ThePopTort

Asbestos, Unraveled

If you’re a detested industry that’s gotten away with murder (or some other kind of grievous harm), the results can be a bit of a PR “challenge.” Sometimes you change your name to try to recover your “brand”. (Philip Morris to Altria; MetEd to GPU Nuclear following the Three Mile Island nuclear disaster.) Sometimes you just sell off the company and disappear. (Union Carbide to Dow Chemical and others following the Bhopal disaster.) Sometimes you offer victims some money (as long as they don’t - or can’t - sue you, of course.) And then sometimes, you go on the attack against victims and their attorneys who actually are suing you. That last thing? It generally doesn’t work.

BP tried it once, attacking its own negotiated settlement claiming its victims were taking advantage of it. Like they're supposed to. So that didn’t work.

Here's another example: the asbestos case brought against Garlock Sealing Technologies, one of the world’s largest asbestos-containing gasket and packing manufacturers, by more than 4,000 Navy service members and other victims with lethal mesothelioma. In 2014, a North Carolina judge – in his first and only asbestos case  – decided to reduce by 90 percent the amount Garlock owed its victims. To strip them of compensation, which would have allowed Garlock to keep almost all of it, the judge had to misstate the actual trial testimony of a nuclear trained machinist who repaired and maintained nuclear propulsion plant equipment while serving in the Navy, including Garlock gaskets. The judge essentially had to believe that Navy vets knowingly participated in misleading the courts.

Yet that’s not all. Garlock’s lawyers apparently convinced this one judge that victims’ lawyers withheld certain information from Garlock - an absurd claim because the supposedly “withheld” information was already in the company’s possession. Based on that, however, Garlock filed a Racketeer Influenced and Corrupt Organizations Act (RICO) suit for treble (triple) damages against law firms representing these victims, as if they were part of some kind of organized criminal enterprise.

The asbestos industry was delirious with excitement. I’m sure they could hardly believe their luck after killing thousands of people every year. Suddenly, deadly asbestos companies weren’t the criminals. Victims’ lawyers were! “Asbestos litigation fraud has reached new heights,” wrote the Wall Street Journal. “A symbol of the corrupt practices of the plaintiffs bar” as they called on Congress to wipe out victims’ legal rights. 

Well, I hope they didn’t run out and spend that little pot of gold. Soon thereafter, evidence surfaced that Garlock was the party that “violated [the judges’] discovery orders, hid evidence from the bankruptcy court and presented false testimony .... ‘Garlock has committed a fraud upon the court,’ the read the first sentence in the memo to the judge.” You can find all that here.

Indeed, it now appears that Garlock’s entire case against the victims has crashed and burned, and that whatever paltry amount the judge awarded victims couldn’t be justified by actual facts and evidence.

Reports have now surfaced that Garlock and its parent, EnPro, will settle this case by paying victims almost four times as much as the judge had ordered. (That would be $480 million instead of $125 million). And in addition to coughing up this money, Garlock has apparently agreed to drop its bogus RICO lawsuits altogether. Poof! Gone!  Guess they didn't have the case they claimed they had.

Let’s hope we all learn a little from this debacle. To repeat: if you kill people, attacking victims and their attorneys generally doesn’t work. Best to just change your name.

Smokin’ Pigskin

When I read the headline in today’s New York Times, “In N.F.L., Deeply Flawed Concussion Research and Ties to Big Tobacco," I thought, “c’mon, that’s gotta be a stretch.”

Don't get me wrong. I get “deeply flawed research.” Every big industry publishes that. Look at asbestos. Or the auto industry. Or the auto and asbestos industries. Or the pharmaceutical industry. But linking football to tobacco, which the World Health Organization calls “one of the biggest public health threats the world has ever faced, killing around 6 million people a year,” and which can’t stop lying about it?  Didn't see that coming.

The New York Times has indeed published an enormous investigation into the concussion research that the N.F.L. has used for 13 years. The league said this research “was based on a full accounting of all concussions diagnosed by team physicians from 1996 through 2001.”

