Richmond Virginia Personal Injury Lawyer - Tort Reform

Are Enemies of 7th Amendment Outraged About This Frivolous Defense?

Michael Phelan — Thu, 15 Oct 2009 10:29:19 GMT

Let's see if the insurance industry-sponsored lobbyists who call themselves tort reformers hold any press conferences or buy any advertisements to criticize the frivolous defense being put forth in the case where the pet chimpanzee ripped the face off of a woman. I'm not going to hold my breath waiting because this frivolous legal maneuver benefits the defendant chimpanzee owner's insurance company. Consequently, I don't expect any outrage from the so-called tort reformers. They only seem to become outraged when trials guaranteed by the Seventh Amendment to the Constitution benefit individual citizens.

In the case of the maraudering chimp, the attorney representing the owner of the beast that mauled and blinded a woman is calling the attack a work-related incident and said her case should be treated like a workers' compensation claim. The strategy, if successful, would bar the victim's claim against the chimp's owner and limit her damages to whatever is recoverable under the applicable state worker's compensation statute, which statutes typically provide for partial payment of lost wages and payment of medical bills. Claims for permanent disfigurement, pain, humiliation, embarassment and loss of enjoyment of life (sypmtoms one would expect in connection with loss of one's face) are typically not covered by worker's compensation.

Here's the genesis of the worker's comp defense. Sandra Herold owned a tow truck business called "Desire Me Motors." Travis the chimp's face was painted on the side of the tow trucks and he apparently appeared at company promotional events. Sandra Herold lives in Stamford, Connecticut where she keeps the 200-pound chimp. One day in February 2009, Ms. Herold could not get Travis to come into the house from the yard, so she asked her friend and employee Charla Nash to help lure him back into the house Stamford. The animal ripped off Nash's hands, nose, lips and eyelids, and she remains hosptialized. Nash was an employee of Herold's tow truck company. When police arrived at the scene, Travis attacked them too. The police were forced to shoot and kill the chimp. Test results showed that the chimp had the anti-anxiety drug Xanax in his system. Does helping her "friend" lure her friend's pet into the house sound like part of Nash's duties as a tow truck company employee? Not in a million years.

Nash's family filed a lawsuit against Herold, saying she was negligent and reckless for lacking the ability to control ''a wild animal with violent propensities.'' But Herold's attorney filed court papers saying that Nash was working in the scope of her employment with Desire Me Motors at the time of the attack. He argues that Travis was an integral part of the business, and that Nash's claims against Herold are barred by the workers' comp statute. I wonder if he'll be arguing that Travis was a statuory co-employee.

Here's the good news. We don't need tort reform or any other sweeping government intervention into the legal system in order to address this or any other case. The system will likely sort this case out. For the most part, we have excellent trial judges and responsible jurors in this country. I predict that this workers' compensation plea will not succeed.

Originally posted at InjuryBoard by Michael Phelan

TVA Duplicity Re: Coal Ash Spill

Michael Phelan — Wed, 29 Jul 2009 12:59:06 GMT

During a recent hearing before Congress, the head of the Tennessee Valley Authority acknowledged a 'larger cultural problem' at the agency as an inspector general's report says it allowed its lawyers to stifle a $3 million study into the cause of a massive coal ash spill to limit its legal liability. The report also said the nation's largest public utility failed for more than 20 years to heed warnings that might have prevented the spill." The breach "of 5.4 million cubic yards of toxic-laden coal ash from the earthen dams and holding ponds at TVA's Kingston Fossil Plant into the Emory River and lakeside homes has raised questions about the risks and lack of regulation of hundreds of similar sites around the country."

Some citizens might be shocked to hear that our country's largest public utility would hide safety information from the government and the public. Unfortunately, this practice is all too common. Moreover, companies have been known to spend much more money on lobbyists and judicial elections than it would have taken to make thier products or facility safe. Indeed, in neighboring West Virginia, a coal company allegedly spent millions of dollars to buy a state Supreme Court seat for an elected justice, who would be seated in time to vote on the coal company's appeal of a large verdict against the coal company. Fortunately, the United States Supreme Court ruled that the coal company's judge must recuse himself from the case. Otherwise, life would likey have imitated art, and we may have seen the real-life version of John Grisham's book, The Verdict, unfold in West Virginia.

If this represents business as usual, why in the world would we want to limit citizens' Seventh Amendment rights to trial by jury? This is what the tort reform groups wish to do. They are running advertisements on the television and at the movie theaters hoping to shift the issue to a false bogeyman, trial lawyers. The real issue is what is the best way to change intentionally unsafe or illegal corporate behavior? I believe the answer is to hold the wrongdoer accountable for the wrongful acts. As the founders of our country recognized, the legal system is the most civilized forum for seeking this accountablility.

