Richmond Virginia Personal Injury Lawyer - Product Liability

Tort Reform Means Less Safety

Michael Phelan — Fri, 12 Jun 2009 08:34:09 GMT

The naive among us who believe that limiting our Seventh Amendment right to trial by jury would benefit most citizens probably also supported Newt Gingrich's plan in the 1990's to privatize the Food and Drug Administration (FDA). Then Speaker Gingrich advocated disbanding the FDA and giving the pharmaceutical, medical device, and food industry oversight of their own industries. What a disaster that would have been!

Anyone who believes that products would not be less safe or the environment more toxic without the threat to manufacturers and polluters of lawsuits is similarly naive. One would have to believe that, left to their own devices, these manufacturers and polluters could be trusted to do the right thing, i.e., to fairly balance the risks of harm against the benefits of the product, and to always choose to adopt reasonable safety precautions. A pending case in the United States District Court for the Southern District of Indiana is a typical example of the dishonesty and abuse by manufactureres and polluters that has become far too common in toxic tort and product liability cases. In this case, the plaintiff property owner, 110 West, LLC allged that Red Spot Paint & Varnish Co. Inc.'s manufacturing operations contaminated plaintiff's property with extremely dangerous chemicals, including benzene, a solvent known to cause leukemia and other blood disorders and cancers. One issue was whether Red Spot and its law firm, Bose, McKinney & Evans, LLC, "lied or misrepresented the truth about Red Spot's use of ...[chlorinated solvents]." Naturally, in discovery, Red Spot was asked to identify all chemicals used in its manufacturing process. Red Spot not only used the chlorinated solvents in its process, but it also possessed reports of soil samples showing that the solvents had contaminated the soil and groundwater.

So, of course, Red Spot and its lawyers turned this information over in discovery, right? No, what Red Spot and its lawyers did was to hide the crucial documents and state in writing, under oath, among other misrepresentations, that "Red Spot's operations have not included the use of ...chlorinated solvents." Fortunately for 100 West, LLC and anyone interested in truth and non-toxic drinking water and soil, the lawyers for 100 West were persistent. They obtained the truth from the EPA, which had documented, including with photos of leaking solvent waste drums, that Red Spot had dumped over 96 gallons of hazardous chemical waste into the environment. The EPA informed the plaintiff's lawyers that Red Spot's lawyers at Bose McKinney had received a copy of the Red Spot EPA file. Upon learning this, the court ordered Red Spot to turn over the file, however, the court later concluded that the Bose McKinney lawyers "'sanitized' the EPA RCRA file by pulling out the most damaging documents."

The federal judge found that Red Spot committed fraud and made misrepresentations to the court. "Red Spot has made a mockery of the discovery process and has subjected the truth to ridicule." The court's lengthy opinion is replete with examples of Red Spot witnesses lying under oath and of Red Spot's lawyers being complicit in those lies, having possessed enough documentary evidence to know the testimony was untruthful. The court issued the most severe of sanctions under Fed. R. Civil P. 37 and found Red Spot liable for contaminating plaintiff's property and responsible for remediating the contamination. The court also ordered Red Spot and Bose McKinney to split the cost of 100 West's legal fees for the three years of discovery that preceeded the sanctions order.

Red Spot was not going to voluntarily clean up its toxic mess. And the EPA obviously had no success in forcing Red Spot to do so. Only through the litigation process was 100 West LLC able to receive justice, and it took years of litigation caused by Red Spot's abusive discovery tactics to get justice. The tort reformers want to make it easier for defendants like Red Spot and harder for plaintiffs like 100 West. Does that seem right?

Originally posted at InjuryBoard by Michael Phelan

Does Your Home Contain Foul Smelling Chinese-Made Drywall?

Michael Phelan — Wed, 21 Jan 2009 15:02:43 GMT

This issue was first brought to my attention by fellow blogger, Wayne Parsons, in a January 2, 2009 blog, "Drywall From China Causes Concern Over Sulfur Odor in Homes." Apparently, health department and building officials across the Southeast have been getting a lot of reports about Chinese drywall which, according to the National Organization of Remediators and Mold Inspectors, emits much higher levels of sulfur, methane, and other volatile organic compounds than is considered safe for humans.

The Engineering News-Record reported this week that the foul-smelling Chinese drywall has been linked to corrosion of mecanical and electrical systems and has raised health concerns. Robert Kraus, president of the southwest chapter of the American Society of Homebuilders, stated that moisture triggers the Chinese-made drywall to emit an odor that smells like firecrackers. He also stated that replacing the drywall alone may not correct the problem because the drywall may have caused corrosive damage to electrical and/or mechanical systems in the home. Florida officials have received reports of problems with air conditioning systems, plumbing, electrical outlets, and tarnished jewelry and other metal items caused by corrosion from the chemicals in the drywall.

Under Virginia law, the parties who may be liable for damages to home and health caused by this drywall include the manufacturer, distributor, and retailer of the product. Manufacturers may be liable under theories sounding in negligence and/or breach of warranty, while merchants (the distributors and/or sellers of the product) may be liable for breaches of either warranties of merchantability, fitness for a particular purpose, express warranties, or other applicable warranties.

If your home has a noxious sulfur smell, call your builder or home renovator and determine if your drywall was made in China. If so, your builder/contractor should remove the drywall, check your wiring, plumbing, and mechanical systems for corrosion, and replace the drywall with non-Chinese-made drywall, preferably drywall made in the USA. You made need to call your local building official and ask him or her to encourage your builder to take responsibility for the problem.

Originally posted at InjuryBoard by Michael Phelan

Documents Reveal Bush Administration Top Priority: Exempt Big Business from Civil Justice System

Michael Phelan — Thu, 16 Oct 2008 11:16:02 GMT

According to documents obtained through repeated FOIA requests by the American Association for Justice (AAJ), the Bush Administration's attempt to shield big business and Wall Street from the free market date back long before the current bail out. Documents released by AAJ detail how helping corporations escape accountability for dangerous products by denying consumers their Seventh Amendment right to trial by jury and by abrogating the Republican party's long-standing state's rights principles has long been the administration’s top priority. People at the highest levels of the Bush administration repeatedly ordered federal agencies to usurp state law and undermine consumer protections.

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 negligent corporations.

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. I wrote about the Administration's use of "preambles" to regulations and policy statements in final agency rules to effect back-door tort reform in an earlier blog about preemption. Beginning in 2005, 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,” according to AAJ President Les Weisbrod. 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 sleazy 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.

Federal agencies like the FDA, the Consumer Protection Agency, the Centers for Disease Control, and the National Highway Transportation and Safety Administraion exist to protect tax paying citizens from dangerous food, drugs, vaccines, medical devices, consumer products and other products. The Bush Administration turned this regulatory scheme upside down by placing lobbyists for the industries the agencies were supposed to regulate in charge of those very agencies and then instructing its minions to write into the agencies' preambles and final rules language preempting citizens' Seventh Amendment rights to trial by jury in state courts.

It ain't right!

Link to AAJ's full report of this scandal, titled,“Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability”.

View the Wall Street Journal's article "Bush Legacy Could Be Found In Tort Reform" online.

Originally posted at InjuryBoard by Michael Phelan