ThePopTort

It’s the Punitive Damages, Stupid

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

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

One of the stories involves Johnson & Johnson’s “heavily sold, under-scrutinized gynecological product — vaginal mesh that hardens, causing horrible pelvic damage, and in one couple’s instance, cutting the husband’s penis during intercourse — getting such devices removed (when they were intended to be permanent) can be as undefined and risk-laden a decision as leaving them in.”

(Johnson & Johnson is a company we tend to cover a lot here at ThePopTort, including our 2013 post about that very nightmarish chapter in the annals of corporate wrongdoing. This is one Terrible, Horrible, No Good, Very Bad company.)

In an interview with Salon’s Gary Kramer, filmmaker Amy Ziering replied to the question, “Can legal cases change things?”:

Not exactly, because of Tort Reform. It’s a $683 billion industry and they paid off $200 million in settlements. They can factor that in. That’s the collateral damage: We might have to settle because it’s a bad product. We might have to pay $500 million, but we made $683 billion. We’re good.

The types of “tort reform” to which she may be referring are limits on punitive damages. Punitive damages,“are awarded to hold reckless companies accountable through imposition of significant financial liability.… They are one of the most critical tools to stop and remedy egregious corporate misconduct."

As the Center for Justice & Democracy wrote in its 2011 study, “What You Need to Know About … Punitive Damages,"

Despite the fact that punitive damages are supported by some of our nation’s most respected free-market economists (many of whom are politically conservative), and have been around for centuries and are often a stronger deterrent than the criminal justice system, they remain under attack. In the last few decades and even this year, corporate lobbyists and court decisions have rendered punitive damages’ deterrence power meaningless, often by disconnecting punitive remedies from a company’s wealth.…

The size of a punitive damages award shouldn't be dictated by politicians sitting in a state capital. It is supposed to depend on,

…widely varying factors determined on a case-by-case basis — factors like the nature of the misconduct involved and the amount that the judge or jury determines is necessary to get a company’s attention, which is precisely what makes punitives so effective.… [J]uries know that to a multi-billion-dollar company … even a million-dollar punitive damages award is barely a slap on the wrist, creating no financial pressure on the company to create a safer design.…[L]imiting punitive damages to a predictable amount of money undermines their deterrent force in the civil justice system.… 

To put it another way, when laws cap or limit punitive damages, as they do in many states, the type and amount of misconduct in which a large company like J&J may engage becomes, simply, a cost of doing business.

Juries are generally very smart about punitive damages. Just this month, a St. Louis jury hit J&J with a punitive damages award of over $4 billion for putting asbestos in its talcum powder, which caused ovarian cancer in its customers. One of the jurors told the St. Louis Post-Dispatch, that it “arrived at that figure by multiplying a recent talcum powder yearly sales total by the roughly 40 years since the company said its products were free of asbestos.” Smart.

But now come the “twists.” Writes the paper, "Johnson & Johnson vowed to appeal the verdict. The company also is likely to file a motion invoking a cap on punitive damages of five times compensatory damages, although Holland said Friday that the constitutionality of that Missouri cap had never been fully tested."

Indeed, Missouri’s cap on punitive damages was struck down as unconstitutional in 2014, but that ruling only covered some claims. It also is not uncommon for judges, on their own, to reduce or reverse large punitive damages award. And then there’s the U.S. Supreme Court, which sometimes takes its own swipes at large punitive damage awards – although not always.

But that’s not the only trick up J&J’s sleeve as it tries to wiggle out of responsibility for the hell it has caused its victims. There's another legal maneuver they will pull, called “personal jurisdiction.” Specifically, "On June 29, a Missouri appeals court tossed out a South Dakota woman’s award of $55 million in another St. Louis trial, saying Missouri courts lacked jurisdiction because neither she nor Johnson & Johnson had the necessary connection to the state. Only five plaintiffs in Thursday’s case are from Missouri …."

But J&J's argument may fail. We’ll see.

One thing’s for sure, however. The frustration we feel about all this is nothing compared to what the victims and their families must feel, some of whose stories are covered in The Bleeding Edge. Let’s hope J&J is finally on the hook for some of the misery it has caused its loyal customers.

