ThePopTort

Tort Reform: Victimizing Assault Victims a Second Time Around

We are so happy to see that Sen. Rand Paul (R-KY) is enjoying the benefits of Kentucky's state Constitution, which prevents the state from capping non-economic and punitive damages for injured victims. (See Section 54.) Paul, you see, is suing his neighbor for both, for over a million dollars no less “in compensatory and punitive damages for his medical treatment and ongoing discomfort.” (Paul’s neighbor, Rene Boucher, pled guilty to felony assault, having attacked Paul as he hopped off his lawnmower.)(Update: Paul just won over half a million dollars.)

How fortunate that Paul, a leader in the “repeal Obamacare movement” who’s about to travel to socialized-medicine-Canada for hernia surgery (yes, you read that correctly), doesn’t live in neighboring Ohio or Tennessee. Those states cap both kinds of damages, protecting assailants and criminals who commit assault. A few years ago, we showed how devastating caps on damages can be to an Ohio assault victim: 

“Jessica Simpkins was raped at the age of 15 by her church pastor – a man hired by Grace Brethren Church in Sunbury despite the knowledge that he had previously sexually abused two girls. In a civil suit, a jury awarded Simpkins $3.5 million for pain and suffering, but the amount was reduced to $250,000 due to a state law that caps damages.” 

This is one of the dirty little secrets of “tort reform.” When a state caps damages, it usually covers every kind of personal injury case, including when injuries are the result of a criminal assault. That includes situations where your neighbor beats you up. It also includes cases of sexual assault. It also includes the sexual assault of children. Which brings us to our next story.

When it comes to sexual assault especially of children, there is another tort limit that often blocks the ability of survivors to sue: overly-restrictive state statutes of limitations. Most state laws require someone to file a lawsuit within a very short period of time of their assault. Gradually, states are starting to lift those restrictions for sexual assault survivors – particularly for child victims. New York is the big story on this today.

For years, as we’ve covered before, the New York Senate had blocked bills to increase the state’s archaic statute of limitations in these cases. Then the 2018 elections happened, and the clouds parted. So this week, the NY legislature finally passed the Child Victims Act (which the Governor will sign soon): 

The Child Victims Act will allow child victims to seek prosecution against their abuser until the age of 55 in civil cases, a significant increase from the previous limit of age 23. For criminal cases, victims can seek prosecution until they turn 28. The bill also includes a one-year window during which victims of any age or time limit can come forward to prosecute.

"New York has just gone from being one of the worst states in the country to being one of the best," in terms of the statute of limitations for child sex abuse cases, said Marci Hamilton, CEO of Child USA and a professor at the University of Pennsylvania.

Fortunately, New York does not cap damages for injury victims. But too many states do. Time to start changing those laws, too.

The First Annual PopTort Film Festival!

It’s January, so like much of the country we’re cold and staying in. But luckily, there’s a small critical mass of really excellent documentary films available to watch at home, which cover issues of great concern to PopTort readers (and our mothership, the Center for Justice & Democracy). So with that, start poppin’ the popcorn as we introduce The First Annual PopTort Film Festival!

 

Bleed Out. When if comes to medical malpractice, there’s no better film than Bleed Out, by our friend Steve Burrows. The film is on HBO, and streaming on HBO Now and HBO Go. 

At times funny, at times tragic, this entertaining and completely relatable story shows: how medical errors and negligence destroy patients' lives and ruin families; in incredible detail the astronomical medical costs of negligence including costs to taxpayers; the stupidity of “tort reform” and the enormous challenges facing lawyers and clients trying to bring cases especially where tort limits exists; and the completely messed up health care system made far worse by the colossal number of preventable errors. 

Marty Makary of Johns Hopkins, who first figured out that medical errors are the third leading cause of death, is the film’s expert. You can find many of his articles in the Center for Justice & Democracy's Medical Malpractice Briefing Book. By the end of the film, you how the system can allow crooked, lying, unethical health care providers to get away with horrendous negligence, and is rigged against injured patients and their families. 

 

By the way, there’s another new patient safety documentary out, called To Err is Human, which you can rent on various streaming services including iTunes and Amazon Prime. We have not seen this film yet – it may be more aimed at medical audiences based on the screening schedule. But it is endorsed by our good friend Helen Haskell, Founder of Mothers Against Medical Errors, who is a great advocate for patient safety and protecting the legal rights of injured patients.

