ThePopTort

Purdue and Sackler’s Rat Pack

I hesitate to rely on “rat” analogies because, as PopTort fans know, we’re based in New York City and no one here likes to be reminded of that little problem. But when I think of the creators of the opioid epidemic and their “tort reform” apologists – including OxyContin makers Purdue Pharma and its generic cousin Rhodes, the Sackler family which controls Purdue, and groups like the American Tort Reform Association (ATRA) and the U.S. Chamber of Commerce – “cornered rat” is one image that seems appropriate. 

First to refresh, evidence gathered from state opioid litigation and recently reported in the New York Times can be summarized as follows:

• As the country’s addiction crisis worsened, the billionaire Sackler family decided to “increase their profits by selling treatments for the very problem their company had helped to create: addiction to opioids.” It was “named Project Tango.”
• By then, the company had already pled “guilty to a federal felony and paying more than $600 million in criminal and civil penalties.”
• The pharmaceutical industry developed “a multipronged approach” to “reshape public perceptions about pain and chip away at physicians’ reluctance to prescribe opioids, long known to be addictive, by describing an 'epidemic' of untreated pain affecting 100 million Americans.”
• Manufacturers funded “front groups” that were “disguised as ‘unbiased’ sources of cutting-edge medical research and information” and trained “sales representatives focused on doctors who were high-volume opioid prescribers, as well as inexperienced providers and primary care physicians who knew little about pain management, encouraging them to prescribe higher and higher doses for longer stretches of time.” These “sales representatives could earn tens of thousands of dollars in bonuses and were rewarded with trips to tropical islands.”
• As reports of overdoses grew, Richard Sackler urged the company to blame the patients. “We have to hammer on abusers in every way possible,” he wrote in a 2001 email disclosed in documents filed in the Massachusetts case. “They are the culprits and the problem. They are reckless criminals.”

Like all cornered rats, Purdue and the Sackler’s are trying to fight their way out of this, and “tort reform” groups are right by their side, lashing out at the principal way the industry is now being held to account – litigation. Importantly, this is public enforcement litigation brought by state and local public officials, who in addition to trying to uncover the truth (all the above information comes from evidence in state AG lawsuits), are trying to re-coup the extraordinary costs of responding to a crisis that was deliberately dumped in their lap.

In December 2018, 60 Minutes did a feature story on Mississippi’s former Attorney General Mike Moore, one of the attorneys who “engineered the historic 1998 settlement under which Big Tobacco paid billions to address smoking-related health issues.” He happens now to be one of the attorneys suing opioid manufacturers and distributors, “coordinating with 30-plus states that have filed suit, and with many of the local governments, nearly 1,500 cities and counties that also are suing.”

Back in 2017, a PR firm that works with ATRA pitched the following campaign strategy to Purdue (information uncovered in the Oklahoma AG’s lawsuit against the company):

CAMPAIGN GOALS AND OBJECTIVES

Our goal is to make state attorneys general think twice about joining the litigation and establish a credible watch-dog organization to monitor the use of contingency fee counsel should other state attorneys general join the suit. While specific strategies and tactics would be tailored to each Individual state attorney general, our initial program recommendations include the following objectives:

Leverage existing legal reform platforms-especially groups focused on outside use of contingency fee counsel-to promote our message and apply pressure.

Shine a spotlight on the plaintiff's attorneys involved in the cases to call into question their credibility and personal profit motive.

STRATEGY

To accomplish these goals and objectives, we recommend a three-track strategy:

Track One: Identify and conduct research on the primary plaintiff's attorneys involved in the suits, including Mike Moore, and demonstrate their methods and personal monetary motivations.

It goes on. The campaign was partly successful, taking credit for at least one early Wall Street Journal editorial attacking Moore and these lawsuits, bragging that “team ATRA worked with this writer over the last couple of weeks on this using research we produced.”

No doubt. But what they couldn’t do is stop state and local governments from moving forward, and not only against Purdue, but also against the Sackler's. Right now, the Attorneys General of New York, Massachusetts, Connecticut, Rhode Island and Utah “have filed suit against members of the [Sackler] family [while] last month, a coalition of more than 500 counties, cities and Native American tribes named the Sackler’s in a case in the Southern District of New York, bringing the family into a bundle of 1,600 opioids cases being overseen by a federal court judge in Cleveland.”

So now there’s a new corporate strategy brewing. The U.S. Chamber of Commerce – the nation’s largest lobby force which represents the drug industry among many others - has stepped in. The Chamber wants new state-based legislation with a very targeted goal: wiping out all the city and county lawsuits.  And just like ATRA, the Chamber is starting this by planting stories in major publications. In this case, it has produced a “study” fabricating urgent reasons to end these lawsuits, and trying to get reporters to bite.  Bloomberg unfortunately did, for one.

