ThePopTort

Volkswagen to ALEC: Help, Let Us In!

Today, the American Legislative Exchange Council (ALEC), the secretive group run and funded by big corporations that subsidize the involvement of conservative state lawmakers, officially launched a new website about its model legislation to immunize corporate lawbreakers.  Coincidently, we just received a copy of this “confidential memo” from the Volkswagen diesel cheating crisis management team.  I know. What are the odds?

__________________

Confidential Memo

To: Volkswagen Board of Directors

From: Dieselgate Crisis Management Team

Re: Our Three Point Plan - Update

Date: September 24, 2015

Here’s where we are on the three-point plan:

1. CEO Martin Winterkorn steps down so he can spend more time with his lawyers.  DONE. 

2. We show that we’re no different – in fact, probably better - than the rest of the bottom feeders that make up the auto industry.  (Hey, how’s this worse than Henry Ford II calling airbags “a lot of baloney.”)  DONE.

3. We get with that U.S. group, the American Legislative Exchange Council (ALEC). I know, ALEC is so tainted that 120 companies have already quit. But let’s face it. Only a truly scorned organization can relate to what we’re going through right now. So I just buried ALEC’s enormous corporate membership fee in the $7 billion budget we think we need “to win back the trust of our customers.” Now let me show you why this is an excellent investment that will save us billions in the long run.

But before I do, let’s admit there are a few things we can’t do much about.  We got caught by U.S. environmental regulators (and researchers from West Virginia, of all places.) This is terribly ironic since we don’t do much diesel car business in the U.S. Our European friends barely regulate us, making it a whole lot easier to cheat. Had we just stayed out of the U.S., we’d be golden. Although I have to say, U.S. auto safety enforcement is generally laughable and the U.S. Justice Department doesn’t care much either. To be honest, we weren’t terribly worried. But the EPA? Now that was a surprise. I just found out that ALEC basically wants to repeal all U.S. pollution laws. (Hope the Pope doesn't find out.) If we only knew about ALEC sooner!

But now that we do, the timing couldn't be better. This week, ALEC officially launched a web site about what state lawmakers can do to immunize corporate lawbreakers like us. Can you feel a smile coming on?

Although the U.S. Department of Justice will probably just slap our wrists, we’re deathly afraid of private actions brought by state Attorneys General and class actions by angry customers. These have already begun. Turn’s out that ALEC’s top civil justice priorities are bills to ensure these very cases never get anywhere. It’s as if ALEC was reading our minds!

For example, ALEC wants to gut all the state consumer protection laws that provide the basis for many of these lawsuits:

ALEC’s model bill “would effectively eliminate the critical private enforcement provisions that give these laws their power.… [It] is actually a wrecking ball to destroy one of the building blocks of consumer protection, namely the private enforcement of state unfair and deceptive practices acts. It does this by systematically weakening each and every provision of these laws, such as lower burdens of proof, special damages, and attorney’s fees, that were designed to provide consumers with access to justice for small economic wrongs.

One of my absolutely fav’s is this provision: “in no event may any action be brought under this chapter more than [four (4)] years from the first instance of the act or practice giving rise to the cause of action.” We started cheating six years ago!  How'd they know? That’s just spooky.  

And there’s more. This bill contains a complete ban on punitive damages. And here’s what I love about ALEC. They propose not only limiting punitive damages in consumer protection cases. They have an entire bill aimed at limiting punitive damages in any kind of case brought by people we harm. This kind of law is incredibly important to corporate lawbreakers like us. It means civil damages will never threaten our bottom line, and we’ll be just fine even if we keep harming people. 

Then, ALEC wants to make class actions impossible to bring, so hundreds of thousands, or perhaps millions of victims, can’t join together in a lawsuit against us – even though we stuck the exact same cheating software in every single one of their cars. Just look at the hurdles and burdens their bill would place on our (likely ex-) customers. They'll all have to hire their own attorney and go through the time and expense of proving their cases one by one by one (which we expect they'll never do.)  Any one of these provisions alone could immunize us, but several dozen? This bill is a true embarrassment of riches.

