ThePopTort

The Big Impact of Prison Class Actions

PopTort fans may recall our July 2015 post which discussed the horror show experienced by most prison inmates needing health care (a problem which clearly continues) and the extreme hurdles they face when suing. There are constitutional hurdles, procedural hurdles, damages caps, and many other restrictions. The result is a severe lack of accountability for the entire prison health care system. (Learn more in the Center for Justice & Democracy’s FAQ, “Civil Justice and Prison Health Care.”)  

But we’re here to report that as difficult as these cases can be to bring, there are good attorneys out there who continue to try. Earlier this month, the Florida Justice Institute filed a class action lawsuit against the “Florida Department of Corrections and medical contractor Corizon, alleging Corizon refused to provide medically necessary surgical procedures in an effort to keep costs down.”  Writes the Miami Herald:

The lawsuit seeks a court order requiring Corizon to provide surgery to inmates who need it, and requests punitive damages from the Brentwood, Tennessee -based contractor. Corizon, which operates in 27 states, was awarded a five-year contract with the Florida Department of Corrections in 2013, despite already facing numerous lawsuits across the country for allegedly deficient care.

And just a couple weeks ago, a settlement was finally reached in a class action filed three years ago by the Legal Aid Justice Center, Wiley Rein LLP of Washington, D.C., and the Washington Lawyers Committee for Civil Rights and Urban Affairs on behalf of 1,200 inmates at Virginia’s Fluvanna Correctional Center for Women. The case was brought against the Virginia Department of Corrections and a private health care provider for inadequate medical care.

The settlement with the the inmates, who asked for no monetary compensation, but merely better health care, requires that the Virginia Department of Corrections "overhaul its medical care at [the facility], including changing operating procedures to better accommodate women with disabilities, timely access to medications and medical supplies, and follow-up treatment in accordance with medical specialist recommendations." 

In both the Florida and Virginia cases, the health care quality was so appalling that it rose to the level of a constitutional violation. As explained in CJ&D’s FAQ, “The U.S. Supreme Court has long recognized that prisoners have a constitutional right to adequate health care through the Eighth Amendment’s ban on ‘cruel and unusual’ punishment.” When state facilities are at fault, both state officials and private health care contractors can be sued under federal civil rights laws.

Of course, health care quality is not the only problem in prisons. For many years, attorneys have used class actions to try to improve other types of inhuman prison conditions. Just last month, the Center for Constitutional Rights reached a settlement on behalf of prisoners at the Pelican Bay Correctional Facility in Crescent City, California. Inmates had banded together to challenge the state’s policies concerning the widespread use of solitary confinement. 

The result? California has agreed to overhaul the use of solitary confinement. You can read more about it here.  

Volkswagen to ALEC: Help, Let Us In!

Today, the American Legislative Exchange Council (ALEC), the secretive group run and funded by big corporations that subsidize the involvement of conservative state lawmakers, officially launched a new website about its model legislation to immunize corporate lawbreakers.  Coincidently, we just received a copy of this “confidential memo” from the Volkswagen diesel cheating crisis management team.  I know. What are the odds?

__________________

Confidential Memo

To: Volkswagen Board of Directors

From: Dieselgate Crisis Management Team

Re: Our Three Point Plan - Update

Date: September 24, 2015

Here’s where we are on the three-point plan:

1. CEO Martin Winterkorn steps down so he can spend more time with his lawyers.  DONE. 

2. We show that we’re no different – in fact, probably better - than the rest of the bottom feeders that make up the auto industry.  (Hey, how’s this worse than Henry Ford II calling airbags “a lot of baloney.”)  DONE.

3. We get with that U.S. group, the American Legislative Exchange Council (ALEC). I know, ALEC is so tainted that 120 companies have already quit. But let’s face it. Only a truly scorned organization can relate to what we’re going through right now. So I just buried ALEC’s enormous corporate membership fee in the $7 billion budget we think we need “to win back the trust of our customers.” Now let me show you why this is an excellent investment that will save us billions in the long run.

