ThePopTort

Wrapping Up the Year! (Things Can Only Get Better)

It’s about time for a 2019 wrap-up story. Seems like a good time to review the state of the federal judiciary, which Mitch McConnell is clearly trying to ruin. Lucky for us, both Reuters and Slate have already done some of the job for us. Just wish the headlines were better!

Here’s Slate: “The Decade Class Actions Were Gutted.” 

And here’s Reuters. “Why big business can count on courts to keep its deadly secrets.” Let’s start there.

Three Reuters reporters just published a huge investigative report about where we are when it comes to the “routine use of protective orders, sealed documents and other tools of concealment [that have] wrapped U.S. courts in lethal secrecy.” To summarize, over the last few decades, “big business and its legal lieutenants succeeded in a focused, concerted campaign that has ensured that secrecy cloaks lawsuits alleging that their products can kill or injure people.”

The reporters describe how the corporate defense bar, with “ready support from judges and court staff,” transformed our open civil courts to one where the evidence of defective and dangerous products remain hidden as people continue to be killed and injured.

Yet it didn’t have to be that way. Yes, over the last few decades and even before, corporate defense lawyers have argued that disclosing health and safety information violated corporate privacy. But things got really bad after 1984. That's when U.S. Supreme Court Justice Lewis F. Powell Jr., longtime tobacco defense lawyer, wrote one line in a 1984 Supreme Court decision that became the legal foundation for the entire corporate movement to institutionalize secrecy. Notably Justice William Brennan asked him to leave out that line. He refused.

Then, “The defense bar’s leading trade group, the Defense Research Institute, published a 1987 guide citing the Supreme Court’s decision and urging corporate litigators to seek protective orders “even where defense counsel can make no special claim of confidentiality.” And judges went along with it, sealing evidence “relevant to public health and safety in dozens of the biggest defective-product cases consolidated in federal court over the past 20 years.” As a result,

Hundreds of thousands of people were killed or seriously injured by allegedly harmful products after judges in recent years allowed litigants to file under seal, beyond public view, evidence that could have alerted consumers and regulators to the dangers. The secrecy allowed drug makers to market painkillers as safe while the body count from the opioid-related epidemic mounted; auto makers to sell cars with lethally weak roofs that killed people in rollovers though tests had years earlier revealed the risk; gun maker Remington to knowingly sell rifles with bum triggers that killed scores of people.

Now for Slate’s “The Decade Class Actions Were Gutted.” Most of this article is about the destruction of our rights due to widespread use of forced arbitration and class action waivers, and in particular, the damage done by the U.S. Supreme Court majority in upholding the validity of even the most unfair and egregious clauses. The court’s liberal wing, particularly RBG, has strongly dissented in these cases. We have covered this issue extensively. But here’s a perspective that we find new and important:

When progressives critique the Supreme Court, they rarely mention these cases. Many liberal advocacy groups embrace attorneys who advance progressive causes in their pro bono work, even if those attorneys turn around and undermine those causes in their day jobs.

One predictable result is that the liberal legal community focuses on objectives like reproductive rights and LGBTQ equality, which corporate America already supports. Consumer welfare and workers’ rights are put on the backburner, partly to avoid alienating superstar litigators—and deep-pocketed law firms that provide financial support to progressive [groups].…

Corporations have not been more powerful, or less accountable, since the Gilded Age. Class actions at least gave everyday Americans a fighting chance at justice when big business screwed them over. The Supreme Court has enabled rich companies to play by a different set of rules than the rest of us, picking winners—CEOs, bank executives, white-shoe law firms—and losers. 

By the way, every law student reading this who wants to fight back should attend the first annual People’s Parity Project National Convening next February in Washington, D.C. THAT is how things will get better!

Asbestos, The Non-Partisan Killer

Asbestos has been killing Americans - and industries have been covering up asbestos disease - since at least the early 1900s. (See the complete story here.) Nearly the entire industrialized world bans asbestos but not the United States. Perhaps we shouldn’t be surprised to find this lethal substance making news yet again, yet we genuinely are. 

This week, asbestos news stories have ranged from the predictable to the unusual to the extraordinary. Let’s start with the predictable. 

