much money – partly from their earlier price-gouging and partly because of their continuing investment returns - that they simply couldn’t start raising rates again. But we didn’t trust them and that’s why we said, “bookmark this post and come back to it in a year or so.” Well it took a decade thanks to the obscene amount of investment income it continued to rake in, not to mention the windfall from Trump’s tax cut, none of which the insurance industry gave back to customers.

But like a bad penny that always turns up, they’re back! If you’ve read some of the business press over the last few months, you will find a bunch of articles quoting insurance executives clearly pushing to send the nation into a new liability insurance crisis. (You’ll find examples of these articles in future reports but take it from us: the Bad Place Lava Monsters would be so proud.)

Here’s their problem, or at least one of them. Despite their “déjà vu all over again” whining about juries making things difficult for insurance companies, the industry is still swimming in money. They have mountains of it. Pick your metaphor. For example, take a look at their surpluses, which are the extra cushion insurers hold in addition to the amount they have set aside to pay estimated future claims. These surpluses are at record levels. And I mean unprecedented. In 2010 when we wrote that first article, the surplus was $584 billion. Now, it’s $802 billion! Hitting policyholders with rate hikes now would be purely for the purpose of price-gouging them.

They’ve done that before but we really shouldn’t let them do it this time. The Good Place may be ending. But our focus on this Bad industry is not. There are many ways to show how much they are lying about everything. Expect to see much more from us soon.

Transportation’s 2020 Vision Loss

We’re commuting longer hours. Boeing plane crashes are in virtually every news cycle now. Amtrak is being sued for forcing its passengers to waive their right to go to court. Pennsylvania Turnpike motorists just experienced a horrible crash involving buses, trucks and cars, killing 5 and injuring dozens. As we start off this year, we are wondering just bad it is for commuters and business travelers these days?

Well, the Center for Justice & Democracy’s new report Planes, Trains and Automobiles – and Other Transportation Hazards has some of those answers. Can’t say the news is great but it is important. CJ&D explains,

Whether driving, flying, taking trains or ferries, or even walking, Americans must largely rely on private companies to ensure their safety – companies that are subject to ever-weakening federal regulations and public protections. The result is that far too many transportation injuries and deaths are occurring. At the same time the legal rights of all Americans are being reduced or, in some cases, eliminated altogether through state or federal tort limits, contractual restrictions like forced arbitration, and federal preemption.

Here are some key findings in each transportation system.

Planes: The FAA delegated safety decisions to Boeing that was more concerned with profit and market share than safety, and as a result it rushed to put the deadly 737 MAX into operation knowing it was unsafe. Yet this is not the only disturbing airline safety trend. There are many problems that are longstanding concerning runway near-misses, deficient maintenance, commuter airlines and cheap flights. Some are improving but not all.

Trains: In 2008, Congress gave Amtrak specific deadlines to implement positive train control technology (PTC) to stop preventable train crashes. The rail industry “bridled” at Congress’ mandate to implement PTC, failed to meet these deadlines, and as a result, crashes have continued. Then in January 2019, Amtrak stuck a fine-print provision in all tickets that forces passengers in any kind of dispute with Amtrak – even mass casualty victims – into private, rigged arbitration. Injured passengers are already subject to a strict compensation cap.

Cars/Trucks/Buses: No mode of transportation comes close to causing the number of deaths or injuries than vehicles on roads. The auto industry has taken advantage of perfunctory federal oversight and weak laws to repeatedly put hundreds of millions of dangerous and defective vehicles in the stream of commerce.  Meanwhile, both the trucking and bus industries are trying to weaken state meal and rest break employment laws in order to put more fatigued commercial drivers on the road. And to make matters worse for customers, forced arbitration clauses are in nearly all vehicle sales and lease agreements today.

Ferries: The U.S. Coast Guard is responsible for overseeing passenger ferry safety but it has 10 other statutorily-mandated missions. This leaves ferry safety as an under-resourced priority. Lack of resources is compounded by a lack of institutional will to make needed safety improvements. And the anachronistic Limitation of Liability Act (LOLA) provides an avenue for ferry owners to try to drastically limit their liability in mass casualty cases.

