Monday, November 20, 2006

Justice Delayed is Justice Denied

The McAllen monitor has an update on our Mission lawsuit.

"Justice delayed is justice denied."--William E. Gladstone, British Prime Minister, 1809-98.

Thursday, November 09, 2006

Change is Good, Ellen Cohen and South Dakota voters

Good news all over the country with the election results...change is inevitable and change is good. A shout out to Ellen Cohen for her victory over a Tom Delay lackey. Pathetic that Martha Wong didn't even call to concede...it shows a lack of moral character.

Great news also for the integrity and independence of the judiciary--South Dakota voters were smart enough to look past fringe special interests and keep the judiciary protected from being sued by unhappy parties. Voters overwhelmingly rejected the South Dakota initiative that would have stripped judges of their legal immunity and made them vulnerable to lawsuits over unpopular decisions.

Thursday, November 02, 2006

Corpus Christi Residents Demand Accountability

Well, Corpus Christi, Texas residents are finally fed up with the lack of action by industry and government to their serious pollution problems. A local environmentalist group announced Friday it will post monthly results of an air monitoring program on its new Web site. Citizens for Environmental Justice spokeswoman Suzie Canales said data will report air quality near the refinery zone on the group's Web site at www.cfejcorpuschristi.org. The Corpus Christi Caller has more.

The article fails to mention one of the most serious "side effects" of benzene exposure--Acute Myelogenous Leukemia (AML). Sadly, we have several clients who worked in the Corpus Christi area in solvent plants, asphalt paving and refineries that were exposed to benzene and now have AML. There are many industrial occupations at risk for benzene exposure and AML. Yet, government doesn't seem interested reducing the safety risks of working with benzene...certainly industry isn't interested...

Grand Old Hypocrites

We voted today--just a reminder to do so if you haven't already--remember, you can't gripe if you didn't vote. It's the American thing to do.

Here's something to think about when you do go vote...hypocrites--people who demand tort reform for us common folk but turn around and file lawsuits, some frivolous, when they or their family members get injured (minor car wrecks, "negligent" doctors and demands for pain and suffering). I guess it's only pain and suffering when it happens to them, not us. We call them our Grand Old Hypocrites...


HYPOCRITES OF “TORT REFORM”
By Emily Gottlieb
Deputy Director, Center for Justice & Democracy


INTRODUCTION
No one likes a hypocrite. Yet one would be hard pressed to find more hypocrites than in the “tort reform” movement. Take a look at the record of a host of lawmakers, lobbyists and even journalists who complain about lawsuits and argue that the rights of injured consumers to go to court should be scaled back because we are too “litigious.” Yet when they or family members are hurt and need compensation for their own injuries, often minor ones, these same individuals do not hesitate to use the courts to obtain compensation, to right a wrong, to hold a wrongdoer accountable or to obtain justice.

The same is true for corporations that have funded the “tort reform” movement. These companies support efforts to immunize themselves from liability for harming consumers. But when these same companies believe they have been wronged by a business competitor, they are the first to sue.In this report we take a look at the cases of several proponents of tort restrictions who do not “practice what they preach.” We examine individuals who have sued sometimes for millions of dollars while at the same time championing damage caps and other severe liability restrictions for others. We also look at corporate litigants who have lent financial or other support to groups like the American Tort Reform Association (ATRA), the Manhattan Institute and state business coalitions like New Yorkers for Civil Justice Reform (NYCJR). [1] Notably, tort restrictions advocated by these organizations virtually never limit the rights of corporations to sue business competitors for commercial losses. This list is by no means exhaustive but merely representative of businesses and other “tort reformers” who say one thing but do another when it comes to the civil justice system.