A physician who treats dying asbestos victims just warned that “anyone who worked at Portsmouth [Maine] Naval Shipyard or was in the Navy prior to 1975 may have been exposed to asbestos [because].… ‘[T]hey threw asbestos on everything,’ he said.” Then there’s the idiot contractor hired by Kodak that sprayed asbestos near Kodak workers. One dying victim just got a jury verdict to help his family after he’s gone (dead) in a few months. And Ford is trying to reduce a Delaware verdict for victims against the car company.  No real surprises there.

Next, the unusual. In 2017, Massachusetts Attorney General Maura Healey launched an initiative called Healthy Buildings, Healthy Air in 2017, “to enforce safety laws relating to asbestos and raise awareness for how dangerous the substance is.” Healey’s office just reported some of the program’s successes, including obtaining “more than $3.4 million in penalties for state asbestos law violations,” and resolving cases “against 35 defendants” for violations that were documented at “schools, nursing homes, community centers, and more.” Those are just some highlights.

Finally, the extraordinary. There is really no other way to describe the new Reuters investigation about the 50-year deliberate failure of the federal Food and Drug Administration to remove asbestos from Johnson & Johnson baby power. Said Reuters:

Over the past 50 years, the FDA has relied upon–and often deferred to–industry even as outside experts and consumers repeatedly raised serious health concerns about talc powders and cosmetics, a Reuters investigation found.

Again and again since at least the 1970s, the agency has downplayed the risk of asbestos contamination and declined to issue warnings or impose safety standards, according to documents produced in court proceedings and in response to public records requests.

Some of facts here are extremely disturbing:

The FDA began looking into talc safety in 1971 after researchers at Mount Sinai Medical Center in New York found what appeared to be asbestos in unnamed brands of talc powder.

Two years later, FDA records show, the agency found asbestos in a sample of Shower to Shower, a J&J powder at the time that was made with the same talc as Johnson’s Baby Powder. The FDA never publicly announced the finding.

J&J told Reuters the result was not final, citing findings in an FDA table issued in 1976. But that table, reviewed by Reuters, is ambiguous, listing no result for the type of asbestos found in 1973. J&J told Reuters the gap means no asbestos was found.

That same year, J&J, other talc companies and their trade group, the Cosmetic Toiletry and Fragrance Association, persuaded FDA officials that manufacturers could monitor the safety of their own products, according to records J&J and the group produced in litigation.

 The FDA dropped plans to impose testing and purity standards for talc powders and cosmetics. The trade group published its own test, which was voluntary for companies to use. The written standard for that test acknowledges that it cannot detect most types of asbestos at low levels, nor one common type–chrysotile–at all.

In a statement to Reuters, the trade group said it believed that chrysotile was not commonly linked to talc used in cosmetics.

Chrysotile is the type of asbestos the FDA-commissioned test found in Baby Powder this year. It also was found in several tests conducted by labs for J&J on its talc from 1972 through 2003, according to records produced in litigation.

For everyone so very focused on our current President, it’s important to remember that the FDA under every President since Nixon is implicated or complicit here. One is as captured by industry as next. Sad to say.

Amtrak’s Lawsuit Hypocrisy Problem

Everyone should have the right to use the courts. Even Amtrak. We know that U.S. Senator Dick Durbin (D-IL) shares this sentiment.This week, he introduced a bill called the Rail Passenger Fairness Act, which would give Amtrak the right to “sue freight railroads if it believes that they are failing to give preference to passenger rail operating on their rail lines.” 

Senator Durbin’s move apparently follows a recent report from Amtrak’s Office of Inspector General, finding that when Amtrak trains are late (27% of time), freight interference is to blame nearly 60% of the time. Amtrak President & CEO Richard Anderson called Durbin’s bill a “critical piece of legislation” that puts people first.

Excuse me while I throw up in my mouth a little bit.

This is the same Richard Anderson who had just testified at a House Subcommittee on Railroads, Pipelines and Hazardous Materials hearing on Amtrak’s reauthorization, during which he strongly and arrogantly defending Amtrak’s decision this year to strip every single one of its passengers of their right to go to court.   

