Politics and Public Safety

So back in January, I posted about the FDA and their attempt at pre-empting state laws with their regulations regarding labelling laws (there is also a link to Greedy Trial Lawyer post on the same topic). The basic rationale is that the FDA does enough to protect the citizens of the United States and the legislation in the several states would cause a checkerboard of regulations which makes it hard for the pharmaceuticals to comply.

Well, from TortsProfBlawg, there is this troubling story from the Union of Concerned Scientists. According to the Union of Concerned Scientists, 18.4% of scientists responding to the survey and working for the FDA stated that they "have been asked, for non-scientific reasons, to inappropriately exclude or alter technical information or their conclusions in a FDA scientific document."

Not only that, but 61% of the respondents said that they knew of cases where political appointees had inappropriately interjected themselves into FDA determinations. Almost half, 47%, think that the "FDA routinely provides complete and accurate information to the public." Furthermore,

81 percent agreed that the "public would be better served if the independence and authority of FDA post-market safety systems were strengthened."

70 percent disagree with the statement that FDA has sufficient resources to perform effectively its mission of "protecting public health…and helping to get accurate science-based information they need to use medicines and foods to improve their health

Based on this, the Bush Administration wants to support pre-empting state laws that would bolster this? That would afford people some protection? Ok, now I am concerned.

Civil Justice/Tort Reform Debate

Over at the Legal Underground, Evan Shaeffer has apparently brow beat ATLA's magazine into making available without subscription this month's Trial magazine. This month, the main articles all deal with Tort Reform, access to Civil Justice, and whether there is a litigation crisis in the court systems fo this country.

Even if you are a reader of Overlawyered, you should take a look at these articles for a look at the other side of the debate.

A really large award out of the Vaccine Program

I think that I have mentioned the National Vaccine Injury Compensation Program before. Essentially, it is a no-fault system where the injured person, usually a child through their parents, applies to the fund claiming that they have suffered an injury as a result of a required vaccination.

According to the DOJ, in the twelve years fo the program, more than 1500 people have recovered approximately 1.18 billion dollars. When I was in law school, there was a clinic where the law students could actually try the issues to the panel. This always left me with the impression that not a lot of money was involved.

Apparently I was wrong. Apparently a boy, aged 7, who was rendered a quadripligic because of side effect suffered from being innoculated for measels, mumps, and rubella, recovered $43.1 million from the program.

I'm sure he would rather be walking and not in a chair, but that is still pretty impressive recovery by his counsel. I wonder if the Vaccine Compensation Program will now be labeled a judicial hellhole?

Tort Reform?

I saw this over on TortsProfBlog and thought it was appropriate, especially in light of one of the proposed ballot initiatives that tort reformers are trying to get on the ballot here in California. Apparently, they want to sheild manufacturers from punitive damages in cases where their products complied with applicable state and federal regulations.

At first glance, this seems to make sense. But then think about it. How long does it take the state or the federal government to properly regulate something. For example, how long did it take the government to start regulating the tobacco industry versus when did the tobacco industry have knowledge that its products were the cause of people's deaths?

Trent Lott, Tort Reformer

The following was sent to me on a listserv I'm on:

"The Democrats seem to think that the answer is a lawsuit. Sueeverybody."- Sen. Trent Lott, 7/20/01

"I'm among many Mississippi citizens who believe tort reform is needed."- Sen. Trent Lott, 5/8/02"

You know, obviously we should [enact tort reform]...Someday it willhappen, and the sooner the better."- Sen. Trent Lott, 1/24/01

" Sen. Trent Lott of Mississippi today credited the agenda of tax cuts,deregulation and tort reform initiatives passed by the Congress andsigned into law by President Bush with the overall upturn in thenational economy."- Sen. Trent Lott press release, 12/2/05

"If their answer to everything is more lawsuits, then yes, that's aproblem, because I certainly don't support that."- Sen. Trent Lott, 8/2/02

"It's sue, sue, sue... That's not the answer."- Sen. Trent Lott, 8/4/01

PUNCHLINE: Today, Senator Trent Lott and his wife Sue, sued State FarmFire and Casualty (those good hands people) for the loss of his home. Iguess tort "reform" is a bad idea when it is his home that is destroyed.