INDIVIDUAL HYPOCRITES
George W. Bush
As Texas Governor, George W. Bush was one of the “tort reform” movement’s biggest proponents. One of Bush’s first acts as governor in 1995 was to meet with representatives of nine Texas Citizens Against Lawsuit Abuse (CALA) chapters in a salsa factory outside of Austin, after which he declared a legislative “emergency” on “frivolous lawsuits.” Over his two terms, Bush signed a series of brutal bills that severely reduced injured consumers’ rights to go to court.However, when it comes to solving problems involving his own family, Bush heads straight to court. In 1999, Bush sued Enterprise Rent-A-Car over a minor fender-bender involving one of his daughters in which no one was hurt. Although his insurance would have covered the repair costs making a lawsuit unnecessary, Bush sought additional money from Enterprise, which had rented a car to someone with a suspended license. In this case, Bush seemed to understand one of the most important functions of civil lawsuits — to deter further wrongdoing. The case settled for $2,000 to $2,500. [2]

ABC News Correspondent John Stossel
As 20/20 viewers know, there are few things that irk John Stossel more than people who file lawsuits. “We all have pain and suffering in our lives. And if each time we hang onto it until we get some kind of compensation, society can’t work,” he says. [3] When speaking before corporate-funded groups such as the Cato and Manhattan Institutes, organizations whose members advocate severely restricting the ability of injured consumers to sue companies for their injuries, he can barely contain his contempt for those who file lawsuits and the attorneys who represent them. [4] But what did John Stossel do when a pro wrestler hit him in 1986 after Stossel implied pro wrestling was fake? He sued. And in settling his lawsuit, Stossel reportedly accepted $200,000 for his pain and suffering. [5]

U.S. Senator Rick Santorum (R-Pa.)
As a United States Senator, Rick Santorum has repeatedly supported limits on consumers’ rights to seek compensation in the courts. In 1994, Santorum sponsored the Comprehensive Family Health Access and Savings Act that would have capped non-economic damages at $250,000. [6] In a 1995 floor speech supporting damages caps, Santorum said, “We have a much too costly legal system. It is one that makes us uncompetitive and inefficient, and one that is not fair to society as a whole. While we may have people, individuals, who hit the jackpot and win the lottery in some cases, that is not exactly what our legal system should be designed to do.” [7] But the same rhetoric does not seem to apply to Senator Santorum. In December 1999 Santorum supported his wife’s medical malpractice lawsuit against her chiropractor for $500,000. [8] At trial, the Senator testified that his wife should be compensated for the pain and suffering caused by a botched spine adjustment, claiming that she had to “treat her back gingerly” [9] and could no longer accompany him on the campaign trail. After the verdict, Santorum refused to answer phone calls asking what impact the case had on his views of “tort reform.” [10] According to his spokesman Robert Traynham, “Senator Santorum is of the belief that the verdict decided upon by the jury during last week’s court case of his wife is strictly a private matter. The legislative positions that Senator Santorum has taken on tort reform and health care have been consistent with the case involving Mrs. Santorum.” [11] In January 2000, a judge set aside the $350,000 verdict, deeming it excessive, and offered a reduced award of $175,000 or a new trial on damages only. [12]

Alaska State Representative Mark Hodgins
Alaska’s Republican Assemblyman Mark Hodgins was a proponent of a severe “tort reform” package, including caps on damages, that was enacted in Alaska in 1997. Yet on two separate occasions — once in 1989 and again in 1994 — Hodgins filed “loss of comfort, care and consortium” claims against the families of teenage drivers who struck his wife’s car. The 1989 lawsuit settled out of court. The outcome of the 1994 suit, filed two years after the accident, is unknown. [13]

“Lawsuit Abuse” Group Founder and Trustee, Sterling Cornelius
Sterling Cornelius, owner of Cornelius Nurseries and Turkey Creek Farms in Houston and a trustee of the corporate front-group, Citizens Against Lawsuit Abuse (CALA), is one of the most vocal businessmen complaining about lawsuits and advocating tort restrictions in Texas. With the help and support of the Texas CALA group, Texas enacted a series of “tort reforms” in 1995, including caps on punitive damages and severe restrictions on lawsuits filed under Texas’ Deceptive Trade Practices Act. [14] But in 1993, Sterling filed a $100 million lawsuit against DuPont, claiming that its fungicide, Benlate, damaged his companies’ crop and nursery. Among the damages Cornelius sought were $75.3 million in punitive damages under the Deceptive Trade Practices Act as well as additional punitive damages. Because his lawsuit was filed before enactment of the 1995 legislation, his lawsuit was not affected by the “tort reforms” that passed. [15]

