ThePopTort

Safety, Kicked Down the Tracks

 

In case you didn’t hear, there was another train accident this month.

On October 5, an Amtrak passenger train, traveling through Vermont, derailed injuring six people, and, thankfully, killing none. 

Oh, and that wasn’t the only one.

On Friday, a Canadian National Railroad train, which derailed in southeastern Mississippi, sparked an “evacuation and highway closure after rail cars began leaking fuel oil.” 

Train accidents have become so common that, according to federal train safety data, they are happening daily- actually three times a day, on average. Check out some of the recent deadliest ones here. 

We’ve covered a number of them (here, here, and here), most recently the Amtrak train derailment in Philadelphia that killed 8 people and injured over 200 others. Sixty lawsuits have now been filed and consolidated before a federal judge in Philly. 

It seems like our nation’s rail problems aren’t getting any better and our lawmakers haven’t done much to stop more of these accidents from happening. But it gets even worse. The powerful railroad industry has failed to complete some life-saving safety measures that Congress ordered several years ago, and with the deadline now imminent, it looks like Congress will be kicking the can down the tracks once again. Instead of actually advancing safety standards, Congress may be about to roll them back.

Let me explain. In 2008, after a horrific train accident in Chatsworth, California that killed 25 and injured over 200, Congress, with wide bipartisan support and the signature of President George W. Bush, passed a law mandating that all railroads implement safety technology, called “positive train control” (“PTC”), by December 31, 2015.

PTC, as it is known, involves a network of ground-based computers, onboard systems that monitor a train's speed and position, satellite relays and wireless spectrum-based communications from thousands of towers alongside railroad tracks.

It is a technology that the National Transportation Safety Board has been urging deployment of for over 45 years, and federal safety officials say would have prevented many recent fatal accidents including May’s deadly derailment outside of Philadelphia. 

But now, with the end of the year deadline fast approaching and only 14% of the upgrades completed,  railroad companies are lobbying for more time to implement the system across their network. Although they have already had nearly eight years to complete the job, they want Congress to pass an additional three-year extension, plus the ability to opt for an addition two-year deferment. 

If they don’t get an extension, rail companies have threatened to “halt service rather than face fines and liability for operating without positive train control beyond the deadline.” According to NBC News, 

If rail service really were to shut down on key parts of the nation's network, the economic impact would be fierce. As many as 1.7 million daily commuters would be stranded from taking their regular trains to work, forced to find alternatives.

The American Chemistry Council recently estimated that a single month of rail service disruptions could result in a 2.6 percent reduction to U.S. real GDP in the first quarter of 2016 — pulling $30 billion out of the economy. According to the ACC's report, the unemployment rate would rise by 0.3 percent, with a loss of 700,000 jobs, and household incomes would fall by more than $17 billion.

In other words, extortion. The railroad industry has so much economic leverage that it can dictate to Congress and the American people whatever it wants, even though people may die. And what choice will many in Congress have? They either capitulate to the railroad industry, risking lives, or chance serious economic consequences.

So with the White House clearly signaling that unless an extension is passed, the administration will enforce the PTC regulations starting at the beginning of the year, Congress has been scrambling for a way to give the rail companies what they want.

Their first strategy was to put a PTC extension into the “Drive Act” – a 1000 page transportation bill marred by controversy. We wrote about it here. But since the future of the 6-year transportation-funding bill is less certain than it once was, members of the U.S. House of Representatives and Senate have introduced separate legislation to extend the PTC deadline.

While this has now undoubtedly become a priority for lawmakers, even these bills face an uncertain future. In the Senate, some Democrats have refused to pass an extension to PTC systems without a vote on the Highway bill. And with the House in complete disarray, it’s hard to see how anything passes there.

It would be nice if there were as much effort to pass safety legislation as there is to repeal it.

With all of this kicking the can down the track, we may have self-driving cars before we will have safe trains in America.

What do Retiring Justice Stevens, Senator Patrick Leahy and Sarah Palin Have in Common?

What a question, right?  The Blog of the Legal Times had an interesting piece about Senate Judiciary Chair Pat Leahy (D-VT)’s comments on a couple TV news shows his week.  They concern some of the extremist (far right) decisions coming from the current Supreme Court that he finds not only objectionable (as did Justice Stevens), but also outright activist.

While we would add a few more to that list (e.g., here, here), one case he raised was the court’s love song to Exxon, when it acceded to Exxon’s demand that the $5 billion Exxon Valdez punitive damage award, which the company fought for 14 years, be cut to one-tenth of the jury’s verdict.   

Now, we were surprised as anyone to see Tina Fey’s doppelganger Sarah Palin agreeing with Leahy and Justice Steven by denouncing this decision at the time (see video below), especially given her general lack of awareness of the U.S. Supreme Court (although her decision to “go rouge” on this must have, on second thought, been a little too mavericky even for her).  But the footage kinda speaks for itself, don’t you think?

In any event, let's hope lots more people start paying attention to this decision.  

Two Bills Introduced to Lower Doctors’ Medical Malpractice Rates—Without Infringing on Patients’ Rights!

As those who have been following the distracting and irrelevant attacks on patients’ rights in recent days can attest, one reason behind many of these assaults has been the notion that medical malpractice claims are somehow contributing to the cost of doctors’ insurance premiums.  These “blame the patient” arguments have been made at the state level for years, despite a wealth of evidence to the contrary.

So we are very happy to report today that Senator Patrick Leahy (D-VT) and Rep. John Conyers (D-MI) 
have both introduced bills aimed at addressing something that actually could help stabilize doctors’ insurance costs—namely, by repealing a law we alluded to yesterday, the McCarren-Ferguson Act of 1945.

Simply put, the law makes insurance purveyors the only industry in America (other than Major League Baseball) exempt from federal anti-trust laws that prevent collusion and price-fixing—and have frequently left doctors holding the bag.

“In the markets for health insurance and medical malpractice insurance, patients and doctors are paying the price, as costs continue to increase at an alarming rate.  Insurers should not object to being subject to the same antitrust laws as everyone else,” said Leahy in a statement introducing his bill.

Some Docs Singing, “You Don’t Bring Me Flowers” to Drug Makers Over New State Gift Bans

We’ve blogged about the evils of drug companies bearing gifts to doctors a number of times (here, here, here) so when laws to ban such practices in Massachusetts and Vermont went into effect on Wednesday,  we thought it was reason to celebrate (in spite of the wistful Streisand/Diamond-like ballads that will no doubt linger in the hearts of many gift-getting docs).

For example, some doctors, such as Harvard hematologist Thomas Stossel (who is no relation to our buddy John, so far as we know), have organized opposition to the new laws—but recent history has not exactly been supportive of such efforts.

As we’ve noted before, the U.S. Justice Department is investigating Forest Labs for persuading doctors to use its drugs by picking up the tab for expensive meals, vacations, and sporting events.  The company as already set aside $170 million to cover the investigation.  Medtronic paid the government $40 million for dangling “lavish trips” in front of doctors to entice them to use its spinal products.  And Pfizer pled guilty and paid $430 million for enticing doctors into prescribing the drug Neurotonin by giving them “lavish weekends and trips to Florida, the 1996 Atlanta Olympics and Hawaii.”

“It’s a winds-of-change bill,” said Ken Libertoff, executive director of the Vermont Association for Mental Health, of the Vermont bill.  “It says the relationship between pharmaceutical manufacturers and the medical field will dramatically change.”

And that may be so, as legislatures in “Oregon, Texas, Connecticut, Colorado, Illinois and Maryland” consider similar limits on drug company/doctor gift exchanges.

Another GM/Chrysler “Bankruptcy Loophole” Update

As promised, we’re continuing to follow the Chrysler/GM bankruptcies (and in particular, developments involving the “bankruptcy loopholes” which effectively immunize both companies from lawsuits should defects in the “old” pre-bankruptcy Chrysler GM/vehicles injure or kill people).  Here are some notable press items from the past few days…

Attorneys General from Connecticut, Kentucky, Maryland, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Vermont, and West Virginia are standing up for injured consumers, filing objections to the GM bankruptcy last Friday (here, here, here, here).

We hear that other states' AG’s will be coming in to raise similar objections soon.

The Detroit News adds to the ever-growing list of heart wrenching tales about Chrysler/GM defect victims, profiling 20-year-old former athlete, Stevie Beale, who was paralyzed from the waist down due to a faulty seatbelt design in her Pontiac Bonneville.

Lynn LoPucki, a professor and bankruptcy expert at UCLA Law School, who is quoted in the article, said, "They should assume liability for their cars. Instead, they give people a very good reason to not buy their cars”

The Atlanta Journal-Constitution and Macon Telegraph both tell the tragic story Nell and Jimmie Davis whose Jeep Cherokee flipped over, crushing the (defective) roof of the vehicle, and killing Jimmie just eight days before the couple’s 48th wedding anniversary.  Nell sued Chrysler, but like so many others, her case is unlikely to go anywhere. “They got all their taxpayer bailout money and now they’re not responsible for anything?” she said.

In the News

Major major Bush clean-up action today, as Obama issued a new order, through OMB, rebuking Bush's "preemption" policy, stating "pre-emption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption."  So, no longer will agencies be able simply to immunize corporations from lawsuits, as they've been doing in a massive and unprecented scale under Bush.  Congrats to AAJ for its work on this!

A Florida woman who sued the hospital where she contracted the “flesh-eating bacteria” after giving birth, requiring the amputation of her arms and legs, has settled for an undisclosed (though no doubt, damage cap-effected) amount.  

We know that doctors enjoy getting “gifts”  from drug companies, so we weren’t exactly surprised by a new study showing that even small drug company trinkets like coffee mugs and pens have a direct effect on doctors’ prescription writing habits. Meanwhile, the Vermont legislature just passed a law banning nearly all such gifts, and “requiring drug and device makers to publicly disclose all money given to physicians and other health care providers, naming names and listing dollar amounts.”

Lawsuits have a terrific way of unearthing documents that might otherwise have remained buried.  Exhibit A: according to internal documents released during lawsuits against AstraZeneca, marketing executives spent years blocking efforts by company scientists to voice concerns that the drug Seroquel caused weight gain and other problems, saying that disclosing such information “would harm sales.”

NY AG Andrew Cuomo is suing two debt settlement companies that “preyed on consumers” who couldn’t pay their bills, promising to dramatically reduce their debts for a fee and then failing to deliver.

The Thrill Of Victory! U.S. Supremes Deliver 6-3 Win to Levine Over Wyeth!!!

Cue up “We Are the Champions,” “Celebration,” or what the heck, even “Dancing on the Ceiling,” and join us in doing a very happy dance!  Today is a great day for civil justice! 

In one of the most anticipated decisions of the current U.S Supreme Court term, the high court ruled today (in a decisive 6-3 decision!) against Wyeth’s (and the Bush administration’s) bogus argument that FDA approval of the anti-nausea drug Phenergan should automatically immunize the company from lawsuits. 

Of course, as regular readers of ThePopTort know, the implications of this case are huge for consumers everywhere, and as a result, we’ve been talking about it for months (see here, here, here).  For that reason, we won’t rehash the details in this post (besides, we're too busy dancing!). 

For now, suffice it to say, this momentous decision will continue to allow injured consumers like Diana Levine access to the courts, and most importantly, the compensation they need and deserve—and we couldn't be happier!!!

The Civil Justice Sheriff is Back in Town!

Howdy, civil justice buckaroos!  Did you miss us?

We’ve been away on a special civil justice assignment for a couple of days—but rest assured, we’re back in the saddle, and ready to "quick draw" for your rights.    

In the meantime, a lot has been going on.  Here’s a small sampling of things that caught our eye:

From the “Hooray for Consumers!” file, check out this awesome new video put out by the Alliance for Justice about the much-talked-about corporate immunity case, Wyeth v. Levine.

From the “Incredibly Disturbing” file, the New York Times reported, “Top federal health officials engaged in ‘serious misconduct’ by ignoring concerns of scientists at the Food and Drug Administration and approving for sale unsafe or ineffective medical devices, the scientists have written in a letter to Congress….The letter to Congress, dated Oct. 14, is part of a growing chorus of dissent from what had long been a tight-lipped agency. In decades past, scientists rarely disagreed publicly with their agency’s decisions, and any concerns they had about important decisions were whispered among veterans.”

From the “Also Pretty Disturbing” file, The Washington Post reported “A new federal ban on the use of the controversial chemical phthalate in teethers, pacifiers and other children's products won't apply to goods already in warehouses or on store shelves….The decision, issued by Consumer Product Safety Commission general counsel Cheryl Falvey, means it will be illegal to sell products made after the ban takes effect Feb. 10 that contain certain types of phthalates, chemicals used in soft plastic that have been linked to reproductive problems."

Finally, from the “Let’s End on a Happy Note” file, The Wall Street Journal reported, “President-elect Barack Obama is signaling by a combination of words and deeds that his administration will toughen regulations at federal agencies that oversee consumer products, environmental policy and workplace safety.” 

Today’s the Day…for Wyeth v. Levine!

Yes, we know, it’s election-eve. But as civil justice fans everywhere
also know, today is the day that the U.S. Supreme Court is hearing
arguments for what could be the most consequential case of the term (and
one we’ve been blogging about for months!), Wyeth v. Levine.

At stake may be whether pharmaceutical companies will have total lawsuit
immunity when the drugs they market hurt people, so long as those drugs
have received FDA approval.

Early reports suggest the justices may opt to play it safe and issue a
“narrow ruling” that would not have implications beyond the Wyeth case
itself. Regardless, a ruling is not expected before early next year.

Fortunately, the new Congress will have the ability to pass legislation
that helps ensure irresponsible drug companies will not be given a “get
out of jail free card,” no matter how the high court eventually rules.
For the sake of consumers everywhere, let’s hope the new Congress gets
right to work!

Hot Off the Presses!

Check out this above-the-fold, front page article in today’s New York Times profiling Diana Levine, the plaintiff in the upcoming U.S. Supreme Court “Federal preemption” case, Wyeth v. Levine.  It provides an excellent primer on “the fiercest battle in products liability law today,” and illustrates in very human terms, exactly why the issue is “less boring and more consequential than it sounds” for everyday Americans…