This effort is boosting at least a couple different Chamber goals. The first is obviously to try to weaken the opioid litigation.  The Chamber can’t defend the reprehensible conduct of Purdue and other opioid manufacturers, so it is trying to weaken the litigation against them. Pretty classic.

The second strategy, which seems also part of a larger one, was revealed in today’s extraordinary new investigation by USA TODAY, The Arizona Republic and the Center for Public Integrity. The articles discuss, among many things, how corporate and conservative interests are lobbying for state "preemption" bills. Writes the investigative team:

These laws, in effect, allow state legislators to dictate to city councils and county governing boards what they can and cannot do within their jurisdiction….  

USA TODAY’s algorithm found more than 100 such bills had been introduced on an expanding array of topics.

Because preemption bills have almost exclusively been advanced by Republicans, many of whom rail against the excessive mandates of Washington, D.C., critics see such legislation as the height of hypocrisy.

"There's real ... hypocrisy in many of these so-called conservative legislators trying to rip away local control when they preached for years that a government that's closest to you ... is most responsive to you," said Dawn Penich-Thacker, who campaigned to overturn Arizona's school-voucher expansion with a public vote.

All I know is, the Bloomberg headline “U.S. Chamber Warns Cities are Litigating Too Much” makes a whole lot more sense now.

Ring around the nosey, a pocketful of cozy

When one set of commercial pilots is unable to stop a Boeing jet’s fatal nose dive, “difficult questions” are raised about the safety of these planes. When a second set of commercial pilots is unable to stop another fatal nose dive of that same model plane, the FBI is called in. Suddenly, it becomes obvious to everyone that the “cozy relationship” that has long infected the relationship between regulators and corporations – not just in aviation but in many areas - can have catastrophic consequences and might be criminal. But it shouldn’t take a catastrophe.

Regulatory capture. Revolving door. These concepts are nothing new. Back in 2005 during the George W. Bush administration, for example, a study from the Revolving Door Working Group showed how federal agencies were then captured by the very industries they were supposed to regulate, and were led by a revolving door of industry figures. According to the study, the appointment of corporate executives and business lobbyists to key posts in federal agencies was a rampant problem. Under Obama, things were maybe a bit better but still not good. Under Trump, it’s a calamity. 

Shortly after he took office, Trump “signed an executive order that bars former lobbyists, lawyers and others from participating in any matter they worked on for private clients within two years of going to work for the government.” But by last year, according to the Associated Press, Trump had already “issued at least 37 ethics waivers to key administration officials at the White House and executive branch agencies.” For example, “[o]f 59 EPA hires tracked by the AP over the last year, about a third worked as registered lobbyists or lawyers for chemical manufacturers, fossil fuel producers or other corporate clients.” Here are some other examples:

Health and Human Services asked for waivers for senior counselor to the secretary Keagan Lenihan, a registered lobbyist who recently worked for a pharmaceutical and health services company, and for HHS chief of staff Lance Leggitt, who recently lobbied on behalf of his law firm’s health law practice group.

Agriculture Department policy adviser Kailee Tzacz is allowed to “participate personally and substantially in matters regarding the Dietary Guidelines for Americans,” a guide that offers nutritional information and recommendations.…

Although [Craig Holman of Public Citizen] was initially optimistic when Trump issued his executive order, Holman said Wednesday, “It is now quite evident that the pledge was little more than campaign rhetoric. Not only are key provisions simply ignored and not enforced, when in cases where obvious conflicts of interest are brought into the limelight, the administration readily issues waivers from the ethics rules.”

Which brings us back to aviation.  To be honest, I naively thought this was one area where the safety interests of regulators, manufacturers and airlines were generally aligned. It couldn’t possibly be in any of their interests to facilitate plane crashes. Airline safety regulation has even been propped up as a model for other industries, like health care.  About a decade ago, Health Affairs wrote: 

The movement to improve quality of care and patient safety has grown, but examples of measurable and sustained progress are rare. The slow progress made in health care contrasts with the success of aviation safety. After a tragic 1995 plane crash, the aviation industry and government created the Commercial Aviation Safety Team [CAST] to reduce fatal accidents. This public-private partnership of safety officials and technical experts is responsible for the decreased average rate of fatal aviation accidents. We propose a similar partnership in the health care community to coordinate national efforts and move patient safety and quality forward.