Florida State Representative Art Argenio
Republican Representative Art Argenio in Florida has been one of the state’s most outspoken supporters of restricting the rights of injured Floridians to go to court, calling himself “a leader” in this movement. But in 1993, when Argenio was injured by a driver who hit him as he jogged along the street, what did he do? He sued the driver, of course. Moreover, campaign literature distributed by Argenio’s opponent noted that he filed suit even though his insurance company had paid all his medical bills. Argenio, it seems, wanted more money to compensate him for what he said were “severe and permanent injuries” — i.e., noneconomic damages, the kind of injuries “tort reform” proponents continuously rail against. The case ultimately settled. The compensation he received must have helped him recover. Three years after the accident, Argenio ran in a marathon. [16]

Florida State Representative Mark Flanagan
As a member of the House Civil Justice and Claims Committee, Mark Flanagan was a major force behind severe tort restrictions that were enacted in Florida in 1999, sponsoring and co-sponsoring bills that protect manufacturers of defective products, while calling Florida “the most litigious society in the world.”But it was a different story when his own daughter fell from a daycare center’s jungle gym and broke her leg in 1995. Flanagan sued both the day care center and the manufacturer of the jungle gym, alleging that the manufacturer “negligently and carelessly designed” the apparatus and that the preschool failed to properly supervise his daughter. Like many injured victims whose rights Flanagan’s legislation decimates, the lawsuit alleged that his daughter suffered from “severe pain” and “lost the capacity to enjoy life.” After 18 months of litigation — and two months before his bid for re-election — Flanagan settled for an undisclosed amount. [17]

Texans for Lawsuit Reform Board Members
In April 1995, Texans for Lawsuit Reform (TLR) helped lobby for legislation that capped punitive damages, limited governmental and professional liability, undermined joint and several liability and decimated Texas’ Deceptive Claims Practices Act. [18]Yet at the time this legislation passed, TLR Board members Leo Linbeck, [19] Richard Trabulsi and Richard Weekley had themselves filed over 60 lawsuits either personally or as business owners. Between 1978 and 1995, Leo Linbeck’s construction company was the plaintiff in at least 37 lawsuits. In one suit, which was settled confidentially, his company sued its own insurance company for triple damages stemming from the deaths of three workers in a construction accident. In another case, settled in November 1988, Linbeck sued for punitive damages.By 1995, Board member Richard Trabulsi had also filed suit numerous times. In 1986, as the owner of Richard’s Liquor and Fine Wines, Trabulsi sued Walgreen’s to force it to stop selling alcohol in Texas. He also filed a personal-injury suit against his company in which the company prevailed. He told the Houston Post, “I have had access to the courts a number of times I had forgotten.” [20] As of 1995, TLR President and co-founder Richard Weekly, head of Weekley Properties and Weekley Development and a partner of David Weekley Homes, had sued six times; his companies had sued 14 times. [21]

W.V. Supreme Court Justice Richard Neely
In January 1994, West Virginia Supreme Court Justice Richard Neely testified before the New Jersey Senate Commerce Committee as it considered bills designed to abolish the state’s tort system. Appearing as a paid spokesman for the corporate front-group, New Jersey Citizens Against Lawsuit Abuse, Neely attacked every player in the civil justice system, from lawyers to judges to injured victims who sue.Those pronouncements were surprising given Neely’s personal history with the civil justice system. In 1986, he reportedly sued TWA because his bags arrived 70 minutes late. He demanded $38,000, $3,000 of which was a “speaker’s fee” for telling other passengers about the delay. Three years later, the case settled for $12,500. In 1993, Neely sued Goodyear Tire after a wheel fell off his father’s Cadillac. He sought $49,000 that included $2,000 for himself for five-hours worth of telephone calls to his parents. As Neely testified before the New Jersey Senate, the case was dismissed. [22]