 

The Devil We Know, which you can stream on Netflix or rent on various streaming services.This film tells an unbelievable story that we started covering at the ThePopTort in 2008 and through the next seven years, about how Dupont knowingly polluted water supplies of two West Virginia and four Ohio water districts with C-8, the chemical used to manufacture Teflon, and then tried to cover it up.” (Actually, by now they’ve poisoned 99% of humanity.) The film includes a few friends of ours, including brilliant West Virginia lawyer Harry Deitzler, who figured out how to create a valid epidemiological study to nail Dupont by using “the $70 million health and education fund from the [class action] settlement to pay people $400 each to participate” in it. Gotcha, Dupont!

 

The Bleeding Edge, on Netflix. The Bleeding Edge is to dangerous medical devices what Bleed Out is to medical malpractice. Two great films with blood in their title. If you're confused, watch both! We covered The Bleeding Edge last summer. Here’s what we said then – and repeat now:

[There is] 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.

The film shows us the results of this corruption. Not pretty.

 

Dirty Laundry, now available on Vimeo on Demand, is a powerful expose of the vile asbestos industry. The filmmakers tell a very personal and entertaining story, through which they show, “the stark reality of corporate dissembling and apparent disregard for lives lost, and lives still being placed at risk, from the continued manufacture and use of asbestos, the creation of open asbestos waste sites, and the reckless excavation of contaminated ground.”

 

Fahrenheit 11/9, now streaming on Amazon Prime and other places. We recommend this film mainly for the startling explanation of the Flint water crisis, which we’ve covered often (e.g. here here.) (There are other good parts, but allow us to rant a bit. Some parts of the film seem very naive, such as its negative portrayal of hero-of-the-moment, Speaker Nancy Pelosi, ridiculing her as part of an ineffective resistance to Trump. PopTort insiders have always known of her behind-the-scenes genius even when she wasn’t speaker. I can only think these filmmakers were unaware of this and maybe have now woken up to it? Case in point: she ensured that her party stuck together to oppose anti-civil justice bills rammed through the House in early 2017. Because (in part) these bills passed with virtually no bi-partisan support thanks to her leadership, they came to the Senate in a severely weakened state. In fact, none were ever brought up again despite being rushed through the House as high-priority items for the U.S. Chamber of Commerce. Wish the filmmakers understood a little better how Congress works.)

 

Hot Coffee. Finally, there’s the 2011 HBO film, Hot Coffee – an oldie but goodie, which you can still rent on Amazon or stream on Amazon Prime.  We’ve said so much about this film already so if you’ve forgetten, you can read this - or just watch the trailer:

 

So PopTort fans.  Any other film suggestions? Just let us know! 

The Tyranny of an Arcane Federal Law

Many important parts of your life – cell phones, bank loans, credit cards, virtually any online transaction, employment -  are controlled by companies that require you to agree to contracts with “forced arbitration” clauses. You probably have no idea that you’ve agreed to one. It prevents you from going to court to resolve a dispute, instead forcing you into a private, rigged system designed and controlled by the companies themselves.

It wasn’t too long ago that unfair, one-sided forced arbitration clauses were routinely struck down by courts.  Here’s a 2010 employment case, for example, where the Third Circuit Court of Appeals ruled: 

In our view, the pervasively one-sided nature of the arbitration agreement's terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution. Instead, the employer created a system that was designed to give it an unfair advantage through rules that impermissibly restricted employees' access to arbitration and that gave the employer an undue influence over the selection of the arbitrator.

But in 2011 the U.S. Supreme Court invoked an obscure law – the Federal Arbitration Act of 1926, nearly a century old and written to facilitate voluntary arbitration between businesses - and said it proved Congress intended some sort of “preference” for arbitration over constitutionally-protected legal rights. It found no problem with companies writing such clauses as unfairly as they liked, forcing consumers and employees with no bargaining power into agreeing to them, and placing at risk private enforcement of many laws where Congress expressly provided to right to go to court. Laws like the Civil Rights Acts of 1964 and 1991, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Equal Pay Act, the Uniformed Services Employment and Reemployment Rights Act, the Sherman Act, the Truth in Lending Act, and the civil provisions of the Racketeer Influenced and Corrupt Organizations Act.  And hundreds of state laws, as well. And on and on.  No court could do anything about it, and no state could fix it no matter how much they wanted to protect their own residents from illegal corporate behavior.

While some of the initial pro-arbitration decisions were close 5 to 4 votes, the pro-arbitration reasoning is now incredibly entrenched. So much so that a couple weeks ago, a unanimous SCOTUS backed Brett Kavanaugh's first written opinion, essentially finding that the 1926 law prevents a court from interfering with the workings of an arbitration clause even “if the court finds the arbitrability claim ‘wholly groundless.’”