CAST includes the FAA, airline groups, manufacturers and pilots' associations.  and yup, it still exists. 

Silly us, I guess. As explained by Stephen Mihm, associate professor of history at the University of Georgia, in a Bloomberg piece called “The FAA Has Always Played Cozy With the Aviation Industry”:

The FAA is unusual among federal agencies because it was originally established to regulate and promote an industry. This fostered the unusually cozy relationship between regulators and business that has persisted to the present, even as the agency’s official mandate became exclusively focused on safety beginning in the 1990s.

Yet even then, actual fixes to the law and to the FAA’s mandate were largely cosmetic, with the “FAA’s reluctance to act until planes fell from the sky earned it an unfortunate nickname: the ‘tombstone agency’.… [T]he House Transportation and Infrastructure Committee described in 2008 a 'culture of coziness' between industry and regulators that had led to 'malfeasance, bordering on corruption.'"

For example, in the case of Boeing,

[T]he FAA began allowing Boeing and other manufacturers to certify that their systems comply with federal safety regulations. In effect, Boeing employees assumed the role that FAA regulators had once performed. This has undoubtedly lightened the regulatory load on companies, and it certainly comports with the FAA’s original mandate to encourage domestic aviation. But the recent crashes suggest that this ambition may ultimately undercut the safety of airline passengers.

“Miracle on the Hudson” hero-pilot, Captain Chelsey "Sully" Sullenberger was more blunt In a scathing op ed. He first explained that some of the problems are budgetary:  

For too many years, the FAA has not been provided budgets sufficient to ensure appropriate oversight of a rapidly growing global aviation industry. Staffing has not been adequate for FAA employees to oversee much of the critically important work of validating and approving aircraft certification. Instead, much of the work has been outsourced by designating aircraft manufacturer employees to do the work on behalf of the FAA. This, of course, has created inherent conflicts of interest, when employees working for the company whose products must be certified to meet safety standards are the ones doing much of the work of certifying them. There simply are not nearly enough FAA employees to do this important work in-house.…

To make matters worse, there is too cozy a relationship between the industry and the regulators. And in too many cases, FAA employees who rightly called for stricter compliance with safety standards and more rigorous design choices have been overruled by FAA management, often under corporate or political pressure.

In the case of the Boeing 737 Max, in 2015, “Boeing was particularly eager to get the plane into service quickly, so it could compete with Airbus’s new A320neo,” writes John Cassidy at the New Yorker:

Early on, employees of the F.A.A. and Boeing decided how to divide up the certification work. But, partway through the process, a former F.A.A. safety engineer told the Seattle Times, “we were asked by management to re-evaluate what would be delegated. Management thought we had retained too much at the FAA.” The engineer said that “there was constant pressure to re-evaluate our initial decisions,” and “even after we had reassessed it … there was continued discussion by management about delegating even more items down to the Boeing Company.”

Even the work that was retained, such as reviewing technical documents provided by Boeing, was sometimes curtailed. “There wasn’t a complete and proper review of the documents,” the former engineer added. “Review was rushed to reach certain certification dates.”

The new revelations don’t stop there. “Federal prosecutors and Department of Transportation officials are scrutinizing the development of Boeing Co.’s 737 MAX jetliners,” the Wall Street Journal reported on Monday. “A grand jury in Washington, D.C., issued a broad subpoena dated March 11 to at least one person involved in the 737 MAX’s development, seeking related documents, including correspondence, emails and other messages,” a source told the paper. (The Justice Department and Department of Transportation declined to comment on the Journal’s reporting.)

Sully concludes his op ed by making what seems like an utterly obvious point: “there is a strong business case for quality and safety, that it is always better and cheaper to do it right instead of doing it wrong and trying to repair the damage after the fact, and when lives are lost, there is no way to repair the damage.”

Sexual Assault and Civil Justice, Except for Servicemembers

In the Center for Justice & Democracy’s new report, The Importance of Civil Justice to Sexual Assault Survivors and the Devastating Consequences of “Tort Reform,” you will learn about recent civil cases filed after sexual violence by all types of assailants: Boy Scout leaders, clergy and religious instructors, doctors, Uber drivers, entertainment moguls, massage therapists, restaurant employees, school employees and students, security guards, and sports coaches.

But here’s what you won’t find in that 50-page report: a single case brought by a servicemember. That would include the nearly 15,000 (women and men) members of the military who are sexually assaulted each year, sometimes more than once. 

In every other instance of sexual violence, civil cases can be filed to help ease the financial burdens of an assault, expose abusers and provide a forum to hold perpetrators directly accountable. But if you are a servicemember, who pledged to die for your country and was raped while doing so, there is almost nothing you can do about it.