Covered and Covered-Up: Asbestos in New York City

Last year, Dr. Raja Flores, Chief of Thoracic Surgery at the Mount Sinai Hospital and “considered one of the world's leading experts in pleural mesothelioma and asbestosis,” was interviewed by an Australian news station about a “a serious health issue” developing in New York City. The dust that fell on Lower Manhattan during 9/11, he explained, contained “more than 400,000 kilograms of asbestos, mercury, fibreglass and benzene… [Asbestos] contaminated a huge portion of the city and that entire population was exposed.” And because asbestos diseases usually take a decade or more to develop, he said that starting now, “I think you will probably see double or tripling of the number of lung cancers in people who were in New York City on 9/11 and mesothelioma and people dying of pleural fibrosis from asbestosis.”

Fast forward almost 17 years from 9/11, when last week, a huge steam pipe explosion blew asbestos all over the Flatiron section of New York City, coating “cars, buildings and people with asbestos-filled muck.” As we wait for this area to be cleaned-up, one question on everyone’s mind is: why was this lethal toxin used in New York City pipes and buildings in the first place? Simple answer: it shouldn't have been.

In the 1970s, while the World Trade Center was being built, a decades-long industry cover-up about the link between asbestos and fatal disease began to publicly unravel. This is why asbestos’ “controversial installation” was eventually halted in the middle of twin tower construction. In fact, as the Center for Justice & Democracy explains here, that fraud was already well-underway, originating at least as far back as 1932, when the exploding steam pipe was installed. Here’s what the industry already knew by then:

• In 1899, a female asbestos factory worker in England died from what was confirmed to be asbestos-related disease.  
• At least as early as 1917, U.S. doctors saw lung scarring in asbestos workers.  
• By 1918, U.S. and Canadian insurance companies, like Prudential (the nation’s wealthiest life insurer), stopped issuing life-insurance policies to asbestos workers because they were dying at higher rates.  
• In 1927, as workers in factories were developing pulmonary asbestosis, the first workman’s comp disability claim for asbestosis was paid.  
• By 1928, other life insurers (Penn Mutual, John Hancock) were charging asbestos workers extra premiums because their mortality rate was 50 percent higher than everyone else’s.
• At least 10 studies showing the relationship between asbestos exposure and asbestosis were conducted during the 1920s and 30s.  Among them was a 1929 survey of asbestos workers conducted by MetLife’s physician, who found large numbers of workers developing incurable lung disease.  When this survey was being prepared for publication, MetLife allowed asbestos industry lawyers to water down and delete unfavorable passages about the relationship between asbestos and asbestos disease.  It took litigators over 50 years to discover this.
• A 1935 publication reported that the insurance industry had known about the asbestos hazard since 1928; the president of a North Carolina asbestos company attacked the story in a letter to the editor, calling it “unconfirmed dramatized tommyrot.”  
• On April 24, 1933, the board of directors for asbestos industry leader Johns-Manville approved a deal with an attorney who represented plaintiffs in 11 asbestosis cases brought by former employees. The board agreed to pay $30,000 to settle these cases along with a demand that the employees’ attorney not sue the company again in order to remove him as a legal threat. The minutes of this meeting did not come to light for more than 45 years and only as a result of litigation by asbestos victims.  In one case, plaintiffs had to file three separate motions to compel production of these minutes after the company repeatedly lied about their existence.

In fact, when trial lawyers started trying to litigate against the asbestos industry in the 1970s, they had no idea what the industry knew about the link between asbestos exposure and diseases like cancer. Without such evidence, trial lawyers lost many cases at these early stages, failing to even get before juries, getting paid nothing and going into debt.

But they kept digging. After nearly a decade of difficult discovery, which the industry fought at every step, and investigative work on their own (such as painstakingly excavating information from old workers’ comp files), these lawyers were finally able to piece together a record. It’s around that time that World Trade Center construction stopped relying on asbestos. Of course by then, half the twin towers had already been built, full of asbestos to poison the city when the towers came crashing down.