So what are we left with? Not much. But lucky for us, the 1925 Congress - elected when the nation was obsessed with such transportation advancements as the Model T but apparently now controls us all (pictured here) - was concerned about a few things. So it placed exemptions in the law, specifically: “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Well, the U.S. Supreme Court just had a chance to decide whether those literal words meant anything.  Apparently, even this Court – in the words of Neil Gorsuch - was forced to acknowledge that they did. As Slate wrote, “Together, Public Justice [which represented the plaintiff] and the Constitutional Accountability Center provided enough arcane evidence to satisfy Gorsuch” of this. But it took, among other things, something like six early 20^th Century dictionaries to convince him.

As Slate notes, “The justice’s preoccupation with 1925 linguistics is so extreme that it spurred Justice Ruth Bader Ginsburg to write a brief concurrence noting that Congress can ‘design legislation to govern changing times and circumstances,’ using words whose meaning may ‘enlarge or contract [in] scope’ as society progresses.” 

For all you legal eagles out there, here is specifically what RBG wrote in her short concurring opinion:

Congress, however, may design legislation to govern changing times and circumstances. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 14) (“Congress … intended [the Sherman Antitrust Act’s] reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic potential.’” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731‒732 (1988))); SEC v. Zandford, 535 U. S. 813, 819 (2002) (In enacting the Securities Exchange Act, “Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor … Consequently, … the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” (internal quotation marks and paragraph break omitted)); Northwestern Bell Telephone Co., 492 U. S. 229, 243 (1989) (“The limits of the relationship and continuity concepts that combine to define a [Racketeer Influenced and Corrupt Organizations] pattern … cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a ‘pattern of racketeering activity’ exists. The development of these concepts must await future cases …”). As these illustrations suggest, sometimes, “[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U. S. 212, 218 (1999).

Congrats to Public Justice for winning this case. If they hadn’t, we’d know that things were even more corrupt than we thought at the U.S. Supreme Court. Now, if only the full Court would follow RBG’s sage advice and fix its earlier decisions. Ah, to dream.  

California vs. The World

(With apologies to that comic-con darling Scott Pilgrim vs. the World - although there’s nothing funny or juvenile about our story today.)

It’s probably hard to overestimate just how much the Trump administration hates California. It’s almost understandable given how solidly California mid-term voters rebuked him, or that California reps have already started down the impeachment road.

But as we last wrote about this, California has powerfully led the nation against many unpopular Trump Administration policies – so unpopular, in fact, that the Administration has been forced to fight back against California the only way sleazy and corrupt hacks know how: cowardly acts right before holidays.

Take one of the issues we wrote about last October: meal and rest break laws for truckers. As we noted at that time:

For almost two decades, California has had a meal and rest law for commercial truckers, protecting all motorists from highway accidents. But the American Trucking Association has now petitioned the Federal Motor Carrier Safety Administration to preempt California’s sensible law. … The trucking industry wants to prevent the state from having authority in this area. Notably, 20 other states have laws like California’s.

On October 29, 2017, a number of labor, consumer, civil rights, legal and other public interest groups sent a letter to the Federal Motor Carrier Safety Administration urging rejection of the trucking industry’s petition.

But on December 21, the Friday before Christmas, the FMCSA granted the industry petition, promising a new surge of fatigued truckers on the road. Are these people nuts?  Business Insider wrote:

Desiree Wood, who began trucking in 2007, said not giving paid rest breaks could put the safety of truck drivers and typical drivers at risk.

Truckers who are not properly rested are more likely to get into accidents; 13% of commercial-vehicle drivers who get into accidents are fatigued, according to an FMCSA study. Fatigued drivers, in general, are three times as likely to get into a car accident than well-rested drivers.

"It's really a travesty," Wood, who is also president of Real Women in Trucking, told Business Insider. "It truly defies safety. If you really cared about safety, you would want people on the highway who are not stressed out about their pay and who are well-rested."

The Teamsters have now filed a lawsuit to invalidate the agency’s actions. But we just may have to wait this out until we can elect a less corrupt, safety-conscious, worker-friendly President again. In the meantime, props to California for doing whatever it can to stop whatever it can. The rest of us appreciate it.

Duties to Warn

The other day, a couple of federal appeals court judges told a Federalist Society audiece that if they could do one thing to change the federal rules, they would END DISCOVERY IN MOST CASES! Complying with discovery requests is just too much trouble for companies that do bad things, it seems.(Sorry for all the caps, but these are the views of FEDERAL JUDGES!)

But I have to say, this shocking revelation is at least a good reminder of the importance of discovery.  When someone is injured, violated, defrauded or killed, the responsible party has the information and evidence establishing their culbability, not the victim.  Unless the victim has access to this information through discovery, they can’t prove anything. No discovery means no liability. We get it.

