ThePopTort

It's PopTort PopQuiz Time, Med Mal True or False Edition!

We were wondering whether to start a game of "Medical Negligence Truth or Dare" but decided "Medical Negligence True or False" might be a little safer. (Although as you'll see, in health care safety isn't always Job One.) Anyway, let's give it a try.

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.”

2. Medical societies are making healthcare unsafe by focusing attention on “tort reform” instead of reducing errors.

True. According to researchers, after “the American Society of Anesthesiologists (ASA) studied closed claims data in 1985 to examine ‘the types of injuries that occur and their frequency,’ anesthesia procedures were changed ‘that protected millions of patients from harm.’  However, ‘other professional societies were slow to follow the ASA’s lead. Instead of devoting resources to the study of root causes, they sought to reduce their members’ exposure to liability claims by lobbying for damages caps and other restrictions on lawsuits. These efforts benefited their members, but likely harmed patients by reducing the pressure the liability system exerted on providers to improve patient safety.” 

3. Actual payouts to malpractice victims are usually capped at doctors' insurance policy limits - even if juries award more. 

True. Data show that even when injuries and negligence are significant and a jury verdict is appropriately large, actual payouts to patients rarely exceed the health care provider’s insurance policy limits. In other words, there are no "jackpots" here.

4. More than 250 doctors who recently surrendered a medical license in one state were able to practice in another state.

True. This is according to a 2018 investigation by the Milwaukee Journal Sentinel, USA Today and MedPage Today.

5. Medical boards frequently consult the National Practitioner Data Bank (NPDB), which exists to ensure that past physician negligence, such as prescription drug abuse, unsafe surgeries, or sexual relations with patients, are known before allowing a doctor to practice.

False. Last year, "30 state medical boards in the U.S. backgrounded a physician using the database fewer than 100 times, according to numbers from the Health Resources and Service Administration. Thirteen boards didn’t even check it once.” 

6. When hospitals settle malpractice cases involving one of their doctors, they use tactics to avoid reporting the doctor’s actions to the NPDB.

True. One tactic is called the “corporate shield.” According to researchers, “The shield is employed when ‘the medical corporation for which the doctor works is named in the suit, and the doctor is either not originally named or is released specifically for the purpose of avoiding a report to the NPDB.’ Although the extent to which this tactic reduces the number of payments that are reportable to the NPDB is not known, some authors believe that one-half of otherwise reportable adverse events are deflected by this means.”

7. Doctors are correct: malpractice settlements are poor indicators of past negligence and poor predictors of future claims.

False. Indeed the exact opposite is true. According to researchers, malpractice settlements are “good indicators of past negligence because both the likelihood and the size of payments correlate with the strength of the evidence of medical malpractice. They are good predictors because the number of past settlements correlates with the likelihood that more payments will be made.” Also here.

8. The U.S. medical malpractice insurance industry is losing money as a result of underwriting losses (i.e., too many claim payouts).

False. The net income for these insurers increased to more than $1.1 billion from $764 million in 2016. 

9. A wrong or delayed diagnosis causes, on average, one patient death per day in a U.S. hospital.

False. On average, someone dies in U.S. hospitals due to wrong or delayed diagnosis every nine minutes.

10. Unsafe medical workplace conditions are a bigger patient safety problem than physician burnout.

False.  Physician burnout, which 55 percent of doctors report, is at least equally responsible for medical errors as unsafe medical workplace conditions, if not more so. And “health care facilities where doctor burnout was seen as a common problem saw their medical error risk rate triple, even if the overall workplace environment was otherwise thought to be very safe.…” See here, here, here, here.)

BONUS QUESTION

(Just cause there's lots to say about the following.)

By the end of the decade, there is expected to be a shortage of between 42,600 and 121,300 physicians, including OB-GYNs, because doctors cannot afford their medical malpractice insurance premiums.

False. Yes, there will be such shortages but for reasons that have nothing to do with malpractice. Rather, this is due to the “growing, aging population” and “physician-retirement decisions.” For example, data from the Centers for Medicare & Medicaid Services demonstrate that “the growing shortage in obstetricians and gynecologists (OB-GYN) [is] due to a maturing workforce and coming retirement wave.” Others note, "Changes in physician-retirement decisions could have the greatest impact on supply, and over one-third of all currently active physicians will be 65 or older within the next decade.” According to a survey from the Doctors Company, “Over half of physician respondents plan to retire within the next five years,” a 54 percent increase from 2012 results. Why? Doctors are considering retirement as they feel the pressure of declining reimbursements, increased administrative burden, and industry consolidation.” Even in Texas, which stripped away patients’ rights in 2003 ostensibly to address the problem of physician supply, there’s a major physician shortage because medical school enrollment and resident positions are insufficient to meet the projected demand of a growing population.