We have written about this before, but there are good reasons to remind us of the issue again, not the least of which is the change in Congress. It is up to Congress to fix this, and by “this,” we mean the Feres doctrine.

Feres is a 69-year-old policy – created out of whole cloth by the U.S. Supreme Court in 1950 – which bars U.S. military personnel from suing the government for personal injuries suffered while they are in the armed forces. It applies even in the case of a sexual assault. Read more about Feres here and in this great new article, Rethinking Feres, by Professor Andrew F. Popper of American University’s Washington College of Law. 

Dwight Stirling, the CEO of the Center for Law and Military Policy (CLMP) wrote about the injustice of this law shortly after Senator Martha McSally (AZ-R), the first female pilot to see combat, recently said she had been raped by her commanding officer. Noted Stirling,

Fearing career retaliation, some estimates say 90 percent of sex assault victims, like McSally, don't even bother to report.…

It is outrageous that sexual assault is characterized as an occupational hazard of military service. …The only way to fix the system is to empower the victims of military sexual assault to hold their assailants accountable in civil court …It is absolutely the only way.

In January, Rep. Jackie Speier, D-Calif., new chair of the House Armed Services personnel subcommittee, said this would be a priority issue for her. Writes Military Times,

[T]he panel’s guiding focus will be to tackle “critical issues that impact not only our service members but their families who also bear the burden of sacrifice and commitment to our country.”…

[T]he Feres Doctrine debate could lead to some of the most dramatic military policy changes to come out of Congress this year. Speier has been following a handful of court challenges to the legal precedent in recent months, and is planning a hearing on the issue early this session.

This couldn’t come soon enough!

Civil Justice – The Next Big Shiny Object?

Some may wonder why we write about issues that seem so obscure considering the tweeting mob boss in the White House, his allied dictators and fake national emergencies, the obsessions of cable news hosts (“can a sitting president be indicted after all?"). or pick whatever shiny “objet du jour” you like.

Indeed, while news-followers were fixated on Michael Cohen or maybe even Kim Jong-un this week, we watched as Congressperson and Senator after Congressperson and Senator introduced major new legislation – literally bill after bill - to ban the insidious use of forced arbitration clauses and class action waivers in consumer, employment and small business contracts.

Here's the coalition letter in support of the main piece of legislation, H.R. 1423/S. 610, the "Forced Arbitration Injustice Repeal (FAIR) Act." It has 147 House co-sponsors and 32 Senate co-sponsors, and counting. Wow! (See some coverage of the major news conference here, here, here.)

But being in such great company is not the only reason why we stay focused on the civil justice system. Here’s why we really do it.

In 2018, the U.S. Chamber of Commerce spend $95 million lobbying (far more than anyone else), a third of which was spent by the their “tort reform” branch (Institute for Legal Reform); the Chamber’s #1 issue in terms of lobbying reports was “torts;” the Chamber’s #1 bill was H.R. 985, the anti-class action bill, and Mayer Brown (their pro-forced arbitration law firm), led their outside lobbying expenditures. Liability and tort issues may not be shiny but they sure are big in Congress. We need to keep talking about them and hope someone hears.

That’s why we are proud to tell you about the new Loyola Consumer Law Review article from the Center for Justice & Democracy, which discusses the Chamber's push to pass that terrible class action bill in the last Congress, H.R. 985, showing it to be a corrupt and ultimately failed effort. The article shows how the forces actually running things in Congress, like the U.S. Chamber of Commerce, hope you never pay attention to us. They’d prefer to bulldoze over your legal rights with as little notice as possible, thank you very much. 

Not this time, suckas!

Our Love but Mostly Hate for Tech Companies

Have you noticed the latest TV craze? No, not sitcom reboots. Shows are trying to stick into their titles the most “scatological” of the “seven dirty words.” Schitt’s Creek, for example. Or the latest hilarious episode of Documentary Now, "Batshit Valley."

But when I think of that word, I think about how many tech giants really don’t give a “that word” about their customers. Now you might say “hey, didn’t Google just end their practice of forcing their employees to arbitrate all disputes in private, rigged arbitration systems?” Yes they did - after an vigorous and perilous effort by their employees. Writes Bloomberg:

The shift is a victory for Google employees who’ve been organizing on several fronts, including workplace harassment, the treatment of contract workers and what kind of work the company does for government and military groups. The Mountain View, California-based company won’t require third-parties that employ sub-contracted staff for Google to institute the same changes, though. About half of those in Google’s total workforce aren’t official employees of the company.