The same concept applies to laws requiring companies to warn the public of dangers that the company creates or at least knows about. Only they have that information, but many times, they don’t tell people – who then get hurt. It comes up a lot.

For example, it was reported this week that the family of Parker Waldridge, one of five people killed last January in an Oklahoma gas well explosion, allege in their wrongful death lawsuit that the drilling company, Patterson-UTI Drilling, “ignored multiple warnings that safety equipment … was malfunctioning.”

The lawsuit alleges that at least two days before the explosion, the rig superintendent, manager and several other Patterson employees received email results of a laboratory test warning of problems with the rig's accumulator, a piece of safety equipment that closes part of the well to prevent an uncontrolled release of fluids. The warnings even came with a "skull and crossbones graphic (literally)," the lawsuit said.

(BTW, no doubt this evidence was obtained during discovery, as is true for all the misconduct we’re writing about today.)

Another company that way too often violates its duty to warn customers of dangers is Johnson & Johnson, the world’s largest health-care products company. Reports Bloomberg, Johnson & Johnson has begun settling consumers’ claims that it sold artificial hips knowing they were defective, marking the first settlements in the seven-year-old litigation.” But in addition,

J&J is set to face a trial Jan. 14 in Dallas where five recipients of the Pinnacle hip will press claims that failed to warn customers about the devices’ risks. A similar 2016 case produced a $1 billion verdict for multiple plaintiffs.…

The hip recipients argued DePuy officials rushed the Pinnacle hips to market with little testing and misled doctors about the device’s safety profile, assuring them there was little risk of metal poisoning or tissue damage. J&J has denied these claims and said it developed and marketed the hips responsibly.

Speaking of drug companies, a U.S. Supreme Court argument is coming up in a case brought against Merck over its osteoporosis drug Fosamax, which ironically causes bone fractures. (See our earlier coverage here.) The reporting about that case doesn’t capture it very well so here’s our summary based on the respondent’s SCOTUS brief: 

in the years before Fosamax’s label correctly warned against very serious “atypical femoral fractures,” many people suffered this injury. Merck could have and should have updated its label earlier than it did regarding this problem. But instead, it went to the FDA asking that the agency approve a new label warning against minor “stress fractures.” The FDA said no to this obviously inadequate request. Merck says that rejection was “clear evidence that the FDA also would have rejected a warning about atypical femoral fractures.” That’s ridiculous. But that’s the issue before the Supreme Court.

Bottom line: warnings matter. And it’s a company’s job to make sure that vulnerable consumers and patients receive them.

It's PopTort PopQuiz Time, Med Mal True or False Edition!

We were wondering whether to start a game of "Medical Negligence Truth or Dare" but decided "Medical Negligence True or False" might be a little safer. (Although as you'll see, in health care safety isn't always Job One.) Anyway, let's give it a try.

TRUE OR FALSE?

1. After a state caps damages for the purpose of decreasing unnecessary tests and procedures (i.e., reducing "defensive medicine"), common tests like cardiac stress and imaging tests do, in fact, decrease.

False. Instead, such tests appear to increase, as does Medicare Part B lab and radiology spending. Researchers say,“If the policy goal is to limit healthcare spending, damage caps are simply the wrong tool.… [A] core message from our findings is that writ large, the ‘adopt damage caps, reduce spending’ story lacks empirical support.  Instead, measures to reduce overtreatment will need to be carefully targeted to particular areas of concern.”

2. Medical societies are making healthcare unsafe by focusing attention on “tort reform” instead of reducing errors.

True. According to researchers, after “the American Society of Anesthesiologists (ASA) studied closed claims data in 1985 to examine ‘the types of injuries that occur and their frequency,’ anesthesia procedures were changed ‘that protected millions of patients from harm.’  However, ‘other professional societies were slow to follow the ASA’s lead. Instead of devoting resources to the study of root causes, they sought to reduce their members’ exposure to liability claims by lobbying for damages caps and other restrictions on lawsuits. These efforts benefited their members, but likely harmed patients by reducing the pressure the liability system exerted on providers to improve patient safety.” 

3. Actual payouts to malpractice victims are usually capped at doctors' insurance policy limits - even if juries award more. 

True. Data show that even when injuries and negligence are significant and a jury verdict is appropriately large, actual payouts to patients rarely exceed the health care provider’s insurance policy limits. In other words, there are no "jackpots" here.

4. More than 250 doctors who recently surrendered a medical license in one state were able to practice in another state.

True. This is according to a 2018 investigation by the Milwaukee Journal Sentinel, USA Today and MedPage Today.

5. Medical boards frequently consult the National Practitioner Data Bank (NPDB), which exists to ensure that past physician negligence, such as prescription drug abuse, unsafe surgeries, or sexual relations with patients, are known before allowing a doctor to practice.