Hope you did well cause your life may depend on it (not to scare anyone). You can find all this and more in the Center for Justice & Democracy's new Briefing Book - Medical Malpractice: By The Numbers, December 2018 Update.

Dangerous Transportation Oddities

Oh, there are all kinds of dangers we could be talking about this holiday. Imagine the following not-so-hard-to-imagine scenario. You drive to the airport, under the influence legal weed. (We’re talking to you, Massachusetts.) Then you get your boarding pass at a germ-infested self-service kiosk, aka the dirtiest place in an airport. (And don’t get me started on bathrooms.) Once you arrive at your destination, you eat some salmonella-poisoned turkey. Still on your feet?

Yet it could be worse.  Let me warn you about two additional transportation hazards that could ruin your holiday, indeed your life.

1. Electric scooters.  If you’re in a city where these hazardous modes of transportation are allowed, good luck. As one California doctor described it, “Since scooters launched in Santa Monica, I’ve seen a large number of people who’ve lost their teeth, who come in with broken bones, head injuries, skull and facial fractures. … And I’ve seen a lot of tears, because it’s a really big deal to need surgery or new teeth.”  They’re also seeing traumatic brain injuries and death. 

Companies like Bird and Lime, which make boatloads of money off these 15 mile-an-hour-city-sidewalk-death-traps, are trying to escape legal accountability by forcing users to “accept lengthy terms of service agreements that exempt scooter companies from legal liability if riders are hurt using them.” But what if you’re a pedestrian who gets hit, and who never agreed to anything?

That’s one theory behind a new class action lawsuit filed in California against these companies for “’dumping’ scooters on public streets without an appropriate warning.” It includes three plaintiffs who “were walking when e-scooter riders crashed into them from behind, resulting in severe injuries. The suit alleges that e-scooter companies knew their riders were injuring pedestrians and –– by failing to stop the collisions from occurring –– assisted and encouraged scooter riders as they committed ‘assaults.’”

2. Stretch Limos.This week, the first lawsuit was filed by the estate of one of the 20 people killed in that terrible limo crash in upstate New York last month, considered “the nation's deadliest transportation-related incident in nearly a decade.” It was filed on behalf of the estate of 29-year-old Amanda Rivenburg: 

The family is claiming negligence, gross negligence and wrongful death. It names the Gansvoort-based limo service, Prestige Limousine & Chauffeur Service, owner Shahed Hussain and operator Nauman Hussain. …

The Rivenburg family attorney said on Monday that he expects the state to be named in future lawsuits related to the Route 30-30A intersection where the crash happened and because of the state's oversight of the limo company.

This might be a good time to mention that New York's wrongful death law is one of the most archaic in the nation. It will be interesting to see if this law is raised as a defense against substantial damages in some of the cases that might be filed.

Specifically, unless a family member is financially dependent on the person who has been killed, compensation is essentially unavailable to them. That includes, for example, the anguish and heartache a parent would experience over the loss of their child. (This FAQ explains in more detail.)

The other issue, of course, is the out-and-out perils of stretch limos. As the New York Times wrote shortly after the upstate New York crash, 

[M]any stretch limousines might be considered a kind of automotive zombie: They are former cars or sport utility vehicles that have been transformed after they leave the factory, and exist in a regulatory limbo. They usually do not have to meet arduous federal safety requirements, and they face a haphazard inspection system that varies from state to state.

“Without sufficient safety standards in place, it is nothing but a fine line between a stretch limousine and a hearse,” Thomas Spota, the former Suffolk County district attorney, said in 2016.

Stay safe, America.

What the Elections Said About Climate

Climate isn’t the only environmental disaster we need to worry about, of course. Remember the 2010 Deepwater Horizon/BP oil disaster in the Gulf? Turns out that all those chemical dispersants which “BP applied directly at the spewing wellhead – about a mile below the Gulf of Mexico’s surface – failed to curb the oil’s spread” and made things even worse. (See some of our prior coverage here.) Apparently, no one has yet come up with an alternative plan the next time an explosion like this happens. So there’s that.

But back to climate. Voters in six Western states faced ballot initiatives to make “sweeping changes to environmental regulations.” These, of course, were heavily opposed by oil, gas and mining companies, which vastly outspent proponents of these measures with boatloads of out-of-state money. As a result, the ballot initiatives “largely flopped … including Colorado's increased restrictions on oil and gas drilling, Washington's carbon tax and Arizona's 50 percent renewable energy mandate."

But don’t feel discouraged yet. Consider this. While polluters were dumping money into states to defeat ballot initiatives, and Trump has been engaged in “full-throated … efforts to roll back regulations regarding climate change and other environmental issues,” seven governorships and four state AG flipped from Republican to Democrat this past election, and "[m]any of the new governors made climate change and clean energy part of their campaign platforms."