Wrong!  According to “confidential data obtained by The Times,”

[M]ore than 100 diagnosed concussions were omitted from the studies — including some severe injuries to stars like quarterbacks Steve Young and Troy Aikman. The [NFL] committee then calculated the rates of concussions using the incomplete data, making them appear less frequent than they actually were.…

These discoveries raise new questions about the validity of the committee’s findings, published in 13 peer-reviewed articles and held up by the league as scientific evidence that brain injuries did not cause long-term harm to its players. It is also unclear why the omissions went unchallenged by league officials, by the epidemiologist whose job it was to ensure accurate data collection and by the editor of the medical journal that published the studies.…

The N.F.L.’s concussion studies have faced questions since they were published, but even the league’s harshest critics have never suggested, and no evidence has ever arisen, that the underlying data set could be so faulty.

“One of the rules of science is that you need to have impeccable data collection procedures,” said Bill Barr, a neuropsychologist who once worked for the Jets and who has in the past criticized the committee’s work.

By excluding so many concussions, Mr. Barr said, “You’re not doing science here; you are putting forth some idea that you already have.”

Horrible, perhaps not completely shocking, but guess where they learned to lie and cover up like that? All this time, they were “shar[ing] lobbyists, lawyers and consultants” with Big Tobacco. Writes the Times,

Personal correspondence underscored their friendships, including dinner invitations and a request for lobbying advice.

In 1997, to provide legal oversight for the committee, the league assigned Dorothy C. Mitchell, a young lawyer who had earlier defended the Tobacco Institute, the industry trade group. She had earned the institute’s “highest praise” for her work.

A co-owner of the Giants, Preston R. Tisch, also partly owned a leading cigarette company, Lorillard, and was a board member of both the Tobacco Institute and the Council for Tobacco Research, two entities that played a central role in misusing science to hide the risks of cigarettes.

And that’s not all.

In 1992, amid rising concerns about concussions, Mr. Tisch — the Giants and Lorillard part owner — asked the cigarette company’s general counsel, Arthur J. Stevens, to contact the N.F.L. commissioner at the time, Mr. Tagliabue, about certain legal issues.

Mr. Stevens was not just any tobacco lawyer; he was a member of the industry’s secretive Committee of Counsel, which helped direct tobacco research projects. In a letter obtained by The Times, Mr. Stevens referred Mr. Tagliabue to two court cases alleging that the tobacco and asbestos industries had covered up the health risks of their products.

It keeps going.

Before joining the N.F.L., Ms. Mitchell, a young Harvard Law School graduate, had been one of five lawyers at Covington & Burling who had provided either lobbying help or legal representation to both the N.F.L. and the tobacco industry, sometimes in the same year. Mr. Tagliabue had been a partner at the firm before becoming the N.F.L.’s commissioner.

(Covington & Burling also happens to be a principal architect of the “tort reform” movement on behalf of Big Tobacco.) And there’s more.  "On at least two occasions in the 1970s and 1980s, the N.F.L. hired a company whose client list included the Tobacco Institute to study player injuries."

Read the article for the full outrage. You really can’t make this stuff up.

Limit Med Mal Liability, Grow the Deficit

Speaker Paul Ryan is searching for ways to save his dying budget proposal, so he is apparently “looking to find real savings that can be achieved.” Here’s one of his big ideas: cut the liability for malpracticing doctors and hospitals, nursing homes and drug companies that harm or kill people. (Watch the House Judiciary Committee mark up this bill, H.R. 4771, today. Expect the House to vote on this charade in early April.)  

Save money? We could use a laugh today. Here's actually what would happen if this travesty became law:

More Errors Will Lead to Increased Costs. Yesterday, 30 consumer, health and safety groups sent a letter to the House Judiciary Committee explaining, among other things:

The bill’s sweeping scope covers not only cases involving medical malpractice, but also cases involving unsafe drugs and nursing home abuse and neglect. Even if these provisions applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries and costs are inevitable, and unacceptable.