As to that underground pipe installed in 1932, don’t let anyone tell you the industry didn’t know how dangerous asbestos was back then. They knew. Then they actively conspired for 50 years to suppress knowledge about asbestos hazards, which led to millions of deaths. And sadly as a result, there are many more victims to come.

(For more, see Paul Brodeur, “Annals of Law: The Asbestos Industry on Trial, Part 1 – A Failure to Warn,” “Part 2 – Discovery,” “Part 3 – Judgement” and “Park IV – Bankruptcy,” New Yorker Magazine, 1985).

Summer Sneakaway

Hey PopTort fans! We're sneaking off for some summer fun but we'll be back soon. In the meantime, you're in charge!

Daily Kos Repost: “Hot Buys,” “Low Mileage,” “We’ll finance!” We’ll kill you.

In 2004, we published our “Top 10 Zany Immunity Law Awards,” poking fun at special interests that annually line up before state lawmakers asking “for the opportunity to show their patriotic civic duty” by getting immunity for themselves. “After all,” we satirized, “just in case they do something wrong, why should they have to pay for it anyway?” We had the “Let’s Put the FUN Back in FUNerals” Award, for the law immunizing morticians in Indiana who mix-up body parts; the “Make Mine Extra Crispy” Award, for legislation immunizing tanning parlors in Colorado; and the “One Strike, You’re Out … Cold” Award, which shields baseball park owners from liability in Arizona.

Today, all joking aside, we are seeing a new incarnation of this strategy, but there’s nothing very funny about it. It comes courtesy of an often unpopular yet incredibly brazen group of special interests – used car dealers.  If restoring their reputation or fostering good will is any sort of goal for this group, their latest endeavor isn’t going to help.

Nine out of 10 Americans believe that car dealers shouldn’t sell used cars with safety defects. Despite this fact, dealers have successfully pushed in Tennessee and Pennsylvania — and are now trying to pass in New Jersey — legislation to allow used car dealers to sell used cars with unrepaired safety defects.  (They have been unsuccessful — for now — with similar bills in California, Maryland, Massachusetts, New York, and Virginia.) What’s more, the dealers would not be liable for resulting injuries or deaths caused by the safety defect. All the car dealer has to do is “disclose” (i.e. bury in paperwork) when selling the car that it’s under safety recall. But obviously, the whole idea is to allow these dealers to pressure and confuse customers into buying unrepaired cars, and then not be on the hook for selling them. 

This legislation will hurt decent, hardworking Americans in extremely disturbing ways. Just ask Alexander Brangman, whose beautiful 26-year-old daughter, Jewel, was killed by an unrepaired, recalled Takata airbag. You may have heard about Jewel. She was the girlfriend of actor Scott Eastwood, Clint’s son, and a “a gifted gymnast, gymnastics teacher and model” who was preparing for her Ph.D.  Her father, Alexander, is now on a mission to ensure that such a tragedy doesn’t happen to anyone else. As he wrote to the Governor of New Jersey about the bill under consideration: 

Keep reading.

Daily Kos Repost: Wisconsin’s Judicial Heartbreak

Photo: Wisconsin Association for Justice

Original post here.

A court decision that overrules longstanding law that had protected the most vulnerable.  A political court that accepts false information as fact. A corporate court willing to overlook the obvious cruelty of an unnecessarily sweeping ruling.

With all the news about the U.S. Supreme Court this week, especially the large number of recent 5-4 decisions that harm workers and bust unions, back admittedly racist policies and explicitly propel the election of Republicans, you might be thinking I’m talking about that court.  Yet there are other supreme courts in the land doing similar damage around the country, and today we’re talking about one of those: the Wisconsin Supreme Court.  

On Wednesday, the Wisconsin Supreme Court told Ascaris Mayo, a 53-year-old mother of four, that despite the amputation of all four of her limbs due to medical malpractice and despite her having won her negligence case and proving before a jury that she would suffer $25.3 million in damages, she would only get a fraction of that amount due to a state law that severely caps compensation to patients like her.

