December 17th, 2008

The Bubbe Maisse Report (aka "Judicial Hellholes")

A bubbe maisse is a Yiddish expression for a grandmother’s tale. In the electronic era we call them urban legends. And the American Tort “Reform” Association, a business group dedicated to making sure consumers can’t seek fair damages for harm that was caused to them, has issued its annual “Judicial Hellholes” report to help create some more such legends.

The report claims to identify the “worst” jurisdictions for lawsuits, which is to say, the worst for them and not for the consumer. In actuality, it is a small catalogue of rants, quotes and stories, many of which they put out each year in order to garner attention for their cause.

But this is the important part: There is nothing in the “report” that approaches empircal evidence. They simply canvass big business for the places they would least likely to get sued, or cherry-pick some decisions that they don’t like.

There is some whining about “trial lawyer money” influencing judges, but no indication as to how much money was spent by the Fortune 500.

I briefly noted last year’s report, quoting the Center for Justice and Democracy when they called the report “dishonest.” Adam Liptak, writing about it last year in the New York Times (The Worst Courts for Businesses? It’s a Matter of Opinion), noted that:

It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology. There is no way to tell why South Florida is the top hellhole while West Virginia is hellhole No. 4.

So I went breezing past the anecdotes in this year’s report to see if they responded to the criticism that it was completely subjective. Try as I might, I could not find any discussion of methodology. I know, you’re not surprised.

Also missing from the reports, since they like anecdotes so much, are the stories of tort “reformers” who found found themselves screwed or humiliated by their own prior advocacy, when they were injured.

And so, without further ado, since ATRA loves anecdotes so much, I’ll share a few of my own:

Another Tort “Reformer” Sees The Light:

Dr. Dave Stewart is a California anesthesiologist. He supported tort “reform.” Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys.

Tort “Reform”, Trent Lott, and Changing Fortunes: Aside from Trent Lott, it deals with Frank Cornelius —

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana — the same sort of arguments that now underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

Tort “Reform” Gone Bad. And the Personal Injury Round-Up: With this story from a “reformer” and medical oncologist:

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.
…
As I’d expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn’t awarded any damages… The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state’s tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.

Tort “Reformer” Michael Savage Brings Lawsuit:

Right wing radio talk-show host and tort “reformer” Michael Savage has brought a lawsuit. The infraction? He was quoted by an Islamic group on its website in which he called the Quran a “book of hate” and said Muslims “need deportation.”

Robert Bork Brings Trip/Fall Suit for Over $1M, Plus Punitive Damages And Legal Fees —

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount “in excess of $1,000,000,” plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

Aren’t anecdotes fun? You can use them to “prove” anything. And with these anecdotes, I “prove” that a tort “reformer” is just someone that was never injured by the negligence of another.

Target Hit for $3M in Defamation Punitives (And Tort "Reformer" Sees Opportunity)

This is two stories in one. First, a Target store down in South Carolina falsely accused a woman of using a counterfeit $100 bill. She sued Target and won $100K in compensatory damages and Target was hit by the jury with $3M in punitive damages. Then Ted Frank at Overlawyered decided this would be a good fit for that site, but the facts he used didn’t seem to fit the story. If you want to see how some lawsuits get turned into urban legends, this might be a good example to follow.

First the suit, which comes via Turley, citing a local news story:

Rita Cantrell of Greer went to two Target stores in the Greenville area in Feb. 2006, and both times employees accused her of using a counterfeit bill. Cantrell tried to buy items at the store and pay with an older series $100 bill.

[A Target] store employee sent out an e-mail to dozens of other retailers and law enforcement agencies warning them that Cantrell was a shoplifter who tried to spend bogus cash. The e-mail also included Cantrell’s picture.

According to Target’s own brief in their failed motion for summary judgment, Ms. Cantrell visited a Target store (just one store, not two as in the news story above) where a counterfeit was suspected. They declined to take the money when offered and asked her if she had another form of payment. She shook her head no, took the goods out of her basket, and walked out of the store. Then came the accusatory email.

The problems were that the bill was legit, and the email also went to her place of employment. And Target didn’t identify the money as a “possible” counterfeit. No sirree. The email said “The lady pictured attempted to use a counterfeit 100 dollar bill today.” So the accusation was unambiguous. (See Order denying judgment.)

The Secret Service was called in, verified the money as real, and Target was sued for the embarrassment and humiliation that Ms. Cantrell suffered, with the jury ordering 100K in compensatory damages and $3M in punitives.

From the original article came this response: Target spokeswoman Bethany Zucco said Friday the company will challenge the ruling.