Citizens for a Strong Ohio Advisory Board Member R. Emmett Boyle
In 1996, the Ohio Chamber of Commerce lobbied for a package of laws that made it more difficult or impossible for injured Ohio citizens to sue wrongdoers and be fairly compensated for their injuries. [23] On August 16, 1999, the Ohio Supreme Court struck down this package of laws in its entirety, calling it “openly subversive of the separation of powers and, in particular, of the judicial system” established by the Ohio Constitution. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451 (1999). During the 2000 elections, Citizens for a Strong Ohio, a group created by the Ohio Chamber of Commerce, [24] spent an estimated $5 million to oust Supreme Court Justice Alice Robie Resnick, who wrote the Sheward decision. [25] Yet when it comes to his own company, Citizens for a Strong Ohio Advisory Board Member R. Emmett Boyle does not hesitate to sue. In 1995, Boyle’s company, Ormet Primary Aluminum Corporation, sued Certain Underwriters at Lloyd’s of London, Employers Insurance of Wausau, Globe Indemnity Company and Home Indemnity Company, seeking coverage for environmental contamination at its Hannibal, Ohio reduction facility and remediation costs. After five years of litigation, the Ohio Supreme Court upheld the lower court’s decision to throw the case out, finding that the company had known it was liable for the contamination yet waited 16 years before notifying its insurers. Ormet Primary Aluminum Corporation v. Employers Insurance of Wausau et al., 88 Ohio St.3d 292 (2000).