Yet this is a law that should never have been.  Let’s explain why:

1. In 1986, the Wisconsin legislature capped damages but the law was allowed to sunset in 1991.

2. In 1995, the legislature capped damages again.

3. On July 14, 2005, the Wisconsin Supreme Court struck down the law, correctly finding no rational basis for it and a violation of equal protection. The case, Ferdon v. Wisconsin Patients Compensation Fund, involved compensation to a child who was severely deformed at birth because of a doctor’s negligence. The Wisconsin Supreme Court found the following:

• severely injured children and their families are most hurt by a cap,
• patient safety is hurt by a cap,
• caps do not lower malpractice premiums for doctors,
• caps do not attract physicians to the state,
• medical malpractice is a tiny fraction of health care costs,
• defensive medicine does not lead to higher health care costs.

You’ll find that every single one of these findings was true then and is still true today as other state supreme courts, like Florida’s, have also found. (See more support in the Center for Justice & Democracy’s new Medical Malpractice Briefing Book – By the Numbers.) 

4. Despite being unconstitutional, the very next year, “State lawmakers led by then-Rep. Curt Gielow (R-Mequon), a former hospital administrator … approved a $450,000 cap that was vetoed by then-Gov. Jim Doyle.”

5. The legislature then passed another unconstitutional cap, this one $750,000, and Doyle signed it.

Proponents of this law knew it was unconstitutional and would be challenged, so they took a page from an already well-established “tort reform” playbook: shift focus to elect pro-industry judges and defeat judges who have voted to strike down laws that limit or immunize wrongdoers from liability and make it more difficult or impossible for injured consumers to go to court (i.e., “tort reform”). Indeed, a judicial election strategy has been a major focus of this movement since the 1990s, with one leader admitting in 1998 that “since amending constitutions and enacting federal legislation were not viable options for them, their only option was to influence judicial elections.” In Wisconsin, this has led to a deep and destructive politicization of the Wisconsin Supreme Court.

After the cap was re-passed, Big Business interests got busy. For example, the Wisconsin Manufacturers & Commerce, the state’s chapter of the U.S. Chamber of Commerce, which had “criticized the court for some of its rulings in product liability and personal injury cases,” spent more than $2 million in high court races in 2007 and 2008.  Since then, plenty of outside money has flowed into the state, including from Koch-affiliated groups, which run “overwhelmingly negative” attack ads on Justices they don’t like.

The 2011 re-election campaign of conservative Justice David Prosser, who was once “accused of choking a fellow jurist,” was “supported by more than $2 million from conservative groups and big-business groups.” Prosser once called then Chief Justice Shirley S. Abrahamson a “total bitch,” adding that he would “destroy” her in a “war.

Notably, Justice Abrahamson wrote the 2005 Ferdon decision, which the now-conservative, Big Business court went out of its way to explicitly overrule this week, a seeming personal insult to Abrahamson who still sits on the bench. She is not seekingreelection next year. Expect the battle over her seat to be as nasty, noisy, costly and deceitful as any other 2019 campaign for political office.  

With money and politics already dominating the executive and legislative branches of government, America’s court system should be a place where individuals and small businesses can successfully confront powerful industries and institutions, and force changes in their fraudulent or dangerous behavior. But the power and authority of judges and jurors represent a tremendous threat to the money-based political structure in this country. By taking power away from civil jurors with “tort reform” laws and targeting judges whose decisions they do not like, large corporate special interests are trying to change the entire landscape of the civil justice system. The intensity of these efforts leaves no doubt that a weakened civil justice system is only their first objective.  Control of the entire judicial process is the goal.

Yet that’s not what the public wants.  They want politicians to keep their hands off the constitutional right to civil jury trial. They want wrongdoers to be held fully accountable in court. The believe that people severely injured through no fault of their own, like Ascaris Mayo, should have the chance to go to court and be fairly compensated. And they want their judges to be independent, and not have to look over their shoulder worrying about what corporate giants think of them.  

The outcome of state judicial elections can have enormous consequences for the everyday lives of Americans. Just ask injured patients in Wisconsin. Let’s hope we all pay attention.  

Put your Med Mal I.Q. to the Test!

I bet after acing a half dozen or so of our PopTort Medical Malpractice Pop Quizzes (here are the last couple), you think you’re some kind of brainiac! Not so fast. The Center for Justice & Democracy has just published its newest Medical Malpractice Briefing Book update, so it’s time to put your 2018 knowledge to the test. Let’s see how well you do now!