As Politico wrote earlier this month, in January, Amtrak “quietly added to its ticket purchases” a new provision that forces any kind of dispute with Amtrak – even mass casualty accidents - into arbitration "with no right to go before a judge or jury.” Writes Politico,

The change is bringing objections from consumer advocates, who note that it covers scenarios ranging from ordinary ticketing complaints up to wrongful death, and even includes minors who had the tickets purchased for them. And it could soon get Congress' attention.

Similarly, Ed Perkins wrote in the Chicago Tribune this week,

Say you've been hurt in a serious train accident and you want to sue Amtrak for damages. You go to a lawyer, and the lawyer tells you, "Sorry, I can't take the case. You signed away your rights to sue when you bought your ticket." .…

Why arbitration? Simple: Corporate lawyers know that arbitrators are a lot stingier with monetary damages than juries are.

Several House members spoke up against this policy at the November hearing. Congressman Stephen Lynch (D- MA) observed that this outrageously broad provision even blocks claims when someone is grossly disfigured in a crash, or killed. He also noted that forcing cases into secret, rigged arbitration following crashes creates disincentives for safety. Anderson pushed back, defending what he’s doing by essentially arguing that everyone’s doing it (not true at all for injury and death claims) and passengers just love arbitration (wildly untrue by huge numbers). Congressman Lynch asked Jack Dinsdale, National Vice President of the Transportation Communications Union, what he thought of the idea. Dinsdale responded that all it will do is “make passengers question whether they want to board the train.” It is “telling me right away you don’t have my safety as a concern.” 

In other words, by refusing to allow people into court when Amtrak harms them and forcing people to resolve cases in company-controlled secret systems, it’s telegraphing to the public that Amtrak simply can’t stand behind the safety of its trains. This is perhaps no wonder considering Amtrak's ongoing safety problems. 

Congress has already limited Amtrak’s liability in mass casualty accidents. Now the company wants to completely pull the “legal rug” out from under every single passenger. Neither taxpayers nor passengers deserve treatment like this. (In case you didn’t know, Amtrak gets $2 billion a year from U.S. taxpayers). Congressman Lynch said forced arbitration is a “disservice to the passengers we care about and reflects a downward spiral.” Putting it mildly. 

John Conyers’ Unique Civil Justice Voice Will be Missed

Yesterday was the funeral for former U.S. Representative John Conyers, who died last Sunday. A “lineup of political, entertainment, religious and sports leaders” paid tribute to him and his “remarkable 53-year” tenure in Congress, where he “compiled a near-record legacy of civil rights activism, longevity and advocacy for poor and underprivileged people.” But to us, he was also a civil justice hero.

Here are three instances where John Conyers stood up and stood out in a way that was truly unparalleled on Capitol Hill.

1. On February 11, 2003, when Republicans were running Congress and were pushing federal legislation to drastically cut the legal rights of medical malpractice victims, we brought some 50 families from 26 states to DC to lobby against the bill. Mr. Conyers decided he wanted to give some official voice to these brave people.  So he decided, on his own, to hold a House Judiciary Committee “rump” hearing. “Rump” because he was the ranking member – not the chairman.  He had no real power to hold a hearing. Nonetheless, he was able to get a hearing room in the Rayburn House Office Building, organize a forum over which he presided, allowed each one of these survivors to testify and tell their story, and got C-Span to cover it live. He began with these modest remarks:

Good morning, everyone.  We're meeting here today with friends from on and off the Hill about medical malpractice.  It's a forum, and we're going around the room just so that everybody -- I'm sorry I can't offer everyone coffee and doughnuts or brunch or whatever happens at this hour of the day in your area.

We want to kind of get to know who's talking besides just a name, and so I want to introduce myself as John Conyers from Michigan.  I'm on the Judiciary Committee.

And so it began. 

It went on for hours, with some of the most moving testimony we – and committee members – had ever heard.  Senators and Members of Congress told us repeatedly that the efforts of these survivors were a major factor in finally stopping the bill. This hearing was part of that.

2. Upon release of the Center for Justice & Democracy’s 2004 study, “Tort Reform” and Racial Prejudice: A Troublesome Connection, Mr. Conyers spoke out about this issue in a way that few others on Capitol Hill would dare. He explained in a news release, “The dirty little secret of the so-called tort reform movement is that it is premised on racist notions, and would have a massively disproportionate impact on African Americans, Hispanics and other minorities.… The restrictions on non-economic damages included in the Republican medical malpractice [bill] will also have a severe and disproportionate impact on minorities.” He was right. And as noted above, the legislation was eventually stopped.