In other words, state-based actions on climate and clean energy now may be more likely.

Also more likely? Litigation:

"We're going to see a significant increase in litigating and policymaking at the state level with this new leadership," said Hogan Lovells partner Hilary Tompkins, a former solicitor at the U.S. Department of the Interior and counsel to former New Mexico Gov. Bill Richardson. "We're also going to see a lot of legal debates in the courts ramped up against the Trump administration where the states of these newly elected officials are going to be arguing their states' rights to enact policies addressing climate change."…

Expect the legal clashes over these divergent priorities to increase, experts say. Democratic AGs have already launched court challenges to a slew of deregulatory moves from the Trump administration, from the rollback of vehicle GHG standards to the reversal of a rule clamping down on methane emissions from gas wells on public lands.

It's safe to say those AGs have picked up some allies in such fights following Election Day.

Another hopeful note comes from passionate U.S. “climate kids” trying to fix the world before it's destroyed. Yet given the ever increasing rightward, pro-corporate shift of the U.S. Supreme Court, litigation may not be the best path forward - at least not for them, and at least not in the United States.

On the one hand, in Europe, “The Hague Court of Appeal ruled that the preservation of a stable climate system is a fundamental human right and ordered the Dutch government to meet its promises of making sharp cuts in greenhouse gas emissions."

On the other hand, “In the United States, a landmark climate case filed by 21 young Americans, ages 11 through 22, hit a snag at the U.S. Supreme Court.”  Although right now, it’s just a snag.

Specifically,

Since it was first filed in 2015 during the Obama administration, the “climate kids” case, backed by some of the country’s top climate scientists, has made unexpected progress, with the U.S. Ninth Circuit Court of Appeals twice ruling that the case should proceed to a trial on its merits. In July, the Supreme Court, while noting that the “breadth of [Plaintiff’s] claims is striking,” nevertheless denied a Trump administration request to halt the suit….

But,

Then, the U.S. Supreme Court weighed in. Chief Justice John Roberts, in a highly unusual step, intervened on the U.S. government’s behalf and ordered a temporary halt to a federal district court trial … just 10 days before the trial was scheduled to begin on October 29. Roberts ordered a stay in the case while the plaintiffs responded to the government’s request to dismiss the suit. 

Fortunately, a November 2 SCOTUS order said “it would not intercede in the case, allowing the trial to proceed.” However, “[l]egal analysts say that in all likelihood, the Juliana case will ultimately be rejected by the Supreme Court, which now includes two conservative judges appointed by Trump, Neil Gorsuch and Brett Kavanaugh.”

We shall see. Activists say they are not giving up. And as a result of this week's election, more and more states hopefully will be able to help.   

Update: Climate kids suit on hold.

In the Preemption Trenches

To most, “federal preemption of state law” is legalese that sounds like it belongs and should stay in a law school classroom. So apologies if you’re bored out of your minds by our post today. 

But I think it’s important to talk about real-life consequences when the federal government (Congress or the Trump Administration) tries to preempt – or invalidate – a pro-consumer or pro-safety state law.  Those consequences can range from invasion of personal privacy, to financial ruin, to death. California is on the frontlines of “preemption” battles these days, and a good illustration of what’s stake. 

NET NEUTRALITY

After the Trump Administration’s Federal Communications Commission (in cahoots with the telecom industry) threw out federal net neutrality rules, California passed its own tough state net neutrality law. The state law “largely mirrors the FCC’s discarded 2015 net neutrality rules,” and in other ways, it goes further. The federal Department of Justice immediately sued, saying California’s law was preempted by federal policy.   

However, there are good reasons why DOJ may not succeed. Specifically, what federal policy? There isn't one any more:

[W]hen the FCC dismantled its own authority over broadband ISPs (by rolling back their classification of ISPs as Title II common carriers under the Telecom Act), it ironically killed any authority it might have had to tell states what to do.

“An agency that has no power to regulate has no power to preempt the states, according to case law,” Stanford Law professor Barbara van Schewick said in a statement to The Verge.

In other words, according to the U.S. Constitution, industry can’t have it both ways. If there’s no federal policy or regulation with which a state is in conflict, states can’t be prevented from acting. Oh, the irony.

DATA BREACHES

Similarly, one way an industry can preempt an area and prevent states from acting is to suddenly agree to subject itself to federal regulation. That has the dual effect of setting an ineffective federal public protection standard and preempting states like California from doing anything more. That’s exactly what’s happening in the tech privacy area, where the U.S. Chamber of Commerce and tech companies “recently urged Congress to ‘adopt a federal privacy framework that preempts state law.’”