1. According to PIAA, the medical malpractice insurance industry’s main trade and lobbying association (and as reported by the American Medical Association), over the past decade both average and median medical malpractice paid claims have shot up:

1. 100 percent
2. 25 percent
3. 1 percent
4. Nothing

This answer is "d" – nada! No matter how you look at it according to PIAA, claim payments have been unchanged for the decade. I wonder if PIAA, the AMA or their state counterparts mention this fact when lobbying Congress or states – not to mention in advertising to voters (like in Arkansas right now) – as they push for government-imposed limits on compensation to injured patients? Rhetorical question.

2. Speaking of honesty, here’s another insurance question we've wondered about. True or False: Insurance companies are struggling to make a profit because they have not raised medical malpractice insurance rates on doctors for well over a decade.

Well, it’s partly True. Rates have been stable since 2006. But the rest is plainly False, and that’s according to the April 2018 Medical Liability Monitor, an industry trade publication. Let us explain. 

Insurance companies make their money from investment income, investing the premiums they collect in the stock market and other places.  According to 2017’s year-end results, 2017, was “another profitable year- with increases in net income and surplus relative to 2016, driven by promising investment performance.…It is the composite’s investment performance – specifically the capital gains taken from the soaring 2017 financial markets – that gets credit for the increase in net income.”

3. Now let’s switch to patients, who are the actual victims when talking about medical malpractice (i.e., not hospitals, doctors or insurance companies, although you'd never know it from their lobby groups or advertising firms). Among the types of misconduct committed by doctors who have been barred from practicing in one state, only to “hopscotch” to and continue practicing in another state, are:

1. Peddling opioids
2. Having sex with patients
3. Botching surgeries
4. Killing patients
5. None of the above
6. All of the above

The answer is "f." According to a MedPage Today/Milwaukee Journal Sentinel investigative series, “At least 500 physicians” who have engaged in that sort of misconduct and “who have been publicly disciplined, chastised or barred from practicing by one state medical board have been allowed to practice elsewhere with a clean license. And their patients are kept in the dark – even as more become victims – thanks to an antiquated system shrouded in secrecy.”

4. Similarly, here’s a timely True or False question: The #MeToo movement has led to important changes at state medical boards regarding how they deal with physicians who sexually abuse patients or staffers.

Ha, if only. The answer is False.  An April 2018 Associated Press investigation, suitably titled, “Doctors keep licenses despite sex abuse,” found, “Decades of complaints that the physician disciplinary system is too lenient on sex-abusing doctors have produced little change in the practices of state medical boards. And the #MeToo campaign and the rapid push in recent months to increase accountability for sexual misconduct in American workplaces do not appear to have sparked a movement toward changing how medical boards deal with physicians who act out sexually against patients or staffers. … [A]cross the country, most doctors accused of sexual misconduct avoid a medical license review entirely.”

5. Turning now to the category of C-sections, in her article “The C-Section Epidemic: What's Tort Reform Got to Do with It?,” Rutgers Law School Professor Sabrina Safrin introduced the issue this way: “Conventional wisdom holds that the overuse of the C-section is largely attributable to defensive medicine, itself an overreaction to physicians’ concerns about malpractice liability exposure.” So what about that – is it True or False?

It’s False, according to Professor Safrin herself! She writes, “new aggregate empirical data on national cesareans rates for births subject to damages caps vs. those without damages caps ‘debunks this view.’ … Although about half the states in the Union have had non-economic damage caps in place for at least eight years, our aggregate data shows that women are just as likely to give birth by cesarean section in states with damage caps as in ones without such caps.”

6. And your final question. Which of the following makes a doctor more likely to commit a medical error:

1. Burnout
2. Depression
3. Poorer quality of life
4. Emotional exhaustion
5. None of the above.
6. All of the above.

Welp, the answer is "f," as if that would be any surprise to any human. It’s backed up by a new study from the Mayo Clinic-Rochester, published in the Journal of Internal Medicine, “suggesting a bidirectional relationship between medical errors and distress.”   