3. Finally, in 1997, Congress passed the Volunteer Protection Act, which immunizes nonprofit volunteers from negligence.  In a last-minute move, Congress exempted from the federal bill’s scope immunity for volunteers of hate groups.  In other words, anyone volunteering for a group like the Ku Klux Klan, let’s say – which is a non-profit organization – cannot be insulated from liability under federal law.

But while articulating a clear congressional policy to make hate group volunteers fully liable for their negligence, Congress refused to close the preemption loophole that allows states to immunize them instead -- even if they do so inadvertently.  Mr. Conyers was the one most concerned about this oversight and he tried to correct it.  He brought it to the attention of his fellow legislators, who promptly ignored him. 

In dissenting remarks to the House of Representative’s report on the bill, Conyers and his Democratic colleagues quoted directly from a May 16, 1997, letter from the Southern Poverty Law Center explaining the significance of this problem:  “Under this legislation … a state could maintain or reinstate protections for volunteers of white supremacists, neo-Nazi and violent militia groups – the types of organizations the Southern Poverty Law Center has crippled over the past ten years through the use of both federal and state tort laws.” As Conyer’s put it, “if a particular state provides across the board immunity to volunteers, [the federal law] continues to allow a member of a militia or hate group who negligently entrusts a gun to a child (who in turn harms an innocent victim) to avoid responsibility for negligent entrustment.  This is not appropriate.” Indeed.

While Mr. Conyers has been out of Congress for a couple years now, it’s still hard to believe he’s gone. His voice is already greatly missed. Rest in Peace.

Litigation Shouldn’t Be Necessary - But It Is, and Our Founders Knew It

Very few injured Americans file lawsuits. Granted it’s been awhile since anyone took an empirical look at the numbers, but when Rand’s Institute for Civil Justice did so 1991, researchers found that only 2 percent of injured Americans file lawsuits. The National Center for State Courts recently provided another perspective: “Tort cases garner a great deal of public interest but generally account for only about 4 percent of [state court] Civil caseloads….” 

It takes a lot for someone to bring a lawsuit. Those who do have good reason. Parents may need compensation for a catastrophically-injured child. Someone suffering discrimination or assault might seek justice because other systems have failed them. Others may sue to stop corporate or professional misconduct, to prevent others from suffering the same way. There are lots of possible reasons why people go to court, but the one underlying truth is that few injured people actually ever do it. And that’s even though more and more people are getting injured as corporate misconduct and professional negligence increase.  

Take healthcare, for example. Two stories this week explain two extremely disturbing new trends that scream out for legal accountability. First, according to a Bloomberg story titled “When Wall Street Took Over This Nursing Company, Profits Grew and Patients Suffered,”

Under the control of two prominent private-equity firms, Bain Capital LP and J.H. Whitney Capital Partners LLC, Aveanna [Healthcare] has left a trail of injury and death in some of the biggest states where it does business.…

At least seven children have died in Texas, Pennsylvania and Colorado. In these fatalities, reported over the past year, health officials found that Aveanna’s nurses failed to check vital signs, follow emergency procedures, appear for their shifts or give the proper doses of medicine.…

[I]nternal company documents reveal financial incentives that favor corporate growth and cost-cutting over clinical care. In interviews, more than a dozen former Aveanna employees described how the pressure to meet financial goals jeopardized the quality of care for children.

Second, in the Washington Post, a story ran titled, “Health-care system causing rampant burnout among doctors, nurses; As many as half of all clinicians suffer from the problem, creating risks to patients, malpractice claims and absenteeism, study finds.” The title says it all.

Of course, health care is far from the only problem area. For example, last week a “damning report” was released from a multiagency task force that heavily faulted the Federal Aviation Administration for actions that led to two Boeing crashes in five months, killing 346 people. They found, among other things, that the FAA “relied heavily on Boeing employees to vouch for the safety of the Max and lacked the ability to effectively analyze much of what Boeing did share about the new plane.”