But California already has strong data breach and privacy laws.  As explained by Neema Singh Guliani, senior legislative counsel at the American Civil Liberties Union,

A federal law wiping out — otherwise known as preempting — state protections would be a bad deal for consumers. It would likely put existing consumer protections, many of which are state-led, on the chopping block and leave states bound by a federal law that could prevent additional consumer privacy protections from ever seeing the light of day. State regulators could lose the authority to sue or fine companies that violate their laws. And consumers may even be barred from taking companies to court.

SLEEP DEPRIVED TRUCKERS

There’s nothing scarier than being on the road with a sleep-deprived trucker.  Just ask comedian Tracy Morgan. A few years ago, a crash critically injured him and killed his friend on the New Jersey Turnpike when their vehicle was hit from behind by a Wal-Mart truck driver who had not slept for more than 24 hours. (See our coverage here.)

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. (If you’re as appalled as we are, tell them your thoughts here.) The trucking industry wants to prevent the state from having authority in this area. Notably, 20 other states have laws like California’s.

This isn’t even the first time this year that the trucking industry has tried to preempt or eliminate state laws that make sure truck drivers get enough rest. It also recently tried and failed to get a bill through Congress to do this and proponents came uncomfortably close. Let’s hope this latest effort fails too.

FORCED ARBITRATION/#METOO

That all said, there are evidently limits to California’s state leadership and willingness to push back against federal preemption. Consider this cowardly act by California Governor Jerry Brown:

Just as he was signing California’s net neutrality law, he was also vetoing two bills, passed by the California legislature, to assist #MeToo survivors in taking abusers to court. These bills “had high-profile champions, including former Fox News anchor Gretchen Carlson, who won a $20-million settlement against Fox News after she accused the channel’s now-deceased chairman Roger Ailes of harassment and retaliation.”    

One of the bills would have kept employers from requiring these disputes to be resolved in private, secret, corporate-controlled forced arbitration – the very same process that Trump has used to try to silence his victims. Brown was unwilling to fight this even though the bill was duly passed by the California legislature, which clearly knew what it was doing. He declared, “states must follow the [federal] Federal Arbitration Act and the Supreme Court’s interpretation of the Act.” 

Brown will be out of office soon. Let’s hope they try again.

Journalists Wage War Against Civil Justice Attackers

We’re trying to find some good (or at least better news) to focus on today. So there shall be no talk of the White House, Congress or the U.S. Supreme Court (unless you want to heave). Rather, let’s do a deep dive into some state civil justice issues and see if there’s any good news to report.

We’ll start with state judges. After all, the U.S. Supreme Court doesn’t rule on everything. Here’s something we found. According to the Associated Press,“Some of the same national groups that backed the nomination of federal judge Brett Kavanaugh are spending big hoping to reshape state courts that will decide cases on redistricting, voting rights, abortion restrictions and other issues.” Whoops, ok maybe not.  

How about some civil justice news from a solidly blue state? Should be more positive. But then we found out that last Sunday,California Governor Jerry Brown vetoed bills, which “comfortably” passed the Democratic legislature, that would have made it easier to take sexual harassment complaints to court, including a bill prohibiting the use of forced arbitration and non-disclosure agreements that keep sexual harassment hidden. Sigh. (#TimesUp, Jerry. California will have a new governor soon enough.)

But then there’s this out of Missouri.  It starts somewhat “bad-newsy,” but bear with me. Seems like a corporate front group in Missouri stole email accounts and used them to send fake letters urging lawmakers to strip Missourians of their legal rights. Ugh, I know. But here’s the good part: a savvy journalist by the name of Tony Messenger of the St. Louis Post-Dispatch uncovered this fraud. In other words, the press is doing its job and thanks to reporters like this, we are finding out important things that would have otherwise remained hidden. 

After doing some digging, Messenger reported,

The letters appear to be copied verbatim from a petition posted by the Chamber of Commerce on a website called StandUnited.org, which pitches itself as a source of “grassroots” activism for conservative causes.…

When state Rep. Jay Barnes, a Republican lawyer from Jefferson City, started receiving the letters, he was surprised he didn’t recognize any of his constituents’ names, even though he has lived his entire life in Missouri’s capital city. So Barnes started driving around and looking at addresses and knocking on doors.

One letter came from an empty lot with a house under construction. Another came from an empty home. Others had different people living at the addresses listed than the names on the emails …

“These are fake emails driven by out-of-state defendants desperate to avoid responsibility for cancers and deaths that jurors in Missouri and elsewhere have found they caused — after weighing the actual evidence,” Barnes said. “I’m not surprised. There’s never going to be a groundswell of support for an out-of-state company that a jury found knowingly poisoned consumers, causing cancer and death. Desperate defendants do desperate things — including, apparently in this case, forging emails.”

These fraudsters might even be prosecuted:

State Rep. Mark Ellebracht, D-Liberty, believes the emails likely broke state or federal law. He’s alerted the U.S. attorney’s office about them.