False. Last year, "30 state medical boards in the U.S. backgrounded a physician using the database fewer than 100 times, according to numbers from the Health Resources and Service Administration. Thirteen boards didn’t even check it once.” 

6. When hospitals settle malpractice cases involving one of their doctors, they use tactics to avoid reporting the doctor’s actions to the NPDB.

True. One tactic is called the “corporate shield.” According to researchers, “The shield is employed when ‘the medical corporation for which the doctor works is named in the suit, and the doctor is either not originally named or is released specifically for the purpose of avoiding a report to the NPDB.’ Although the extent to which this tactic reduces the number of payments that are reportable to the NPDB is not known, some authors believe that one-half of otherwise reportable adverse events are deflected by this means.”

7. Doctors are correct: malpractice settlements are poor indicators of past negligence and poor predictors of future claims.

False. Indeed the exact opposite is true. According to researchers, malpractice settlements are “good indicators of past negligence because both the likelihood and the size of payments correlate with the strength of the evidence of medical malpractice. They are good predictors because the number of past settlements correlates with the likelihood that more payments will be made.” Also here.

8. The U.S. medical malpractice insurance industry is losing money as a result of underwriting losses (i.e., too many claim payouts).

False. The net income for these insurers increased to more than $1.1 billion from $764 million in 2016. 

9. A wrong or delayed diagnosis causes, on average, one patient death per day in a U.S. hospital.

False. On average, someone dies in U.S. hospitals due to wrong or delayed diagnosis every nine minutes.

10. Unsafe medical workplace conditions are a bigger patient safety problem than physician burnout.

False.  Physician burnout, which 55 percent of doctors report, is at least equally responsible for medical errors as unsafe medical workplace conditions, if not more so. And “health care facilities where doctor burnout was seen as a common problem saw their medical error risk rate triple, even if the overall workplace environment was otherwise thought to be very safe.…” See here, here, here, here.)

BONUS QUESTION

(Just cause there's lots to say about the following.)

By the end of the decade, there is expected to be a shortage of between 42,600 and 121,300 physicians, including OB-GYNs, because doctors cannot afford their medical malpractice insurance premiums.

False. Yes, there will be such shortages but for reasons that have nothing to do with malpractice. Rather, this is due to the “growing, aging population” and “physician-retirement decisions.” For example, data from the Centers for Medicare & Medicaid Services demonstrate that “the growing shortage in obstetricians and gynecologists (OB-GYN) [is] due to a maturing workforce and coming retirement wave.” Others note, "Changes in physician-retirement decisions could have the greatest impact on supply, and over one-third of all currently active physicians will be 65 or older within the next decade.” According to a survey from the Doctors Company, “Over half of physician respondents plan to retire within the next five years,” a 54 percent increase from 2012 results. Why? Doctors are considering retirement as they feel the pressure of declining reimbursements, increased administrative burden, and industry consolidation.” Even in Texas, which stripped away patients’ rights in 2003 ostensibly to address the problem of physician supply, there’s a major physician shortage because medical school enrollment and resident positions are insufficient to meet the projected demand of a growing population.

Hope you did well cause your life may depend on it (not to scare anyone). You can find all this and more in the Center for Justice & Democracy's new Briefing Book - Medical Malpractice: By The Numbers, December 2018 Update.

Dangerous Transportation Oddities

Oh, there are all kinds of dangers we could be talking about this holiday. Imagine the following not-so-hard-to-imagine scenario. You drive to the airport, under the influence legal weed. (We’re talking to you, Massachusetts.) Then you get your boarding pass at a germ-infested self-service kiosk, aka the dirtiest place in an airport. (And don’t get me started on bathrooms.) Once you arrive at your destination, you eat some salmonella-poisoned turkey. Still on your feet?

Yet it could be worse.  Let me warn you about two additional transportation hazards that could ruin your holiday, indeed your life.

1. Electric scooters.  If you’re in a city where these hazardous modes of transportation are allowed, good luck. As one California doctor described it, “Since scooters launched in Santa Monica, I’ve seen a large number of people who’ve lost their teeth, who come in with broken bones, head injuries, skull and facial fractures. … And I’ve seen a lot of tears, because it’s a really big deal to need surgery or new teeth.”  They’re also seeing traumatic brain injuries and death. 

Companies like Bird and Lime, which make boatloads of money off these 15 mile-an-hour-city-sidewalk-death-traps, are trying to escape legal accountability by forcing users to “accept lengthy terms of service agreements that exempt scooter companies from legal liability if riders are hurt using them.” But what if you’re a pedestrian who gets hit, and who never agreed to anything?