New Burdens Would be Placed on Medicaid. If someone is brain damaged, mutilated or rendered paraplegic as a result of the medical negligence but cannot obtain compensation from the culpable party through the tort system, he or she will be forced to turn elsewhere for compensation, particularly Medicaid.

Liens and Subrogations Would be Wiped Out. Whenever there is a successful medical malpractice lawsuit, Medicare and Medicaid can both claim either liens or subrogation interests in whatever the patient recovers, reimbursing the government for some of the patients’ health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup.

Deficit Savings?  I've got nuthin.' Except, "look elsewhere, Mr. Speaker."

How Ordering From Grubhub Could Weaken Your Constitutional Rights

Last week I ordered Chinese food from an online delivery site I often use- Grubhub. When the meal ended up taking a little longer than expected, I decided to look through my emails and check for any alerts or updates.

Instead of a notification that my food “was taking longer than expected,” I was surprised to open an email alerting me to Grubhub’s new “Terms of Use.” Usually I would skim right over this type of email, but the message promised new “features” that I would “love,” so I decided to check it out right then.

So as of April 6, if Grubhub allows your personal data to be stolen, releases damaging computer viruses through its software, misidentifies ingredients causing you harm, repeatedly overcharges, or is responsible for any other kind of harm, you won’t be able to take them to court. Instead, you will be forced to resolve your dispute in a private, secretive, rigged arbitration system controlled by Grubhub, with no right to appeal. What’s more, even if thousands of customers suffer the same kind of injury as you, you’ll have to bring and pay for your case all alone. You’ll be prohibited from joining with others in a class action.

As the Consumerist put it,

If you have a legal dispute with online food delivery portal GrubHub (or its Seamless subsidiary), you will soon lose the ability to resolve that matter in a court of law. And if there are others out there with the same problem as you, you’ll each have to fight GrubHub on your own because the company has decided to view all of its customers as potential litigants.

What’s not to love?

Yet Grubhub isn’t the only corporation forcing people to give up their legal rights like this. It’s happening all over the place. Buried in the fine print of many contracts are, what consumer advocated have dubbed, “rip-off clauses” that strip individuals (and often times small businesses) of their right to go to court if they are harmed by a company.

These forced arbitration clauses and class action bans are so harmful to consumers, that the Consumer Financial Protection Bureau is working on drafting a rule to address these clauses in consumer financial products, like bank accounts and credit cards. And last Friday, the Department of Education issued a proposal that “would protect from the use of mandatory arbitration provisions in [college and university] enrollment agreements.”

But while these new rules will be a step toward creating a fairer system for students and financial product consumers, there are still many areas – like food delivery- where companies continue taking away the right to jury trial, which the framers of the U.S. Constitution thought they were preserving with the 7^th Amendment.

And you may ask yourself, “What can be done other than not using these goods and services completely?”

Being informed about what is in your contract is a good starting point. But the law allowing these clauses to exist must be changed. So please contact your U.S. Senator or Representative and tell them to support legislation that works to end unfair forced arbitration, like the “Arbitration Fairness Act of 2015” or the “Restoring Statutory Rights and Interests of the States Act of 2016.”

Whatever the solution, diners should know that, like the extra soy sauce they requested, their 7^th Amendment right to jury trial many not be included with their meal.

Erin Andrews’ Exemplary Jury

Photo by Neon Tommy

Most Americans know barely anything about our judicial system, and the civil jury is one of its least understood features. Even groups involved with law-related education focus little attention, if any, on civil juries. Few probably know that the right to jury trial was a key issue over which the American Revolution was fought, or that the failure to secure the right to civil jury trial in the Constitution almost caused its defeat. And who really understands how civil juries check corporate, government and professional irresponsibility?

Forget law schools. No group seems better equipped to provide this kind of “education” than civil jurors themselves. Study after study shows that immediately after a trial, jurors have very strong impressions about their experiences. Almost all will say the experience was positive and that the system works well. (See more here.) But understandably, you won’t find many civil jurors willing to talk to the media about their experiences after a trial. Actually, it’s probably more rare that news reporters would even care what a juror had to say in the typical civil case.