The Center for Progressive Reform’s recent report, “Regulation as Social Justice,” discusses “four broad contributing factors that help explain the current weakened state of the U.S. regulatory system: weak and outdated laws; unnecessary implementation barriers facing agencies; excessive corporate influence; and obstacles to meaningful public participation.”

Some of the problem stems from the growth of dark corporate money into our democracy. Since the 1980s, corporate lobbyists, using a gross imbalance of advocacy resources, have made tremendous strides weakening safety laws and standards for prevention of harm and protection against hazards. If you suffer discrimination or are harmed by toxic air, leaded drinking water, unsafe products, dangerous workplaces, or cheating banks, you likely lack the wealth or power to meaningfully participate in the legislative or executive branches of government to correct those problems or get some relief.

So it’s left to the third branch, the courts. The courts have and continue to provide a check on official or arbitrary misuse of power, corporate abuses, violations of civil liberties and civil rights and even the actions of violent criminals when, as often happens, the criminal justice system fails victims. (See, e.g., Center for Justice & Democracy studies such as Lifesavers, a Guide to Lawsuits that Protect Us All; First Class Relief, How Class Actions Benefit Those Who Are Injured, Defrauded and Violated; and, The Importance of Civil Justice to Sexual Assault Survivors and the Devastating Consequences of Tort Reform.

Because money and politics dominate the executive and legislative branches, we end up seeing stories like today’s, “Consumer Class Actions Nearly Tripled in the Past Decade” … “with cases over data privacy and unwanted text messages behind the increase.” As Laura Hopkins, a legal data expert at Lex Machina, put it, “You could classify that as more catastrophic events are happening to a large group of people.” In fact, access to the courts may be more important today than ever, with regulatory oversight of bad corporate actors or corporate practices virtually ground to a halt in many areas.

As the CJ&D reports (mentioned above) show, lawsuits have led to changes in the design and manufacture of automobiles, defective firearms, aircraft, consumer products, drugs and medical devices too many to name, particularly those designed for women, hospital and medical procedures, swimming pool drains, chain saws, tractors, lawn punch presses. Lawsuits have bankrupted hate groups, exposed police and other official misconduct, improved public and workplace safety.

Lawsuits have also exposed and held accountable entire industries engaged in massive corporate crimes and coverups, with tobacco being one well-known example but also product liability litigation that exposed a lethal 50-year coverup by the asbestos industry that led to millions of deaths. Some have equated what the asbestos industry did to mass murder. And as we recently reported, the ongoing opioid litigation is another example where courts have stepped in to hold accountable an industry that profited from knowingly fraudulent and dangerous marketing and sales activities resulting in a public health crisis with which we are all familiar.

It’s not surprising, then, that corporations that may have blocked regulatory oversight only to be forced to change their practices because of lawsuits, are constantly attacking judges and juries that rule for victims and plaintiffs. This strategy has been part of the so-called ”tort reform” movement since at least the 1980s. But there are reasons why they will not and should not succeed. Unlike other, weaker democracies which have abolished the civil jury, the jury's roots are deeper here. The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. 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.)

As the late U.S. Supreme Court Chief Justice William H. Rehnquist once put it, “The right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence.... A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded....” 

And that’s true whether or not we ever go to court.

The Fox Guarding the Pig House

The U.S. Department of Agriculture says it exists to do things like "help rural America to thrive” and “promote agriculture production that better nourishes Americans” and “preserve our Nation's natural resources through conservation, restored forests, improved watersheds, and healthy private working lands.” Let’s see what their mission actually means to them!

On October 10, more than 84,000 petition signatures were delivered to the agency following the USDA’s Spring announcement that it intended to weaken anti-trust laws and rights that family farms have over the livestock and poultry industries. Said Joe Maxwell, Executive Director of the Organization for Competitive Markets:

“USDA has a responsibility to work with America’s farmers and ranchers and not the monopoly corporations. USDA is the regulator over monopolies. [Agriculture] Secretary Perdue needs to keep with USDA’s long held position and stand with farm families. Farmers need the ability to bring an action against monopolies under the Packers and Stockyards Act when they have been financially harmed without having to show the whole sector was harmed."

Coincidently, this was just as Perdue was waxing poetic in Wisconsin about family dairy farms, saying “that he doesn’t know if the family dairy farm can survive as the industry moves toward a factory farm model. ‘In America, the big get bigger and the small go out.’”