But before I do, let’s admit there are a few things we can’t do much about.  We got caught by U.S. environmental regulators (and researchers from West Virginia, of all places.) This is terribly ironic since we don’t do much diesel car business in the U.S. Our European friends barely regulate us, making it a whole lot easier to cheat. Had we just stayed out of the U.S., we’d be golden. Although I have to say, U.S. auto safety enforcement is generally laughable and the U.S. Justice Department doesn’t care much either. To be honest, we weren’t terribly worried. But the EPA? Now that was a surprise. I just found out that ALEC basically wants to repeal all U.S. pollution laws. (Hope the Pope doesn't find out.) If we only knew about ALEC sooner!

But now that we do, the timing couldn't be better. This week, ALEC officially launched a web site about what state lawmakers can do to immunize corporate lawbreakers like us. Can you feel a smile coming on?

Although the U.S. Department of Justice will probably just slap our wrists, we’re deathly afraid of private actions brought by state Attorneys General and class actions by angry customers. These have already begun. Turn’s out that ALEC’s top civil justice priorities are bills to ensure these very cases never get anywhere. It’s as if ALEC was reading our minds!

For example, ALEC wants to gut all the state consumer protection laws that provide the basis for many of these lawsuits:

ALEC’s model bill “would effectively eliminate the critical private enforcement provisions that give these laws their power.… [It] is actually a wrecking ball to destroy one of the building blocks of consumer protection, namely the private enforcement of state unfair and deceptive practices acts. It does this by systematically weakening each and every provision of these laws, such as lower burdens of proof, special damages, and attorney’s fees, that were designed to provide consumers with access to justice for small economic wrongs.

One of my absolutely fav’s is this provision: “in no event may any action be brought under this chapter more than [four (4)] years from the first instance of the act or practice giving rise to the cause of action.” We started cheating six years ago!  How'd they know? That’s just spooky.  

And there’s more. This bill contains a complete ban on punitive damages. And here’s what I love about ALEC. They propose not only limiting punitive damages in consumer protection cases. They have an entire bill aimed at limiting punitive damages in any kind of case brought by people we harm. This kind of law is incredibly important to corporate lawbreakers like us. It means civil damages will never threaten our bottom line, and we’ll be just fine even if we keep harming people. 

Then, ALEC wants to make class actions impossible to bring, so hundreds of thousands, or perhaps millions of victims, can’t join together in a lawsuit against us – even though we stuck the exact same cheating software in every single one of their cars. Just look at the hurdles and burdens their bill would place on our (likely ex-) customers. They'll all have to hire their own attorney and go through the time and expense of proving their cases one by one by one (which we expect they'll never do.)  Any one of these provisions alone could immunize us, but several dozen? This bill is a true embarrassment of riches.

And those lawsuits by State AG’s? ALEC’s bill would make it nearly impossible for states to hire outside counsel to help, which could prevent many cases from going forward at all. You can read more about that bill here. And should any of our cars have product defects that lead to car crashes and injuries (or deaths), ALEC has a variety of options to immunize us there, as well.

And here’s what else I love about ALEC.  Everything they do is entirely behind closed doors. They kick reporters out of meetings. They tell members of the public “NO” when they ask to participate in ALEC activities.   

So you see why we must join ALEC today. We’ve broken the law. We’ve harmed a lot of people. This is an organization just for victims like us!

Putting the Breaks on the DRIVE Act

In the last decade, Congress has failed to pass “a transportation bill that lasted longer than two years.” The nation’s Highway Trust Fund - the “way that federal highway and transit programs are funded for state, local, and national projects across the country” - relies on fuel taxes and is always on the verge of running out of money. This seems like a ridiculous way to legislate with the repair of our nation’s crumbling infrastructure and the public’s safety at stake. 

Once again, Congress is faced with a transportation bill dilemma, as “[f]ederal infrastructure funding is currently scheduled to expire in Oct. 29.”  And once again it’s caught up in the same old disagreements about whether to authorize a long-term solution with an expectation of funding without ruining other needed programs, or relying on short-term fixes because meaningful funding commitments are heresy among some congressional leaders.  Here we go again. 

