ThePopTort

Our New PopTort PopQuiz - Online Edition!

With so much important focus on health care right now, we thought, “what a great time to test your medical malpractice knowledge!” And we have just the thing: our latest PopTort Pop Quiz, in honor of publication of the Center for Justice & Democracy's newly updated medical malpractice briefing book, as well as CJ&D’s new insurance study, How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation. 

BUT PLEASE DO NOT COME TO SCHOOL! Safety first. For now, all Pop Quizzes are entirely online!

1. Let’s start with emergency rooms. Even before they were stressed with the coronavirus, they had problems. Of medical malpractice claims caused by emergency room errors, how many resulted in death?

1. 5%
2. 10%
3. 25%
4. More than 33%

That would be “d. “After analyzing over 1,300 closed medical malpractice claims filed against hospitals between 2014 and 2018 over emergency department care, the insurance provider [Coverys] found that 61 percent of claims involved serious injury, with more than one-third resulting in death.” See more here.

2. How many bad surgical outcomes each year are due to preventable human error?

1. 1,000
2. 10,000
3. 50,000
4. 400,000

The answer is “d.” According to a 2019 JAMA study, ‘There are approximately 17 million surgical procedures performed in the United States each year….  If the adverse outcome rate is about 5 percent, and half of those are due to human error, as seen in our cohort and reported in other studies, it would mean that about 400,000 adverse outcomes could be prevented each year.’” 

3. There is an impending shortage of oncologists in America today. True or False: This shortage is happening because medical malpractice lawsuits and insurance rates are driving doctors out of the profession.

False. Reasons for this shortage have nothing to do with liability. Data from the Centers for Medicare & Medicaid Services, board certification and self-reported information from over 18,000 full-time, board-certified oncologists show that “an imminent wave of retiring oncologists,” coupled with a growing demand for cancer treatment, will cause a shortage of practitioners across the country. 

4. During the last insurance crisis (2002-2005) when doctors were begin price-gouged with skyrocketing insurance rates and insurers blamed claims and lawsuits, insurers were actually overstating their losses by what annual percentage?

1. 0 percent – insurers were being honest about their losses
2. 10 percent
3. 25 percent
4. 33 percent

Yup, the answer is “d.” According to the new study from Consumer Federation of America and Center for Justice & Democracy, How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation, “New evidence shows clearly that doctors were price-gouged during the last hard market (2002 to 2005). Doctors paid increasingly high premiums while paid claims actually dropped. Medical malpractice insurers were misrepresenting their actual losses by an incredible annual average of 33%.” 

5. True or False. Over the last 20 years, while insurers saw major reductions in their losses, they reduced premiums for doctors only $1 for every $3 in reduced claims payments.

That, my friends, is absolutely True. The back-up for this statistics, and many other shocking insurance facts, can be found in How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation. 

Just a short quiz this time. Go home and stay safe out there!

The Devil Wears Asbestos

If the road to hell is paved with good intentions, one can only imagine where bad intentions send you. For the asbestos industry, it’s probably to the Western District of North Carolina.

Back in 2014, a Western District of North Carolina judge – in his first and only asbestos case  – decided to reduce by 90 percent the amount Garlock Sealing Technologies owed its victims, including more than 4,000 Navy service members. Garlock was one of the world’s largest asbestos-containing gasket and packing manufacturers and had poisoned workers for many years. (See more here.)

To strip these victims of compensation, the judge made some highly irregular and incorrect rulings about how to value damages. Soon after he ruled, evidence surfaced that Garlock had “hid evidence from the bankruptcy court and presented false testimony, .... [committing] a fraud upon the court.’” And soon after that, Garlock’s case fizzled, with Garlock and its parent settling with victims for almost four times as much as the judge had ordered and completely dropping its bogus attacks on victims’ attorneys.

But the asbestos industry was still delirious with excitement over this discredited judge’s opinion. They saw in it new opportunities to scam even more dying victims, and Koch Industries stepped right up. Koch’s subsidiary, Georgia-Pacific, made asbestos-containing drywall, which poisoned hundreds of thousands of people. Rather than continuing to pay dying victims what it owed, GP divided itself in two: Company #1 kept all the assets and no liabilities, and Company #2, with no employees, no operations, and no assets, kept all the liabilities, including asbestos claims. That second company became headquartered in North Carolina. And then, in the land of Garlock, it declared bankruptcy and argued that victims who deserved full compensation – which a company like Koch could clearly afford - should get pennies on the dollar.

Other companies followed suit. For example, in January, CertainTeed cement company, which made all kinds of products that poisoned workers with asbestos (including Navy service members), similarly divided itself in two. All the assets (and none of the liabilities) were transferred to CertainTeed LLC and affiliates. All the asbestos liabilities (and none of the assets) were transferred to “DBMP,” a company with an unrecognizable name that domiciled in North Carolina. With no assets, DBMP immediately rendered itself insolvent and it filed for bankruptcy in January.