But hey, why stop at demoralizing just family dairy farmers? According to a story in Politico today, climate catastrophe for farmers is just around the corner and the USDA is doing nothing about it:

American farmers are reeling after extreme rains followed by a “bomb cyclone”— an explosive storm that brought high winds and severe blizzard conditions — ravaged the heartland, turning once productive fields into lakes, killing livestock and destroying grain stores. The barrage of wet weather across the country this spring left a record-shattering 20 million acres unable to be planted — an area nearly the size of South Carolina. Other weather-related disasters, from fires in the West to hurricanes in the Southeast, have converged to make the past year one of the worst for agriculture in decades.

But the Agriculture Department is doing little to help farmers adapt to what experts predict is the new norm: increasingly extreme weather across much of the U.S. The department, which has a hand in just about every aspect of the industry, from doling out loans to subsidizing crop insurance, spends just 0.3 percent of its $144 billion budget helping farmers adapt to climate change, whether it’s identifying the unique risks each region faces or helping producers rethink their practices so they’re better able to withstand extreme rain and periods of drought.

Even these limited efforts, however, have been severely hampered by the Trump administration’s hostility to even discussing climate change, according to interviews with dozens of current and former officials, farmers and scientists.

Meanwhile last month, the USDA “published a final regulation that privatizes and deregulates swine slaughter inspection, ignoring repeated calls by food safety, labor and animal welfare groups to include better safeguards for consumers, workers, and animals.” In addition, “the agency is also pressing forward without a commitment to issue new federal testing standards for monitoring Salmonella or other pathogens in meat.”  And as if this couldn’t get worse, the Office of the Inspector General is also investigating whether agency “concealed worker safety data during the rulemaking.” We should all be concerned about this because the Centers for Disease Control estimates that more than half a million get sick - and 82 die each year – “from foodborne illness attributable to pork.”

Fortunately, the United Food and Commercial Workers (UFCW), has now sued over this rule “on behalf of 30,000 pork plant workers nationwide, not[ing] that meatpacking workers are injured more than twice the average for all private industries.”

“Thousands of our members work hard every day in America’s pork plants to help families across the country put food on the table. Increasing pork plant line speeds not only is a reckless giveaway to giant corporations, it will put thousands of workers in harm’s way,” said Marc Perrone, president of UFCW. “This new rule also would dramatically weaken critical protections that Americans depend on to be able to select safe, healthy food to feed their families every day.”

So how’s the USDA doing? For helping rural America to thrive, better nourish Americans and preserve our Nation's natural resources? Grade “F” (for Fox) seems about right.

We Mourn the Loss of Two Trial Lawyer Giants This Year

Michael Koskoff

Tommy Malone

 

 

 

 

 

 

 

 

 

Last week, the legendary Georgia trial lawyer, Tommy Malone, died after “after a long and courageous battle with cancer that he never quit fighting.” Read about Tommy here.

Earlier this year, the extraordinary Connecticut trial lawyer, Michael Koskoff, died after a bout with pancreatic cancer. (See this Hartford Courant feature about Mike last weekend.)

ThePopTort and the Center for Justice & Democracy are practically at a loss for words over this double blow but we'll try.

Both Tommy and Mike touched so many people in so many ways, which the articles cited above describe. But their passing has also been a personal loss to us at ThePopTort and the Center for Justice & Democracy.

We met both many years ago in the midst of some very tough national and state "medical malpractice tort reform" battles. We have emails from both Mike and Tommy dating back well over a decade, full of offers of help and words of encouragement during that time - and ever since. From Tommy: “You and your work are increasingly valuable and appreciated,” “Thank you very much for this great work,” and “We very much appreciate all that you do.” From Mike: "Keep up the good work," “You are the best!,” "You are doing great work and we are proud to support you."

Just knowing they were there, supportive, optimistic, and supremely confident in our abilities without questions asked, meant everything. Most people have no idea what that kind of support means to an organization like ours.

Even though we did not speak regularly with either Tommy or Mike, their inspiration infused our work. As we told Mike’s family earlier this year (and the same goes for Tommy), in fighting for justice, sometimes we get knocked down, perhaps more than we should. But the important thing is to get back up, stay positive and keep going. That’s what they did. And following their examples, that’s what we try to do, too.