The Senate has passed what they call the “Developing a Reliable and Innovative Vision for the Economy Act” or “(DRIVE) Act.”  The House disagrees on funding specifics and has not yet passed a bill. Industry supports the multi-year Senate bill (as opposed to the short-term House bill).  They note, “A six-year federal commitment to prioritize and invest in our aging infrastructure and safety needs is essential to … keep pace with growing demands.” Sounds so reasonable, except when you dig deeper into this thousand plus page bill, and realize that this isn’t just about investing in infrastructure and safety.  In fact, in many ways, it’s the exact opposite of that.  With all the talk about money and politics, few are paying attention to what the trucking industry (for one) has been up to these past few months – slipping into this bill so many anti-safety trucking provisions that it frankly would be better if no long-term bill passed at all.  Here’s some of what this bill does:

• Reduces the interstate age requirements for large commercial truck drivers from 21 to 18 years old. This is a potential disaster.  Statistics show that “drivers ages 18-20 are involved in 66 percent more fatal crashes than those above 21.”  

• Increases truck driver fatigue.  Late last year, Congress (in an appropriations bill) “temporarily suspended” DOT safety rules regulating truck driver fatigue pending further study.  Specifically, it stayed “the ‘two-night off weekend’ for truck drivers.”  This change is “the equivalent to adding an additional work day to the work week of a truck driver” which could now go as high as 82 hours, up front the current limit of 70 hours.  Reinstatement of this rule is now unlikely under the DRIVE Act (or the accompanying 2016 Transportation Housing and Urban Development Appropriations Bill), which add new pro-industry hurdles before there can be any new rule making  (See next bullet.) notably, trucker fatigue is exactly what led to the crash that badly injured comedian Tracy Morgan and killed a fellow passenger. We covered it here. 

• Adds unnecessary rulemaking burdens before the Federal Motor Carrier Safety Administration can issue critical safety, and skews the rulemaking process in favor of the transportation industry. This means rules about hours of service, driver training, and safety monitoring will become much more difficult to promulgate.  Senator Richard Blumenthal (D-CT) has pushed to strike this part of the bill, so far unsuccessfully. 

• Requires FMCSA to remove safety data alerts, scores and rankings from public view. It prohibits any new safety information to be posted to the agency’s website until a “corrective action plan” is implemented to ensure data sufficiency.  

And there’s more!

At the same time the anti-safety Drive Act is moving through Congress, the “2016 Transportation, Housing and Urban Development (THUD) Appropriations” bill has become a vehicle for equally dangerous provisions.  This summer, the full House as well as the Senate Appropriations Committee passed bills to permit increases in truck length, allowing the use of Double 33’s, or “or two 33-foot trailers to be pulled behind a single truck.” The bill would “preempt” or overturn laws in 39 states that currently prohibit Double 33’s.  This provision is so misguided that even top executives at 15 major carriers say it “would have a negative impact on highway safety, accelerate wear and tear on the nation’s highway system, and make it very difficult for small trucking companies, which are the heart of our industry, to compete.” 

Moreover, “the USDOT estimates that this amendment would cause between 1.8% and 2.7% increase in pavement maintenance costs and more than 2,500 bridges would require strengthening or replacement as a result of this amendment, potentially costing more than $1 billion.”  Senators Diane Feinstein (D-CA) and Roger Wicker (R-MS) are trying to, at least, permit DOT to evaluate the safety implications before allowing such a law but so far, there’s no indication that will pass.

 And these safety roll-backs aren’t coming at a good time. Howard Abramson, a former executive at American Trucking Associations, explains, “All of these concessions to the trucking industry have gained traction in Congress even though the industry has consistently resisted safety improvements” while the death toll for “ truck-involved crashes” keeps going up.

