ThePopTort

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. 

Summer Mood – Never Give In

We thought we’d do something a little different today. We know many folks are feeling sick to their stomachs seeing crowds cheering (and even one-upping) a U.S. President who spews racial and xenophobic ugliness and hate. And it will no doubt continue. One (just one) GOP Congressman said such fascist-sounding chants "would send chills down the spines of our Founding Fathers." No argument there.

Also no argument that these same Founding Fathers would be furious at the many “under the radar” moves by this government to systemically undermine the Constitution’s Seventh Amendment – the right to civil jury trial. Today, for example, the Trump administration finalized a rule allowing nursing homes to force abused and neglected residents into secret, rigged arbitration to resolve disputes, reversing Obama’s earlier pro-senior rule. This is just one of hundreds of public protections that this administration has eviscerated. It’s enough to make you want to go to sleep until January 2021.

For anyone who’s feeling that kind of way, especially anyone concerned that they might be witnessing the rise of Nazi-like facsim here in America, I thought I’d reproduce part of a speech that Winston Churchill gave in October 1941. Imagine what he was facing at that time, his country brutally battered and, many believed, on its way to defeat. He said this to students at his alma mater, Harrow School:

You cannot tell from appearances how things will go. Sometimes imagination makes things out far worse than they are; yet without imagination not much can be done. Those people who are imaginative see many more dangers than perhaps exist; certainly many more than will happen; but then they must also pray to be given that extra courage to carry this far-reaching imagination.

But for everyone, surely, what we have gone through in this period - I am addressing myself to the School - surely from this period of ten months this is the lesson: never give in, never give in, never, never, never, never - in nothing, great or small, large or petty - never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.

We stood all alone a year ago, and to many countries it seemed that our account was closed, we were finished. All this tradition of ours, our songs, our School history, this part of the history of this country, were gone and finished and liquidated.

Very different is the mood today. Britain, other nations thought, had drawn a sponge across her slate. But instead our country stood in the gap. There was no flinching and no thought of giving in; and by what seemed almost a miracle to those outside these Islands, though we ourselves never doubted it, we now find ourselves in a position where I say that we can be sure that we have only to persevere to conquer.

Here are a few more pearls of wisdom:

“The only limit to our realization of tomorrow will be our doubts of today.” –Franklin D. Roosevelt (April 13, 1945)

“[W]e may encounter many defeats, but we must not be defeated. It may even be necessary to encounter the defeat, so that we can know who we are. So that we can see, oh, that happened, and I rose.” – Maya Angelou  

“Don’t let yesterday take up too much of today.” – Will Rogers

Tomorrow’s another day, folks.  And remember, there are more of us.

Newsflash: Victim Compensation Funds Back in the News

As we write this blog today, the U.S. House of Representative is about to vote to renew (permanently) the 9/11 victim compensation fund to cover the poisoned Ground Zero first responders who are now sick and dying at a tragically rapid pace. I don’t think we need to remind folks about how Jon Stewart has for years been shaming Congress (more accurately, now the Senate and Mitch McConnell) into funding this, or the incredibly sad loss of Luis Alvarez who sat beside Stewart at House hearings last month. But I do think it’s important to remind everyone about the pros and cons of funds like this. There is no “con” to the 9/11 fund because realistically, there has never been a wrongdoer to sue and hold accountable in court. But of course, that’s not always the case. 

Sometimes unusual national events like 9/11 lead to these kinds of funds. But over the years, funds have also been established as a result of pressure from corporations or institutions involved in colossal misconduct. The BP oil spill. The GM ignition switch scandal. The problem is not only the limited amount of fund money that is often available to victims, but also the fact that disputes are resolved in administrative systems rather than by a court. The right to trial by jury is eliminated. That means facts about misconduct are typically kept secret and accountability for wrongdoing is gone or severely weakened.

Just this week, two other victim compensation funds have made news that illustrate these points. First is one concerning sexual abuse in the Catholic Church. The Wall Street Journal just ran a story about a similar fund set up by the Church in Pennsylvania and elsewhere. Notably, unlike neighboring New York and New Jersey, Pennsylvania has yet to lift the statute of limitations for suits involving the sexual abuse of children. It is unclear when—or if—that will happen.