But it’s something, and it’s something the rest of the tech industry has not yet done (not to mention every other industry.)

But then again, how many times have you clicked “I have read and agreed to the Terms of Service” before conducting your latest online transaction, without any idea that the company just forced you, their loyal customer, into these same kind of "forced arbitration" agreements? That means you can’t sue them in court if, say, they use your personal data illegally or otherwise violate your privacy. Public Citizen put together this “Forced Arbitration Rogues Gallery,” so you can see some of the companies that make you "agree" to this. (Check out this article too, which cites a 2011 class action lawsuit that might be far more difficult to bring today over Google’s current products. The case, In re Google Buzz Privacy Litigation, led to an $8 million settlement with Gmail users “arising out of Google’s disclosure of personally identifiable information without authorization through the defunct site, Google Buzz.”)

We all know that tech companies do a terrible job protecting your privacy and can’t be trusted to self-regulate. That’s why last year, California enacted the California Consumer Protection Act, the strongest privacy law in the nation. As described by Consumer Watchdog:

It would, for instance, allow a private right of action – though with some limits -- in data breach cases.  No such right currently exists. The law ensures:

• The right of Californians to know what personal information is being collected about them.

• The right of Californians to know whether their personal information is sold or disclosed and to whom.

• The right of Californians to say no to the sharing or sale of personal information.

• The right of Californians to access their personal information.

• The right of Californians to equal service and price, even if they exercise their privacy rights.

• That businesses cannot sell personal information of consumers under the age of 16 without explicit consent.

Tech companies like Google fought this law, but they lost. And they are likely to lose again when California moves to close up certain loopholes in last year’s legislation, problems made clear by the recent massive Starwoods/Marriott hack.  Specifically, the bill would “expand[] the requirements for companies to notify users or customers if their passport and government ID numbers, along with biometric data, such as fingerprints, and iris and facial recognition scans, have been stolen.”

As Neema Singh Guliani, senior legislative counsel at the American Civil Liberties Union, pointed out in the Washington Post,

It has often been state legislatures — not Congress — that have led efforts to protect consumer privacy. California was the first in the nation to require that companies notify consumers of a data breach (other states have since followed suit), the first to mandate that companies disclose through a conspicuous privacy policy the types of information they collect and share with third parties, and among the first to recognize data privacy rights for children. Illinois set important limits on the commercial collection and storage of biometric information, such as fingerprints and face prints. Idaho, West Virginia, Oklahoma and other states have passed laws to protect student privacy.

But now, “companies like Amazon, Apple, Facebook and Google are pushing hard for federal digital privacy legislation in 2019, and not quite out of the goodness of their hearts. … Central to all these proposals is the notion that a federal bill should preempt any statewide legislation—like, say, California's—from taking effect.”  Some bills have already been floated.

As Guliani put it, “This seeming willingness to subject themselves to federal regulation is, in fact, an effort to enlist the Trump administration and Congress in companies’ efforts to weaken state-level consumer privacy protections."

And not only that. Imitating the (failed) strategy of Big Tobacco, tech companies are now pressuring Congress to pass some sort of “grand bargain” that would not only preempt state laws, but also would repeal:

…every other existing piece of federal privacy legislation, including landmark laws like Health Insurance Portability and Accountability Act (HIPAA) and Family Educational Rights and Privacy Act (FERPA). Every sector- or issue-specific privacy law would be removed, and state and local lawmakers would be unable to draft stricter, more specific regulations in the future.…

The Children’s Online Privacy Protection Act (COPPA) would be one of the repealed laws. It was authored by Sen. Ed Markey (D-MA) in the late ‘90s, and IT was one of the first pieces of legislation governing the collection of data. The law imposes requirements on companies when it comes to collecting data on children under 13 years of age, which has become a sticking point for a number of tech companies. Both Google and Facebook have been sued multiple times for violating COPPA, and the law is one of the main reasons many web services cut off at age 13.

“As Congress works to provide the American people with a comprehensive federal privacy law, we should build upon—not dismantle—existing safeguards,” Markey said, responding to ITIF’s proposal. “Getting rid of COPPA is literally like throwing the baby out with the bath water.”

Babies? What in the world does Google care about babies?

Happy President's Day!

Some things just speak for themselves.

When Negligent Hospitals and Doctors Aren’t Accountable, We All Suffer

The late Cornell Law School legal scholar, Theodore Eisenberg, once wrote this about the epidemic of medical errors in this country: 

One possible factor contributing to the continued high rate of errors is that doctors do not expect to bear the full cost of harms caused by their negligence. …and [h]ospitals do not bear the full costs of the harms caused in them even though hospitals directly and indirectly influence patients’ risk of medical error.