We can only hope that a judge somewhere refuses to allow a fraud like this to go on. But we do have to hand it to the asbestos industry. There seems to be no bottom to the scams they’ll devise to avoid compensating their dying victims.  And when I say no bottom, I mean all the way down there. The place where flame-retardants won’t help.

E-Scooters, Steering Right Past Your Legal Rights

Hey, have you heard the one about the injured Georgia man who rented a malfunctioning Bird e-scooter that flung him into an Atlanta street, but whose case was tossed out of court because of the fine print in his rental contract? Yep, that just happened.

There’s been an explosion of injuries caused by e-scooters, which are now in more than U.S. 100 cities. Consumer Reports tabulated injuries from 110 hospitals in 47 U.S. cities between late 2017 through early 2019 and found that at least 1,500 riders had been injured and four had died while using a rentable e-scooter. In June 2019, the number of deaths linked to e-scooters rose to eight. And malfunctioning scooters – not the riders - are often to blame.

When CBS’s 60 Minutes covered “The Great Electric Scooter Backlash” in September 2019, California attorney Catherine Lerer spoke of the kinds of cases she sees: 

“The calls that I get from riders who are injured, they are injured when the scooter malfunctions,” she said.

“Do you get the impression that they malfunction much?” asked [correspondent David] Pogue.

“Very much, all the time,” Lerer said. “The scooters die mid-ride. The brakes lock up. The handlebar post collapses. The handlebars detach. They were never intended to be like rental cars, commercial fleet usage, you know, use after use after use every day. And that’s why they have a lifespan of only 30 to 45 days!”

Knowing they are culpable but don’t want to be held accountable, e-scooter companies force riders to agree to standard boilerplate contracts in order to use their product, all of which contain unfair provisions buried in fine print and legalese that most people cannot possibly understand (let alone try to read). Among those provisions are forced arbitration clauses that require that all disputes be resolved in private, secret, company-controlled, rigged systems.

That’s bad enough. But these company also want to escape liability when non-riders (who are not even parties to a rental contract) suffer e-scooter-related injuries. That’s being litigated too. In the California class action Borgia v. Bird Rides, Inc., injury victims are suing Lime, Bird and scooter manufacturer Segway for gross negligence and aided and abetted assaults by “dumping” thousands of scooters onto California streets and into public areas. (In other words, these are not just eyesores.)

Victims include: a child “who allegedly has seriously damaged eight (8) of his front eight teeth and has required stitches due to a laceration on his lip” after a Lime e-scooter crashed into him; a woman who “tripped over three (3) Lime Scooters that were left on the sidewalk,” leaving her with a broken left wrist and ring finger; and a woman who “suffered injuries to her left hand, both knees, lower back and pelvis” after “she tripped over a Lime Scooter that was left on the sidewalk right in front of the exit of a coffee shop she was visiting.”

To read more about this colossal mess check out the Center for Justice & Democracy’s report, Planes, Trains and Automobiles – and Other Transportation Hazards, which examines both safety risks and disappearing legal rights for commuters and business travelers.  Oh, and #EndForcedArbitration! 

Our Favorite New “Bad Place” Demon – The Insurance Industry

The critically-acclaimed comedy, The Good Place, comes to an end this month and that’s too bad. If you haven’t seen the show, it’s about the afterlife. There’s not just a Good Place. There’s also a Bad Place, populated by demons wearing expensive suits who torture and destroy things. My first thought was, “who does that remind me of? Oh yeah, the property/casualty insurance industry. They torture their policyholders and try to destroy businesses." They'd be perfect for this show. If only there were another season. 

Remember way back in October 2010 when we reposted a Huffington Post blog, “Here's Really Why Your Insurance Rates Go Up - and Then Don't” and urged readers to “bookmark this post and come back to it in a year or so.” I’m sure you don’t so let’s review.

Back then, insurance rates were pretty stable and had been for about four years. Four years earlier, the insurance industry was price-gouging policyholders for no reason other than the fact that the industry had kept rates low for 13 years and investment income was down. It decided it wanted more money, and that it would get it from its policyholders (especially doctors) by suddenly raising rates.

Were they honest about why they were raising rates? Of course not. This is an industry skilled in the art of deflecting blame. Rather than accept responsibility for how it was managing its own underwriting, it rather starting screaming about lawyers, lawsuits, judges and juries. Doctors were only happy to join in. No matter what the data clearly showed, i.e., that claims and payouts were completely stable, lawmakers were scared into giving the industry anything it wanted. So during the time between 2002 and 2006, both doctors (who were forced to pay way too much money in premiums) and patients (whose rights were stripped away in 19 states) were badly harmed. The “Bad Place” Demons couldn’t have orchestrated it better. (See more here.)