“Somebody has engaged in some level of identity theft here by posing as my constituents,” says Ellebracht, who is a lawyer. When he called one of the people who allegedly sent him a letter, the constituent said, “‘I don’t know what you’re talking about,’” Ellebracht said.

“This undermines the entire democratic process. They’re using other people’s email without their permission or knowledge and co-opting their opinion. It’s insidious.”

The St. Louis Post-Dispatch had a great editorial about all this yesterday, praising Messenger’s work, writing,

…Messenger, working from the addresses sent to a different lawmaker, went out to the letter-writers’ addresses himself. He found the same thing: empty houses, or empty lots, or residents who insisted they didn’t write the emails that were attributed to them.…

If one side is engaging in deliberate, calculated, out-and-out deception to bolster its case, there’s probably something wrong with its case. And we now have a good indication that those intent on scaling back the right to sue businesses are engaging in such lies in Missouri.

I’ll say. And so have others. (Check out the discussion in the video below.)

Name The Celebrity Medical Malpractice Victim!

Hey kids, it’s our favorite time of year again – PopTort Pop Quiz time! We do lots of quizzes on the important topic of medical malpractice and we can't always say they're much fun.

But today's quiz is really gonna grab your attention. It's all about celebrity victims of medical malpractice. That's right -  the problem of medical negligence is so bad that even wealthy celebrities who can afford most comforts in life cannot protect themselves from it. So get out those #2 pencils and let’s begin:

1. Who is the Oscar-winning actress whose singing voice was destroyed by medical malpractice?

1. Jennifer Hudson
2. Julie Andrews
3. Barbra Streisand
4. Cher

The answer is "b." In 1997, Julie Andrews underwent surgery at NYC’s Mount Sinai Hospital to remove non-cancerous nodules in her throat after experiencing voice problems while starring on Broadway. The procedure ended her singing career. The hospital settled her lawsuit.

2. Name the rock musician whose injury or death was followed by charges of medical malpractice:

1. Eagles co-founder Glenn Frey
2. 3 Doors Down guitarist Matt Roberts
3. Jefferson Airplane co-founder and singer Marty Balin
4. None of the above
5. All of the above

The answer if "e" - all of them! Frey died after numerous hospital mistakes surrounding his ulcerative colitis and other medical conditions. Roberts died after overdosing on drugs overprescribed by his doctor. And Balin entered a hospital for heart problems and left with half a tongue, a paralyzed vocal cord and an amputated thumb, ending his career. 

3. True or false: Elvis Presley’s doctor, George Nichopoulos, wrote 199 prescriptions totaling over 10,000 doses of sedatives, amphetamines and narcotics to Elvis in the eight months before he died, and was indicted on 14 counts of overprescribing drugs to not only Elvis, but also to singer Jerry Lee Lewis.

That's true.  While he was acquitted of criminal charges, Nichopoulos’ Tennessee medical license was eventually stripped for overprescribing addictive drugs to numerous patients for years.

4. Doctors were so busy taking cell phone pictures of which famous comedian/comic actor that they missed the moment vital signs began plummeting?

1. Dana Carvey
2. Freddie Prinze
3. Joan Rivers
4. John Ritter

The answer is "c." Joan Rivers died when a New York endoscopy center subjected her numerous unauthorized and unsafe procedures. However, if you guessed any of the other three, you wouldn't be too far off. Each was a medical malpractice victim: SNL veteran Dana Carvey’s heart surgeon operated on the wrong artery, causing serious illness and long-term recovery. Freddie Prinze, the “Chico and the Man” TV star, committed suicide after doctors overprescribed quaaludes and returned a gun to him, which he used to shoot himself. And after collapsing at work, actor John Ritter was misdiagnosed and improperly treated at a hospital, where he died.

5. Which member of a famous singing group of brothers died as a result of medical malpractice?

1. Maurice Gibb of the Bee Gees
2. Zac Hanson of the Hansons
3. Michael Jackson of the Jackson Five
4. Donnie Osmond of the Osmonds

Trick question. The answer is both "a" and "c." Of course, b and d are still alive and to our knowledge, have not been victims of medical malpractice. However, Maurice Gibb died after a Florida hospital failed to notice that his bowel and intestines were twisted. And as for Michael Jackson, medical malpractice barely describes what happened to him. As many are aware, he died after his doctor, Conrad Murray, gave him a fatal dose of the powerful anesthetic Propofol to help him sleep.  Murray was later convicted of involuntary manslaughter, served two years in jail, had his Texas medical license revoked and his California and Nevada licenses suspended.

Bonus question! Which rock drummer just filed a lawsuit against a Santa Monica California medical center for “sticking him at least 40 times … with a dirty needle" and giving him a staph infection leaving him unable “to play the drums, tour and live a normal life?”