In other words, if you know you're not going to be held accountable for causing harm, might you be less careful? Lawmakers are often asked the question this way (if we might paraphrase): “With medical negligence still occurring at alarming rates in this country, is it a good idea or a bad idea to cap compensation to injured patients, and further reduce the accountability of negligent doctors and hospitals?”

The answer seems so obvious. However, such things are often hard to prove. But no more.

In 2014, we wrote about several just-released empirical studies showing that when a state caps damages for injured patients, the result is more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” These studies, which are not easy to do and in fact take years of data collection, have recently been updated. Damn if they don’t show the same thing. 

Just this week, SSRN published the newly-updated “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform," and once again, researchers found “that patient safety gradually worsens after cap adoption.” The authors found “strong evidence that a reduction in liability risk leads to a reduction in safety,” which “is consistent with general deterrence, in which lower liability risk leads hospitals to invest less in safety and physicians to be less careful in general.”  

To put it another way, “Liability for harm induces greater care and relaxing liability leads to less care.” Moreover, add the authors, “This paper also contributes to the literature on the deterrent impact of legal liability for personal injury more broadly.”

As to the impact of caps on health care costs, we covered another updated study in our last PopTort PopQuiz. Med Mal True or False Edition!  Here's the quiz question again:

TRUE OR FALSE?

1. After a state caps damages for the purpose of decreasing unnecessary tests and procedures (i.e., reducing "defensive medicine"), common tests like cardiac stress and imaging tests do, in fact, decrease.

False. Instead, such tests appear to increase, as does Medicare Part B lab and radiology spending. Researchers say,“If the policy goal is to limit healthcare spending, damage caps are simply the wrong tool.… [A] core message from our findings is that writ large, the ‘adopt damage caps, reduce spending’ story lacks empirical support. Instead, measures to reduce overtreatment will need to be carefully targeted to particular areas of concern.”

So, we good now? 

Tort Reform: Victimizing Assault Victims a Second Time Around

We are so happy to see that Sen. Rand Paul (R-KY) is enjoying the benefits of Kentucky's state Constitution, which prevents the state from capping non-economic and punitive damages for injured victims. (See Section 54.) Paul, you see, is suing his neighbor for both, for over a million dollars no less “in compensatory and punitive damages for his medical treatment and ongoing discomfort.” (Paul’s neighbor, Rene Boucher, pled guilty to felony assault, having attacked Paul as he hopped off his lawnmower.)(Update: Paul just won over half a million dollars.)

How fortunate that Paul, a leader in the “repeal Obamacare movement” who’s about to travel to socialized-medicine-Canada for hernia surgery (yes, you read that correctly), doesn’t live in neighboring Ohio or Tennessee. Those states cap both kinds of damages, protecting assailants and criminals who commit assault. A few years ago, we showed how devastating caps on damages can be to an Ohio assault victim: 

“Jessica Simpkins was raped at the age of 15 by her church pastor – a man hired by Grace Brethren Church in Sunbury despite the knowledge that he had previously sexually abused two girls. In a civil suit, a jury awarded Simpkins $3.5 million for pain and suffering, but the amount was reduced to $250,000 due to a state law that caps damages.” 

This is one of the dirty little secrets of “tort reform.” When a state caps damages, it usually covers every kind of personal injury case, including when injuries are the result of a criminal assault. That includes situations where your neighbor beats you up. It also includes cases of sexual assault. It also includes the sexual assault of children. Which brings us to our next story.

When it comes to sexual assault especially of children, there is another tort limit that often blocks the ability of survivors to sue: overly-restrictive state statutes of limitations. Most state laws require someone to file a lawsuit within a very short period of time of their assault. Gradually, states are starting to lift those restrictions for sexual assault survivors – particularly for child victims. New York is the big story on this today.

For years, as we’ve covered before, the New York Senate had blocked bills to increase the state’s archaic statute of limitations in these cases. Then the 2018 elections happened, and the clouds parted. So this week, the NY legislature finally passed the Child Victims Act (which the Governor will sign soon): 

The Child Victims Act will allow child victims to seek prosecution against their abuser until the age of 55 in civil cases, a significant increase from the previous limit of age 23. For criminal cases, victims can seek prosecution until they turn 28. The bill also includes a one-year window during which victims of any age or time limit can come forward to prosecute.

"New York has just gone from being one of the worst states in the country to being one of the best," in terms of the statute of limitations for child sex abuse cases, said Marci Hamilton, CEO of Child USA and a professor at the University of Pennsylvania.

