Take your pick of movie quotes: “Just when I thought it was safe” (Jaws), or “Just when I thought I was out” (Godfather Part 3). They both seem right for a couple stories for today, especially if you are monitoring issues that need to be on Congress’ plate when it ever starts passing helpful legislation again.
First, bankruptcy abuse. In 2021, pharmaceutical giant Johnson & Johnson used a legal maneuver to file a sham Chapter 11 bankruptcy, this after engaging in a decades-long cover-up of lethal of asbestos in talc powders including baby powder. The bankruptcy’s purpose was for J&J to dump all of its talc victims into bankruptcy court, turning them into bankruptcy creditors unable to fully litigate their cases, and blocking their right to jury trial. The 117th (i.e., last) Congress considered this development with a bill and hearings. Many organizations asked Congress to stop such bankruptcy abuse given the extremely dangerous precedent it could set. Nothing passed. But earlier this year, the Third Circuit Court of Appeal saw through J&J’s bankruptcy scam and stopped it. The expectation is that similar bankruptcy shams will also be thrown out.
Just when we thought this was the end of it.
This week, J&J filed a second bankruptcy after some talc victims’ attorneys started negotiating, and agreed to a new sham bankruptcy because J&J threw a bit more money at their victims (but still not enough). Needless to say, other attorneys for victims are furious. These cases don’t belong in bankruptcy court and cases cannot be fairly settled there. Now we waiting to see what the courts do. Someday, maybe, Congress will stop this once and for all.
Second, the Feres Doctrine. In a 1950 case, the U.S. Supreme Court, in an act of extreme judicial activism, stripped away the legal rights of all active duty servicemember to access the Federal Tort Claims Act (FTCA) when they’ve been harmed. Some of the worst stories of those affected by this doctrine concern survivors of sexual assault in the military, and medical malpractice victims killed or injured in military hospitals.
In 2019, Congress finally took one step to reverse the brutal consequences of Feres by passing the “SFC Richard Stayskal Military Medical Accountability Act,” opening up claims for medical malpractice. Many people worked incredibly hard on this, but they had to give up a lot just to get something passed.
Just when we thought this was the end of it.
The worst fears of those concerned about the law’s weakness have come true. As of now, the Army has denied 93 percent of med mal claims, including one of the worst slaps in the face that we’ve ever seen: the claim brought by Richard Stayskal himself was just denied.
If Congress ever considers this again, or starts dealing with other problems like sexual assault in the military, it needs to do something different. It should make these cases FTCA cases, not limited administrative compensation systems that make things extremely difficult for victims and gives too much power to the Secretary of Defense to deny claims.
Someday, maybe, Congress will do the right thing.
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