1. Tommy Lee
2. Travis Barker
3. Chad Smith
4. Max Weinberg

That would be "b, Blink-182’s drummer, Travis Barker. It’s a bonus questions because his story is so recent, it didn’t make it into the Center for Justice & Democracy's new report, the Top 22 Celebrity Victims Of Medical Malpractice! But a bunch of other actors, singers, musicians, broadcasters, sports figures and artists did, including all of the above. Each story is documented by a lawsuit and/or a medical board sanction, so they're real. And Buzzfeed has the full list here, too.

Is Congress Worse than Trump?

In yIn yesterdays’ Daily 202 from the Washington Post, James Hohmann wrote, “The American people are more focused on the daily drama emanating from the reality television presidency than they are substantive policy issues. Meanwhile, the administration is making meaningful moves every day — and we’re covering them — but these stories are often overlooked in favor of distracting shiny objects."

Yet I have an even more alarming perspective. It’s not just the administration’s daily moves. Check out what Congress is doing. No one’s paying any attention – at all.

This morning, the U.S. House Judiciary Committee began voting on a bunch of terrible bills, some of which were just introduced this week, which would upend centuries of law and/or make it more difficult for people who have been harmed to have their cases fairly heard and/or stop courts from blocking Trump’s illegal actions. Yup, all that just this morning!

Behind it all is the soon-to-be-ex- (thank goodness) Chairman of the U.S. House Judiciary Committee, Bob Goodlatte, a Republican who has represented Virginia’s 6th congressional district since 1993. Last year, Goodlatte rammed through his committee five bills that together, strip away major legal rights from everyday Americans. He was so fixated on making sure these bills passed with the greatest amount of harm to victims, that he forced the committee to re-vote on an amendment - after he lost - that would have prevented his legislation from violating state constitutions. Last month, Goodlatte's son Bobby “blasted” his own father “for his role in ruining [FBI agent Peter] Strzok’s career, tweeting, “I’m deeply embarrassed that Peter Strzok’s career was ruined by my father’s political grandstanding. That committee hearing was a low point for Congress. Thank you for your service sir. You are a patriot.” Bobby also urged voters to elect a Democrat to replace his  father.

So let’s just say, today’s hearing isn’t all that surprising.  As explained by a number of public interest groups who literally overnight turned in a letter of opposition to four of the bills, here’s what the House Judiciary Committee majority, chaired by Mr. Goodlatte, wants to do:

• Ban nationwide injunctions – the kind of injunctions issued by federal judges to slow down or prevent harm caused by some of the more destructive policies of the Trump Administration.
• Radically change the law of diversity jurisdiction, forcing a vast number of state cases into federal court that have no business being in federal court. It’s essentially a corporate forum-shopping bill since corporate defendants prefer to litigate in federal court.
• Break up the Ninth Judicial Circuit at the behest of corporations and the right, even though everyone from the American Bar Association to the judges themselves object to this.

We’re tired of covering this type of dumb, destructive and corrupt policy-making. Today is primary election day in New York State (home of ThePopTort!), and we’re reminded of our message to you this fall: get out there on November 6 and vote!

While We May Disagree …

This week, the nation received a lesson on what it means to act like an adult. Unfortunately, it took President Trump’s infantile response to the death of Sen. John McCain to provide that lesson, although I’m guessing that most of us really didn’t need to learn it. There are probably few people in America – left or right – who agreed with Sen. McCain on every important policy issues. But his death – and most importantly, his life – demanded respect, appreciation and support. And it meant for at least a moment, setting aside disagreements, especially political ones. 

With such graciousness in mind, we would like to present to you the views of some folks with whom we share very little politically, but who have taken a principled position against an Arkansas ballot initiative – Issue One - that would cap compensation to injured victims, so-called “tort reform.” We respect, appreciate and support them for this, full stop.

First is the Christian conservative and pro-life movement: 

Family Council Action Committee, a conservative Christian group, has begun rallying church leaders against a tort reform measure on the ballot attempting to limit damages awarded in lawsuit payouts, saying that placing caps on payouts undermines the value of human life and conflicts with the basic Christian principle of justice.  The Council believes the measure is an indication that a person’s life is determined by his or her paycheck at the time of a tragedy.…

The Family Council is organizing meetings with church leaders to support its position and handing out flyers stating, “Don’t Put A Price Tag On Human Life.”  Inserts have been given to leaders to include with their bulletins.…

“The Bible is full of references to justice, and (the proposal) creates an environment where the powerful can tip the scales of justice against everybody else, but especially the poor,” Jerry Cox, the Family Council’s head, said at a recent meeting.  Rose Mimms, the head of Arkansas Right to Life, also spoke out against reform, stating it “erodes our own pro-life efforts” in the state.