We join their families, friends and colleagues and mourn their passing - as we get back up, stay positive and keep going. Just like they would do.

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.

When Industries Commit Mass Murder, Civil Justice Steps in

For most people, the term “mass murder” conjures up thoughts and images of mass shootings, which occur more frequently now than there are days in the year. But there’s another kind of mass murder that involves no guns, blood, or violence at all. The corporate kind.

Take asbestos poisoning. For most of 20th century and to the present day, asbestos companies have lied about the lethal hazards of their product and fought (and continue to fight) anyone who brings a claim. Industry’s decades-long cover-up of wrongdoing has led to millions of deaths (with more each year). Author Paul Brodeur called the asbestos industry’s conduct “corporate malfeasance and inhumanity to man which is unparalleled in the annals of the private-enterprise system” and “perhaps the greatest corporate mass murder in history.” (See more here.) 

In the first half of the 20th century, asbestos and insurance companies lobbied to change workers’ compensation laws to protect themselves from litigation (workers compensation laws strip workers of their right to sue). Eventually, trial lawyers figured out that manufacturers could and should be liable under products liability laws. In the 1970s, they began to try that innovative theory in court.  At the time, no one had any idea that the industry knew about the link between asbestos exposure and disease. Without such evidence, trial lawyers lost many early cases, failing to even get before juries, getting paid nothing and going into debt. But they kept at it. After nearly a decade of difficult discovery, which the industry fought at every turn, these attorneys were finally able to piece together a record, and start getting some type of justice for victims.  As we now know, this record told a story of shocking corporate misconduct going back five decades.

Then there’s tobacco. The tobacco industry lied about the lethal hazards of their product and fought (and continue to fight) anyone who brings a claim. (Sound familiar?) As a result of Big Tobacco’s hideous corporate behavior, billions have died and continue to die worldwide. In 1983, the first-ever jury award came down against the tobacco industry for causing a smoker’s death. At that point, the industry freaked-out and began lobbying for product liability legislation to immunize itself from suit. A number of states passed such laws. 

So states began challenging the tobacco industry with a different strategy. Rather than representing individual smokers, they sought to recoup health care costs due to smoking-related illnesses. They argued that the tobacco industry had profited from knowingly fraudulent and dangerous marketing and sales activities.  One of the most important suits was brought by Minnesota’s Attorney General. The industry fought this case hard, but ultimately settled before the jury went out.  Part of the settlement involved releasing 30 million pages of internal documents that showed an industry engaging in active fraud on the public and aggressively marketing a dangerous product to kids. The release of those documents created a seismic shift in opinion against Big Tobacco. (See more here.) 

Creative civil lawyering has been the key to getting at these gigantic, corporate criminal enterprises, since criminal laws and sanctions usually fall vastly short. You can’t throw an industry in jail, for example.

This brings us to opioids, today’s most talked-about public health disaster. In terms of the number of deaths and the costly toll on local communities – law enforcement, health care systems, etc. - the numbers are staggering. While drug companies’ responsibility for creating this epidemic may be clear, holding them legally accountable is another story. But one local Oklahoma judge just figured out a way to do it. 

In a damning 42-page decision, Judge Thad Balkman determined that Johnson & Johnson ran a ‘false and dangerous’ sales campaign that led to addiction and death in the state, as well as helping to fuel the worst drug epidemic in US history.” This was a violation of Oklahoma’s public nuisance law, and the judge hit J&J with a $572 million judgement. J&J and corporate lobby groups have been jumping up and down ever since, attacking the judge’s reliance on public nuisance law, denouncing the decision and fear-mongering. It’s very reminiscent of how the asbestos and tobacco industries started reacting when judges and juries finally got to evaluate evidence and hold corporations accountable for making and marketing their lethal products. Now drug companies are worried. Good.

Rinse, repeat.

Liability, “Tort Reform,” and the National Rifle Association

In 2005, after intense lobbying by the National Rifle Association, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), which President George W. Bush happily signed into law. This law provides gun manufacturers, dealers, distributors and trade associations with immunity from lawsuits brought by gun violence victims, cities and counties. It is “legal immunity that no other industry—pharmaceuticals, cars, even tobacco—enjoys.”