That’s one theory behind a new class action lawsuit filed in California against these companies for “’dumping’ scooters on public streets without an appropriate warning.” It includes three plaintiffs who “were walking when e-scooter riders crashed into them from behind, resulting in severe injuries. The suit alleges that e-scooter companies knew their riders were injuring pedestrians and –– by failing to stop the collisions from occurring –– assisted and encouraged scooter riders as they committed ‘assaults.’”

2. Stretch Limos.This week, the first lawsuit was filed by the estate of one of the 20 people killed in that terrible limo crash in upstate New York last month, considered “the nation's deadliest transportation-related incident in nearly a decade.” It was filed on behalf of the estate of 29-year-old Amanda Rivenburg: 

The family is claiming negligence, gross negligence and wrongful death. It names the Gansvoort-based limo service, Prestige Limousine & Chauffeur Service, owner Shahed Hussain and operator Nauman Hussain. …

The Rivenburg family attorney said on Monday that he expects the state to be named in future lawsuits related to the Route 30-30A intersection where the crash happened and because of the state's oversight of the limo company.

This might be a good time to mention that New York's wrongful death law is one of the most archaic in the nation. It will be interesting to see if this law is raised as a defense against substantial damages in some of the cases that might be filed.

Specifically, unless a family member is financially dependent on the person who has been killed, compensation is essentially unavailable to them. That includes, for example, the anguish and heartache a parent would experience over the loss of their child. (This FAQ explains in more detail.)

The other issue, of course, is the out-and-out perils of stretch limos. As the New York Times wrote shortly after the upstate New York crash, 

[M]any stretch limousines might be considered a kind of automotive zombie: They are former cars or sport utility vehicles that have been transformed after they leave the factory, and exist in a regulatory limbo. They usually do not have to meet arduous federal safety requirements, and they face a haphazard inspection system that varies from state to state.

“Without sufficient safety standards in place, it is nothing but a fine line between a stretch limousine and a hearse,” Thomas Spota, the former Suffolk County district attorney, said in 2016.

Stay safe, America.

What the Elections Said About Climate

Climate isn’t the only environmental disaster we need to worry about, of course. Remember the 2010 Deepwater Horizon/BP oil disaster in the Gulf? Turns out that all those chemical dispersants which “BP applied directly at the spewing wellhead – about a mile below the Gulf of Mexico’s surface – failed to curb the oil’s spread” and made things even worse. (See some of our prior coverage here.) Apparently, no one has yet come up with an alternative plan the next time an explosion like this happens. So there’s that.

But back to climate. Voters in six Western states faced ballot initiatives to make “sweeping changes to environmental regulations.” These, of course, were heavily opposed by oil, gas and mining companies, which vastly outspent proponents of these measures with boatloads of out-of-state money. As a result, the ballot initiatives “largely flopped … including Colorado's increased restrictions on oil and gas drilling, Washington's carbon tax and Arizona's 50 percent renewable energy mandate."

But don’t feel discouraged yet. Consider this. While polluters were dumping money into states to defeat ballot initiatives, and Trump has been engaged in “full-throated … efforts to roll back regulations regarding climate change and other environmental issues,” seven governorships and four state AG flipped from Republican to Democrat this past election, and "[m]any of the new governors made climate change and clean energy part of their campaign platforms."

In other words, state-based actions on climate and clean energy now may be more likely.

Also more likely? Litigation:

"We're going to see a significant increase in litigating and policymaking at the state level with this new leadership," said Hogan Lovells partner Hilary Tompkins, a former solicitor at the U.S. Department of the Interior and counsel to former New Mexico Gov. Bill Richardson. "We're also going to see a lot of legal debates in the courts ramped up against the Trump administration where the states of these newly elected officials are going to be arguing their states' rights to enact policies addressing climate change."…

Expect the legal clashes over these divergent priorities to increase, experts say. Democratic AGs have already launched court challenges to a slew of deregulatory moves from the Trump administration, from the rollback of vehicle GHG standards to the reversal of a rule clamping down on methane emissions from gas wells on public lands.

It's safe to say those AGs have picked up some allies in such fights following Election Day.

Another hopeful note comes from passionate U.S. “climate kids” trying to fix the world before it's destroyed. Yet given the ever increasing rightward, pro-corporate shift of the U.S. Supreme Court, litigation may not be the best path forward - at least not for them, and at least not in the United States.

On the one hand, in Europe, “The Hague Court of Appeal ruled that the preservation of a stable climate system is a fundamental human right and ordered the Dutch government to meet its promises of making sharp cuts in greenhouse gas emissions."

On the other hand, “In the United States, a landmark climate case filed by 21 young Americans, ages 11 through 22, hit a snag at the U.S. Supreme Court.”  Although right now, it’s just a snag.