Second is extreme right political groups:

From the stopped-clock school of politics: Secure Arkansas, a far-right group known particularly for opposition to immigration, lays out here many reasons to oppose Issue One, the proposed amendment that would cap damages in lawsuits, restrict attorney fees in those suits and strip the Supreme Court of rule-making power in favor of the corrupt, special-interest controlled legislature.… Secure Arkansas notes that so-called "tort reform" is part of the Koch-backed American Legislative Exchange Council agenda and being pushed by ALEC acolytes …

ALEC legislators are more loyal to the ALEC agenda to promote corporate-friendly legislation in the states than to state law or constitution, Secure Arkansas charges, and lists ways ALEC promotes a corporate agenda, not the public welfare. Drug companies are among the beneficiaries it cites.

The growing conservative opposition to laws that weaken the civil justice system and individual rights is something we noted here before - almost decade ago. These views are clearly gaining momentum, having also played a role in slowing down congressional interest in “tort reform” laws last year. As we noted then, “It may have taken awhile for the conservative backlash against ‘tort reform’ to begin in a major way. We’re just happy it finally did.”

It’s the Punitive Damages, Stupid

There’s 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.

One of the stories involves Johnson & Johnson’s “heavily sold, under-scrutinized gynecological product — vaginal mesh that hardens, causing horrible pelvic damage, and in one couple’s instance, cutting the husband’s penis during intercourse — getting such devices removed (when they were intended to be permanent) can be as undefined and risk-laden a decision as leaving them in.”

(Johnson & Johnson is a company we tend to cover a lot here at ThePopTort, including our 2013 post about that very nightmarish chapter in the annals of corporate wrongdoing. This is one Terrible, Horrible, No Good, Very Bad company.)

In an interview with Salon’s Gary Kramer, filmmaker Amy Ziering replied to the question, “Can legal cases change things?”:

Not exactly, because of Tort Reform. It’s a $683 billion industry and they paid off $200 million in settlements. They can factor that in. That’s the collateral damage: We might have to settle because it’s a bad product. We might have to pay $500 million, but we made $683 billion. We’re good.

The types of “tort reform” to which she may be referring are limits on punitive damages. Punitive damages,“are awarded to hold reckless companies accountable through imposition of significant financial liability.… They are one of the most critical tools to stop and remedy egregious corporate misconduct."

As the Center for Justice & Democracy wrote in its 2011 study, “What You Need to Know About … Punitive Damages,"

Despite the fact that punitive damages are supported by some of our nation’s most respected free-market economists (many of whom are politically conservative), and have been around for centuries and are often a stronger deterrent than the criminal justice system, they remain under attack. In the last few decades and even this year, corporate lobbyists and court decisions have rendered punitive damages’ deterrence power meaningless, often by disconnecting punitive remedies from a company’s wealth.…

The size of a punitive damages award shouldn't be dictated by politicians sitting in a state capital. It is supposed to depend on,

…widely varying factors determined on a case-by-case basis — factors like the nature of the misconduct involved and the amount that the judge or jury determines is necessary to get a company’s attention, which is precisely what makes punitives so effective.… [J]uries know that to a multi-billion-dollar company … even a million-dollar punitive damages award is barely a slap on the wrist, creating no financial pressure on the company to create a safer design.…[L]imiting punitive damages to a predictable amount of money undermines their deterrent force in the civil justice system.… 

To put it another way, when laws cap or limit punitive damages, as they do in many states, the type and amount of misconduct in which a large company like J&J may engage becomes, simply, a cost of doing business.

Juries are generally very smart about punitive damages. Just this month, a St. Louis jury hit J&J with a punitive damages award of over $4 billion for putting asbestos in its talcum powder, which caused ovarian cancer in its customers. One of the jurors told the St. Louis Post-Dispatch, that it “arrived at that figure by multiplying a recent talcum powder yearly sales total by the roughly 40 years since the company said its products were free of asbestos.” Smart.

But now come the “twists.” Writes the paper, "Johnson & Johnson vowed to appeal the verdict. The company also is likely to file a motion invoking a cap on punitive damages of five times compensatory damages, although Holland said Friday that the constitutionality of that Missouri cap had never been fully tested."

Indeed, Missouri’s cap on punitive damages was struck down as unconstitutional in 2014, but that ruling only covered some claims. It also is not uncommon for judges, on their own, to reduce or reverse large punitive damages award. And then there’s the U.S. Supreme Court, which sometimes takes its own swipes at large punitive damage awards – although not always.

But that’s not the only trick up J&J’s sleeve as it tries to wiggle out of responsibility for the hell it has caused its victims. There's another legal maneuver they will pull, called “personal jurisdiction.” Specifically, "On June 29, a Missouri appeals court tossed out a South Dakota woman’s award of $55 million in another St. Louis trial, saying Missouri courts lacked jurisdiction because neither she nor Johnson & Johnson had the necessary connection to the state. Only five plaintiffs in Thursday’s case are from Missouri …."