Meanwhile, the church set up a compensation fund for victims of clergy sexual abuse. Writes the WSJ, “In exchange for accepting money from the program, the diocese won’t have to release any documents that might show what church officials knew about the alleged abuse. [Victims] also would be barred from suing the church [even if their rights are later restored by statute].

Payouts pale compared with what victims have won in court. Those who accept settlements must agree not to sue the church in the future.…

Eric Deabill, a spokesman for the Diocese of Scranton, said helping survivors of abuse was the priority. “Across the country, dioceses facing abuse litigation have been forced into bankruptcy,” he said. “This program balances the sincere desire to promote healing for sex abuse survivors while enabling the core mission of the Diocese to continue.”

But for some, the money isn’t enough, raising the prospect that the crisis could drag on for years. Many alleged victims want access to church records about their alleged abusers. Taking a case to court is a chance to make public any evidence that church officials hid the abuse.

Time is running short for [abuse survivor] Mr. Pliska, 55 years old, to decide. The church has set a July 31 deadline. “The church shouldn’t be the judge,” he said of the program. “They should be held accountable.”

Also this week is news that the California Legislature passed a bill to “set up a fund to help compensate victims for losses from fires started by the utilities’ equipment,” as compensation to victims is threatened by the bankruptcy of Pacific Gas & Electric, the utility responsible for recent devastating fires.

PG&E has estimated that its liability from recent fires exceeds $30 billion. Investigators found that its equipment was responsible last year for the worst wildfire in state history, the Camp Fire, which killed 85 people and destroyed the town of Paradise. Under California legal doctrine, utilities are liable for fire damage caused by their equipment, even if no negligence is involved.…

The legislation is aimed at improving the financial health of the big investor-owned utilities — which include Southern California Edison and San Diego Gas & Electric — and preventing further bankruptcies as climate change makes fires more frequent and destructive. The state is concerned that without its intervention, investors and creditors will shun the companies, potentially starving them of financing.…

Advocates for wildfire victims praised the legislation, Assembly Bill 1054.

“With fire season fast approaching, and so many existing victims still struggling, putting A.B. 1054’s protections into practice quickly is going to make a tremendous difference,” said Patrick McCallum, a leader of the advocacy group Up From the Ashes, who lost his home in a 2017 fire that ravaged Northern California’s wine region. “It’s our best hope going forward.”

Yes, in this case it might be their best hope going forward. It is just good to keep in mind that sometimes these funds end up being manipulated by political forces and can become a nightmare for those they were originally meant to help. Just ask Jon Stewart.

Equal Pay Means Ending Forced Arbitration

When Lilly Ledbetter discovered she had been paid significantly less than her male counterparts for the very same work at Goodyear’s Gadsen, Alabama plant, she filed a lawsuit and was awarded more than $3 million by a jury. After the U.S. Supreme Court overturned the decision, ruling that Ledbetter had waited too long to file her case, Congress passed the Lilly Ledbetter Fair Pay Act, the first bill President Obama signed into law. This law supplemented other important federal laws passed by Congress to remedy pay discrimination, namely the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.

Yet today, the gender pay gap persists. Indeed, what could be more clear than the absurd situation that the victorious women’s soccer team finds itself, forcing them to file a lawsuit against the U.S. Soccer Federation. Specifically,

As of Sunday, the U.S. women's team has won four World Cups — more than any women's soccer team in the world. The men's team has won none. But according to the lawsuit from the women's team, male players stand to make nearly three times as much per game as women.  There's also a major pay gap in the prize money awarded by FIFA, the global soccer federation that oversees the tournament. The prize pot for the women's team this year was $30 million — compared to $400 million for last year's Men's World Cup. 

With their record-breaking World Cup performance, which attracted a viewing audience of 1 billion people (along with crowds chanting “Equal pay! Equal pay!”), this should not be happening. Just, fuggedaboutit!