Originally posted at InjuryBoard by Michael Phelan

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

KBR Accused of Exposing Our Troops to Known Toxic Chemical

Michael Phelan — Tue, 23 Dec 2008 10:38:32 GMT

The CBS Evening News(12/22, story 8, 3:30, Smith) reported that on since the beginning of the war in Iraq, may be facing yet another scandal." CBS added, in April, 2003, James Gentry of the Indiana National Guard arrived in southern Iraq to take command of more than 600 other guardsmen. Their job: Protect KBR contractors working at a local water plant. Guardsman Gentry stated, "We didn't question what we were doing. We just knew we had to provide a security service for the KBR." Today Gentry is dying from a rare form of lung cancer which he believes was caused by months of inhaling hexavalent chromium, an orange dust which is part of a toxic chemical found all over the Iraqi plant. At least one other Indiana guardsman has already died from lung cancer and others are said to be suffering from tumors and rashes consistent with exposure to the deadly toxin. CBS "has obtained information that indicates KBR knew about the danger months before the soldiers were ever informed. ... A new internal Army investigation obtained exclusively by CBS News says the Army's medical response was prompt and effective. But even after a briefing today, Indiana Senator Evan Bayh says that KBR has a lot to answer for." KBR has been paid more than $28 billion by our government since the beginning of the war in Iraq [that's BILLION not million!]. You may recall that KBR is an offshoot of VP Cheney's old firm, Haliburton, and that the administration awarded the $28 billion to KBR on a no-bid basis. It is outrageous that KBR knowingly exposed our brave troops to a deadly toxin. This is a perfect example of why this country needs a tort system that is free of over-regulation by the government. Because, if the current administration had its way, injured citizens like Guardsman Gentry would be out of court. KBR would either be immune from liability or the federal government would be deemed to have preempted the plaintiff's right to sue for damages. I encourage everyone to read the Seventh Amendment. The framers put it in the Constitution for a very good reason.

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

Predatory Lobbying and Legislating Caused the Economic Crisis

Michael Phelan — Wed, 01 Oct 2008 11:22:49 GMT

I am a big fan of the philosophy of objectivism, which promotes rational self-interest, individual liberty,and the capitalist system. Followers of this philosophy know that one of the biggest enemies of our free-market capitalist system is government sponsored cronyism. In a free market, both the borrower and lender would suffer from the decision to make a bad loan. In a system dominated by special interests with powerful lobbyists and an activist Bush Administration which has raised cronyism to a new level, the powerful go unpunished and the tax payers, small businesses, shareholders, and retirement plan participants get screwed.

Sadly, the U.S. Chamber, which has become basically a powerful lobbying firm, has played a major role in lobbying to protect corporate wrong doers from the punishment they should have received in the free market. A couple of the U.S. Chamber's major lobbying clients have been Enron and AIG. At the same time the Chamber is fighting to protect the cheaters, it is also fighting to take from individual Americans their Seventh Amendment right to trial by jury. The right of a shareholder to hold accountable his or her company in a court of law may be the best free market check on the abuses that got us into this mess. The Chamber opposes the individual's constitutional right to trial by jury. That is the basis of its tort reform agenda. If the Chamber had its way, only businesses would have access to our courtrooms and the rest of us would be forced into binding arbitration by a panel of arbiters who are friendly to Wall Street.

For more facts on the Chambers role in creating this mess, see AAJ's brief, "Behind the Bailout: How the U.S. Chamber Created the 2008 Financial Crisis." This brief tells one side of the story only. The federal government and the borrowers deserve their share of the blame. The Bush Administration promoted the concept of home ownership at all costs, and many borrowers were stupid to borrow more than they could afford to pay. My point is that only the borrowers, shareholders, and taxpayers are being saddled with the bailout. The government is pointing fingers and, with the blessing of the Chamber, the CEO's who made some of these disasterous decisions are walking away with golden parachutes. I'll wager that buried deep in the fine print of whatever bailout bill ultimately passes will be a provision holding the corporate bad guys immune from civil liability. If the Chamber was truly pro-capitalism, why is it so in favor of the Administration's attempt to socialize Wall Street? Perhaps because its lobbying clients need it to be.

Originally posted at InjuryBoard by Michael Phelan

Medtronic Accused by Own Lawyer of Pervasive Kickbacks to Physicians

Michael Phelan — Thu, 25 Sep 2008 16:18:08 GMT

A qui tam lawsuit filed against medical device maker, Medtronic, by its former senior legal counsel was recently unsealed, and it provides detailed insight into the unsavory way in which surgeons are induced to use certain medical devices. The whistleblower was senior counsel in the spinal-device unit. She alleges that kickbacks from Medtronic to physicians were pervasive. Sales staff routinely took physicians to the Platinum Plus strip club in Memphis and paid for the dancers' services during VIP visits. Medtronic also took doctors on a five-day, all expenses paid trip to Alaska. The expenses allegedly included fishing guides, clothes, and more women.

These are the same folks who scream for tort reform and lobby our government to take away the rights of individual citizens to seek redress in court for injuries from defective medical devices or negligent doctors. People should know that the drugs and medical devices their doctors prescribe or implant into them are not always selected because they are the safest and most effective. Unfortunately, sometimes they are selected because their manufacturer lavished the doctor with all expenses paid trips to strip clubs and fancy resorts.