E-Scooters: There has been an explosion of injuries caused by e-scooters. Yet e-scooter companies force riders to agree to contracts, in which the company accepts none of the responsibility for rider injuries even if a company’s gross negligence is to blame. They also require that all disputes be resolved in private, secret forced arbitration systems. Combined with the absence of federal oversight, the e-scooter industry operates with little accountability to anyone.

So if you’re a commuter or business traveler, take a deep breath, get one of those meditation apps, put on some Enya, close your eye (scrap that, motorists and scooter riders!) and think about how we’re going to make this better.

Wrapping Up the Year! (Things Can Only Get Better)

It’s about time for a 2019 wrap-up story. Seems like a good time to review the state of the federal judiciary, which Mitch McConnell is clearly trying to ruin. Lucky for us, both Reuters and Slate have already done some of the job for us. Just wish the headlines were better!

Here’s Slate: “The Decade Class Actions Were Gutted.” 

And here’s Reuters. “Why big business can count on courts to keep its deadly secrets.” Let’s start there.

Three Reuters reporters just published a huge investigative report about where we are when it comes to the “routine use of protective orders, sealed documents and other tools of concealment [that have] wrapped U.S. courts in lethal secrecy.” To summarize, over the last few decades, “big business and its legal lieutenants succeeded in a focused, concerted campaign that has ensured that secrecy cloaks lawsuits alleging that their products can kill or injure people.”

The reporters describe how the corporate defense bar, with “ready support from judges and court staff,” transformed our open civil courts to one where the evidence of defective and dangerous products remain hidden as people continue to be killed and injured.

Yet it didn’t have to be that way. Yes, over the last few decades and even before, corporate defense lawyers have argued that disclosing health and safety information violated corporate privacy. But things got really bad after 1984. That's when U.S. Supreme Court Justice Lewis F. Powell Jr., longtime tobacco defense lawyer, wrote one line in a 1984 Supreme Court decision that became the legal foundation for the entire corporate movement to institutionalize secrecy. Notably Justice William Brennan asked him to leave out that line. He refused.

Then, “The defense bar’s leading trade group, the Defense Research Institute, published a 1987 guide citing the Supreme Court’s decision and urging corporate litigators to seek protective orders “even where defense counsel can make no special claim of confidentiality.” And judges went along with it, sealing evidence “relevant to public health and safety in dozens of the biggest defective-product cases consolidated in federal court over the past 20 years.” As a result,

Hundreds of thousands of people were killed or seriously injured by allegedly harmful products after judges in recent years allowed litigants to file under seal, beyond public view, evidence that could have alerted consumers and regulators to the dangers. The secrecy allowed drug makers to market painkillers as safe while the body count from the opioid-related epidemic mounted; auto makers to sell cars with lethally weak roofs that killed people in rollovers though tests had years earlier revealed the risk; gun maker Remington to knowingly sell rifles with bum triggers that killed scores of people.

Now for Slate’s “The Decade Class Actions Were Gutted.” Most of this article is about the destruction of our rights due to widespread use of forced arbitration and class action waivers, and in particular, the damage done by the U.S. Supreme Court majority in upholding the validity of even the most unfair and egregious clauses. The court’s liberal wing, particularly RBG, has strongly dissented in these cases. We have covered this issue extensively. But here’s a perspective that we find new and important:

When progressives critique the Supreme Court, they rarely mention these cases. Many liberal advocacy groups embrace attorneys who advance progressive causes in their pro bono work, even if those attorneys turn around and undermine those causes in their day jobs.

One predictable result is that the liberal legal community focuses on objectives like reproductive rights and LGBTQ equality, which corporate America already supports. Consumer welfare and workers’ rights are put on the backburner, partly to avoid alienating superstar litigators—and deep-pocketed law firms that provide financial support to progressive [groups].…

Corporations have not been more powerful, or less accountable, since the Gilded Age. Class actions at least gave everyday Americans a fighting chance at justice when big business screwed them over. The Supreme Court has enabled rich companies to play by a different set of rules than the rest of us, picking winners—CEOs, bank executives, white-shoe law firms—and losers. 