HuffPo Repost: When a Corporation Is 'Too Big to Care' About Breaking the Law

In many ways, the new Huffington Post/Highline "DocuSerial" focusing on the unlawful conduct of drug giant Johnson & Johnson, comes as little surprise to us. Our own blog, ThePopTort, has regulatory covered J&J's many corporate offenses including the company's illegal promotion of its schizophrenia drug, Risperdal. That is the subject of the first in the HuffPo/Highline series, explaining how J&J has pushed its salespeople to promote Risperdal illegally to children and the elderly. The drug has horrible hormonal side effects for children and can be lethal for the elderly.

J&J's misconduct would have remained largely hidden had it not been for lawsuits against the company by those injured or made sick. Indeed, this case illustrates one of the most important functions of civil lawsuits: public disclosure of information. Yet the article also crystalizes how one of the other critical functions of litigation - deterrence of unsafe practices - seems to have been upended. These days, a company making $20.6 billion can, "break the rules with relative impunity, or at least without suffering the kind of punishment that would actually hurt."
Keep reading.

Colbert and Stewart to the Rescue

As PopTort readers may know, we stay out of electoral politics. That’s not to say that we don’t cover politicians who finally make it to office (Remember Better Call Ted?) but once they’re running for, say President, it’s pretty much radio silence from us. We realize that greatly shrinks the roster of folks to cover for the time-being, but those are the rules! 

That said…  Did you happen to catch the first night of Steven Colbert’s new Late Show gig?  Here’s what The Fix said about it:

After watching just a few minutes of Stephen Colbert's very first “The Late Show with Stephen Colbert,” two things became clear: 1) Colbert plans to be a major player at the nexus of pop culture and the 2016 presidential election, and 2) he's going to take politics and its players seriously.

The article was titled, “Stephen Colbert serves notice: He will matter in 2016.”

And then there's Colbert's partner in crime, Jon Stewart. I’m not even talking about what reporters and pundits have pontificated about Stewart’s influence (like here, here.) I’m talking about honest-to-goodness real life examples.

One of the most significant examples was what happened following his 2010 show featuring 9/11 first responders who were fighting with Congress over the James Zadroga 9/11 Health and Compensation Act - a bill that funds health care for sick and dying 9/11 workers.  The bill passed following that show. Wrote the New York Times:

Did the bill pledging federal funds for the health care of 9/11 responders become law in the waning hours of the 111th Congress only because a comedian took it up as a personal cause?

And does that make that comedian, Jon Stewart — despite all his protestations that what he does has nothing to do with journalism — the modern-day equivalent of Edward R. Murrow? …

Certainly many supporters, including New York’s two senators, as well as Mayor Michael R. Bloomberg, played critical roles in turning around what looked like a hopeless situation after a filibuster by Republican senators on Dec. 10 seemed to derail the bill.

But some of those who stand to benefit from the bill have no doubt about what — and who — turned the momentum around.

 “I don’t even know if there was a deal, to be honest with you, before his show,” said Kenny Specht, the founder of the New York City Firefighter Brotherhood Foundation, who was interviewed by Mr. Stewart on Dec. 16.

That show was devoted to the bill and the comedian’s effort to right what he called “an outrageous abdication of our responsibility to those who were most heroic on 9/11.”

Well, that was five years ago and the Act is set to expire at the end of September while these workers continue to get sick and die. Once again, Congress is a problem and this time, Mr. Stewart is heading to Washington.  He may be without a show but, writes the Daily Beast:

Stewart plans to roam the halls of Congress with roughly a hundred 9/11 responders next Wednesday. The goal is to pressure lawmakers to continue funding health programs for thousands of firefighters, cops, and EMTs who suffer from illnesses, including cancer, caused by their work at ground zero.

“Honored Jon Stewart will join 9/11 heroes next week, but fact is, they shouldn’t have to walk the halls of Congress at all,” Sen. Kirsten Gillibrand (D-NY) tweeted on Tuesday. “It’s our moral obligation to ensure they get care.”

Other lawmakers who have worked on renewing this legislation have lauded the 52-year-old comedian for his efforts.

