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

West Virginia Governor Exposed as Pawn of DuPont

Michael Phelan — Wed, 13 Aug 2008 12:08:01 GMT

In a story that sounds eerily like the John Grisham book, The Appeal, files released from West Virginia Governor, Joe Manchin's, office reveal that he is in bed with DuPont Company trying to get the West Virginia Supreme Court to overturn a $382 million verdict against DuPont. The case arises out of DuPont's alleged dumping of toxic arsenic, cadmium, and lead from its zinc-smelting plant in Spelter, W.Va. The underlying case alleged that these toxins entered the water supply and that DuPont deliberately endangered thousands of residents of Spelter. Last October, a jury in Harrison County, W.Va. found that DuPont, indeed, had deliberately subjected the Spelter residents to toxic poisons and ordered the company to pay nearly $382 million to monitor nearly 8,000 residents in the area for signs of cancer, to clean up the site, and pay punitive damages.

On June 24, 2008, DuPont appealed the verdict to the W.Va. Supreme Court.

Gov. Joe Manchin III, a Democrat in his first term who is up for re-election in November, filed a friend-of-the-court brief the same day, pressing the Court to review the $382 million judgment against the DuPont Company. The Governor said he was not taking sides, but acting in the interest of due process. If you believe that, I have a bridge I'd like to sell you.

Documents from the governor’s office show that Mr. Manchin consulted with DuPont before filing the brief, and DuPont officials say the governor even asked them to provide him with a draft brief.

It was the first time a West Virginia governor had taken such action in a case in which the state was not a party. Mr. Manchin’s actions rightfully angered plaintiffs, who argued that the executive branch was inappropriately pressuring the judicial branch.

The governor’s spokesman said that Mr. Manchin only wanted to ensure that cases involving punitive damages received a full airing from the Supreme Court and that he was not weighing in on behalf of DuPont.

But new documents reveal a more complicated picture.

The New York Times reports that on June 2, the governor met with the vice president of DuPont and one of the company’s lawyers to discuss the brief, according to records of the meetings obtained through the Freedom of Information Act.

The governor also spoke on the phone with DuPont’s chairman and chief executive on Nov. 20, 2007, less than a month after the verdict, according to the documents.

Shortly before the governor filed his brief, DuPont lawyers provided his office with two draft briefs that made many of the same arguments he later used in his brief.

The day Mr. Manchin filed the brief, his office also requested assistance by e-mail from DuPont with the procedural requirements for filing.

When questioned by the plaintiff’s lawyers about DuPont’s draft brief, the governor’s office said that some of the e-mail correspondence between the company and his office had been erased, according to documents from the governor’s office.

In an interview, however, Carte Goodwin, Mr. Manchin’s lawyer, said that as often happens, the draft brief from DuPont came to the governor’s office unsolicited. But a DuPont spokesman, Daniel A. Turner, said in an e-mail message that it was the governor who had asked DuPont to provide a draft brief. Somebody is lying!

The documents from the governor’s office also reveal overlap between Mr. Manchin’s staff and DuPont. Mr. Manchin’s executive assistant, Peggy Ong, is a former DuPont employee. While there, Ms. Ong was involved with the company’s handling of the Spelter case and its conducting community outreach regarding the contaminated site, according to company documents.

The revelations of Mr. Manchin’s involvement in the DuPont case come against a backdrop of larger concerns raised recently about the independence of the state’s legal system. In the last year, two Supreme Court justices have come under scrutiny for ties to company executives that had cases pending before the court.

Prof. Stephen Gillers, who teaches legal ethics at New York University School of Law, said it was unusual and inappropriate for the governor, instead of the attorney general, to get involved in such a case, and that after searching state court records, he could find no example of a similar intervention by a governor.

“One plaintiff, Carolyn Holbert of Erie, called the governor’s actions “a total betrayal.”

Ms. Holbert, 62, a retired switchboard operator whose back porch looks out onto the Spelter site and who grew up just miles from the plant, said that an aunt, an uncle and three of six siblings had died from cancer.

“The governor says he is not taking sides,” Ms. Holbert said. “But he is helping DuPont drag its feet, and people are dying while they wait for help.”

In The Appeal, a fictional chemical company illegally dumped chemicals into the ground for decades. The chemicals got into the water supply and rendered the county water not only undrinkable, but also cancer causing. In response to a $48 million verdict in one case, the company undertakes dirty tactics to compromise the Mississippi judiciary, all in an effort to buy a win on appeal. As they say, life imitates art. Gov. Manchin should recognize the separation of powers between the executive and judicial branches and stay out of the Spelter case. Such sleazy tactics as set forth in the Grisham book are even more dangerous in states like Mississippi and West Virginia where judges are elected. I believe it is a terrible idea to force judges to become politicians. This increases the potential for the judiciary to be corrupted by lobbyists and money.

Originally posted at InjuryBoard by Michael Phelan

Richmond Virginia Personal Injury Lawyer - toxic tort

Tort Reform Means Less Safety

West Virginia Governor Exposed as Pawn of DuPont