Specifically,

Since it was first filed in 2015 during the Obama administration, the “climate kids” case, backed by some of the country’s top climate scientists, has made unexpected progress, with the U.S. Ninth Circuit Court of Appeals twice ruling that the case should proceed to a trial on its merits. In July, the Supreme Court, while noting that the “breadth of [Plaintiff’s] claims is striking,” nevertheless denied a Trump administration request to halt the suit….

But,

Then, the U.S. Supreme Court weighed in. Chief Justice John Roberts, in a highly unusual step, intervened on the U.S. government’s behalf and ordered a temporary halt to a federal district court trial … just 10 days before the trial was scheduled to begin on October 29. Roberts ordered a stay in the case while the plaintiffs responded to the government’s request to dismiss the suit. 

Fortunately, a November 2 SCOTUS order said “it would not intercede in the case, allowing the trial to proceed.” However, “[l]egal analysts say that in all likelihood, the Juliana case will ultimately be rejected by the Supreme Court, which now includes two conservative judges appointed by Trump, Neil Gorsuch and Brett Kavanaugh.”

We shall see. Activists say they are not giving up. And as a result of this week's election, more and more states hopefully will be able to help.   

Update: Climate kids suit on hold.

In the Preemption Trenches

To most, “federal preemption of state law” is legalese that sounds like it belongs and should stay in a law school classroom. So apologies if you’re bored out of your minds by our post today. 

But I think it’s important to talk about real-life consequences when the federal government (Congress or the Trump Administration) tries to preempt – or invalidate – a pro-consumer or pro-safety state law.  Those consequences can range from invasion of personal privacy, to financial ruin, to death. California is on the frontlines of “preemption” battles these days, and a good illustration of what’s stake. 

NET NEUTRALITY

After the Trump Administration’s Federal Communications Commission (in cahoots with the telecom industry) threw out federal net neutrality rules, California passed its own tough state net neutrality law. The state law “largely mirrors the FCC’s discarded 2015 net neutrality rules,” and in other ways, it goes further. The federal Department of Justice immediately sued, saying California’s law was preempted by federal policy.   

However, there are good reasons why DOJ may not succeed. Specifically, what federal policy? There isn't one any more:

[W]hen the FCC dismantled its own authority over broadband ISPs (by rolling back their classification of ISPs as Title II common carriers under the Telecom Act), it ironically killed any authority it might have had to tell states what to do.

“An agency that has no power to regulate has no power to preempt the states, according to case law,” Stanford Law professor Barbara van Schewick said in a statement to The Verge.

In other words, according to the U.S. Constitution, industry can’t have it both ways. If there’s no federal policy or regulation with which a state is in conflict, states can’t be prevented from acting. Oh, the irony.

DATA BREACHES

Similarly, one way an industry can preempt an area and prevent states from acting is to suddenly agree to subject itself to federal regulation. That has the dual effect of setting an ineffective federal public protection standard and preempting states like California from doing anything more. That’s exactly what’s happening in the tech privacy area, where the U.S. Chamber of Commerce and tech companies “recently urged Congress to ‘adopt a federal privacy framework that preempts state law.’”

But California already has strong data breach and privacy laws.  As explained by Neema Singh Guliani, senior legislative counsel at the American Civil Liberties Union,

A federal law wiping out — otherwise known as preempting — state protections would be a bad deal for consumers. It would likely put existing consumer protections, many of which are state-led, on the chopping block and leave states bound by a federal law that could prevent additional consumer privacy protections from ever seeing the light of day. State regulators could lose the authority to sue or fine companies that violate their laws. And consumers may even be barred from taking companies to court.

SLEEP DEPRIVED TRUCKERS

There’s nothing scarier than being on the road with a sleep-deprived trucker.  Just ask comedian Tracy Morgan. A few years ago, a crash critically injured him and killed his friend on the New Jersey Turnpike when their vehicle was hit from behind by a Wal-Mart truck driver who had not slept for more than 24 hours. (See our coverage here.)

For almost two decades, California has had a meal and rest law for commercial truckers, protecting all motorists from highway accidents. But the American Trucking Association has now petitioned the Federal Motor Carrier Safety Administration to preempt California’s sensible law. (If you’re as appalled as we are, tell them your thoughts here.) The trucking industry wants to prevent the state from having authority in this area. Notably, 20 other states have laws like California’s.

This isn’t even the first time this year that the trucking industry has tried to preempt or eliminate state laws that make sure truck drivers get enough rest. It also recently tried and failed to get a bill through Congress to do this and proponents came uncomfortably close. Let’s hope this latest effort fails too.