The NRA has also pursued a state-focused “tort reform” agenda through ALEC, the American Legislative Exchange Council.  Florida’s Stand Your Ground “shoot first” law was the statute at the heart of the controversy over George Zimmerman’s killing of Trayvon Martin in 2012.  It now exists in almost half the states.  Buried in the statute is a provision that confers absolute civil immunity on perpetrators who successfully avoid arrest and prosecution under this law, stripping crime victims of their legal rights and access to the courts.  It was written by the NRA.  

In addition to “Stand Your Ground” laws, the NRA has lately had success with enactment of its so-called “Business Liability Protection Act."  The law – which allows employees to keep firearms locked in their cars while parked on their employers’ property – also provides employers with civil immunity if they’re sued because of the weapon. 

Yet the NRA regularly sues in civil court. Examples abound. Check out some of these headlines: “NRA, Olympic Shooter Sue California Over Its Restrictions on Ammunition Sales” “NRA files federal lawsuit challenging Florida gun-safety bill” “NRA backs lawsuit claiming NJ handgun policy is ‘unconstitutional’” “NRA threatens lawsuit after US Virgin Islands governor orders weapons seizure” “NRA files lawsuit over ban on assault weapons in Mass.” On May 4, 2018, the NRA sued an insurance broker, “alleging the firm breached its contract to administer an insurance program for the firearms advocacy group.” As reported by the Wall Street Journal, “The NRA said its lawsuit aims to recover damages and ‘to bring to light the mechanics and consequences of an ongoing, unconstitutional blacklisting campaign being pursued by regulatory authorities in New York.’”

This in intolerable hypocrisy. And no one likes a hypocrite.

Some victims and plaintiffs’ lawyers have had enough, taking matters into their own hands by trying innovative ways around PLCAA. Just a few days ago, when the Gilroy food festival mass shooting was the massacre “du jour” before El Paso, Dayton and the inevitable next one(s), Slate explained,  

Plaintiffs’ lawyers with no prior experience suing the gun industry have been mobilized by mass shootings in their communities—last weekend’s in Gilroy, California, being just the latest—and are thinking up new kinds of claims. In looking at PLCAA afresh, they see not a blanket ban but one that makes key exceptions for egregious conduct. A few courts have been receptive to these tactics so far, sparking new hope that it is possible to hold the gun industry accountable. …

In March, the Connecticut Supreme Court shocked the legal world by ruling in favor of the families of children killed in the Newtown shooting. These families focused in part on Remington’s advertising of the AR-15 used in the massacre—ads that extolled its military style and suitability for combat, brandishing the slogan, “Forces of opposition, bow down.” In knowingly marketing the weapon to civilians for use in military-style combat, the plaintiffs argued, Remington violated Connecticut’s law against unfair trade practices.

Josh Koskoff, lead lawyer for the Newtown families, had never heard of PLCAA until he started researching this case. “I can see why people look at it and just give up,” Koskoff says. “We almost did. It’s like looking at Mount Everest and you’re wearing sandals and you’re supposed to climb.” But he thinks that his lack of experience suing the gun industry—his expertise is medical malpractice—was helpful insofar as it allowed him to approach the law without assumptions. “We were able to look at it with a wider view. I think that was a real advantage to our ability to see causes of action that maybe others couldn’t see or felt would be too much of a burden to overcome.”

Koskoff’s decision to use Connecticut’s consumer protection law paid off in two ways. First, the state Supreme Court held that the Newtown families’ claims were exempt from PLCAA because they fell under the law’s “predicate exception,” which permits lawsuits where a manufacturer or seller of a firearm used in a subsequent crime “knowingly violated a State or Federal statute applicable to the sale or marketing” of that firearm. Second, the court found that regulation of “advertising that threatens the public’s health, safety, and morals” was such a core state power that even PLCAA’s most ardent congressional supporters did not intend to take it away. Remington has indicated that it plans to petition the U.S. Supreme Court, but its lawyer, James Vogts, declined to comment on pending litigation.

Clearly, the hypocritically-contemptable gun industry needs some accountability for the mass killing of children. It shouldn’t be this hard.