Fortunately, New York does not cap damages for injury victims. But too many states do. Time to start changing those laws, too.

The First Annual PopTort Film Festival!

It’s January, so like much of the country we’re cold and staying in. But luckily, there’s a small critical mass of really excellent documentary films available to watch at home, which cover issues of great concern to PopTort readers (and our mothership, the Center for Justice & Democracy). So with that, start poppin’ the popcorn as we introduce The First Annual PopTort Film Festival!

 

Bleed Out. When if comes to medical malpractice, there’s no better film than Bleed Out, by our friend Steve Burrows. The film is on HBO, and streaming on HBO Now and HBO Go. 

At times funny, at times tragic, this entertaining and completely relatable story shows: how medical errors and negligence destroy patients' lives and ruin families; in incredible detail the astronomical medical costs of negligence including costs to taxpayers; the stupidity of “tort reform” and the enormous challenges facing lawyers and clients trying to bring cases especially where tort limits exists; and the completely messed up health care system made far worse by the colossal number of preventable errors. 

Marty Makary of Johns Hopkins, who first figured out that medical errors are the third leading cause of death, is the film’s expert. You can find many of his articles in the Center for Justice & Democracy's Medical Malpractice Briefing Book. By the end of the film, you how the system can allow crooked, lying, unethical health care providers to get away with horrendous negligence, and is rigged against injured patients and their families. 

 

By the way, there’s another new patient safety documentary out, called To Err is Human, which you can rent on various streaming services including iTunes and Amazon Prime. We have not seen this film yet – it may be more aimed at medical audiences based on the screening schedule. But it is endorsed by our good friend Helen Haskell, Founder of Mothers Against Medical Errors, who is a great advocate for patient safety and protecting the legal rights of injured patients.

 

The Devil We Know, which you can stream on Netflix or rent on various streaming services.This film tells an unbelievable story that we started covering at the ThePopTort in 2008 and through the next seven years, about how Dupont knowingly polluted water supplies of two West Virginia and four Ohio water districts with C-8, the chemical used to manufacture Teflon, and then tried to cover it up.” (Actually, by now they’ve poisoned 99% of humanity.) The film includes a few friends of ours, including brilliant West Virginia lawyer Harry Deitzler, who figured out how to create a valid epidemiological study to nail Dupont by using “the $70 million health and education fund from the [class action] settlement to pay people $400 each to participate” in it. Gotcha, Dupont!

 

The Bleeding Edge, on Netflix. The Bleeding Edge is to dangerous medical devices what Bleed Out is to medical malpractice. Two great films with blood in their title. If you're confused, watch both! We covered The Bleeding Edge last summer. Here’s what we said then – and repeat now:

[There is] a compelling (yet terrifying) new “must-see” documentary now streaming on Netflix called “The Bleeding Edge.” Here’s the Los Angeles Times’ lead paragraph about it:

If body-horror auteur David Cronenberg had dramatized any of the nightmarish stories in Kirby Dick and Amy Ziering’s medical documentary “The Bleeding Edge,” you wouldn’t hesitate to call it a fright film. Such is the grim impact of this investigative, wince-inducing examination of the $400 billion medical device industry, which routinely sends FDA-approved products into the marketplace for use on and in patients without any rigorous clinical safety-testing on humans.

The film shows us the results of this corruption. Not pretty.

 

Dirty Laundry, now available on Vimeo on Demand, is a powerful expose of the vile asbestos industry. The filmmakers tell a very personal and entertaining story, through which they show, “the stark reality of corporate dissembling and apparent disregard for lives lost, and lives still being placed at risk, from the continued manufacture and use of asbestos, the creation of open asbestos waste sites, and the reckless excavation of contaminated ground.”

 

Fahrenheit 11/9, now streaming on Amazon Prime and other places. We recommend this film mainly for the startling explanation of the Flint water crisis, which we’ve covered often (e.g. here here.) (There are other good parts, but allow us to rant a bit. Some parts of the film seem very naive, such as its negative portrayal of hero-of-the-moment, Speaker Nancy Pelosi, ridiculing her as part of an ineffective resistance to Trump. PopTort insiders have always known of her behind-the-scenes genius even when she wasn’t speaker. I can only think these filmmakers were unaware of this and maybe have now woken up to it? Case in point: she ensured that her party stuck together to oppose anti-civil justice bills rammed through the House in early 2017. Because (in part) these bills passed with virtually no bi-partisan support thanks to her leadership, they came to the Senate in a severely weakened state. In fact, none were ever brought up again despite being rushed through the House as high-priority items for the U.S. Chamber of Commerce. Wish the filmmakers understood a little better how Congress works.)