And those lawsuits by State AG’s? ALEC’s bill would make it nearly impossible for states to hire outside counsel to help, which could prevent many cases from going forward at all. You can read more about that bill here. And should any of our cars have product defects that lead to car crashes and injuries (or deaths), ALEC has a variety of options to immunize us there, as well.

And here’s what else I love about ALEC.  Everything they do is entirely behind closed doors. They kick reporters out of meetings. They tell members of the public “NO” when they ask to participate in ALEC activities.   

So you see why we must join ALEC today. We’ve broken the law. We’ve harmed a lot of people. This is an organization just for victims like us!

Supreme Court to Injured People: “Get Off My Lawn!!!” Er, "Steps!!"

When it comes to injured victims trying to seek redress in the courts, cranky old Scrooge-like Supreme Court Justices are clearly ruling the day this term.  On Thursday, we told you about Justice Scalia’s decision in American Express v. Italian Colors Restaurant, which Public Justice’s Paul Bland called an “unmitigated disaster.”  Not to be outdone, today Justice Alito (he’s only 63 but I’m qualifying him) wrote in Mutual Pharmaceutical v. Bartlett, that a severely injured victim of a generic drug has no remedy whatsoever. That means you, 85% of all Americans who take drugs, er ummm, legal drugs.

To understand the cruelty of this decision, let’s review what we wrote when the case was argued:

You take the generic medicine and suddenly, your skin starts burning off.  You spend two months in a burn unit, months in a medically induced coma, a year on a feeding tube, and end up severely disfigured with permanent lung, esophagus, and vision damage.  You can no longer read, drive, go to work, or even eat normally.  So you bring a lawsuit, hoping to be compensated for being given a drug that was obviously “unreasonably dangerous” to you.  And indeed, you find out that there were more adverse event reports to the FDA over sulindac than any other similar nonsteroidal anti-inflammatory medications on the market; that sulindac knew its rate of life threatening conditions was comparable to that of a drug the FDA recommended be removed from the market - but it never told the FDA this.  And after a 14-day trial, the jury agrees that whatever benefits might exist for this drug, they were clearly outweighed by the risks, and awards $21 million. 

Yet today, Justice Alito for the 5-4 majority, threw out this verdict giving the victim, Karen Bartlett, nothing. Justice Sotomayor issued a particularly blistering dissent, noting how the Court has turned preemption law completely on its head for the purpose of protecting corporations from liability exposure and wiping out traditional state tort remedies.  And what’s more, Congress seemingly intended to do the opposite, leading her to call the majority decision “frankly astonishing:”

[T]he majority effectively makes a highly contested policy judgment about the relationship between FDA review and state tort  law—treating the FDA as the sole guardian of drug  safety—without defending its judgment and without considering whether that is the policy judgment that Congress made.

Congress adopted the FDCA’s premarketing approval requirement in 1938 and then strengthened it in 1962 in response to serious public-health episodes involving unsafe drugs. See Future of Drug Safety 152. Yet by the majority’s lights, the very act of creating that requirement in order to “safeguard the consumer,”  United  States v.  Sullivan , 332 U. S. 689, 696 (1948), also created by operation of law a shield for drug manufacturers to avoid paying common-law damages under state laws that are also designed to protect consumers.  That is so notwithstanding Congress’ effort to disclaim any intent to pre-empt all state law. See  supra, at 4.  The majority’s reasoning thus “has the ‘perverse effect’ of granting broad immunity ‘to an entire industry that, in the judgment of Congress, needed more stringent regulation.’ ”

Not to mention the fact that, as she points out “this decision threatens to disturb a considerable amount of state law.”  So that should get some people furious. 

This decision was just 1 of 3 that led Andrew Cohen at The Atlantic to call today, "A Great Day for Corporations."  Really?  Another one? 

Your move, Congress.

Suing for Secrecy

“Good vs. evil.” It’s a theme that pops up often. Just consider the movies. The new film Beautiful Creatures almost entirely echoes this theme. Ghost featured that same dynamic. And there have been plenty of others. It’s a popular motif. And it reminds me of today's story.