Anyone else feeling a bit of “distress” these days? Thought so. Just stay out of the hospital, if possible.

No Wheels, No Problem

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

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

Oh, that was so 2015. 

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

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

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

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

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

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

Similarly, the Center for Auto Safety wrote,

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

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

Daily Kos Repost: Center For Justice & Democracy Ranks the Top 30 “Tort Reform” Hypocrites Of 2018!

By Joanne Doroshow, Executive Director, and Emily Gottlieb, Deputy Director for Law & Policy, Center for Justice & Democracy.

What’s a “tort reform” hypocrite?  It’s someone who complains about people who file lawsuits and says compensation to injured people should be limited. Yet when they’ve been harmed, they go straight to court and sue for everything they can. In other words, “tort reform” hypocrites believe that the civil justice system should be theirs alone, reserved exclusively for them. 

Over the years, the Center for Justice & Democracy has produced a number of “hypocrite” reports. Some may wonder why do another one, and why now?  When we took a look at the political and legal landscape, it was clear that a critical mass of new examples had piled up. We thought it was time to collect and rank some of the highlights – our “Top 30” to be exact.

Leading the 2018 list is Donald J. Trump:

Trump earns the position of civil justice hypocrite-in-chief simply because his hypocrisy is one for the record books. Trump has tried to block the courthouse doors to others in his business dealings and during his year and a half as President. But when he believes that he or his companies have been wronged in some way, he has always run straight to court.  He has done so thousands of times.  

Coming in at number two is the U.S. Chamber Institute for Legal Reform, the largest “tort reform” lobby group in the nation. ILR files almost as many lawsuits as Trump. Other lobby groups, like the National Rifle Association (NRA), frequently sue while at the same time pressuring state and federal lawmakers to enact limits on victims’ rights.  

Nineteen corporations - car, drug, asbestos, insurance and tech companies – also made the list. Some are major players in the American Legislative Exchange Council‘s Civil Justice Task Force, which writes and supports bills devoted solely to weakening or eliminating corporate liability for wrongdoing.  Bayer, which is one of the most active advocates for lawsuit limits for the sick and dying, won’t hesitate to run to court to protect its weed-killer. Georgia-Pacific – owned by Koch Industries and a strong supporter of restricting the rights of dying asbestos victims – has more than once sued to protect its paper towels and toilet paper. Every so often, Procter & Gamble, which lobbies for federal lawsuit limits, heads to court to safeguard its teeth whitener.  

Insurance companies, which for decades have attacked policyholders’ rights to go to court, love to exercise their own legal rights. In California, some companies, like State Farm and Farmers, have also been part of a relentless legal campaign to undermine the most effective pro-consumer insurance regulatory law in the nation, known as “Prop. 103.”  Texas is also well-represented on this list, with Governors (Greg Abbott and Rick Perry), a U.S. Senator (Ted Cruz) and corporate representatives (ExxonMobil and Rex Tillerson) among the top 30.

Then there’s the story of companies that force customers or employees to sign away their rights to go to court through forced arbitration clauses in credit card contracts, applications for bank loans, employment contracts, online “terms of use” agreements, and many other types of agreements – none of which are voluntary. The report describes how weeks after the Independent Community Bankers of America stood behind Trump as he wiped out class action rights for defrauded consumers, the association filed a class action against Equifax so its own members could be compensated for the data breach.

Tort restrictions advocated by these individuals, corporations and lobby groups virtually never limit the rights of corporations to sue business competitors for commercial losses.  In other words, “tort reform” hypocrites want unfettered use of the courts to recoup financial losses from trademark violations, contract breaches, patent infringements and other unfair completion claims, as well as property damage, lost goods, unpaid bills and fraud.  While arguing that consumer and plaintiffs’ lawyers are insensitive to the importance of keeping companies “litigation free,” their own corporate lawyers sue at the smallest provocation. Some have even relied on the contingency fee system to collect attorneys’ fees, a system they routinely attack.  

No one likes a hypocrite.  Yet one would be hard pressed to find more hypocrites than in the “tort reform” movement.

You can find the full list of five politicians, four special interest lobby groups, two litigators, and 19 corporations here.

