Cross posted from TortDeform.Com

"It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad."--James Madison

The significance of this quote, shared by Senator Dodd during hearing statements last fall--can be observed now amidst the newest round of debates over whether telecommunications companies that illegally spied on the American public (by doing things like tracking what blogs we read, reading our emails, listening in on our phone calls, and keeping track of our activity on password protected sites) should be granted retroactive immunity for violating our constitutional right to privacy.

I've ranted about this issue before. But the Administration's apparently increasing gall and contempt for the law notwithstanding, and its undying commitment to shielding corporate friends from the effect of the law aside, let's focus instead on the lie of so-called "liability protection" and what it really means for the public and our civil justice system.

Cross-posted from TortDeform.com

By Henry Greenspan

In my last blog for Tort Deform , I argued that the Food and Drug Administration Revitalization Act (FDARA) passed the Senate overwhelmingly (93-1, the nay being Bernie Sanders) mainly because it wouldn't change anything. The final bill was so watered down by compromises that it didn't even make good sausage. But for the pharmaceutical industry it promised a continuing supply of filet mignon.

Cross-posted from Tort Deform

by Professor Charles Silver

I recently suffered a grave injury during a hearing and balance test. The internal carotid artery on my right side dissected, a result of applying torque to my neck so a computer could get better readings from electrodes attached to my skin. A massive blood clot formed, blocking the artery 80-90 percent. I suffered blinding headaches, nerve damage, and other problems, and was hospitalized for over a week. Still, I count myself lucky. I’m alive and, apparently, I didn’t suffer a stroke. My doctors remain hopeful that, with time, I’ll recover.

Cross-posted from Tort Deform

by Michael Townes Watson

The sacrifices being made by injured patients who are victimized by the tort reform movement are not being offset by improvements in the safety of healthcare. On the Alternet website, Dr. Atul Gawande, who has written extensively about medical mistakes, states that “One of the easiest ways to prevent the spread of hospital infections is also one of the most neglected.” He has toured hospitals with infectious disease specialists and microbiologists whose sole jobs are to stop the spread of infections in the hospital. He laments, however, that despite the fact that every year two million Americans acquire an infection while they are in the hospital, and the fact that ninety thousand die of that infection, the hardest part of the infection-control team's job is not coping with the variety of contagions they encounter or the panic that sometimes occurs among patients and staff.

Cross-posted from Tort Deform

by Professor Henry Greenspan

Last week, the U.S. Senate passed the "FDA Revitalization Act" (hereinafter, FDARA) by an overwhelming majority (only Bernie Sanders of Vermont voted 'nay'). That ought to tell us something. Clearly, the pharmaceutical industry and both major parties found something they could all agree upon: the usefulness of lipstick.

In order to understand this victory for cosmetology, a bit of context is needed. For the past six years, the industry and its allies have done everything possible toward making FDA preemption the law of the land. That is, the goal has been to turn Michigan's drug industry immunity law – which fully shields drug companies from civil liability if their product is "in compliance" with FDA regulations – the national standard. There has never been any secret about this; Michigan has been designated "the model" by every preemptor from Daniel Troy, who is to FDA preemption what James Brown was to soul, to every law firm that defends pharma from product liability claims.

Cross-posted from Tort Deform

by Richard Pyorre

State Farm Insurance Companies have come under fire in Mississippi, Oklahoma and elsewhere recently because of denial of claims and or failure to pay what they owed. There has been documentation showing State Farm, or the engineering firm representing them, changed engineering reports in order to support State Farm's denial of claims in Mississippi. This same pattern with State Farm and the same engineering company also took place in Oklahoma and resulted in one jury award in May 2006 of $13 Million dollars with $10 million of that being punitive damages. The jury in that case found State Farm had "recklessly disregarded its duty to deal fairly with policyholders".

Cross-posted from Tort Deform

The following article gives great coverage of the issue of Ground Zero Workers’ illnesses that has been covered many times before here on Tort Deform. This piece touches upon many of the issues that have been touched on before including: the safety is too expensive business model.

I hope to go back and dissect smaller portions of the article, but for right now I just want to make syre it available to our readers. For anybody considering supporting Giuliani for President because of his bravery and resolve in the wake of 9/11, this article should give you……………..a great deal of pause.

Cross-posted from Tort Deform

by Laura Klein Abel, Deputy Director, Poverty Program, Brennan Center for Justice &
David Pedulla, Research Associate, Brennan Center for Justice

It is common knowledge that our courts don’t well serve people of modest means. Whether the concern is lost wages, unfair evictions, bureaucratic denials of health coverage, divorce or domestic violence, most individuals have a difficult time trying to enforce their civil legal rights. But, against this grim backdrop, some areas are getting increased attention.