Back in November 1983, the respected law professor, Tom Lambert, published a groundbreaking (at the time) article called “Suing for Safety.” In it, he outlined some of the ways tort lawsuits have saved lives, like ensuring that toys don’t strangle children, or that clothes washers stop when doors are opened, or that guns don’t fire while being unloaded. So important was this article that it ended up in the Congressional Record years later.  And since that time, much else has been written about how tort suits make us all safer, whether or not we are the ones who sue. That's our definition of "good."

Then we have the opposite situation, where a company sues to keep anyone from learning about its dangerous products, presumably allowing it to keep injuring and killing consumers.  It’s a variation of a theme with which we’re familiar: companies that insist on settling cases confidentially so no one learns about a dangerous product or practice; or, the medical profession, which goes after reporters who glean information from the National Practioner Data Bank – a databank that identifies the safety record of physicians but which patients are not allowed to see. 

Back in 2008, Congress passed the Consumer Product Safety Improvement Act (CPSIA) after a public health disaster hit this country – toxic toys with dangerous lead levels, causing brain damage in children. See some of our coverage here.  The U.S. Chamber of Commerce (which, by the way, sues the U.S. government about 150 times per year, or about 3 times a week), and the National Association of Manufacturers (among other huge corporate lobby groups) tried to kill this law because, among other things, it created a public database of product defects so parents can protect their kids. Here’s what the Chamber said in its letter to Congress: [T]he database “will lead to consumer confusion and give rise to lawsuits based on a rumor repeated through the echo chamber of the Internet.” 

Oh, it’s led to lawsuits, alright. But not by “confused consumers" based on “rumors” about product defects. On no. The lawsuits are by companies who do not want to comply with the database law and are suing so they can continue to cover up information. And some courts are cooperating, in the words of FairWarning Reports, which has a great article on this today, “blazing new trails in judicial secrecy.” 

In October 2011, just months after the database went public, a company that has only allowed itself to be known as “Company Doe,” brought a case against the Consumer Product Safety Commission, “aimed at a complaint submitted by a local government agency regarding a product from Company Doe that, the local agency said, had harmed a child.” Mind you, the CPSC,

[f]ollowed standard procedure by notifying Company Doe and giving it an opportunity to post a response to the complaint. But the company argued the complaint was inaccurate. The commission responded by writing four different versions of the grievance to eliminate any inaccuracies, but that wasn’t enough to satisfy Company Doe, and it eventually sued to keep the product complaint out of the database altogether. (emphasis added)

And now,

[t]hanks to closed-door hearings, sealed records and a 73-page ruling with large sections blacked out, even the most basic details are concealed. That includes the identity of the plaintiff — known only as “Company Doe” –along with its product and the incident that led to the complaint. …

Several legal experts said they know of no other case in which a company was allowed to use a fictitious name to protect its reputation.

“The general price tag for wanting to submit things to a court to get a ruling in your favor is that they become public,” said Richard Marcus, a law professor and expert on civil procedure at the University of California Hastings College of the Law in San Francisco. “We don’t have closed trials in this country,” Marcus said. “ We don’t allow witnesses to come in and testify wearing bags over their heads.  Maybe there are some very, very, very unusual exceptions to that but that’s our general mode of operation.”

Luckily, Consumers Union, Public Citizen and the Consumer Federation of America, “have asked an appeals court to lift the veil of secrecy by unsealing records in the case.” Whether it’s a veil, or a bag, or any other kind of secretive head gear, they need to be pulled off the heads of companies like Company Doe, and when that happens, look out for the movie cameras.  Just sayin’.

ALEC’s Phony Crony Capitalism

The American Legislative Exchange Council is the secretive organization of conservative lawmakers and corporations that draft and shop around model bills without identifying that these bills are written by national corporate lobbyists. It’s been called many things lately.  Let’s see.  Union buster.  Voter suppresser.  Concealed weapon and shoot to kill champ. Mistreater of asbestos victims.  Abuser of its charitable status.  

We also like Paul Krugman’s descriptive paragraph:

…ALEC’s claim to stand for limited government and free markets is deeply misleading. To a large extent the organization seeks not limited government but privatized government, in which corporations get their profits from taxpayer dollars, dollars steered their way by friendly politicians. In short, ALEC isn’t so much about promoting free markets as it is about expanding crony capitalism. 

That more or less fits ALEC’s civil justice agenda too.  It’s new priorities are listed in a brand new report called ALEC 2013: Jobs, Innovation, and Opportunity in the States, and when it comes to people harmed or killed by corporate wrongdoing, it focuses on three areas: making it more difficult for people injured or killed by unsafe or defective products to hold manufacturers accountable in court; limiting the availability of “class actions,” so that big companies can more successfully violate large numbers of people with impunity; and limiting lawsuits by people who have been defrauded under state consumer protection laws.  All such laws transfer the costs of injuries away from those who caused them and onto others (like taxpayers, when people are severely hurt and need care.)

In other words, ALEC would like to undermine the tort system’s economic function -  deterrence of non cost-justified accidents - replacing it with new rules constraining what is now a free-market approach to holding corporations accountable for their negligence.  (You can read more about the tort system's important economic function in the 1987 book, The Economic Structure of Tort Law by conservative economic theorists William M. Landes and Richard A. Posner.)

So let's add one more ALEC description - subverter of the free market tort system.

Tackling the Lies of "Tort Reform"

We kinda feel like Eliza Doolittle today. (The character - not the pop singer.)  Who knew that one day, our scrappy little blog would blossom into a source for a new, impeccably researched academic study called “The empirical effects of tort reform,” written by Cornell Law School Professor Theodore Eisenberg, one of the “foremost authorities on the use of empirical analysis in legal scholarship.” (The article will soon make it into the Research Handbook On The Economics Of Torts (Jennifer Arlen, ed.))

The article focuses on “three central objects of tort reform: punitive damages, medical malpractice, and products liability.”  There’s so much good and useful stuff in here that we’ve decided to go a little long with our post today.  Here goes (and see if you can find us!):

The Business Community Promotes Myths about the Tort System. 

“Through advertising and propagation of incomplete or distorted information, interest groups such as the U.S. Chamber of Commerce and the American Medical Association obscure the status of both the legal system and primary actors’ behavior.”

A Good Example of this Distortion Concerns Punitive Damages.

Business groups often mention punitive damages as an area of concern (e.g., U.S. Chamber of Commerce 2008) and punitive damages have been perceived as so problematical as to lead the Supreme Court to impose constitutional limits, using controversial substantive due process principles, as well as federal statutory limits (BMW of North America, Inc. v. Gore; State Farm Mut. Auto. Ins. Co. v. Campbell; Exxon Shipping Co. v. Baker).

But, “[t]he attention punitive damages receives is disproportionate to their real world impact.”  Specifically, “[t]he rate at which punitive damages are awarded has been stable over time… No study shows punitive damages being systematically awarded in inappropriate cases.”  Also, “[a] central question is whether caps on punitive damages or Supreme Court decisions have affected the punitive-compensatory relation.” The available evidence says “no.”

And here’s where we come in – we’ll just give you the whole, fascinating paragraph:

The absence of change in the punitive-compensatory relation is consistent with a punitive damages crisis having been largely a social construct of entities like the U.S. Chamber of Commerce. The construct was reinforced by understandable media emphasis on large awards and further fueled by experimental research, never reconciled with realworld data (Eisenberg et al. 2002), funded by ExxonMobil Corporation (Sunstein et al. 2002) to mitigate Exxon’s liability related to the 1989 Exxon Valdez oil spill. It is consistent with the U.S. Supreme Court’s recognition that claims of out-of-control punitive damages have been exaggerated (Exxon Shipping Co. v. Baker 2008). And it is consistent with the reaction of the U.S. Chamber of Commerce when its survey of state court systems was shown to be inaccurate with respect to punitive damages (Eisenberg 2009). Rather than fix its survey, or admit that prior results were misleading, the Chamber stopped asking its respondents about punitive damages (U.S. Chamber of Commerce 2010). The Chamber’s questionable behavior prompted the extraordinary response of a judiciary defending itself against unsupported characterizations (PRNewswire 2010; The Pop Tort 2010).

Moving onto medical malpractice.  There’s a lot here, but we’ll just pull out a few interesting tidbits:

Patient Safety is Already Suffering Because Too Few Patients Sue.

One possible factor contributing to the continued high rate of errors is that doctors do not expect to bear the full cost of harms caused by their negligence. Studies of medical error consistently find that the vast majority of patients injured by medical error do not file a claim (Weiler et al. 1993; Sloan et al. 1995; Andrews, 2006). Those that do sue often do not recover. Beyond this, hospitals do not bear the full costs of the harms caused in them even though hospitals directly and indirectly influence patients’ risk of medical error (Mello et al. (2007)).

There Ain’t No “Lawsuit Lottery” in Medical Malpractice Cases.  Actually, this is really no surprise.  As we have noted, even Victor Schwartz, General Counsel of the American Tort Reform Association, admits this.  But the empirical studies also show, “[t]he overwhelming evidence is that the legal system’s disposition of medical malpractice claims is strongly associated with the quality of medical care. Claims of a lawsuit lottery are unsupported.”

Also noted is how those who argue that the system is flooded with frivolous lawsuits deceptively interchange the terms “claims” and “lawsuits” to try to make their case:

Thus, misleading impressions about the medical malpractice system, such as the AMA’s statement that “75 percent of medical liability claims are closed without a payment to the plaintiff” (AMA 2006) depend wholly on failing to distinguish between weak cases, which tend not receive payment, and strong cases, which every study shows to receive payment at a higher rate than that suggested by the AMA. Distinguishing between the two groups of studies is important because a claim presented to an insurer is not the same as a lawsuit. And claims against multiple defendants may lead to recovery from only one, leaving three claims without a payment but an incident with evidence of negligence.

Business and Medical Lobbies Could Care Less About the Continuing Drop in Med Mal Lawsuits.

Yet campaigns for medical malpractice reform persist in states with declining filings (e.g., New York Senate Bill 2011). And the Pacific Research Institute, a freemarket group, ranks Connecticut as 38th in a medical-tort index ranking states, New York as 43rd, Oregon as 39th, and Rhode Island as 49th (Graham 2010). As noted, however, NCSC data show a decade-long decline in malpractice filings in each of these states. Connecticut filings declined by 30 percent, New York filings by 1 percent, Oregon filings by 42 percent, and Rhode Island filings by 34 percent.

“Tort Reform” Interferes With Patient Safety Incentives.

Evidence suggests that greater savings to hospitals and insurers can be achieved not at the expense of patient victims. … Caps that reduce premiums by brute force likely discourage more painstaking but socially desirable efforts to improve safety.

“Tort Reforms” Actually Lead to An Increase in Claims “Severity.”

The effect of caps and other reforms may help explain increasing awards in medical malpractice cases that reach trial. The number of lawsuits decreases, as suggested by NCSC filing data, but caps require attorneys to be more selective about the cases they accept. …This greater selectivity and need for greater damages to accept a case likely contribute to the increasing observed mean and median medical malpractice awards in cases that do reach trial. Garber et al. (2009) used a survey of 965 plaintiffs’ attorneys to assess whether noneconomic damages caps and attorney fee limits affected access to justice for medical malpractice victims. They concluded that caps and fee limits make it harder to retain counsel.

“Tort Reform” Provides Little in the Way of Health Care Savings.

One recent summary concludes that the “accumulation of recent evidence finding zero or small effects suggests that it is time for policymakers to abandon the hope that tort reform can be a major element in healthcare cost control” (Paik 2012, 175).

There is No Link Between C-Sections and Liability.

On balance, the available evidence does not support a consistent association between liability pressure and increased cesarean rates. Increased cesarean rates can be attributable to factors other than liability pressure and studies with reasonable control groups of physicians without liability pressure tend not to find an association.

There is No Link Between Liability Premiums and Access to Care.

If increasing premiums drive exit decisions, then programs alleviating premiums should have effects. But Smits et al. (2009) surveyed all obstetrical care providers in Oregon in 2002 and 2006. Cost of malpractice premiums was the most frequently cited reason for stopping maternity care. An Oregon subsidy program for rural physicians pays 80 percent of the professional liability premium for an ob/gyn and 60 percent of the premium for a family or general practitioner. Receiving a malpractice subsidy was not associated with continuing maternity services by rural physicians. Subsidized physicians were as likely as nonsubsidized physicians to report plans to stop providing maternity care services. And physician concerns in Oregon should be interpreted in light of the NCSC finding, described above, that this was a period of substantial decline of Oregon medical malpractice lawsuit filings.

Medical Education Must Address the Brainwashing of Doctors.  (This is truly of my favorite findings.)

 A bizarre aspect of the medical malpractice reform debate is the recognition that doctors grossly misperceive the system, accompanied by recommendations to change the system to cater to their misimpressions. Rather than educate doctors about reality, one reads of proposals to change the system to cater to physicians’ misperceptions (Hermer and Brody 2010). It seems preferable to include a reasonable medical education requirement focusing on how the legal system operates in medical malpractice cases rather than to curtail the current liability system that is widely recognized as underenforcing standard-of-care norms.

Business Group Propaganda is Polluting the Product Liability Issue. Some fascinating findings here. 

Some branches of science are so distorted by interest-group research and socially constructed knowledge that the actual safety and efficacy of products can be difficult to prove, hampering objective assessment of both the products liability system and of changes in it.   While misuse of scientific evidence by plaintiffs can occur in product liability cases (In re Silica Products Liability Litigation 2005), the pharmaceutical (DeAngelis 2000; Drummond 1999), energy (Sunstein et al. 2002), asbestos (Egilman et al. 2003), tobacco (Glantz et al. 1996), welding rod (Morris 2008), and other industries suppress some research and fund other research, sometimes without attribution of funding, that can be misleading or incomplete....

Both states that enacted reforms during 1979-1989 and states that enacted no reform during that period had significant declines in plaintiff success rates during the period. Tort reform efforts, including social construction of knowledge, likely adversely affected plaintiffs even in states that did not enact reforms (Eisenberg and Henderson 1992, 776). Tort reform efforts, such as anti-liability publicity campaigns, thus may be more important than reforms themselves.

There’s Little Question that Product Liability Promotes Deterrence of Unsafe Products.

Non-experimental evidence relating to corporate behavior reasonably consistently suggests that products liability law deters. … Qualitative assessment of individual industries also suggests that products liability promotes safety. Although fear of market reaction to poor products likely dominates liability pressure, liability risk often is cited as enhancing safety.

Finally, Read This:

Liability considerations were a sufficient condition or a contributing factor to at least fourteen important auto safety improvements, including inadvertent vehicle movement, fuel tank design, occupant restraints, and all-terrain vehicle restrictions. The chemical industry is reported to have made significant safety improvements as a result of liability exposure. Ashford and Stone (1991) found that liability pressure stimulated the development of safer products and processes and spurred technological innovations that reduced chemical hazard risks (367-68). They conclude that tort reforms are misplaced because significant under deterrence existed. Johnson (1991, 452) concludes, “The claim that the product liability system unduly compromises the chemical industry is not well supported by the evidence.” Pharmaceutical company attorneys credit liability pressure for safety improvements. One company attorney regarded the liability crisis as largely a myth. “I believe––though it’s heretical––that the liability crisis is largely a myth when one looks at the available information such as the actual number of cases” (Swazey 1991, 297). This industry attorney concluded that tort reform proposals exceed what may be needed to address flaws in the system.

 I think we rest our case.  Have a happy holiday weekend!

Immunity That The Good Wife Never Saw Coming

Did you happen to catch the TV show The Good Wife over the weekend? (Full episode here.) “Straight from the headlines” doesn’t half describe it, and I’m not even talking about the listeria-outbreak subplot given what’s gong on with cantaloupes these days (although this story dealt with processed cheese, which seems somehow more fitting for show about food poisoning.) 

But the main plot dealt was something equally timely, and kudos to them for tackling it - i.e., the FDA’s highly controversial 510(k) process, which allows manufacturers to put certain medical devices on the market if they submit evidence that the device is “substantially equivalent” to a device already on the market   (See Public Citizen’s study on this.) In the show, a spinal cord stimulator – a medical device used to ease chronic pain - was implanted in a patient, a young mother.  Turns out that the manufacturer and inventor of the device was the patient’s doctor and he made boatloads of money every time he implanted one.  Are these writers clairvoyant or what?  Just last week, the Wall St. Journal published a large investigative piece about spine surgeons who do this very thing, writing:

Rather than use spinal implants from third-party manufacturers, scores of surgeons have started their own device makers to churn out similar designs, putting themselves in a position to benefit financially from the hardware they insert into patients. 

And just like real life, this Good Wife doctor never put the device through the more rigorous FDA approval process (with clinical trial data) because he paid some “experts” to say the device was “substantially equivalent” to a device already on the market.  Writes the WSJ:

The Food and Drug Administration has a less stringent approval process for medical devices nearly identical to ones on the market. Surgeons only have to submit mechanical-testing data attesting that their implants are "substantially equivalent" to existing ones. The FDA usually gives its green light within 90 days.

But like many of these 510(k) devices, this one was defective, it malfunctioned and as a result, the patient was permanently injured.  And she sued.

Ironically and as we’ve pointed out many times (here, here ), had the device actually gone through a pre-market approval process, this lawsuit probably would have been impossible.  Device manufacturer are completely immune from all responsibility for putting unsafe Class III (i.e. high-risk) devices on the market (yes, plenty of unsafe devices are FDA-approved) and the writers would have had to come up with a whole different storyline.

Actually, here is one new storyline that’s not so different.  Wisconsin Governor Scott Walker, not satisfied just with targeting abused and neglected nursing home residents, now wants to do to his residents what Michigan politicians did to theirs almost two decades ago (and which no other state has since replicated).  They want to prevent any Wisconsin citizen who is injured by any FDA-approved unsafe drug or device, from ever getting compensated by the negligent drug company.  As The Cap Times wrote:

For 15 years Michigan residents and families of loved ones who have been injured or killed by drugs like Rezulin, Accutane and Vioxx have tried to get their day in court. But they've largely been stymied by a state law that shields drug makers from legal liability.

Even the state itself, seeking to recover millions in Medicaid dollars spent on ailments caused by Vioxx, was prevented from doing so by its own appeals court.

Michigan passed the law in 1995, and it remains the only state in the nation with such sweeping legal immunity for drug makers.

But Wisconsin Republicans want to enact similar legislation that would shield drug makers from lawsuits over FDA-approved drugs. And the proposal here would go further, including immunity for makers of FDA-approved medical devices like automatic external defibrillators, heart valves and artificial hips. They also would be granted immunity from lawsuits if their products had inadequate warnings.

"If this becomes law, all of those people who are injured, or the families of people who die, will just be SOL," says Mike End, the president of the trial lawyers group Wisconsin Association for Justice.

Even the conservative U.S. Supreme Court has said that immunizing drug companies is a very bad idea  All I have to say is, we once warned Hollywood about great legal class action storylines drying up because of the way our class action system is being decimated.  They had better start paying attention to this one, too.

Tennessee’s Tort Chums

What happens when conservatives and “non-conservatives” (like Tennessee Citizen Action and the Tennessee Association for Justice) unite in opposition to laws that limit the accountability of wrongdoers?  One would think this would be the death knell of such proposals, yet it may not be enough to stop the power of Big Business from wielding its influence in Tennessee.  That’s where a packet of Draconian “tort reform” proposals are making it through the legislature despite some incredibly unified opposition from members on both sides of the political spectrum. 

For example, Tennessee State Sen. Mike Faulk recently wrote this column:

Two of the cornerstones of conservatism are the principles of personal responsibility and limited government. A proposal to reform our tort system by establishing government-imposed limits on general damages in civil lawsuits runs counter to each principle.…

The law of tort is that if someone hurts someone else, they should make up for it. This is the very core of the principle of personal responsibility. It's why we have a tort system. The purpose of tort law is to require full payback for harm done. …

Government telling a jury it may not award a full measure of justice violates the second principle of conservatism. Government-imposed limits on general damages is the antithesis of limited government. Government intervention in civil matters shifts the risk of loss from the wrongdoer to the injured at the point where caps apply. Such risk shifting is plainly government meddling in private matters.