Originally posted at InjuryBoard by Michael Phelan

Mississippi Supreme Court Part 2

Michael Phelan — Tue, 26 Aug 2008 14:14:24 GMT

Upon further inquiry into the hullabaloo surrounding the Mississippi Supreme Court's majority decision to attempt to stifle the dissenting opinion of Justice Oliver Diaz in a wrongful death case, I have learned that the anti-Justice Diaz efforts are indeed supported by the forces pushing for more tort reform. When these forces cannot get the people or the state legislatures to listen to them, they attempt to influence the courts. This is why judges should not have to suffer the indignity of standing for election. As it turns out, these forces have attacked Justice Diaz and prominent Mississippi Democrats. The Bush Administration's man in the Mississippi's AG's office went so far as to indict Justice Diaz and a prominent lawyer on charges of bribery. Both were acquitted of the charges. It turns out that Justice Diaz is currently running for re-election to the court and is being opposed by forces that want to implement further tort reform measures (e.g., big business, the insurance lobby, and the Chamber). For those interested in keeping this kind of political influence out of our courts, I encourage you to visit Justice Oliver Diaz's campaign website.

Originally posted at InjuryBoard by Michael Phelan

There is No Medical Malpractice Crisis

Michael Phelan — Tue, 13 May 2008 11:49:37 GMT

The U.S. Chamber of Commerce, the American Medical Association, and their various lobbyists have been screaming for years that medical malpractice law suits are driving up doctors' insurance premiums, and, in turn driving doctors out of certain markets. If this is true, then a state like Massachusetts, which ranks fourth in the nation for money paid to settle malpractice cases, should be experiencing skyrocketing malpractice premiums. Interestingly, a recent Suffolk University Law School study shows that despite assertions that high malpractice rates are driving them out of the state, Massachusetts doctors are paying less than they were in 1990, after adjusting for inflation. I wish I could say the same for my legal malpractice, automobile, and health insurance.

Massachusetts is one of 21 states described by the American Medical Association as being in a crisis because of high medical malpractice payments and lack of strict laws capping settlements.

The Suffolk study, appearing in the current issue of Health Affairs, debunks this cry wolf strategy, finding that most Massachusetts physicians paid an average of $17,810 in premiums in 2005, a little lower than the $17,907 that the same coverage would have cost in 1990, after adjusting for inflation.

"If you don't find a crisis here, you're probably not going to find one nationally," lead author and health policy scholar Marc Rodwin said in an interview. "Clearly there are some increases in premiums and high premiums for a small percentage of doctors in three specialty groups, but that's entirely different for the rest of doctors."

Having for years used the false premise of skyrocketing premiums as their rationale for tort reform, the doctors are now back pedaling. One doctor was quoted in the Boston Globe in response to the Suffolk study. "The issue of the malpractice crisis is not purely a premium-based issue, although we certainly have documented the high cost of liability insurance is a major factor in [physicians'] perspective on the practice environment," he said. "I think to some degree looking at malpractice premiums . . . may provide an unfair picture of what is really going on." Haven't they been saying for years that it was fair to look at malpractice premiums and that the sky was falling?

Originally posted at InjuryBoard by Michael Phelan

Tort Reformers Embrace the Tort System When They Are Injured

Michael Phelan — Mon, 12 May 2008 15:45:07 GMT

When he was 79 years of age, former U.S. Supreme Court nominee, Robert H. Bork, accepted a speaking engagement at the New York City chapter of the Yale Club. As he walked onto the dais, Judge Bork fell backward and injured himself. One might think that Judge Bork took his lumps and refused to sue. After all, he was a long-time advocate of tort reform. Tort reformers propose such things as limiting injured persons' access to the courts, capping recoveries for pain and suffering, and capping contingency fees (thus limiting victims' access to lawyers). So, what did Judge Bork do? He sued the Yale Club for $1,000,000.00, claiming that he suffered "excruciating pain," required surgery and physical therapy, and was left with a limp and a cane. The good Judge said the Yale Club should have had handrails leading up to the dais. The Club countered that the danger was open and obvious, and that Bork was at fault. At age 81, Judge Bork settled the lawsuit for a confidential sum. He can now go back to ranting against the tort system.

Many people who exercise their Seventh Amendment right to file a civil lawsuit seeking compensation for their injuries are injured as badly or worse than Judge Bork. When these folks seek justice, they are attacked by various tort reform groups and politicians. This brings to mind former Pennyslvania Senator, Rick Santorum, another rabid tort reformer. Senator Santorum's wife filed a medical malpractice lawsuit, and her star damages witness was none other than Senator hypocrite.

Tort reformers never cease to amaze me. For the most part, they claim to be champions of small government and free markets, and yet, they advocate activist policies like having the federal government interfere with the rights of citizens to enter into private contracts with lawyers. Of course, these "reforms" only apply when citizens are suing one another (which usually triggers insurance coverage) or a corporation. One never hears the same cry for reform in the context of corporations suing corporations. Another time these "reforms" apparently don't need to apply is when one of the "reformers" gets injured.

Originally posted at InjuryBoard by Michael Phelan