 

Hot Coffee. Finally, there’s the 2011 HBO film, Hot Coffee – an oldie but goodie, which you can still rent on Amazon or stream on Amazon Prime.  We’ve said so much about this film already so if you’ve forgetten, you can read this - or just watch the trailer:

 

So PopTort fans.  Any other film suggestions? Just let us know! 

The Tyranny of an Arcane Federal Law

Many important parts of your life – cell phones, bank loans, credit cards, virtually any online transaction, employment -  are controlled by companies that require you to agree to contracts with “forced arbitration” clauses. You probably have no idea that you’ve agreed to one. It prevents you from going to court to resolve a dispute, instead forcing you into a private, rigged system designed and controlled by the companies themselves.

It wasn’t too long ago that unfair, one-sided forced arbitration clauses were routinely struck down by courts.  Here’s a 2010 employment case, for example, where the Third Circuit Court of Appeals ruled: 

In our view, the pervasively one-sided nature of the arbitration agreement's terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution. Instead, the employer created a system that was designed to give it an unfair advantage through rules that impermissibly restricted employees' access to arbitration and that gave the employer an undue influence over the selection of the arbitrator.

But in 2011 the U.S. Supreme Court invoked an obscure law – the Federal Arbitration Act of 1926, nearly a century old and written to facilitate voluntary arbitration between businesses - and said it proved Congress intended some sort of “preference” for arbitration over constitutionally-protected legal rights. It found no problem with companies writing such clauses as unfairly as they liked, forcing consumers and employees with no bargaining power into agreeing to them, and placing at risk private enforcement of many laws where Congress expressly provided to right to go to court. Laws like the Civil Rights Acts of 1964 and 1991, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Equal Pay Act, the Uniformed Services Employment and Reemployment Rights Act, the Sherman Act, the Truth in Lending Act, and the civil provisions of the Racketeer Influenced and Corrupt Organizations Act.  And hundreds of state laws, as well. And on and on.  No court could do anything about it, and no state could fix it no matter how much they wanted to protect their own residents from illegal corporate behavior.

While some of the initial pro-arbitration decisions were close 5 to 4 votes, the pro-arbitration reasoning is now incredibly entrenched. So much so that a couple weeks ago, a unanimous SCOTUS backed Brett Kavanaugh's first written opinion, essentially finding that the 1926 law prevents a court from interfering with the workings of an arbitration clause even “if the court finds the arbitrability claim ‘wholly groundless.’”

So what are we left with? Not much. But lucky for us, the 1925 Congress - elected when the nation was obsessed with such transportation advancements as the Model T but apparently now controls us all (pictured here) - was concerned about a few things. So it placed exemptions in the law, specifically: “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Well, the U.S. Supreme Court just had a chance to decide whether those literal words meant anything.  Apparently, even this Court – in the words of Neil Gorsuch - was forced to acknowledge that they did. As Slate wrote, “Together, Public Justice [which represented the plaintiff] and the Constitutional Accountability Center provided enough arcane evidence to satisfy Gorsuch” of this. But it took, among other things, something like six early 20^th Century dictionaries to convince him.

As Slate notes, “The justice’s preoccupation with 1925 linguistics is so extreme that it spurred Justice Ruth Bader Ginsburg to write a brief concurrence noting that Congress can ‘design legislation to govern changing times and circumstances,’ using words whose meaning may ‘enlarge or contract [in] scope’ as society progresses.” 

For all you legal eagles out there, here is specifically what RBG wrote in her short concurring opinion:

Congress, however, may design legislation to govern changing times and circumstances. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 14) (“Congress … intended [the Sherman Antitrust Act’s] reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic potential.’” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731‒732 (1988))); SEC v. Zandford, 535 U. S. 813, 819 (2002) (In enacting the Securities Exchange Act, “Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor … Consequently, … the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” (internal quotation marks and paragraph break omitted)); Northwestern Bell Telephone Co., 492 U. S. 229, 243 (1989) (“The limits of the relationship and continuity concepts that combine to define a [Racketeer Influenced and Corrupt Organizations] pattern … cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a ‘pattern of racketeering activity’ exists. The development of these concepts must await future cases …”). As these illustrations suggest, sometimes, “[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U. S. 212, 218 (1999).

Congrats to Public Justice for winning this case. If they hadn’t, we’d know that things were even more corrupt than we thought at the U.S. Supreme Court. Now, if only the full Court would follow RBG’s sage advice and fix its earlier decisions. Ah, to dream.