ThePopTort

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!

Novartis: A New Company Profile

We got word that a couple weeks ago, the Swiss pharmaceutical giant, Novartis, was about to change its company profile page! Here are some of the proposed changes. (For some reason, these have now been scrapped. Can't imagine why.) 

Novartis

Our company slogan

We pay money to sleazy people for political favors while trying not to pay money to victims of our unsafe drugs.

Our strategy

We paid President’s Trump’s fixer, Michael Cohen, $1.2 million through February 2018 just to make sure U.S. health care policy and drug prices went our way. The whole thing was a bust but at least we tried. Meanwhile, we fought like hell to make sure that children born with developmental delays (i.e., brain-damage) never got a dime, when a generic form of our asthma drug was prescribed “off label” to their mother even though studies showed that the drug posed a serious risk to the fetus and we failed to warn of this risk. We lost, but at least we tried.

Our new tag line. 

At least we tried.

Corporate responsibility

We don’t think we should have any. So, for example, you may know that since 2011, consumers who take generic drugs and are injured due to an unsafe, inaccurate or outdated label have no recourse in court. But in December 2017, the California Supreme Court held us – a brand name company – legally responsible instead!  We fought it, of course, even though we “falsely represented that terbutaline [the generic form of our asthma drug Brethine] was safe and effective and would not cause serious side effects in newborns, and it intended for pregnant mothers and their physicians to rely on these representations.” So then, some twins were born brain-damaged after their mother was given the drug. How’s that our problem?

The case was T.H. v. Novartis. The ruling was grounded in the FDA’s regulatory scheme, which provides that only a brand-name company (like us) – and not a generic company – has the power and authority to change a drug safety label. Leslie Brueckner of Public Justice, counsel for the plaintiffs, said, “Writing for a unanimous Court on this point, Justice Cuellar held that, because generic manufacturers are ‘required to follow the brand-name manufacturer’s label to the letter,’ a brand-name manufacturer ‘owes a duty of reasonable care in ensuring that the label includes appropriate warnings, regardless of whether the end user has been dispensed the brand-name drug or its generic bioequivalent.’” In addition, the decision “gives consumers of generic drugs the right to seek justice for their injuries. It will also protect public health and safety, by giving brand-name manufacturers a strong incentive to update their labels when new risks emerge after their drugs go generic.”

Well, we’re not taking this lying down! On February 9, 2018 – less than two months after this ruling – our friends at the Congressional Civil Justice Academy at the Koch-funded George Mason University law school came to our rescue by holding a Senate event featuring attorney Brueckner and Phil Goldberg of Shook Hardy & Bacon, which represents the drug industry in its “tort reform” lobbying practice.   

Goldberg suggested, among other things, that the federal government (i.e., the FDA) should take care of all drug safety problems for the 11,000 drugs on the market. That would mean legal rights of injured drug consumers would essentially be eliminated, providing the entire pharmaceutical industry with immunity. In other words, brand and generic companies should be permitted to escape responsibility for independently fixing labels even if they know the labels are inaccurate or out-of-date, placing exclusive safety responsibility on the FDA. And then, no injured person – whether harmed by a generic or a brand-name drug label – would have any legal rights to hold a company accountable in court or obtain compensation for injuries.

Now that’s corporate responsibility we can get behind!

Trump: Forced Arbitrator in Chief

Retweeting @realDonaldTrump isn’t my favorite thing to do, but sometimes duty calls. At 5:54 this morning, after Trump’s new lawyer, Rudy “It’s Guiliani Time” Guiliani went on Sean Hannity’s show “asserting that the president had reimbursed his personal lawyer for a $130,000 hush payment to a pornographic film actress — contradicting his client, the president,” Trump tweeted

Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA. These agreements are..... ...very common among celebrities and people of wealth. In this case it is in full force and effect and will be used in Arbitration for damages against Ms. Clifford (Daniels). The agreement was used to stop the false and extortionist accusations made by her about an affair...... (bold added.)

We’ll leave it to criminal prosecutors, history textbook writers and November voters to sort this out. What’s of interest to us is his glowing praise of “Arbitration” (capitalized for no apparent grammatical reason), which is not new. As we’ve noted before, Trump and his lawyer, Michael Cohen, have long used forced arbitration clauses to silence their accusers, which keeps them from bringing legal cases in open court before unbiased judges and juries. As the Associated Press reported during election season, “In his businesses and presidential campaign, Trump requires nearly everyone” to sign clauses where any dispute is subject to arbitration at the “sole discretion of Trump and others protected by the agreement,” and which are “binding during employment and ‘at all times thereafter.’” 