“Jon Stewart was one of the driving forces behind getting the Zadroga Act passed in the first place, but the law is set to expire unless Congress acts again,” Rep. Carolyn Maloney (D-NY) said in a statement. “The ailing 9/11 responders and survivors are suffering a range of health care problems. We can’t force them to come back to Capitol Hill every five years to beg for their health care. Nobody understands that better than Jon Stewart, and nobody is better suited to make sure Congress gets the message.”

“Jon Stewart was on the front lines of the battle helping us to establish these programs,” Rep. Jerrold Nadler (D-NY) said. “We are all grateful to him for once again fighting for our 9/11 heroes.”

Rep. Peter King (R-NY), whom Stewart once called a hypocritical “terrorist sympathizer,” is praising the comic for bringing attention to the issue.

“I welcome his help,” the congressman told The Daily Beast. “Any help we get is vital…Whatever political or philosophical difference we have, I give him a lot of credit for going at an issue that is important to get public support for. He was helpful, there’s no doubt about it.”

I hope it works. For everyone freaking out about the cost of this program, the words of John Feal, who is leading the fight, should send shivers right through you. "We're asking for a permanent bill, but lets not kid ourselves," Feal said. "There's nothing permanent about 9/11 responders. We're all going to die off."

DuPont and the Civil Trials They Hoped Would Never Happen

 

Back in 2008, we wrote about an extraordinary class-action case brought by 80,000 people against DuPont USA, which had knowingly “polluted water supplies of two West Virginia and four Ohio water districts with a chemical used to manufacture Teflon, called C-8,” and tried to cover it up.  

It was an important settlement, requiring the company to stop poisoning people and, among other things, “install filtration systems in contaminated water districts.”  But it didn’t cover compensatory damages for people who were sick and dying.  Area residents and DuPont employees had cancers, diseases and children born with severe birth deformities at unusually high rates but no epidemiological study yet existed tying their diseases to C-8.  At least not yet.

Included in the $374 million settlement that DuPont agreed to pay was $70 million for a community health and education project and $30 million to fund a health study, juried by independent, court-appointed epidemiologists, to evaluate the health effects of C-8.  DuPont even agreed not to contest the panel’s conclusions even if they found a general causal connection between C-8 and health effects - the basis for any possible future injury claims.

Why would DuPont agree to such a thing?  Well, DuPont probably thought they had nothing to fear.

At the time, given the difficulty of the study, finding a link seemed improbable. Establishing such a connection would require a very large pool of data- larger than is typically collected from a single rural community.

But what they didn’t anticipate was clever lawyering by the plaintiffs’ attorneys they were fighting. Here is what happened next (as explained in a long-format expose, which appeared this week in the Huffington Post):

This conundrum weighed heavily on attorney Harry Deitzler, who lives in Parkersburg and serves as a local liaison to plaintiffs. ‘I knew the reason DuPont settled the case and agreed to assign this panel of epidemiologists was because they didn’t think they were ever in this lifetime going to find links,’ Deitzler told me. “But I didn’t want to face people and say, ‘Hey, we got this huge settlement and everybody only gets 600 bucks.’”

Then one night, a solution came to him. “It was like God reached out from the sky and tapped into my brain,” he recalls. The plaintiffs would use the $70 million health and education fund from the settlement to pay people $400 each to participate in the epidemiological study.

As a result of the strategy, roughly 80% of the residents in the effected water districts participated in the epidemiological study, making it “far more likely the panel of epidemiologists would be able to correlate C-8 exposure with particular diseases.” Paul Brooks, the doctor who oversaw the program, explained, “I think it messed up a lot of people at DuPont’s lives that we devised this wild system. These hillbillies threw a rock in DuPont’s machine.”

And it worked. The results of the study were so overwhelming that not even experts funded by DuPont could ignore them. 

In 2012, the epidemiologists concluded that a “probable link exists” between the chemical and at least 6 diseases: kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension, and hypercholesterolemia.

This scientific discovery, made possible by the overwhelming community participation in the epidemiological study, provided the link victims needed to show that C-8 was responsible for the cancers, diseases, and deformities that effect thousands in the community.