By the way, every law student reading this who wants to fight back should attend the first annual People’s Parity Project National Convening next February in Washington, D.C. THAT is how things will get better!

Asbestos, The Non-Partisan Killer

Asbestos has been killing Americans - and industries have been covering up asbestos disease - since at least the early 1900s. (See the complete story here.) Nearly the entire industrialized world bans asbestos but not the United States. Perhaps we shouldn’t be surprised to find this lethal substance making news yet again, yet we genuinely are. 

This week, asbestos news stories have ranged from the predictable to the unusual to the extraordinary. Let’s start with the predictable. 

A physician who treats dying asbestos victims just warned that “anyone who worked at Portsmouth [Maine] Naval Shipyard or was in the Navy prior to 1975 may have been exposed to asbestos [because].… ‘[T]hey threw asbestos on everything,’ he said.” Then there’s the idiot contractor hired by Kodak that sprayed asbestos near Kodak workers. One dying victim just got a jury verdict to help his family after he’s gone (dead) in a few months. And Ford is trying to reduce a Delaware verdict for victims against the car company.  No real surprises there.

Next, the unusual. In 2017, Massachusetts Attorney General Maura Healey launched an initiative called Healthy Buildings, Healthy Air in 2017, “to enforce safety laws relating to asbestos and raise awareness for how dangerous the substance is.” Healey’s office just reported some of the program’s successes, including obtaining “more than $3.4 million in penalties for state asbestos law violations,” and resolving cases “against 35 defendants” for violations that were documented at “schools, nursing homes, community centers, and more.” Those are just some highlights.

Finally, the extraordinary. There is really no other way to describe the new Reuters investigation about the 50-year deliberate failure of the federal Food and Drug Administration to remove asbestos from Johnson & Johnson baby power. Said Reuters:

Over the past 50 years, the FDA has relied upon–and often deferred to–industry even as outside experts and consumers repeatedly raised serious health concerns about talc powders and cosmetics, a Reuters investigation found.

Again and again since at least the 1970s, the agency has downplayed the risk of asbestos contamination and declined to issue warnings or impose safety standards, according to documents produced in court proceedings and in response to public records requests.

Some of facts here are extremely disturbing:

The FDA began looking into talc safety in 1971 after researchers at Mount Sinai Medical Center in New York found what appeared to be asbestos in unnamed brands of talc powder.

Two years later, FDA records show, the agency found asbestos in a sample of Shower to Shower, a J&J powder at the time that was made with the same talc as Johnson’s Baby Powder. The FDA never publicly announced the finding.

J&J told Reuters the result was not final, citing findings in an FDA table issued in 1976. But that table, reviewed by Reuters, is ambiguous, listing no result for the type of asbestos found in 1973. J&J told Reuters the gap means no asbestos was found.

That same year, J&J, other talc companies and their trade group, the Cosmetic Toiletry and Fragrance Association, persuaded FDA officials that manufacturers could monitor the safety of their own products, according to records J&J and the group produced in litigation.

 The FDA dropped plans to impose testing and purity standards for talc powders and cosmetics. The trade group published its own test, which was voluntary for companies to use. The written standard for that test acknowledges that it cannot detect most types of asbestos at low levels, nor one common type–chrysotile–at all.

In a statement to Reuters, the trade group said it believed that chrysotile was not commonly linked to talc used in cosmetics.

Chrysotile is the type of asbestos the FDA-commissioned test found in Baby Powder this year. It also was found in several tests conducted by labs for J&J on its talc from 1972 through 2003, according to records produced in litigation.

For everyone so very focused on our current President, it’s important to remember that the FDA under every President since Nixon is implicated or complicit here. One is as captured by industry as next. Sad to say.