NOTES[1] Information relating to specific corporate sponsorship of ATRA and the Manhattan Institute is based on John Gannon’s article, “Tort Deform – Lethal Bedfellows” (Essential Information, 1995), citing Chesebro, Kenneth, “Galileo’s Retort: Peter Huber’s Junk Scholarship,” Amer. Univ. L. Rev., Volume 42, No. 4 (Summer 1993). Very few state “tort reform” groups publicly list their corporate members. One of the few that does, with the most comprehensive public list available, is New Yorkers for Civil Justice Reform. NYCJR’s list can be found at the organization’s website, http://www.nycjr.org/.[2] Burger, Timothy, “Bush sued Enterprise Rent-A-Car over daughter’s fender bender,” Daily News, August 26, 2000; “Bush sued rental agency over fender bender,” Houston Chronicle, August 26, 2000.[3] Martin, John, “ABC takes aim at the ‘blame-game,’” Providence Journal-Bulletin, October 26, 1994. See, Stossel, John, “The Blame Game: Are We a Country of Victims?” ABC News, October 26, 1994.[4] Rose, Ted, “Laissez-Fair TV,” Brill’s Content, (March 2000), found at www.brillscontent.com/ features/stossel_0300.html, Cato Policy Report, (September/October 1999), found at http://www.cato.org/pubs/policy_report/v21n5/catoevents.html; Stossel, John, “Pandering to Fear,” keynote address at Manhattan Institute conference, January 20, 1999, listed at http://www.manhattan-institute.org/html/past_events_1999.htm; Solomon, Norman, “Media Moguls on Board,” Extra!, (January/February) 1998, found at www.fair.org/extra/9801/cato-media-moguls.html; Warren, James, “Born-Again Free-Marketer,” Chicago Tribune, December 4, 1994.[5] Lacy, Mike, “ABC report looks at system of litigation,” Tampa Tribune, January 2, 1996; Martin, John, “ABC takes aim at the `blame-game,’” Providence Journal-Bulletin, October 26, 1994. See also, Hoffman, Ken, “Talking on the radio and making some (air)waves,” Houston Chronicle, January 3, 1996; Slewinski, Christy, “Stossel Contemptuous In Trouble With Lawyers,” Daily News, January 2, 1996. Notably, on the August 11, 2000 edition of ABC’s “20/20,” Stossel was forced to make an apology for fabricating data that disparaged the benefits of organic food. Makiinger, Felicity and Jim Rutenberg, “Apology Highlights ABC Reporter’s Contrarian Image,” New York Times, August 14, 2000.[6] Keller, Amy, “Judge Strikes Down Award in Santorum Case,” Roll Call, January 10, 2000; White, Ben, “POLITICS; For a Senate Champion of Malpractice Damage Limits, a Controversy Close to Home,” Washington Post, December 25, 1999.[7] “Wife’s Malpractice Win Is Jury Award Pa. Senator Doesn’t Mind,” Commercial Appeal, December 15, 1999.[8] Keller, Amy, “Karen Santorum Wins Lawsuit Va. Jury Gives Senator’s Wife $350,000 Victory,” Roll Call, December 13, 1999.[9] Id.[10] “Santorum’s Views On Litigation Questioned,” Pennsylvania Law Weekly, December 20, 1999.[11] “Lawsuit critic’s wife wins medical claim,” Telegraph Herald, December 15, 1999.[12] Keller, supra note 6.[13] Kizzia, Tom, “Phillips Weathers Whitmore’s Strong Challenge,” Anchorage Daily News, November 6, 1996; Kizzia, Tom, “Tort Reform-Backer Is A Plaintiff Himself,” Anchorage Daily News, November 1, 1996.[14] See, e.g., Sterling, Cornelius, “When juries give plaintiffs outlandish awards, little folks pay,” Houston Chronicle, May 23, 1993; Piller, Ruth, “Fledgling group takes on abuse of lawsuits,” Houston Chronicle, February 28, 1993; Houston CALA website, http://www.calahouston.org/reform95.html.[15] “Tort reform lobbyists have litigious history,” Austin American-Statesman, April 13, 1995.[16] Argenio, Art, “Argenio: I Have Never Filed A Frivolous Lawsuit,” Stuart News/Port St. Lucie News, August 30, 2000; Rosynsky, Paul, “Flier Details `93 Suit In Attack On Argenio,” Stuart News/Port St. Lucie News, August 30, 2000.[17] Lyons, Tom, “The truth doesn’t always lie somewhere in the middle,” Sarasota Herald-Tribune, October 24, 2000; Makiouquere, Brett, “State Rep. Flanagan Settles Negligence Suit,” Sarasota Herald-Tribune, September 1, 1998; Russell, Gordon, “Paradox? Reformer Wages Suit,” Sarasota Herald-Tribune, March 13, 1998.[18] Patterson, Kelly, “More tort reform needed, businessman says,” Dallas Morning News, March 9, 2000; Glaberson, William, “Damage Control: A special report: Some Plaintiffs Losing Out In Texas’ War on Lawsuits,” New York Times, June 7, 1999; Texans for Lawsuit Reform website, http://www.tortreform.com/.