But J&J's argument may fail. We’ll see.

One thing’s for sure, however. The frustration we feel about all this is nothing compared to what the victims and their families must feel, some of whose stories are covered in The Bleeding Edge. Let’s hope J&J is finally on the hook for some of the misery it has caused its loyal customers.

Covered and Covered-Up: Asbestos in New York City

Last year, Dr. Raja Flores, Chief of Thoracic Surgery at the Mount Sinai Hospital and “considered one of the world's leading experts in pleural mesothelioma and asbestosis,” was interviewed by an Australian news station about a “a serious health issue” developing in New York City. The dust that fell on Lower Manhattan during 9/11, he explained, contained “more than 400,000 kilograms of asbestos, mercury, fibreglass and benzene… [Asbestos] contaminated a huge portion of the city and that entire population was exposed.” And because asbestos diseases usually take a decade or more to develop, he said that starting now, “I think you will probably see double or tripling of the number of lung cancers in people who were in New York City on 9/11 and mesothelioma and people dying of pleural fibrosis from asbestosis.”

Fast forward almost 17 years from 9/11, when last week, a huge steam pipe explosion blew asbestos all over the Flatiron section of New York City, coating “cars, buildings and people with asbestos-filled muck.” As we wait for this area to be cleaned-up, one question on everyone’s mind is: why was this lethal toxin used in New York City pipes and buildings in the first place? Simple answer: it shouldn't have been.

In the 1970s, while the World Trade Center was being built, a decades-long industry cover-up about the link between asbestos and fatal disease began to publicly unravel. This is why asbestos’ “controversial installation” was eventually halted in the middle of twin tower construction. In fact, as the Center for Justice & Democracy explains here, that fraud was already well-underway, originating at least as far back as 1932, when the exploding steam pipe was installed. Here’s what the industry already knew by then:

• In 1899, a female asbestos factory worker in England died from what was confirmed to be asbestos-related disease.  
• At least as early as 1917, U.S. doctors saw lung scarring in asbestos workers.  
• By 1918, U.S. and Canadian insurance companies, like Prudential (the nation’s wealthiest life insurer), stopped issuing life-insurance policies to asbestos workers because they were dying at higher rates.  
• In 1927, as workers in factories were developing pulmonary asbestosis, the first workman’s comp disability claim for asbestosis was paid.  
• By 1928, other life insurers (Penn Mutual, John Hancock) were charging asbestos workers extra premiums because their mortality rate was 50 percent higher than everyone else’s.
• At least 10 studies showing the relationship between asbestos exposure and asbestosis were conducted during the 1920s and 30s.  Among them was a 1929 survey of asbestos workers conducted by MetLife’s physician, who found large numbers of workers developing incurable lung disease.  When this survey was being prepared for publication, MetLife allowed asbestos industry lawyers to water down and delete unfavorable passages about the relationship between asbestos and asbestos disease.  It took litigators over 50 years to discover this.
• A 1935 publication reported that the insurance industry had known about the asbestos hazard since 1928; the president of a North Carolina asbestos company attacked the story in a letter to the editor, calling it “unconfirmed dramatized tommyrot.”  
• On April 24, 1933, the board of directors for asbestos industry leader Johns-Manville approved a deal with an attorney who represented plaintiffs in 11 asbestosis cases brought by former employees. The board agreed to pay $30,000 to settle these cases along with a demand that the employees’ attorney not sue the company again in order to remove him as a legal threat. The minutes of this meeting did not come to light for more than 45 years and only as a result of litigation by asbestos victims.  In one case, plaintiffs had to file three separate motions to compel production of these minutes after the company repeatedly lied about their existence.

In fact, when trial lawyers started trying to litigate against the asbestos industry in the 1970s, they had no idea what the industry knew about the link between asbestos exposure and diseases like cancer. Without such evidence, trial lawyers lost many cases at these early stages, failing to even get before juries, getting paid nothing and going into debt.

But they kept digging. After nearly a decade of difficult discovery, which the industry fought at every step, and investigative work on their own (such as painstakingly excavating information from old workers’ comp files), these lawyers were finally able to piece together a record. It’s around that time that World Trade Center construction stopped relying on asbestos. Of course by then, half the twin towers had already been built, full of asbestos to poison the city when the towers came crashing down.

As to that underground pipe installed in 1932, don’t let anyone tell you the industry didn’t know how dangerous asbestos was back then. They knew. Then they actively conspired for 50 years to suppress knowledge about asbestos hazards, which led to millions of deaths. And sadly as a result, there are many more victims to come.

(For more, see Paul Brodeur, “Annals of Law: The Asbestos Industry on Trial, Part 1 – A Failure to Warn,” “Part 2 – Discovery,” “Part 3 – Judgement” and “Park IV – Bankruptcy,” New Yorker Magazine, 1985).