This month, trial begins on the first of 3,500 personal injury cases that have now been filed against DuPont. We will keep you posted.

Football Headaches Move Off the Field

American football is a sport apparently just made for television. There is an entire Wiki page called “National Football League on television.” It begins:

The television rights to broadcast National Football League (NFL) games are the most lucrative and expensive rights of any American sport. It was television that brought professional football into prominence in the modern era after World War II. Since then, NFL broadcasts have become among the most-watched programs on American television, and the financial fortunes of entire networks have rested on owning NFL broadcasting rights.

This year, however, the NFL has been preoccupied with some new venues beyond TV – ones not normally associated with football. Courtrooms, for example. There’s “Deflategate” (see our last coverage here) and Tom Brady’s lawsuit against the NFL. (I recognize this is a serious issue but on the other hand, most people are tracking this story via TV news reports about the courtroom sketches of Tom Brady. Uh boy.)

Perhaps a more serious legal case – at least for players generally - surrounds the NFL’s legal settlement earlier with year with “5,000 retirees who sued the N.F.L. for hiding from them the dangers of concussions.”  Wrote the New York Times a couple weeks ago, “The settlement, which was approved by a Federal District Court judge in April, could include $1 billion or more for retirees with certain severe neurological diseases and an unlimited amount for neuro-cognitive testing.” 

However, several players – although less that 1 percent of them - are appealing the settlement, alleging that:

[T]he deal is unfair because it does not cover future diagnoses of chronic traumatic encephalopathy, a degenerative neurological condition linked to repeated hits to the head. These players also question how eligibility for payments is calculated, among other issues.…

The N.F.L. and the lawyers who negotiated the settlement on behalf of the players will have a month to respond to the filings, and the appellants will then have two weeks to file their rebuttals. A panel of three judges may hear oral arguments as early as October, and there is no timetable for them to rule. The panel could also push the N.F.L. and plaintiffs lawyers toward mediation.

No payments will be made to players until all appeals are exhausted…

No doubt, the NFL thought this settlement would put the concussion issue behind them. Not gonna happen. Appeals, continuing injuries and now - enter Hollywood! This December – i.e., playoff season - a new movie from Sony Pictures starring Will Smith will be in theaters all across the globe.  It’s called Concussion.  Writes USA Today:

It's safe to say the NFL won't be giving Concussion two thumbs up.

With its star cast, big-studio backing and a Christmas Day release, the movie has the potential to do what a Hall of Famer’s suicide, protracted lawsuits and reams of scientific data could not: Present the horrors of football’s concussion crisis in such simple and compelling fashion that no one will ever see the NFL in the same way again.…

Concussion is the story of Dr. Bennet Omalu, the pathologist who unearthed the link between football and head trauma. It was Omalu who put a name to the disease that destroyed the brains of countless former players and led Junior Seau and several others to kill themselves.…

The details of Omalu’s story are not new, having been told time and again in interviews for stories, books and documentaries. Nor is the NFL’s callous indifference to the health of its former players a revelation, exposed in court testimony and depositions.

Yet more than a decade after Omalu first discovered chronic traumatic encephalopathy (CTE) in the brain of former Pittsburgh Steelers center Mike Webster, setting off the concussion crisis, the NFL is bigger than ever.

It has revenues of $10 billion, making NFL commissioner Roger Goodell’s goal of $25 billion by 2027 seem conservative. TV contracts have skyrocketed, and three teams are fighting for the right to call the lucrative Los Angeles market home.

People who love football will see the film because, let’s be honest, they’ll watch just about anything related to football. But people who don’t know the Browns from the Bengals will see the movie because it stars Smith, Alec Baldwin and Luke Wilson, whose movies have a combined gross of more than $5 billion.

People who have no clue what Deflategate is, let alone care, will see Concussion because it’s the winter holidays and they’re looking for something to do. People who are indifferent to sports of any kind will see it because they were intrigued by the slick, intense trailer.

"You're going to war with a corporation that owns a day of the week." Yup. And here it is: