ThePopTort

Get Ready for the Next Great Insurance Escape

The trailer isn’t out yet for the Hurricane Ida sequel to the “The Great Insurance Escape” (not to be confused with the “1963 American epic adventure suspense war film”). “Horror” is a more apt genre for this film, and it’s one we’ve seen many times before.

Here’s a synopsis: policyholders who dutifully pay premiums for years, expecting claims will be paid when a catastrophe hits (like a hurricane or a pandemic) find insurers denying claims and forcing policyholders into court. And the pleas of public officials – even U.S. Presidents – to insurance companies to quickly pay these claims, are proven worthless.

In this true film, former bully-in-chief Donald Trump is no match for the profiteering bullies at the property-casualty insurance industry. Back in April 2020, he urged companies to pay COVID-related business interruption claims, saying,

“You have people that have never asked for business-interruption insurance, and they’ve been paying a lot of money for a lot of years for the privilege of having it… And then when they finally need it, the insurance company says, ‘We’re not going to give it.’ We can’t let that happen.”

Oh, but it did happen. Businesses collapsed and insurance industry profits soared. (Learn more here.)

President Biden has pushed harder against this industry. For example, in a disaster as devastating as Hurricane Ida, the availability of insurance can literally become a matter of life or death, especially regarding the promise of temporary living expenses under “loss of use” clauses in homeowners policies, which many residents have. Following Ida, Biden was able to get a concession from at least a few companies that they won’t misuse their power to deny living expenses to those who voluntarily evacuated. He also said,

"I'm calling on private insurance companies: Don't hide behind the fine print and technicality. Pay what you owe your customers, cover temporary housing costs in national disasters and help those in need. That's what we should all be doing now.”

We should, but they won’t. Hiding behind fine print is essentially their business model. Take hurricane policies. The common understanding of a hurricane is a windstorm generating copious amounts of water. Homeowner policyholders who want to make sure they’re covered if a hurricane hits often sign “hurricane endorsements” with clearly labeled “hurricane deductibles,” thinking they have full coverage beyond the deductible in the event of a hurricane. They would be wrong. Elsewhere in those very same policies, insurers will expressly exclude payment for flood damage in all of these policies. To get flood insurance, homeowners must purchase separate policies from the federal flood insurance program. Except if someone is living in an actual flood plain, an insurance agent probably won’t explain any of this.

In 2005, immediately following Hurricane Katrina , many individuals were left destitute, without food, water or a roof over their heads. The insurance industry quickly denied responsibility for most of the damage its policyholders were suffering, wasting little time disseminating the message that most damage was flood-related, whether or not it was, and claiming it would not be responsible for this. The entire world watched this horror unfold on their television screens.

Fast forward to this year’s Hurricane Ida. Bob Hunter of the Consumer Federation of America explained the situation today:

Fortunately, Louisiana has one of the highest percentages of residents who carry flood insurance in the nation so most people who had flood damage from this storm in Louisiana will be covered by flood insurance.  Almost all wind-damaged homes have homeowners policies covering wind but insurers have been steadily increasing hurricane wind coverage deductibles and imposing other, sometimes draconian, homeowners insurance policy limitations. This shift of costs to consumers under homeowners insurance policies may take some by surprise, since disclosures of coverage changes are often buried in renewal paperwork that consumers may not understand or even read. Because so many consumers in Louisiana experienced severe claims problems in the wake of Hurricanes Katrina, we urge homeowners dealing with losses caused by Hurricane Ida to be vigilant with their insurance companies, including the insurers settling National Flood Insurance claims, to ensure that that they receive a full and fair settlement.

As to how we might expect insurers to behave towards East Coast policyholders devasted by Hurricane Ida’s massive flooding, let’s look back to 2012’s Superstorm Sandy. As we wrote in 2013:

Homeowners whose lives were shattered by Superstorm Sandy are still engaged in perpetual battles with insurers to get their flood insurance claims properly paid.  The situation is no better for homeowners claiming under their non-flood policies, with insurers putting homeowners’ money into escrow accounts and then micromanaging repairs. Writes one policyholder, “No matter insurance company has documentation already and has approved repairs. No matter repairs have been made and homeowner just wants reimbursement.… TD Bank has this policy. So does Wells Fargo. Problem is you don't know this until u go to deposit insurance check.”

Yet the problems were worse than we could have imagined. As we wrote in 2016 after an expose by 60 Minutes:

Two and a half years after Hurricane Sandy, “[t]housands of [victims'] claims have still not been resolved and there is evidence that many homeowners were victims of what appears to be wide-scale fraud where original damage reports were later changed to make it look like the damage wasn't as bad.” The facts uncovered in this piece are horrendous.

Certainly, we commend both President Biden and consumer groups trying to help. Their assistance and advice are critical. And right now, the media spotlight is shining on the insurance industry, which might incentivize them to do the right thing for a little while. But once the cameras are gone, victims of these catastrophes may be left to struggle on their own, once again.

Patients and Andrew Cuomo – Our Parting Shot

As New York City residents, we at ThePopTort were mesmerized by part 1 of Spike Lee’s astonishing NYC Epicenters 9/11-2021½, which began airing last night on HBO. But I fully understand if you missed it. It was a bit like watching someone else’s home movies. Also, it forces us to rehash the horrors of a few unpleasant characters  - although seeing the hilarious way Spike chyroned “a certain former President from Queens” was worth the whole thing. There’s actually a lot of humor in this series.

Peppered throughout, of course, is New York Governor Andrew Cuomo, who leaves office today. Just like his dad Mario, Andrew used his (10!) years as governor to do damage to the rights of patients harmed by negligent health care. This mission of his began as soon as he stepped into office and ended with the pandemic. ThePopTort was there for all of it so we decided that now would be a good time to do an Andrew Cuomo retrospective. For history, you know.

Within weeks of taking office in 2011, Andrew set up a task force under the guise of Medicaid “redesign,” primarily as a ruse to give New York’s powerful hospital lobby a way to force “tort reform” onto injured patients when clearly such laws would never pass on their own. The task force “recommendations” were two-fold: a $250,000 cap on non-economic damages, and a state fund to pay for the medical care of babies catastrophically harmed due to negligence at birth. Note that qualifying families would have to have already won their legal case and should already be entitled to full compensation. Instead, these families would have to beg the fund for money. Imagine putting such additional burdens on families that already face unimaginable challenges caring for a profoundly disabled child - while leaving the responsible hospital essentially off the hook.

Cuomo’s task force team, dominated by his hospital friends who would financially benefit from these laws, met secretly and made recommendations that went straight into the governor’s budget. The Center for Justice & Democracy filed an ethics complaint against Cuomo’s task force for this. His response was two-fold: publicly attack and try to bully CJ&D via his large bully brigade; privately, feeling the political heat, pull the damages cap out of this budget. But unfortunately, the baby fund stayed. It’s really what the hospitals wanted anyway.

Once the hospitals got their big prize, things calmed down a bit. Not completely, of course. For example, we wrote about how Cuomo later stuck a provision into his executive budget to make it easier for incompetent doctors to hide their malpractice records. But at least “tort reform” seemed to be off the table for a while.

Then came COVID. Cuomo almost immediately immunized hospitals and nursing homes from liability during the pandemic, slipping this immunity law into his budget at a time when almost no one noticed – except, of course, his hospital lobbyist friends who wrote it. This, by the way, included hospital systems that kept suing patients throughout the pandemic over unpaid medical bills. Cuomo’s immunity law became the blueprint for many states, often expanding immunity even beyond New York’s law with disastrous results particularly for nursing home residents. Cuomo's friends also went to Washington to help Sen. Majority Mitch McConnell write a national immunity bill. McConnell then held the nation hostage by demanding that Congress pass corporate immunity before allowing the country to get any stimulus relief.

Fortunately Cuomo’s friends didn’t get their way in DC. Their NY law was eventually reversed by the NY legislature and Cuomo’s nursing home legacy, as bad as it looks now, has yet to be finally written. But he’s finally out. Or as CJ&D Executive Director Joanne Doroshow put it to Mr. Cuomo back in 2011, “after you apply the facts to the law, that sound you'll hear is the steel trap closing on you.”

See ya!

Civil Juries: Crushed by COVID

There a Radiohead lyric that goes “Let down and hanging around; Crushed like a bug in the ground.” I know there are a lot of ways to describe what happened to the civil jury system this past year but for some reason, squishing a fallen insect comes to mind.

As many have written, insects are an incredibly important part of our ecosystem. The “the lever pullers of the world,” some say. Hardly a nuisance, and we’d be dead without them. 

Similarly, civil jury trials – especially those deciding cases by people who have been wrongfully harmed - are a crucial part of our justice system. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.  

But over life of the nation, the number of civil jury trials dropped precipitously. Even before the pandemic hit, for example, juries resolved, on average, less than 1 percent of state civil cases as well as state tort cases. The reasons for this, as described by Shari Seidman Diamond and Jessica M. Salerno in their 2020 law article, “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges,” include both enactment of “tort reform” laws that limit the power and authority of juries, and forced arbitration clauses that demolish juries altogether:

For civil cases, 61.6% of respondents who practiced in jurisdictions with damage caps… said they played a medium or large role in making jury trials less appealing.…

Fifty-two percent of judges and attorneys also pointed to mandatory arbitration as having helped drive down the frequency of jury trials.

Many courts offer voluntary arbitration, overseen by a neutral mediator who is an expert in the pertinent legal issue. A growing number of companies have begun making this process mandatory for employees and consumers by including binding arbitration clauses in contracts.

“On average, workers who pursue legal claims through arbitration are less likely to prevail, and they receive smaller awards than those who pursue employment claims in court,” wrote Diamond and Salerno.

Already at a low point before COVID, now they’ve nearly or completely disappeared in many places. In an op ed in Maine’s Press Herald, Benjamin Gideon recently wrote:

When the pandemic struck last spring, Maine courts abruptly stopped conducting jury trials. It was an understandable measure to protect judges, litigants and jurors. At that time, no one yet knew how to adapt to the pandemic.

Less understandably, more than a year later, our civil justice system remains shuttered.…

Not only has our judiciary failed to implement strategies to resume civil (and for the most part, criminal) jury trials, our Supreme Judicial Court issued an order prohibiting trial judges from using their own ingenuity to find a way to conduct civil jury trials.

Now, as our courts are finally attempting to reopen, they face a dizzying backlog of criminal cases, which, the judiciary says, prevents them from holding civil jury trials. …

What’s more, insurance companies have done nothing but take advantage of this situation by refusing to settle cases. In New York, for example,  

Because there are no trials — except for a select few cases that went to trial last fall — insurance companies and defendants have little reason to settle beforehand, a common way to avoid juries awarding more money, lawyers say.

Insurance companies and defendants have instead dragged their feet and refused to pay out in some cases, which could force people to settle for less if they’re desperate for cash, according to lawyers in the field.

“The delay of jury trials brought on by COVID-19 has exacerbated what was already an untenable situation for New Yorkers seeking to exercise their right to civil justice,” said state Democratic Sen. Brian Benjamin.

As Mr. Gideon writes, “I am concerned that we will come to accept the misguided notion that the right to a civil jury trial is a luxury rather than a basic right established by our constitution.”  Yep, James Madison would be seriously bugged by that. 

New York Hospitals Doing Harm

It’s hard to reconcile. Doctors live by an oath so well-known that we can all recite it: “first, do no harm.” Their work through the worst of the pandemic in New York was utterly heroic. Yet when it comes to the activities of leaders and lobbyists who represent the institutions they work for, the opposite is true.

The Greater New York Hospital Association (GNYHA) has historically been one of the most powerful and insidious anti-patient “tort reform” groups in New York State. Run by Ken Raske, GNYHA wastes an enormous amount of its budget on lobbying, politics and PR efforts, offending nearly everyone except – ironically - those who do harm. It is the single largest “hospital and nursing home” contributor to federal candidates in the country, far surpassing any other donor. It’s hold over Governor Andrew Cuomo is legendary, dating back to Cuomo’s first few months in office nearly a decade ago. (More about that here, here, here.)    

It may be no surprise that Raske was behind New York’s broad immunity legislation, snuck into law as part of Cuomo’s budget in the early days of the pandemic. Fortunately, lawmakers finally woke up to this troubling law and recently rolled it back. However, taking no hint whatsoever from their own state, which decided that broad immunity was harmful and immoral, GNYHA has now moved on to the entire country. In fact, it seems that Senate Majority Leader Mitch McConnell specifically invited them to add its revolting agenda to McConnell's national corporate immunity bill. Raske’s fingerprints are apparently all over it. 

Yet let there be no mistake. If New York’s bill was cruel, this national bill is utterly depraved. For example, in the federal bill, any patient suing for malpractice – including in non-emergency situations – must prove misconduct so extreme as to resemble the crime of reckless homicide. Even if a patient wins, they have no right to non-economic damages at all.  And there’s more, ensuring that even the most obvious case of medical malpractice won’t go forward for the next five years.

Helping Raske in DC is Albert Pirro.  According to recent reporting,

McConnell’s new legislation reflects the Trump administration’s push for a liability shield at the same time that GNYHA has hired Trump’s former lawyer and prolific GOP fundraiser Albert Pirro Jr. as a Washington lobbyist. 

Pirro is a long-time personal friend of the president — their relationship began 30 years ago when Trump hired him as a real estate attorney. He is the ex-husband of Fox News’ Judge Jeanine Pirro and was once sentenced to 29 months in federal prison for tax offenses....

Pirro has only been filing disclosures as a Washington lobbyist since 2017, when Trump became president. GNYHA — which is one of only three Pirro lobbying clients in Washington — has paid Pirro’s firm nearly $2.3 million since hiring him in 2017. 

So, somehow GNYHA found $2.3 to pay a lobbyist, while at the same time pushing legislation to eliminate all non-economic compensation to every child catastrophically-injured by medical malpractice, anywhere in the nation.

Anyone know how to reach Hippocrates?

Immunity Backlash

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New York’s Wrongful Death Law is a National Embarrassment

Back in the 19th century, it was a lot cheaper to kill someone than to permanently maim them because the law allowed only injured people to sue and be compensated. This, of course, led to great hardship for relatives when a family member was wrongfully killed.

But guess what? It still is. Cheaper, that is. Or at least it is in New York, which has the nation’s worst wrongful death law. 

That New York should hold this distinction is incredibly ironic given New York’s groundbreaking role establishing “wrongful death” rights in the first place. New York’s 1847 wrongful death law was the very first in the nation. Every state followed New York’s lead by enacting a wrongful death law.

These laws are not all the same. Explain Speiser and Rooks in their three-volume treatise, Recovery For Wrongful Death, wrongful death laws “vary widely in detail … with the result that the rights of recovery, the persons who can recover and the elements of damages vary among jurisdictions.”

An early characteristic of most of these laws was that only “pecuniary injuries” could be compensated (i.e., meaning a relative had to suffer an “economic” loss, such as lost income of the person killed, funeral expenses, etc.) This restriction excluded any compensation for intangible losses like grief, mental anguish, bereavement, lost companionship, loss of consortium (like society, love, advice, guidance). How particularly unfair this was for relatives not financially dependent on a deceased person’s income, like parents of a child, or adult children.

To remedy the harshness of these early “wrongful death” laws, explain Speiser and Rooks, virtually every state expanded compensation to allow recovery for intangible losses “at least to some beneficiaries … either expressly by statute, or by judicial decision.”

New York has done nothing.

More specifically, many states expressly changed their laws through legislative action. In other cases, courts remedied the injustice, first through jury verdicts and then court decisions. Judges “attempted to address this problem in several ways … either by broaden[ing] the definition of ‘pecuniary loss’ (i.e., assigning pecuniary value to [intangible losses] or by discard[ing] the limitation altogether).” 

Explains Speiser and Rooks, “Only a few jurisdictions continue to deny consortium or society damages to all beneficiaries.”  New York is one of them. Yet even in the handful other states listed by the authors, courts seem to have affirmed at least some exceptions.

It is shocking that after literally leading the nation’s way 172 years ago, New York is now “completely isolated” in terms of the harshness of its wrongful death law. 

It is time for New York lawmakers to do something. Indeed, it is very long overdue.

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.

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).

No Wheels, No Problem

Wow, silly us. On December 15, 2015, to illustrate what corporate vermin CarMax was for selling defective used cars that are under safety recall, we contrasted CarMax with its competitor, Auto Nation. Auto Nation, you see, had announced it would do the right thing and voluntarily stop selling “any new or used vehicles under recall that have not been repaired.” Here are the kinds of problems these cars had: 

• Catching on fire
• Wheels that fall off
• Exploding Takata airbags that spew shrapnel into the passenger compartment, causing blindness or
• GM ignition switch defect that causes loss of power steering and braking, and airbag failures to inflate when needed in a crash
• Faulty brakes
• Sticking accelerator pedals

Oh, that was so 2015. 

In 2016, as a direct response to Trump’s election, Auto Nation did a complete 180, re-joining the ranks of lowlife CarMax. Here'a what Consumer Affairs wrote:

Does Donald Trump care about highway safety? AutoNation is betting he doesn't. The new-car chain has backed down on its pledge to fix all outstanding recalls before selling cars to customers, apparently based on an assumption that Trump will not pursue the matter.

AutoNation started selling used vehicles with open recalls on Monday, Nov. 28, after CEO Mike Jackson concluded that Trump's victory would mean the end of legislative efforts to require used car dealers to stop selling recalled used cars that have not been repaired.

U.S. Senators Richard Blumenthal (D-Conn.) and Edward J. Markey (D-Mass.) do have legislation to fix this problem, called the Used Car Safety Recall Repair Act. But while the rest of us wait for a new Congress and White House, leading auto safety organizations aren’t waiting. They have sued in court. Specifically, they have sued the Federal Trade Commission (FTC) for allowing “GM, CarMax, and the Lithia, Koons, West-Herr and Asbury auto dealership chains … to advertise that unsafe used cars with unrepaired safety recall defects are ‘safe,’ ‘repaired for safety,’ passed a ‘rigorous inspection’ and qualify to be sold as ‘certified’ if they merely disclose that the vehicles ‘may’ have an ‘open safety recall.’” The groups were just granted the right to present August 16 oral arguments in the case, which is great news.

Meanwhile, state auto dealer lobbyists have been on a tear, with proposed bills around the country to affirmatively allow dealers to sell these unsafe, defective cars. So far, bills were defeated in New Jersey, California, Maryland, and Virginia.  But they are popping up again. In New York, for example, both the Center for Auto Safety and NYPIRG are pushing back hard against Assembly (A.)8268 and Senate (S.)7545 bills, which NYPIRG says,

[W]ould enshrine in statute the right to sell dangerous products and provide legal immunity to sellers when the defective cars they sell cause serious injuries and even death due to known defects, like problems with brakes, airbags, restraint systems and steering. … Not only would this legislation shift the entire burden for repairing car safety defects to purchasers, but it likely means that the sale price would not reflect the dollar value of the car with the defect—meaning consumers will overpay for defective used cars and assume the risk of repairs. Used car dealers should fix cars with safety defects before selling them to protect buyers, passengers, pedestrians, other drivers and property. That’s just common sense and marketplace fairness.

Similarly, the Center for Auto Safety wrote,

Despite the significant dangers presented by recalled vehicles, these bills include a provision allowing dealers to sell used cars with unrepaired recalls. The bills do not require the recalls be fixed, no matter how deadly, but merely that a consumer be notified about the unrepaired defect instead of fixing it. Why would any state encourage such behavior?

I don’t know, but unfortunately, Tennessee just did. Nevertheless it’s still the only state in the nation to have done so. Let’s just hope others don’t follow.

Uber’s Uber-Hypocrisy

When you look up the definition of “uber” online, here’s what it says: “denoting an outstanding or supreme example of a particular kind of person or thing.” I think I’ve figured out exactly what kind of uber thing Uber is: an outstanding or supreme example of a “tort reform” hypocrite.

Clearly, this is a company that understands the importance of litigation, and makes unfettered use of the civil courts in order to protect its own profits. For example, just last September, the company filed a lawsuit seeking at least $40 million for harms Uber says it suffered after a mobile ad agency “misrepresented the effectiveness of its mobile ads,” among other things. A company representative told Law360, “While we believe litigation should always be a last resort, we hope this action will help bring more attention to the problem of online ad fraud.” Uber also clearly knows the importance accessing the courts when there’s a data breach. Right now, the company is pursuing a lawsuit to uncover the identity of someone who allegedly “stole information from a database containing names and driver’s license numbers for 50,000 current and former drivers.”

But when it comes to harm that the company directly causes its own customers and employees, Uber is single-mindedly fixated on blocking court access. It does so through the use of forced arbitration clauses and class action waivers. As we speak, Uber is demanding that a federal court “dissolve a class of hundreds of thousands of current and former Uber drivers who allege they were misclassified as independent contractors and denied fair wages.… in light of the high court’s May 21 ruling in Epic Systems.” (See our post on Chrysler last week.) Writes Law360,

The Supreme Court ruling wiped out precedent in a handful of circuits, including the Ninth, stating that workers can’t give up their power to file class actions in court under the National Labor Relations Act, which guarantees workers’ rights to engage in certain group activity. The Northern District of California had in its certification order declared unenforceable some drivers’ agreements to arbitrate work disputes.

“Epic Systems ends any possible argument that the arbitration agreements should not be enforced,” Uber said. “And because the majority of class members signed these arbitration agreements, Uber respectfully submits that this court must reverse the district court’s class certification order and its order declining to enforce the arbitration agreements.”

Forced arbitration clauses and class action waivers are not just part of driver contracts, but are also part of the Uber app that we all use, buried in “terms of use” agreements that online companies use and that no one reads, let alone “negotiates.” As a result, the company was able to compel arbitration in a price-fixing case involving Uber fares, with a court throwing out a customer’s class action after finding that the arbitration clause “was right there, lurking within a ‘terms and conditions’ page hyperlinked on his smartphone. Once he clicked the ‘I agree’ button to set up his account, he was ‘sunk.’”

Yes, Uber can be commended for agreeing to no longer force cases involving sexual assault into arbitration, bowing to pressure from sexual assault victims. But the fact remains that the company still insists on using class action waivers to prevent victims from joining with others in court and continues using forced arbitration clauses and class action bans in every other kind of dispute, whether the case involves employees, drivers or users of the Uber app.

But here’s some good news. 

This week, a Brooklyn New York judge stood up to Uber, “allowing a disabled woman to move forward with a lawsuit” saying “Uber can’t force its customers to accept private arbitration instead of taking their legal claims to court.”  Uber tried to stop a discrimination class action from going forward, saying a customer agreed to arbitration. But this time, a judge – using basic common sense - said no. Writes the New York Post,

The company’s arbitration clause is buried so deep in reams of legal language that it is unfair to expect users of the app to dig that deeply through the fine print, wrote Kings County Judge Francois Rivera in a decision released Wednesday.

“A registrant may complete the process without seeing or even being aware that there are other clickable buttons leading to a screenshot containing Uber’s terms and conditions,” he wrote.

“Uber has been pushing cases to arbitration all across the country so they don’t have to go to court and create a precedent,” said [her attorney, Ian] Poulos. “This case isn’t binding outside of New York, but it is very persuasive and other courts could follow this standard. This is a big deal.”

I guess we’ll see how long it lasts. In the meantime, we’ve been hinting over the last couple weeks about who may have made CJ&D’s Top 30 “Tort Reform” Hypocrites of 2018.  Guess who made the list? Find out Monday!