Original post here.

Uber’s Uber-Hypocrisy

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

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

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

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

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

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

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

But here’s some good news. 

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

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

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

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

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

Fiat Chrysler’s Fickle Immunity

We were waiting all week to cover the atrocious Supreme Court decision in the consolidated cases Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA. I’m glad we waited a few days.

The case upends almost a century of labor law, by establishing the legality of employment contracts that prevent abused, discriminated against, cheated or otherwise harmed employees from joining with others in class actions to obtain redress. The outcome of the case impacted some 25 million employment contracts. Notably, Trump’s Solicitor General had switched sides in the case, filing a new brief arguing that such clauses should be legal even though the Obama Administration had sided with workers in the same case.  Between that, and the oral argument itself, it didn’t look good for workers. Still, it is shocking that in the age of #MeToo (leading to Harvey Weinstein’s arrest today for rape), these 5 men in the slim Court majority appear to have no idea or concern how the real world works. The decision’s consequences were well-explained by Justice Ginsburg who delivered a blistering dissent from the bench. 

Which leads us to Fiat Chrysler today, a company that just had to recall a whopping 4.8 million vehicles that could get stuck in cruise control. (Happy Memorial Day driving everyone!) If you work at Fiat Chrysler, your rights just got sapped.

According to filings in a recent Michigan class action, certain salaried, nonunion black employees “were being rated with lower scores at a disproportionately ‘alarming rate’ than nonblack employees.” But as a result of this new Supreme Court case, Fiat Chrysler just “won a bid to push the bulk of a racial discrimination proposed class action into individual arbitration, according to a Michigan federal judge's ruling Thursday that found the U.S. Supreme Court's recent decision in Epic Systems bars the employees from arbitrating their bias claims as a class.” 

Just to illustrate the absurd unfairness of this, the employees who started working at the company long ago - before Chrysler forced employees to sign these clauses - could proceed as a class. And thank goodness for that. But “the six members booted from the instant suit” now have to “arbitrate their claims individually” - a completely unrealistic option if trying to prove not only their own discrimination but also any sort of company-wide pattern.  

Seeking immunity for those they’ve harmed is nothing new for this company. You may recall that when Chrysler (and General Motors) filed for bankruptcy in 2009, it sought immunity from all products liability suits involving cars then on the road. The company caved, but just a bit. It no longer insisted on immunity for deaths and injuries caused by crashes occurring post-bankruptcy.  However, it demanded – and were granted by the bankruptcy court - immunity for injuries or deaths by any crash that occurred before 2010. 

Here are some of the people who courageously fought Chrysler over this, but whose rights were nonetheless callously stripped away:

• Jeremy Warriner. His Jeep Wrangler was hit and during an accident, but the company’s cheap plastic brake fluid container broke apart, causing a fire and burning his legs so badly that both legs had to be amputated.
• Kimberly Young. Her neck was broken, rendering her quadriplegic, when the roof of her Jeep Grand Cherokee caved in during an accident.
• The family of Linda Catalano. Linda was killed when her Chrysler min-van “self-shifted” into reverse, dragging her under the car.
• Lyle Austin. Lyle was severely injured when the van in which he and his family were riding was hit; his defective seat moved upon impact.
• Then 6-year-old Shaun Nicolas Doss. Shaun became paraplegic when his seatbelt failed during an accident involving his family's Dodge Durango.

Yet that’s not even the most disgusting part of this story. Fiat Chrysler Automobiles (FCA) is a master hypocrite. It regularly runs to court when it involves making more money for itself. Just recently:

• FCA filed a lawsuit, claiming that a seller of automotive diagnostic equipment and shop tools violated FCA’s copyright. 
• In July 2017, the 6th Circuit affirmed a judgement against a dealership over architectural plans and renovations of its facility.
• FCA is suing its former lawyer over “confidential and proprietary client information" it says was used to benefit plaintiffs in warranty litigation against FCA US.

Just another taste of what’s to come in the Center for Justice & Democracy's upcoming  “Hypocrites of ‘Tort Reform’” 2018 edition. Wait until you see our "Top 30" list. Do stay tuned!