“We are extremely disappointed by the magnitude of the compensatory and punitive damages awarded by the jury in this case,” Zucco said in a statement. “We sincerely regret any inconvenience incurred by the plaintiff.

Scott Greenfield wrote about this case the other day ($3M to the Target of Target) and remarked about this pathetic response:

Any inconvenience? You sent out a mass email, with her picture, telling the world that she’s a thief and forger, and you’re sorry for the inconvenience? There’s an “apology” that demands some serious puni’s alone.

And now comes the urban legend part. Ted Frank, a well known tort “reformer” at Overlawyered jumps into the action (Cantrell v. Target: $200 medical bill = $3.1M verdict). Except some of the facts in his post look a little different from the Target brief and the judge’s opinion.

1. As noted above, Target clearly identified the money as counterfeit, writing in the email, “The lady pictured attempted to use a counterfeit 100 dollar bill today.” But not according to Frank. In his version of the story, the central accusation is watered down to this:

Target employees were foolish in being unable to recognize the old currency, and mistakenly identified it as a possible counterfeit.

Now that, my friends, is just flat out wrong. They did not use any qualifying language about this being a “possible” counterfeit. That’s why there was a lawsuit and a jury verdict. Because the language was not qualified the way Frank wrote it. Hopefully Frank will fix this before his new version of the story becomes an urban legend.

2. Next up: When the incident happened, Ms. Cantrell “shook her head no and walked out of the store” in response to Target’s query of whether or not she had any other way to pay for the merchandise — as described in Target’s own brief to the court. But Frank says she “fled.” That’s right. Instead of an angry or anguished person simply walking away without the goods they came for after indicating they had no other funds to pay with, he claims she “fled” the scene. Now that’s just wrong (defamatory?).

Hopefully Frank will fix this too before his new version of the story becomes an urban legend. (I’m not being snarky, by the way. We all make errors and he has fixed his in the past.)

3. Next up, the Frank headline refers to a $200 bill and says that is no reason for a big award. Apparently, mental anguish and humiliation are not compensable under Frank’s view. We know this because he calls her experience merely an “inconvenience'” though there is no evidence in Frank’s piece to suggest he actually heard any of the testimony of what she went through. And when I challenged him in the comments to his post, he responded by writing that “the plaintiff suffered no actual injury.” Obviously the people who actually heard the evidence feel otherwise. When people who haven’t heard the evidence make such comments about those who have, it would be appropriate to immediately question the objectivity of that critic and question how their political leanings have affected their view of the facts.

If is fine, of course, for Frank to have a strong opinion and political leanings and write about them — only a fool would question his rights to criticize — but that should not lead to changing the facts of a case.

Frank brings up medical costs and their relationship to injuries in order to minimize Ms. Cantrell’s experience, and it is true that sometimes medical costs have a relationship to the seriousness of an injury. But not always. While a high bill usually means a pretty serious injury, a low bill does not necessarily mean a small injury. Psychological injuries are a perfect example of something that can torment an individual but have very low (or non-existent) medical bills. Another example is ongoing back pain that may be almost crippling to an individual but have no viable medical treatment. Looking at medical bills in a defamation action, and pretending it will have some bearing on the injury, is almost bizarre.

There are plenty of frivolous claims around to keep law bloggers busy if they want to write about them. With a nation of 300 million people this will happen. I write about them from time to time, as do others, because there are lessons to be learned in doing so. But there is no evidence this suit falls into that category. So long as one sticks to the actual facts.

Last note: Will the damage awards be sustained on appeal? That’s hard to say, since I didn’t hear the testimony nor have I seen a full record of the trial. But the 30-1 ratio may well be sustainable in general for a personal injury case. My analysis on why this is so is based on decisions and argument from the US Supreme Court here: Philip Morris Punitive Damages Decision — Why It Was Good For Plaintiffs

October 29th, 2008

Preemption v. Preemption v. Preemption (Wyeth v. Levine)

With oral argument scheduled for Monday in Wyeth v. Levine, three separate stories leaped off the screen at me. This included a devastating report of FDA officials being deeply opposed to Bush Administration policies regarding the issue of federal preemption of state law suits over drug cases, calling justification for new regulations “false and misleading.”

So here are the three stories in a nutshell: One from the standpoint of defendants, one from plaintiffs, and one from the government. (That’s plaintiff/musician Diane Levine at right. Her below the elbow amputation came from a drug injected in an improper manner that caused gangrene. The suit alleged, and the jury agreed, that the drug labels should have specifically warned that that type of injection should not be used.)

But before hitting those three posts, here is a quickie primer to get you up to speed in case you are late to the discussion, which I summarized a week ago (Preemption Gone Wild (How Bush Pushed Immunity for Big Business)). With preemption, a federal law that grants immunity will supersede a state law that allows lawsuits. But since President Bush couldn’t get Congress to agree to anti-consumer laws that grant immunity to corporations, drug companies try to argue that such preemption is implied by virtue of a conflict. Since there happens to be a presumption against preemption, that creates a problem for those corporations. They try to solve that problem with helpful politicians doing by executive fiat at an agency what they could not do in Congress; for example, by placing a corporate immunity clause in the preamble of an FDA rule that says if a drug is FDA approved, you can’t sue. Thus, drug companies ask the courts to imply that preemption exists even though it was not expressly legislated.

Now on to the three blogs:

First in the dock is the Drug and Device Blog — whose authors defend pharmaceutical companies from drug lawsuits — with Everything You Need To Know About Wyeth v. Levine, From A Defense Perspective. This lengthy piece summarizes all of their points about preemption and why drug companies deserve immunity if the FDA approves a drug, which is the number one thrust of this blog. The argument essentially ignores defects and under-funding in the drug-approval process.

Next up is from the Center for Justice and Democracy, a consumer rights group dedicated to preserving the civil justice system. They issued a report today: THE BITTEREST PILL — How Drug Companies Fail To Protect Women and How Lawsuits Save Their Lives. The report, according to the authors, “tells the story of the hyped marketing to women of a disproportionate number of unsafe drugs and devices resulting in countless deaths and injuries.” As you may guess, they aren’t too keen on immunity being granted to a company that was negligent, and whose negligence injured people. It’s part of that whole personal responsibility thing that conservatives usually talk about, except when it comes to big business.

And last up comes from Pharmalot, with this — Report: FDA Staff Objected To Preemption Policy. Here is the devastating lede:

Key FDA career officials strongly objected to Bush Administration drug labeling regulations that would preempt state liability lawsuits, according to a report just released by the Committee on Oversight and Government Reform. The staffers viewed the justifications for the regs were “false and misleading” and warned the changes would deprive consumers of timely info about drug safety, the report concludes.

This report is like sticking a dagger into the heart of the drug companies that argue for preemption because a drug is FDA-approved. For if the approval process is tainted, then we have the age-old problem of garbage-in-garbage-out.

I’ve filed this under tort “reform” because that is what it is. Except is a way of closing the courthouse door by a quiet administrative rule rather than a policy fight in a legislative body.

Preemption Gone Wild (How Bush Pushed Immunity for Big Business)

If you thought a lame duck presidency couldn’t do too much damage to the civil justice system you would be wrong.

The American Association for Justice today released a report showing a coordinated effort by the Bush administration to make corporations immune from lawsuits through the concept of preemption. With preemption, a federal law that grants immunity will supercede a state law that allows lawsuits. But since President Bush couldn’t get Congress to agree to anti-consumer laws that grant immunity to corporations, the report demonstrates a pattern of obtaining that immunity by executive fiat. This was done by placing the corporate immunity clauses in the preambles of agency rules. The Supreme Court wil shortly hear these arguments in the context of a drug case and FDA preamble that attempts to grant immunity, when Wyeth v. Levine is argued.

The AAJ found that, since 2005, seven federal agencies have issued over 60 proposed or final rules with preemption language in the preamble. Preemption is essentially a covert form of tort “reform” that is unseen by the vast majority of the public.

While I don’t generally publish press releases, as I don’t want to be seen as anyone’s mouthpiece, a report detailing a pattern of corporate immunity and protection grants, even when those companies might be clearly negligent, is important enough to make publication in full. (Full disclosure, I am a longtime member of AAJ.)

In reading the release and report, bear in mind that the Bush administration, and conservatives in general, like to talk about keeping government small and keeping power at the state level. This end-around of Congress by using agencies to pass regulations that our legislators refuse to endorse, by contrast, is a naked power grab by the President, demonstrating a stark departure from conservative philosophy.

Note also the issue of personal responsibility. It’s part of that whole take-care-of yourself and pull-yourself-up-by-your bootstraps theme that conservatives like to speak about.

Except when it comes to big business. When they do something wrong, the Bush administration screams that they should be immune. Let the victims be victimized twice is the general idea, so long as corporate profits aren’t hurt. The hypocrisy is once again self-evident.

The report is generated from documents obtained under the Freedom of Information Act. You may note that government officials first denied the documents even existed.
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Federal Agencies Changed Rules to Usurp States’ Rights, Help Corporations Escape Accountability for Dangerous Products

Washington — In a stealth effort coordinated at the highest levels of the Bush administration, multiple federal agencies were repeatedly ordered to usurp state law and undermine consumer protections, according to documents obtained through repeated FOIA requests by the American Association for Justice (AAJ). The documents released today detail how helping corporations escape accountability for dangerous products has been the administration’s top priority.

“This is the real Bush legacy,” said AAJ President Les Weisbrod. “In effect the Bush administration made the safety of Americans secondary to corporate profits.”

The FOIA documents detail a Bush regulatory strategy called preemption. In short, the Bush administration has decided that federal rules should usurp — or preempt — the rights of states to protect their citizens with stricter safety standards. In turn, consumers can no longer use the state protections when harmed by negligence or misconduct, giving total immunity to corporations instead.

AAJ has tracked how the administration’s first attempts to preempt states rights utilized friend-of-the-court briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting instead regulatory agencies in charge of product safety oversight. Beginning in 2005, carbon copy statements claiming that federal agency rules preempt state law began surfacing in the “preambles” of regulation issued by the federal government, and in some cases in the body of the final rules themselves. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations have a new legal theory on which they can argue in product liability cases.

“Unelected federal regulators are now claiming that states can’t protect their own citizens with stronger consumer protections,” Weisbrod added. In an upcoming Supreme Court case, 47 state attorneys general filed a brief arguing the FDA is breaking with historical precedent. In fact, in their brief they urge the U.S. Supreme Court to uphold a Vermont Supreme Court ruling that state law forces a drug manufacturer to pay $6.8 million to a Diana Levine, whose arm had to be amputated after she was injected with an improperly-labeled Wyeth drug.

Since 2005, seven federal agencies have issued over 60 proposed or final rules with preemption language in the preamble. During the past year, AAJ submitted numerous FOIA requests that prove the Office of Management and Budget (OMB) had direct involvement in the placement of the “complete immunity” preemption language. In an earlier request, OMB responded that there were no documents. However, emails recently obtained from the individual agencies prove that OMB did indeed discuss preemption with agencies, and in some instances OMB officials wrote the language.

Given this discrepancy, AAJ submitted an expanded request for OMB documents. On September 26, 2008, OMB responded it had identified 146 documents, but refused to release any of them, saying that “the disclosure of these documents would not be in the public interest.”

In piecing together the emails from the FOIAs, AAJ uncovered the cozy relationship between federal officials and the industries they regulate. For example, the pharmaceutical industry intensified its efforts to influence the FDA in the months leading up to the physician labeling rule’s release on January 24, 2006. Much of the lobbying efforts were aimed at Sheldon Bradshaw, who had succeeded Daniel Troy as FDA chief counsel in April 2005.

AAJ obtained emails that list attendees of a meeting between Bradshaw and the Pharmaceutical Research and Manufacturers of America (PhRMA) revealing the FDA chief counsel met with legal representatives from Pfizer, Wyeth, Eli Lilly, Berlex, Organon, Abbott Laboratories, Takeda, Sanofi-Aventis, Serono, AstraZeneca, Cephalon, Millenium, Eisai, Amgen, Astellas, GlaxoSmithKline, Bristol Myers Squibb, Johnson & Johnson, Novartis, Merck, and 3M.

Less than six months after this meeting, the agency would release its final physician labeling rule with complete immunity preemption language in the preamble, a complete about-face from the language in the proposed rule that specifically said the agency did not intend to preempt state law with the rule.

“Big business lobbyists have been on a crusade to destroy state consumer protection laws, and further stack the deck against American consumers,” said Weisbrod.

The full report (which I have not yet had time to read) is here (pdf):
“Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability”.
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See also:

Bush Rule Changes Could Block Product-Safety Suits (WSJ)
The Bush Strategy For Pushing Preemption (Pharmalot)
More on Bush’s Preemption Legacy (TortDeform)
The Bush Administration’s campaign to pre-empt consumer rights (Citizen Vox, by Public Citizen)

October 15th, 2008

Breast Surgery As Door Prizes To Teens At Disco Clubs

Yeah, you read that subject heading correctly. And no, I didn’t make this story up. It comes from my correspondent in Argentina who came across this nugget in a local paper about plastic surgery implants as door prizes:

Three provincial governments are cracking down on local discoteques for giving out plastic surgeries — more specifically “implantes de siliconas” — as door prizes to teenagers who frequent their establishments. (Original source, in Spanish, La Razon)

(There is also more from my correspondent, aka my niece Julie, about health care plans giving one free plastic surgery per year.)

Think that can happen in the United States? Me neither. And why? Well, a multitude of reasons, including the potential liability aspects. And so, to my tort “reform” readers, let me say that fear of being sued is often a good thing. Because being held accountable tends to wake up the senses.