But by 2010 when we wrote our piece, the insurance industry was sitting on so much money – partly from their earlier price-gouging and partly because of their continuing investment returns - that they simply couldn’t start raising rates again. But we didn’t trust them and that’s why we said, “bookmark this post and come back to it in a year or so.” Well it took a decade thanks to the obscene amount of investment income it continued to rake in, not to mention the windfall from Trump’s tax cut, none of which the insurance industry gave back to customers.

But like a bad penny that always turns up, they’re back! If you’ve read some of the business press over the last few months, you will find a bunch of articles quoting insurance executives clearly pushing to send the nation into a new liability insurance crisis. (You’ll find examples of these articles in future reports but take it from us: the Bad Place Lava Monsters would be so proud.)

Here’s their problem, or at least one of them. Despite their “déjà vu all over again” whining about juries making things difficult for insurance companies, the industry is still swimming in money. They have mountains of it. Pick your metaphor. For example, take a look at their surpluses, which are the extra cushion insurers hold in addition to the amount they have set aside to pay estimated future claims. These surpluses are at record levels. And I mean unprecedented. In 2010 when we wrote that first article, the surplus was $584 billion. Now, it’s $802 billion! Hitting policyholders with rate hikes now would be purely for the purpose of price-gouging them.

They’ve done that before but we really shouldn’t let them do it this time. The Good Place may be ending. But our focus on this Bad industry is not. There are many ways to show how much they are lying about everything. Expect to see much more from us soon.

Transportation’s 2020 Vision Loss

We’re commuting longer hours. Boeing plane crashes are in virtually every news cycle now. Amtrak is being sued for forcing its passengers to waive their right to go to court. Pennsylvania Turnpike motorists just experienced a horrible crash involving buses, trucks and cars, killing 5 and injuring dozens. As we start off this year, we are wondering just bad it is for commuters and business travelers these days?

Well, the Center for Justice & Democracy’s new report Planes, Trains and Automobiles – and Other Transportation Hazards has some of those answers. Can’t say the news is great but it is important. CJ&D explains,

Whether driving, flying, taking trains or ferries, or even walking, Americans must largely rely on private companies to ensure their safety – companies that are subject to ever-weakening federal regulations and public protections. The result is that far too many transportation injuries and deaths are occurring. At the same time the legal rights of all Americans are being reduced or, in some cases, eliminated altogether through state or federal tort limits, contractual restrictions like forced arbitration, and federal preemption.

Here are some key findings in each transportation system.

Planes: The FAA delegated safety decisions to Boeing that was more concerned with profit and market share than safety, and as a result it rushed to put the deadly 737 MAX into operation knowing it was unsafe. Yet this is not the only disturbing airline safety trend. There are many problems that are longstanding concerning runway near-misses, deficient maintenance, commuter airlines and cheap flights. Some are improving but not all.

Trains: In 2008, Congress gave Amtrak specific deadlines to implement positive train control technology (PTC) to stop preventable train crashes. The rail industry “bridled” at Congress’ mandate to implement PTC, failed to meet these deadlines, and as a result, crashes have continued. Then in January 2019, Amtrak stuck a fine-print provision in all tickets that forces passengers in any kind of dispute with Amtrak – even mass casualty victims – into private, rigged arbitration. Injured passengers are already subject to a strict compensation cap.

Cars/Trucks/Buses: No mode of transportation comes close to causing the number of deaths or injuries than vehicles on roads. The auto industry has taken advantage of perfunctory federal oversight and weak laws to repeatedly put hundreds of millions of dangerous and defective vehicles in the stream of commerce.  Meanwhile, both the trucking and bus industries are trying to weaken state meal and rest break employment laws in order to put more fatigued commercial drivers on the road. And to make matters worse for customers, forced arbitration clauses are in nearly all vehicle sales and lease agreements today.

Ferries: The U.S. Coast Guard is responsible for overseeing passenger ferry safety but it has 10 other statutorily-mandated missions. This leaves ferry safety as an under-resourced priority. Lack of resources is compounded by a lack of institutional will to make needed safety improvements. And the anachronistic Limitation of Liability Act (LOLA) provides an avenue for ferry owners to try to drastically limit their liability in mass casualty cases.

E-Scooters: There has been an explosion of injuries caused by e-scooters. Yet e-scooter companies force riders to agree to contracts, in which the company accepts none of the responsibility for rider injuries even if a company’s gross negligence is to blame. They also require that all disputes be resolved in private, secret forced arbitration systems. Combined with the absence of federal oversight, the e-scooter industry operates with little accountability to anyone.

So if you’re a commuter or business traveler, take a deep breath, get one of those meditation apps, put on some Enya, close your eye (scrap that, motorists and scooter riders!) and think about how we’re going to make this better.

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.