So how great is it to see a bunch of news reports today quoting jurors who recently served in the very high-profile Erin Andrews “peep hole” case against Marriott and her stalker, particularly juror Terry Applegate? News outlets from NBC News to People Magazine took the time to interview her as to why the “jury of five men and seven women on Monday ordered [stalker] Michael Barrett – who served more than two years in prison for the 2008 incident – to pay the Fox Sports reporter about $28 million with the companies that operate the Nashville Marriott paying the remaining $27 million.” Here’s what she told The Tennessean:

"We considered not only the impact [the verdict] had on Erin Andrews, but also the message, I guess you might say, that might be provided to the hotel industry overall ... I truly appreciated the opportunity to do it, although it was difficult and lengthy, I think it’s true of every juror. We all remarked about how impressed we are about our judicial system here in the United States."

Indeed, more than any other single institution, juries give everyday people the chance to participate in government, which enhances their regard for the American system of justice. As this case shows, civil jurors are competent, responsible and rational, and their decisions are not arbitrary or emotional, but reflect continually changing community attitudes about corporate responsibility and accountability.

In her statements, Ms. Applegate thanked Erin Andrews for bravely bringing this case. We certainly agree and thank her dedicated legal team, as well. But let’s thank juror Applegate, too. She has helped us all understand - the system really works.

Whispers of a Constitutional Convention?

If the "coming conservative revolution" has you feeling a bit anxious these days, stop reading now. You haven’t seen anything yet.

As of today, a possible 27 states have filed legally acceptable petitions to convene a new “constitutional convention” – something that hasn’t happened in the nation since the first one in 1787. These states say they want to amend the constitution to limit the federal government’s power and/or require a balanced federal budget. If they get to 34 states and this “constitutional re-write convention” happens, it’s “Katy, bar the door.”

That’s why legal scholars across the political spectrum have warned that a constitutional convention would be “an invitation to constitutional mayhem,” (from the late Supreme Court Justice Antonin Scalia and Harvard Law’s Lawrence Tribe). It’s unclear, yet possible, that many constitutional provisions and indeed the entire U.S. Constitution could be vulnerable to conservative attack once the convention happens. Yet instead of slowing down, the idea seems to be picking up steam. In the past few weeks alone, several states have introduced legislation calling for a constitutional convention, with some calling for a specific balanced budget amendment, while others advocating broadly for limiting “the power and jurisdiction of the federal government.”

There have been previous pushes over the last 25 years to convene a constitutional convention, but they went nowhere. Over the last few years, however, Republican control of state governments has ballooned. There are currently 24 states with Republican trifectas – where both houses of the state legislature and the governor are Republican - the highest total in over 60 years. Many of these states have super-majorities, too. (That’s compared with only 7 states with Democratic trifectas). In addition, these states have had the assistance of corporate-funded right-wing groups like the American Legislative Exchange Council (ALEC), which offers model bills that provide ease and consistency for states petitioning for a constitutional convention.

We get it. Conservatives hate the federal government. Yet a constitutional convention seems like an awfully extreme way to complain about it. In fact, there are far less drastic options available to them right now, which should, at least, be considered before trying something so radical.

For example, right now they are pushing a bill in Congress, which just passed by House on a largely party-line vote (H.R. 3624, the “Fraudulent Joinder Prevention Act of 2016.”) This bill would force cases out of state courts and into an already overburdened federal court system. According to a letter sent to Congress by 26 public interest groups, this legislation would even “make it more difficult for Americans to enforce their rights in state courts” and would deprive state courts of jurisdiction over claims they should properly hear.

The entire conservative House delegations of several states, including Georgia, Mississippi, and Utah, voted for this legislation at the same time their state counterparts are pushing for a constitutional convention, complaining about federal power. Look in your own back yards first, folks. End this hypocrisy, and leave the Constitution alone.

 

A Good News Review

“The slings and arrows of outrageous fortune.” So said Hamlet about his dire life circumstances at the time. No doubt, the nation’s messed up politics are probably leaving some of you in a similarly depressed funk these days. So let us help! Here’s some good news to consider.  