And since becoming President, his Administration has been forcing arbitration on victims any way they can. (See the Center for Justice & Democracy’s running scorecard.)

The hypocrisy of this guy is one for the record books.  While Trump clearly doesn’t like being held legally accountable in open court, he and/or his businesses have filed more than 1,900 civil cases over the past three decades. For example, Trump sued “Palm Beach County, Fla., because of the ‘malicious’ jet noise above Mar-a-Lago”: Bill Maher “after the comedian challenged Trump to prove he was not the spawn of an orangutan”; the Chicago Tribune “for $500 million because its architecture critic said Trump’s idea for the world’s tallest tower was silly”; “neighbors of the Trump National Doral Miami for vandalizing palm trees”; and “two business executives for using the name ‘Trump,’ even though their surname was also Trump.”

In 2009, Trump filed a defamation lawsuit seeking $2.5 billion in compensation and $2.5 billion in punitive damages after an author claimed Trump was a millionaire not a billionaire. (The case was thrown out). Then there was the time when “Miss Universe LP, partly owned by Trump, sued to confirm a $5 million arbitration award against Sheena Monnin, a former Miss Pennsylvania USA and Miss USA Pageant who called the pageant “fixed and called the organization ‘fraudulent, lacking in morals, inconsistent and in many ways trashy.’”

An April 2018 ProPublica investigation revealed, “Across the country, the Trump Organization is suing local governments, claiming it owes much less in property taxes than government assessors say because its properties are worth much less than they’ve been valued at.  …At stake is millions of dollars that communities use to fund roads, schools and police departments.”

And then, there was this today:

Over the opposition of lawyers for a company owned by President Donald J. Trump, State Supreme Court Judge Eileen Bransten ruled Thursday that a condominium on the Upper West Side could remove the bronze letters spelling out his name from its 46-story building.

 In the letter, Mr. Trump’s lawyer, Marc Kasowitz, said that if the condo made any effort to remove the Trump lettering, Mr. Trump would “commence appropriate legal proceedings to not only prevent such unauthorized action, but to also recover the significant amount of damages, costs and attorney’s fees.”

That was no small matter in the minds of many condo owners. Mr. Trump has a reputation as a vigorous if not always victorious plaintiff and defendant whose determination to drag out a court fight could cost a fortune.

Oh, there’s even more. In fact, this is just a taste of what’s to come in the Center for Justice & Democracy upcoming  “Hypocrites of ‘Tort Reform’” 2018 edition.  You’ll just have to stay tuned!

Comey’s Asbestos Crisis

Fun fact. James Comey was, for a short time, a corporate lawyer. He quit after having a crisis of conscience defending an asbestos company against claims brought by injured workers. As New York Magazine wrote:

Comey worked as a corporate lawyer at the McGuire Woods firm, but for what turned out to be a short run. He quit his lucrative partnership after defending a company against claims that its machinery caused asbestos injuries. Comey won the case, but it rattled his conscience. When he was offered an assistant U.S. Attorney’s job by Helen Fahey, a Clinton appointee for the Eastern District of Virginia, he jumped at a chance to go back to a civil-service salary and wear the prosecutor’s white hat.

As a criminal prosecutor, I just wish he’d turned his attention back to asbestos: 

Millions of pages of chemical industry documents are now available on-line courtesy of three public health historians. It’s a treasure trove of information on the efforts by the asbestos, lead, and chemical industries to protect their economic interests at the expense of workers’ and communities’ health.

[For example, there's] a 1979 document prepared by the Asbestos Information Association of North America (AIA/NA) and their demand that OSHA retract a news release. The trade group objected to OSHA’s estimates of the health risks faced by asbestos-exposed workers. In a March 1979 letter to OSHA chief Eula Bingham, AIA/NA wrote:

“[we] must protest in the strongest terms possible such irresponsible and misleading statements.”

Ironically by 1979, the massive 50-year coverup of asbestos disease by the asbestos and insurance industries was about to completely unravel, thanks to “painstaking litigation brought by trial lawyers.” As the Center for Justice & Democracy wrote:

In the early 1900s, these industries began a deliberate campaign to suppress knowledge about asbestos hazards and asbestos disease.  Elements of this cover-up included – and still include – concealing insurance and asbestos industry practices, settlements and research, as well as advocating for laws to provide litigation shields and devices to cheat victims.  In the 20th century, this cover-up was primarily to keep information from sick and dying workers who might have claims.  