Cross-posted from Tort Deform

by Cameron Getto

Michigan has for months now been in the midst of its worst budget crisis ever. The Governor and the Legislature are talking about taking school money away in the last quarter of the fiscal year, laying off state employees, and potentially shutting down our government. And now the governor is threatening the reduction of Medicare payments to medical providers who serve poor people and elderly people.

Cross-posted from Tort Deform

by Michael Townes Watson

Being, as I am proud to admit, an addict of the history of our American history, I have visited Jamestown, Virginia on multiple occasions. Consequently, I am on the mailing list for promotional information from their public relations department. I have recently received news of the planned events for the weekends of May 4-6 and May 11-13, when Colonial Williamsburg will host “Her Majesty Queen Elizabeth II and His Royal Highness Prince Philip” to commemorate the 400th anniversary of Jamestown’s founding. The reason for the timing of these spectacles is that this year marks the 400th anniversary of the founding of Jamestown.

Cross-posted from Tort Deform

by Brian Wolfman, Director of Public Citizen Litigation Group

Today, I’m writing about the relationship between the so-called Class Action Fairness Act (CAFA) and the attack on the consumer class action and consumer law more generally. CAFA was enacted in February 2005 for the fundamental purpose of bringing virtually all substantial class actions based on state law into federal court. State-law class actions can now be filed in, or removed to, federal court based on minimal diversity of the parties, not the ordinary complete diversity rule. Under CAFA, there are a few situations in which the minimal diversity may not apply – for more or less “local controversies” – but they can only be invoked, at a minimum, if the main defendant is a citizen of the forum state, which is rarely the case with large corporations, whose corporate “citizenship” often has nothing to do with where it does business.

Cross-posted from Tort Deform

By Rick Cohen

In well publicized run-ins with the Securities and Exchange Commission and the former Attorney General of New York, Maurice “Hank” Greenberg became an avatar of the corporate movement to overturn Sarbanes-Oxley and to promote so-called tort reform. The SEC’s investigation of AIG had prompted the corporation to ease Greenberg out of the top slot.

Spitzer's charges addressed Greenberg’s administration of the estate of C.V. Starr, the founder of American International Group, the insurance behemoth that Greenberg also ran. According to the AG, Greenberg and partners as executors of the state has sold Starr assets to a firm he controlled at allegedly less than the market rate. Since the estate was meant to benefit the Starr Foundation, which Greenberg chaired, the AG charged that Starr has shortchanged his own foundation several billion dollars.

Cross-posted from Tort Deform

by New York State Senator Eric Schneiderman

Each year in the United States, there are between 44,000 and 98,000 hospital deaths and another 300,000 injuries attributed to preventable medical errors. New York's hospitals are no exception. In fact, a 2006 study of medical errors  by the private research group HealthGrades rated New York State's hospitals the second worst in the country.

Cross-posted from Tort Deform

by Marc Dittenhoefer

This year in New York, what with a new Governor and all sorts of Budget drama, it seems an appropriate time for those of us concerned with consumers' rights to stop a bit and take our bearings. Albany is replete with this year's calls for sweeping changes in the civil justice system - wholly apart from the ridiculously overdue and eminently deserved judicial pay raise. New Bills are being floated all the time, even during placid seasons. Now, with an entirely new political equation in the capital, every conceivable new “combination” is being considered to open the doors to the Legislature, the Governor’s favor, or both.

Cross-posted from Tort Deform

by New York State Senator Eric Schneiderman

In the wake of this week’s tragic shooting rampage at Virginia Tech, we are witnessing a lot of hand-wringing by politicians who acknowledge that the flooding of America with easily available handguns is a problem, but contend that the overwhelming power of the gun lobby prevents us from doing anything about it. In fact, there’s a great deal we can do. For one thing, we can unshackle our law enforcement officers and lawyers by allowing them to use data on "crime guns” to stop the small minority of gun dealers that supply America’s criminals with their weapons.

Cross-posted from Tort Deform

by New York State Senator Eric Schneiderman

One of the most important and least reported accomplishments in this year’s state budget was the enactment of a New York State false claims act. This law is a major step forward for health care reform and protection of taxpayers, but it was far too long in coming, and it was achieved only after overcoming opposition that can only be described as bizarre on the part of “tort reform” devotees in the Republican Majority.