In the workers comp arena, ProPublica and NPR are reporting on a frankly extraordinary development in Oklahoma. The “business-friendly” Oklahoma Workers’ Compensation Commission unanimously ruled that the state’s 2013 law to allow corporations to “’opt out’ of state workers’ compensation — and write their own plans for dealing with injured workers — was… unconstitutional”! It compared alleged “[c]ompany plans … to provide equal benefits to workers’ comp., ‘a water mirage on the highway that disappears upon closer inspection.’” Wow! In addition, the media outlets write,

[T] he U.S. Department of Labor said in a letter obtained Monday that it is evaluating whether opt-out plans in Texas and Oklahoma violate workers’ rights under federal law.

The opt-out effort was the focus of an investigation by ProPublica and NPR last fall, which found that the plans almost universally had lower benefits and more restrictions than workers’ comp.…

[I]n recent years, well-known corporations, led by Walmart and Lowe’s, have been pushing states to let them handle injuries themselves, arguing they can provide better care, higher wage benefits and a more efficient system if freed from the bureaucracy of state workers’ comp. In 2013, Oklahoma became the first state to pass a law allowing employers to opt out, joining Texas, which has never required businesses to have workers’ comp.…

Last year, the corporations’ offensive appeared to be gaining steam. Tennessee and South Carolina were seriously considering bills. A national campaign drew support from Nordstrom, Whole Foods, Macy’s, Sysco and Safeway, among others. And supporters said they planned to get laws passed in as many as a dozen states within the next decade.

But months after the ProPublica and NPR story, which was republished in several news outlets, the movement appears stalled. …

Bob Burke, a workers’ comp attorney who has filed 17 cases challenging the law, said the decision will “put a cold, wet rag” on the opt-out movement.

Here’s some of what commission said about these plans:

They “give employers significant power to deny claims by letting them define what constitutes a workplace injury. For example, workers sickened by asbestos can generally receive workers’ comp. But most opt-out plans in Oklahoma specifically exclude asbestos exposure from coverage.…

Rather than creating a more efficient process for handling disputes, the system developed by the plans adds several layers that may actually make the process longer.…

Businesses are now challenging the commission authority to strike down this law. And they are appealing to the Oklahoma Supreme Court. So it's not all good news yet.

Speaking of courts, on the SCOTUS front (and perhaps a sign of things to come):

The Supreme Court on Monday rejected Wal-Mart's bid to overturn a federal appeals court decision allowing female workers to sue the retail giant for paying women less and giving them fewer promotions than men.

The court's decision not to take the case leaves intact a 6th U.S. Circuit Court of Appeals ruling that found former members of the landmark Dukes v. Wal-Mart class action did not miss the deadline to bring their gender discrimination claims on a regional basis after the Supreme Court rejected the nationwide class in 2011.

Finally in Indiana, some state lawmakers are trying to do a very small thing for patients by raising Indiana’s cap on compensation for victims of medical malpractice damages. But barely.  As we’ve noted before, Indiana has a draconian compensation cap on all damages, including economic costs, lost wages, medical expenses, etc. It is, clearly, among the “lowest in the nation.” So now,

[L]awmakers are considering a $400,000 increase to the cap to set a new limit for those claims at $1.65 million beginning in 2017. The cap also would increase over time to $2.25 million by 2031 in an attempt to keep up with inflation – an aspect of the proposal strongly opposed by doctors and some medical lobbyists.

Wow, the cruelty of Indiana doctors apparently knows no bounds.

Dan Ladendorf, a representative of the Indiana Trial Lawyers Association, said the group doesn’t believe in capping damages and questioned the proposed $1.65 million limit. If Indiana’s cap was based on a medical cost index, it would exceed $2.2 million, he said.

“Even with these proposed changes, the opponents to this bill have told you Indiana would still be the most favorable state in the nation for medical malpractice,” he argued. “If you are going to commit medical malpractice, come to Indiana, because we’re the most favorable state in the nation.”

Well, we tried. So much for good news, I guess!