Then there’s former U.S. Senator Fred Thompson (R-TN), who has a long history of opposing liability limits even when he was in the U.S. Senate.  He wrote back in January:

Some argue that the Legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants - regardless of the facts and circumstances of the case. I don't agree with this approach, and I don't think it's "conservative."

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society.

Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the U.S. Constitution.

Thompson’s views have the very visible support of conservative groups like the Center for a Justice Society, and blogs like 7th Amendment Advocates. 

The Good Wife isn’t the only place you can watch Fred Thompson these days:

Elena Kagan’s Tort Inbox

The Sunlight Foundation has published the emails of Elena Kagan while she was in the Clinton White House.  (“She was Associate White House Counsel from 1995 to 1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997 to 1999.”)  We decided to take little look around, and found some interesting stuff.

One of the big tort issues with which the White House was dealing, was an anti-consumer, anti-patient federal products liability bill that President Clinton vetoed.  The White House met with consumer groups on this, but I’m not sure it had much impact because we know the veto clearly did not end the conversation.  That was thanks to continued pressure from the manufacturers and “tort reform” groups. 

Victor Schwartz, counsel for the American Tort Reform Association, wasn’t kidding when he told Business Insurance, “I worked with Elena from about 1995 until about 1998 on tort reform issues, when she was assistant White House counsel and that was part of her portfolio. [After Clinton vetoed the bill], Mr. Schwartz worked with Ms. Kagan and her boss to arrive at a product liability bill.  ‘I believe the president would have signed but some in the business community believe did not go far enough,’ he said." 

I'll say.  Here’s one email:

“I used to talk with Victor Schwartz regularly.  He will offer to work towards a compromise bill -- i.e., a bill going part way in the direction of our veto message -- but will want some definite idea of what we can live with.”

And another:

1. Victor Schwartz called to tell me he was sending us another memo on products reform -- this one dealing more with politics, and less with substance. During our conversation, he proposed that Jack convene a meeting that both he (Schwartz) and the new President of ATLA would attend -- presumably to see if there is any common ground.  I don't see any reason to do this right now, but it is something to keep in mind.

During our conversation, he proposed that Jack convene a meeting that both he (Schwartz) and the new President of ATLA would attend -- presumably to see if there is any common ground.  I don't see any reason to do this right now, but it is something to keep in mind.  2.  Per your note, Jack, I told Mark Gittenstein that you would be happy to meet - - after the transition - - with him and a bunch of high-tech types interested in securities reform.    

More on that “securities reform” issue later. 

Following Clinton's products veto there was more discussion, like this memo, which reiterates some of the huge problems with federal product liability legislation and offers some limited places for POTUS to compromise, or go to politically. 

The Administration did, in fact, find something they could live with: The Biomaterials Access Assurance Act of 1998, which limits the liability of the biomaterials industry - suppliers of “raw materials” and “components” used in the manufacture of medical implants.  Some of this bill’s evolution can be seen here.  There’s also discussion of the 1997 volunteer immunity bill

And at the end of this memo, there’s support for a bizarre bill (lest anyone get any "ideas" today) that would have been a federal takeover of auto insurance laws, forcing all motorists into one of two unfair auto insurance systems.  Under one system -- “pure” no-fault -- consumers seriously injured in accidents would completely forfeit their rights to recover non-economic damages (for injuries such as permanent disfigurement, serious impairment of a bodily function, loss of a limb, or pain and suffering), an option is so unfair that no state in the country has adopted it.  Under the other system -- a distorted version of the traditional tort system -- consumers would be forced to pay higher insurance rates and still only get limited access to the courts.  Good thing that didn’t go anywhere.

Meanwhile, we were looking for any evidence at all that Kagan was instrumental in President Clinton’s veto (later overridden) of the 1995 Private Security Litigation Reform Act (PSLRA), which the New York Times recently wrote about.  Notably, this disastrous law made it more difficult to hold accountable financial firms that engage in fraud, and we know how that turned out.  We couldn't find much.  The PSLRA was followed up by another problematic law, the Securities Litigation Uniform Standards Act of 1998 (SLUSA), which Clinton signed.  According to this email, it seems that law happened because then congressman Joe Kennedy wanted to be governor.   Oy.

Some fascinating stuff, for sure.