But then consider the U.S. labor market generally:

… women’s median weekly earnings in 2018 were 81.1 cents for every dollar earned by a man. (The gap is bigger for women of color: Compared with white men’s median weekly earnings in 2018, Hispanic women earned just 61.6 percent and black women earned just 65.3 percent.) And it’s getting worse. According to data analysis from the Institute for Women’s Policy Research, the gender wage gap actually widened last year. And some researchers believe the wage gap could be much bigger than what’s reported now.

The women's soccer team and U.S. Soccer tentatively agreed in June to mediate the lawsuit once the World Cup was over, and we will see how far they get. But for the everyday female worker these days, things are substantially tougher. Once reason, for sure, is that the rights secured by those 1960s-era early civil rights laws are in jeopardy as a result of forced arbitration clauses and class action bans, found in most employment contracts. A whopping 56.2 percent of nonunion private-sector workers are now subject to these clauses and by 2024, it is estimated that more than 80 percent of the private-sector nonunion workforce will be bound by them. These clauses make private litigation against violators virtually impossible. They allow corporations and businesses to break the law and operate with impunity. 

In the New York Times article covering the World Cup win, reporter Andrew Keh wrote,

Few sports teams are asked to carry so much meaning on their shoulders, to represent so many things to so many people, as the United States women’s soccer team. Few athletes are expected to lead on so many fronts at once, to be leaders for equal pay and gay rights and social justice, to serve as the face of both corporations and their customers. Fewer still have ever been so equipped to handle such a burden, so aware of themselves, so comfortable in their own skin, as those American women.

I know it’s a lot to ask, but … after they succeed in the mediation room and force USSF to pay them what they deserve, may we politely ask one more thing of this amazing team: join the fight to end forced arbitration clauses and class action bans, so female workers at every level have a fighting chance at equality and justice. #EndForcedArbitration

Juries: The Pendulum Swings Back

It wasn’t too long ago – 2 and a half years to be exact - that we analogized what seemed to be growing disrespect for civil jurors, to a Rodney Dangerfield routine.  (“People who serve on civil juries can’t get no respect from anyone this week,” we exclaimed.) But lately it’s been a bit of a different story.

On June 14, the Kansas Supreme Court did something both extraordinary and something it should have done a long time ago: provide real meaning to Section 5 of the Kansas Bill of Rights, which states, “The right of trial by jury shall be inviolate.” 

You see, back in the 1980s, Kansas politicians took a direct swipe at Section 5 by severely and broadly capping non-economic damages for injury victims. Non-economic damages are for very real injuries, such as brain damage, loss of limb, loss of reproductive ability, blindness, and other kinds of suffering and lost quality of life. Caps on compensation apply regardless of what jurors, who make decisions based on evidence they hear in a case, say compensation should be.

And in 2012, the Kansas Supreme Court decided Section 5's authors didn’t really mean “inviolate.” Instead, it “transform[ed] what the people made inviolate into something violable at will” and upheld the cap even though it directly infringed on the power and authority of juries to decide cases. This decision made no sense to many – and now, it appears, it also made no sense to the 2019 Kansas Supreme Court. So joining perhaps another unexpected court decision striking down Oklahoma’s equally-problematic cap in April, the Kansas court struck down the Kansas cap in June. 

As a result of these two 2019 decisions, less than half the states (24) now cap non-economic damages in medical malpractice cases. And only nine cap non-economic damages generally. The momentum is definitely in the “no-cap” direction. 

We’re so glad that judges are weighing-in on the correct side of this issue. It should be known that judges, who have more intimate knowledge of the system than anyone, generally have a high level of day-to-day confidence in civil juries. This year, the National Judicial College asked judges “About how often do you disagree with the jury’s verdict?” Among the findings from the just released survey:

Eighty-two percent of the 446 judges who responded said they disagree less than 25 percent of the time. The majority who left comments said the jury usually gets it right, and it is not a judge’s job to second guess their decision.”

Wrote one judge (anonymously, as was most often the case with the comments): “When you hear the voice of a dozen people speak in unison, it is rare that they get it wrong.”

Juries rule, as they say. And as they should.