Cross-posted from Tort Deform

by Laura K. Abel & David Pedulla*

Sometimes, complex, intractable problems require complex, expensive solutions. So it’s particularly frustrating when government refuses to adopt a free, simple and proven method to address an important social issue.

That’s the case in New York City, where social services officials are struggling to get public assistance benefits to the people who need them most. A recent report by the grassroots group Community Voices Heard shows that people with disabilities continue to have a hard time getting the help they need, despite a city program dedicated to helping them.

Cross-posted from Tort Deform

By Professor Henry Greenspan

As lawsuits continue to pile up over dogs and cats poisoned by adulterated pet food, pet food manufacturers can learn a lot from the ways drug companies have defended themselves.

With that in mind, here are some of the arguments they may want to deploy:

1. All pet foods have dangers.

2. Pet food manufacturers deserve protection. After all, they are constantly pouring billions of dollars into the risky business of developing new, life-sustaining chows and kibbles.

Cross-posted from Tort Deform

by Professor Charles Silver, University of Texas School of Law

Jury verdicts hold center stage in policy debates over the tort system. This is unsurprising. They are public events, they are easy to collect, and some verdicts are even large enough to catch the attention of readers dulled by repeated exposure to sensational news stories. But trials also are rare, occurring in only 3% of state court cases and 2% of federal lawsuits. Settlements are far more numerous and account for the vast majority of the dollars that change hands. Why, then, do trials receive so much attention? Why care about them at all?

Cross-posted from Tort Deform

by Professor Henry Greenspan, University of Michigan

On February 22, what had been unthinkable a year earlier actually happened. The Michigan House passed a bill to rescind the drug industry's absolute immunity from civil liability in our state. The vote on the main bill was 70-39, with about one-third of the House Republicans joining with all but one Democrat to support rescinding. That proportion pretty much parallels the state as a whole, in which polls show that approximately 70% of Michigan citizens favor repealing drug industry immunity.

Cross-posted from Tort Deform

By Jordan Fogal

Many of us joined Texas Watch last Thursday, March 15,2007 for Builder Reform day at the capitol in Austin. We passed out information, lemons, and told our stories to anyone who would listen. Many of us wore lemon pins on our lapels. Lemons – signifying the need for lemon laws to protect us from substandard builders of defective housing. Some of us wore these pins because we had been sold lemons, and others had lost our homes through foreclosure because we could not afford the repairs on our new lemon homes.

Cross-posted from Tort Deform

By Marc Dittenhoefer

Recently I had the opportunity to watch an unhealthy dose of daytime TV. Though much is as I remember it from my youth, it seems that every region of the country now has at least one Judge with a Courtroom show running sometime, somewhere, somehow!

This trend has been in the making for quite some time, it is true: Joseph N. Welch, the attorney who won admiration during the Army/McCarthy hearings by confronting Sen. Joseph McCarthy with the now-famous "have you no sense of decency, sir, at long last", portrayed the crusty yet lovable Michigan Circuit Judge in Otto Preminger's 1959 classic "Anatomy of a Murder"! During the Watergate Hearings in the '70s, when all America was watching all day long, one Senator Sam Ervin of North Carolina, who served on his state's Supreme Court from 1948-54, catapulted to national attention:. And of course, lawyer shows and courtroom dramas have been a TV staple since its very beginning, though of course it was nearly always fiction.

Cross-posted from Tort Deform

by Michael Townes Watson

A report came out on the Columbia, South Carolina NBC affiliate WIS-TV website about a $30 million verdict being overturned by the trial court. Here is the link to the story:

The website version of the report is all of five short sentences, whereas the report of the verdict, when it was rendered last summer, was in every newspaper in the state, on every blog, every newscast and every major media website. I wonder how many people heard the report of the verdict, and what small fraction of those heard the report of the trial judge’s ruling overturning the verdict?

Cross-posted from Tort Deform

A recent post by guest blogger David Nieporent on Overlawyered criticized the denial of immunity and the general reasoning of the recent decision by Federal District Judge Edward R. Korman.

Cross-posted from Tort Deform

by Michael Townes Watson

The magazine Nashville Scene, in Nashville, Tennessee, reports on two bills in the legislature, to be voted on next week. Tennessee is just one of six states in which we already know the insurance industry is again pursuing caps on non-economic damages in medical malpractice cases. The principal bill backed by the Tennessee Medical Association (TMA), would cap "non-economic" damages at $250,000, just like the legislation that has been attempted all over the country, has already been passed in several states, and has been passed several times in the U.S. House of Representatives, only to be narrowly defeated in the U.S. Senate.