In 1933, asbestos industry leader Johns-Manville settled 11 asbestosis cases with a demand that the employees’ attorney not sue the company again.  The cover-up continued, which, among other things, led to the poisoning of millions of unsuspecting people including over four million World War II shipyard workers.  Indeed, in the 1940s and 1950s, the asbestos industry had evidence that 20 percent of its workforce had developed asbestos disease but it became corporate policy not to tell sick workers the nature of their health problems.…  

You might ask, “what’s the crime?”  That would be manslaughter. Johns-Manville sure thought so. According to a 1988 document, its one-time Chief of Litigation told another employee to “hire his own lawyer after the document came to light because it was the opinion of the Chief of Litigation that the employee could be indicted for manslaughter.” Those documents (dating back to 1934) showed “evidence of a corporate conspiracy to prevent asbestos workers from learning that their exposure to asbestos could kill them.”

Of course, nowadays don’t expect much from this Administration. It just fined Wells Fargo for massively defrauding consumers, “less than a third of what Wells Fargo is expected to make from Republican tax cuts this year alone.”  Big whoop.  Meanwhile, the company is still forcing cheated customers to resolve claims in company-controlled arbitration, which a new study shows helps no one but the criminal bank, and “new leadership at the SEC seems to be contemplating a move that …would not only take away one of the few tools left to fight back against corporate fraud, it could put the retirement savings of millions of hardworking Americans at risk."

The corporate crimes keep piling up.  Any nice independent-minded young prosecutors out there? Asking for a friend.

Lethal Drinking

I had a great idea for a follow-up to Carrie Fisher’s funny stage show and memoir, Wishful Drinking, called Lethal Drinking. But alas, Carrie’s gone. And my stories aren’t very funny. And they don’t involve Trumpworld, which has sucked all the oxygen out of the room for awhile. So a PopTort will have to do.

Yesterday, the mayor of Flint Michigan said the city will sue the state now that Gov. Rick Snyder has decided “to stop the state's funding of bottled water to residents of Flint,” saying the city needs to "get over it." Said Mayor Karen Weaver,

"It's an issue of public health, it's an ethical and moral issue. We don't have all of the lead lines replaced. They gave us their word that they would see us through this lead and galvanized service replacements and that we would have the PODS open until then. He's done a disservice to this community by backing off from their word."…

Weaver said the state needs to remember "they're the ones that did this to the community, we didn't do this to ourselves. They had the heavy hand. To not want to have this conversation is a total disrespect to the people of Flint."

Just to remind PopTort readers of what this crisis is all about, 

In April 2014, in an effort to save money, Flint Michigan’s unelected emergency manager (appointed by Michigan Governor Rick Snyder) switched the city’s water source to the polluted Flint River. The drinking water immediately started sickening its largely poor- African American residents, including poisoning 27,000 children with lead, which causes permanent brain damage. And to make matters even worse, many now believe the contaminated water source is also responsible for the recent outbreak of Legionnaires’ disease which has sickened at least 87 people and killed nine. State officials, with full knowledge of what was happening, refused to do anything as the community got sicker and sicker.

The state is now saying that “Flint’s water is testing the same as or better than similar cities across the state.” That's some standard. Next thing we know, the state’s tourism slogan will switch to “Come to Michigan where our brain-damaging drinking water is better than yours.” (That means you Chicagoans!)

Meanwhile, if all this is making you wanna drink something a little stronger – don’t. Mother Jones’ Stephanie Mencimer wrote last week about a "huge study spearheaded by the UK’s University of Cambridge published in The Lancet," which "included dozens of researchers from around the world and nearly 600,000 drinkers in 19 countries" and found "that the people who consume more than one drink a day face greater risks of dying from any cause than those who drink less."

And please check out her other piece published in the magazine’s May/June issue, called “Did Drinking Give me Breast Cancer?” Bet you didn’t know that:

…way back in 1988, the World Health Organization declared alcohol a Group 1 carcinogen, meaning that it’s been proved to cause cancer. There is no known safe dosage in humans, according to the WHO. Alcohol causes at least seven types of cancer, but it kills more women from breast cancer than from any other. The International Agency for Research on Cancer estimates that for every drink consumed daily, the risk of breast cancer goes up 7 percent.

The research linking alcohol to breast cancer is deadly solid. There’s no controversy here. Alcohol, regardless of whether it’s in Everclear or a vintage Bordeaux, is carcinogenic. More than 100 studies over several decades have reaffirmed the link with consistent results. The National Cancer Institute says alcohol raises breast cancer risk even at low levels.

Mencimer’s article says, “The science on the link is clear, but the alcohol industry has worked hard to downplay it.” Gee what a shock.