[19] Linbeck headed the commission that investigated the November 18, 1999, Texas A&M bonfire collapse. He said that liability questions “did not figure into his commission’s work. The commission, however, appeared to let off the hook two private entities that legal experts say also could face lawsuits, especially since potential damages from A&M are so limited.” Lee, Christopher, “Despite commission, Aggies still dwell on deadly bonfire collapse,” Dallas Morning News, May 4, 2000.[20] “Tort reform lobbyists have litigious history,” Austin American-Statesman, April 13, 1995.[21] Id.[22] “Ambulance Chase Neely’s Cash Quest,” Charleston Daily Gazette, December 29, 1995; Baker, Gerald, “‘America’s Dumbest Judge’ Argues for Tort Reform,” New Jersey Law Journal, February 7, 1994; Bleemer, Russ, “Senate Weighs Tort Reform, And Angers the Trial Bar,” New Jersey Law Journal, January 31, 1994.[23] Showalter, Kathy, “Time limits, payout caps major tort reform issues,” Business First-Columbus, Vol. 12, No. 36, May 3, 1996; O’Malley, Christine, “Tort revisers find liability nagging issue,” Business First-Columbus, Vol. 12, No. 31, March 29, 1996; Miller, Tim, “Push On For `Tort Reform’ Action,” Dayton Daily News, January 19, 1996.[24] Hershey, William and Kristen Convery, “Teamsters Rally For Resnick, Other Labor-Backed Candidates,” Dayton Daily News, November 1, 2000.[25] Hallett, Joe, “Biggest Money In Court Races Still Secret,” Columbus Dispatch, December 16, 2000.[26] Dummit, Ralph, “Couple Wins County Council’s Approval To Run Winery At Farm Along Highway 94,” St. Louis Post-Dispatch, December 13, 1999.[27] “Japan-America patent war,” Business Line, April 14, 1998; “Kodak Sues Sony Over Patent,” The Record, April 1, 1993.[28] “Antibiotic: Italian Settlement,” Pharmaceutical Executive, May 1, 2000; “Biochimica Opos and Eli Lilly Settle Lawsuits Involving Cefaclor,” PR Newswire, January 25, 2000.[29] Raymond, Jeffrey, “Dueling Pick-Up Lines: Md.-Based Car Rental Defends Its Ad Rights,” Daily Record, May 12, 1998; “Federal Judge Rules in Rent-A-Wreck’s Favor in Trademark Dispute with Enterprise Rent-A-Car,” Business Wire, September 26, 2000.[30] Asher, Ed, “Federal judge permanently enjoins Mobil from infringing on Exxon,” Houston Chronicle, September 11, 1998; Sit-DuVall, Mary, “Jury orders Mobil Oil to pay in patent lawsuit,” Houston Chronicle, August 12, 1998.[31] Sommer, Constance, “Auto Companies Gear Up to Take on Cyberpirates,” Corporate Legal Times, August 2000; Truby, Mark, “Automakers fight cyberpirates,” Detroit News, May 30, 2000.[32] “Johnson & Johnson/Merck Announces Favorable Ruling In SmithKline Beecham Lawsuits,” PR Newswire, October 13, 1995; “Johnson & Johnson/Merck Files Suit Against SmithKline Beecham For False Advertising,” PR Newswire, September 6, 1995.[33] Galewitz, Phil, “J&J Sues Bausch & Lomb Over Lenses,” Seattle Post-Intelligencer, March 20, 1999.[34] “Pfizer files second suit in takeover fight,” National Law Journal, December 6, 1999; “Warner-Lambert Sues Pfizer Over Drug,” New York Times, November 30, 1999.[35] Koberstein, Wayne, “Standing on Scale: Chairman Bill Steere Likes Pfizer’s New Size,” Pharmaceutical Executive, Vol. 20, No. 8, August 1, 2000; “Peer Pressure; Warner-Lambert will explore Pfizer’s merger offer,” Med Ad News, Vol. 19, No. 2, February 1, 2000.[36] Testimony of David Mauer before the Senate Subcommittee on Administrative Oversight and the Courts, “Cost Of The Legal System,” May 2, 1995.[37] Testimony of Julie Nemens, “Product Liability Law Revision,” Hearing of the Senate Commerce, Science and Transportation Committee,” March 4, 1997.[38] Cornelius, Frank, “Crushed by My Own Reform,” New York Times, October 7, 1994.

The Center for Justice & Democracy is a non-profit, non-partisan public interest organization that works to educate the public about the importance of the civil justice system, and fights to protect the right to trial by jury and an independent judiciary for all Americans. CJ&D is funded by individual contributions and foundations, including the Deer Creek Foundation, the Nathan Cummings Foundation and the Stern Family Fund. It is not connected to any business or trial lawyer organization.