FORCED ARBITRATION/#METOO

That all said, there are evidently limits to California’s state leadership and willingness to push back against federal preemption. Consider this cowardly act by California Governor Jerry Brown:

Just as he was signing California’s net neutrality law, he was also vetoing two bills, passed by the California legislature, to assist #MeToo survivors in taking abusers to court. These bills “had high-profile champions, including former Fox News anchor Gretchen Carlson, who won a $20-million settlement against Fox News after she accused the channel’s now-deceased chairman Roger Ailes of harassment and retaliation.”    

One of the bills would have kept employers from requiring these disputes to be resolved in private, secret, corporate-controlled forced arbitration – the very same process that Trump has used to try to silence his victims. Brown was unwilling to fight this even though the bill was duly passed by the California legislature, which clearly knew what it was doing. He declared, “states must follow the [federal] Federal Arbitration Act and the Supreme Court’s interpretation of the Act.” 

Brown will be out of office soon. Let’s hope they try again.

Journalists Wage War Against Civil Justice Attackers

We’re trying to find some good (or at least better news) to focus on today. So there shall be no talk of the White House, Congress or the U.S. Supreme Court (unless you want to heave). Rather, let’s do a deep dive into some state civil justice issues and see if there’s any good news to report.

We’ll start with state judges. After all, the U.S. Supreme Court doesn’t rule on everything. Here’s something we found. According to the Associated Press,“Some of the same national groups that backed the nomination of federal judge Brett Kavanaugh are spending big hoping to reshape state courts that will decide cases on redistricting, voting rights, abortion restrictions and other issues.” Whoops, ok maybe not.  

How about some civil justice news from a solidly blue state? Should be more positive. But then we found out that last Sunday,California Governor Jerry Brown vetoed bills, which “comfortably” passed the Democratic legislature, that would have made it easier to take sexual harassment complaints to court, including a bill prohibiting the use of forced arbitration and non-disclosure agreements that keep sexual harassment hidden. Sigh. (#TimesUp, Jerry. California will have a new governor soon enough.)

But then there’s this out of Missouri.  It starts somewhat “bad-newsy,” but bear with me. Seems like a corporate front group in Missouri stole email accounts and used them to send fake letters urging lawmakers to strip Missourians of their legal rights. Ugh, I know. But here’s the good part: a savvy journalist by the name of Tony Messenger of the St. Louis Post-Dispatch uncovered this fraud. In other words, the press is doing its job and thanks to reporters like this, we are finding out important things that would have otherwise remained hidden. 

After doing some digging, Messenger reported,

The letters appear to be copied verbatim from a petition posted by the Chamber of Commerce on a website called StandUnited.org, which pitches itself as a source of “grassroots” activism for conservative causes.…

When state Rep. Jay Barnes, a Republican lawyer from Jefferson City, started receiving the letters, he was surprised he didn’t recognize any of his constituents’ names, even though he has lived his entire life in Missouri’s capital city. So Barnes started driving around and looking at addresses and knocking on doors.

One letter came from an empty lot with a house under construction. Another came from an empty home. Others had different people living at the addresses listed than the names on the emails …

“These are fake emails driven by out-of-state defendants desperate to avoid responsibility for cancers and deaths that jurors in Missouri and elsewhere have found they caused — after weighing the actual evidence,” Barnes said. “I’m not surprised. There’s never going to be a groundswell of support for an out-of-state company that a jury found knowingly poisoned consumers, causing cancer and death. Desperate defendants do desperate things — including, apparently in this case, forging emails.”

These fraudsters might even be prosecuted:

State Rep. Mark Ellebracht, D-Liberty, believes the emails likely broke state or federal law. He’s alerted the U.S. attorney’s office about them.

“Somebody has engaged in some level of identity theft here by posing as my constituents,” says Ellebracht, who is a lawyer. When he called one of the people who allegedly sent him a letter, the constituent said, “‘I don’t know what you’re talking about,’” Ellebracht said.

“This undermines the entire democratic process. They’re using other people’s email without their permission or knowledge and co-opting their opinion. It’s insidious.”

The St. Louis Post-Dispatch had a great editorial about all this yesterday, praising Messenger’s work, writing,

…Messenger, working from the addresses sent to a different lawmaker, went out to the letter-writers’ addresses himself. He found the same thing: empty houses, or empty lots, or residents who insisted they didn’t write the emails that were attributed to them.…

If one side is engaging in deliberate, calculated, out-and-out deception to bolster its case, there’s probably something wrong with its case. And we now have a good indication that those intent on scaling back the right to sue businesses are engaging in such lies in Missouri.

I’ll say. And so have others. (Check out the discussion in the video below.)