BILOXI, Miss. - A lawyer for U.S. Sen. Trent Lott (news, bio, votingrecord) said Monday that State Farm Insurance Co. is destroying documents that could show the insurer has fraudulently denied thousandsof claims by Lott and other policyholders whose homes were destroyed byHurricane Katrina. Zach Scruggs, one of Lott's attorneys, says his client has a "good faith belief" that several State Farm employees in Biloxi are destroying engineering reports that gave conflicting conclusions about whether wind or water was responsible for storm damage. Like thousands of Gulf Coast homeowners, Lott's claim was denied because State Farm concluded that Katrina's flood water demolished his beach-front Pascagoula home. State Farm says its policies do not cover damage from rising water, including wind-driven water. But lawyers for the Mississippi Republican claim Bloomington, Ill.-based State Farm has routinely pressured its engineers to alter "favorable"reports that initially blamed damage on hurricane's wind, which the company's policies cover. A State Farm spokesman said Monday he couldn't immediately comment onScruggs' allegations. Lott's allegations come on the heels of a lawsuit filed by Kiln, Miss., couple who claimed they had obtained copies of conflicting reports prepared by State Farm's engineers on what damaged their home. They said one report traced the destruction to Katrina's winds while a later report said flooding was the culprit. In response, State Farm spokesman Phil Supple had said the second report was the only one the engineering firm sent to State Farm's claims office. In an interview Monday, Scruggs said corporate "whistleblowers" who are cooperating with Lott's attorneys have provided evidence that StateFarm employees are destroying or moving those "initial favorable"engineering reports. "We believe that this is a systematic practice," said Scruggs, who isLott's nephew by marriage. Mississippi Attorney General Jim Hood also says he is investigating allegations that State Farm manipulated engineering reports to denyclaims after the Aug. 29 hurricane. A judge ordered State Farm to turn over copies of its Katrina engineering reports to Hood's office. The judge also ordered Hood'soffice to set up a "Chinese wall" that would keep the documents out ofthe hands of lawyers with civil cases against State Farm.Because Hood also has filed a civil case on behalf of the state against State Farm and other insurance companies, State Farm is asking the judge to bar Hood himself from seeing the records. State Farm denied Lott's claim in December based on a report prepared byJade Engineering & Construction Inc. that concluded that the house was "probably damaged by storm surge/flooding and not by wind." Scruggs is asking a federal judge to order State Farm to turn overLott's entire case file as well as records for other policyholders' claims.

So I'm wondering what he thinks of tort reform and caps on punitive damages now?

Medical Malpractice

So as I reading Greedy Trial Lawyer, the top story at the time was about how medical errors continue at hospitals continue to rise.

This leads me to wonder. There are as many 1.2 million incidents in a two year period (the last one ending in 2004). The insurance industry has been spending millions of dollars on its attempts at "tort reforms" (including malpractice caps and other ideas) because of the rising costs, or so they say, due solely to the "evil trial lawyers". And the insurance companies state that this will bring the costs back down.

Now, if they are spending this much to stop the suits from coming, I wonder what would happen if perhaps they spent that money on actually eradicating the problem: namely the avoidable errors that happen in hospitals that cause people to seek attorneys to be compensated for their injury. Maybe pay the nurses a little more. Spend some more time on developing commonsense things (like standardized ways of marking body parts prior to surgery)

It was a nice Saturday (Or "Hello Pot," said Kettle, "You're black!")

Then I logged on to the internet and made a sweep through my blogs which I had not been doing for the lat couple of days because of things going on in my life.

And that is when I found this over at the TortsProf Blog. According to Professor Childs' article, the Bush Administration has decided that its approach to "tort reforms" are not goin fast enough. Rather than wait for the legislatures and voters to approve the measures that they believe are in the best interest for the country, they have decided to go ahead and establish regulations essentially eliminating the rights of people to sue because of defects in their products. The first two that I am aware of are the FDA's rule about labelling and the Consumer Product Safety Commission ("CPSC") rule regarding matress fires.

The mattress rule was approved by three commissioners (Chair Hal Stratton, Vice-Chair Nancy A. Nord, and Thomas Hill Moore). Mr. Stratton and Ms. Nord are both Bush appointees. Mr. Moore was initially appointed by President Clinton but was reappointed by President Bush. A portion of the meeting's transcript is posted by the agency here. In it they tout that the new regulations will save 78% of people who would have been killed by mattress fires under the old rule. Interestingly, they do not include in their sound bites anything about the bit of the regulation where the take away the right to sue.

However, Mr. Moore, although voting in favor of the regulation (which looks like it was something long overdue), made it clear that he was not voting for the preamble. In his written concurrence, he went out of his way to state that the Executive Order which required the CPSC to insert the preamble regarding the preemption issue.

Mr. Moore' s statement aside, I find it interesting what the Bush Administration is doing. It is using a non-elective body to create and change the laws. I seem to recall some Federalist society people railing against that when I was in law school... or perhaps it was a member of the sitting administration talking to the faithful.

At least when the left does it, they are honest about what they are doing. I wonder why the Greedy Trial Lawyer will say about it?

Personally, I think its a symptom of the problem that both parties have in this country. However, today I am calling the Republicans on it. Just another example of their cronyism.

Hidden in the shuffle

I'm actually surprised that yesterday was the first time I heard about it. Over at the Torts Prof blog, run by Professor Childs of the Western New England School of Law, there was a short piece about tort reform by executive fiat.

Apparently in 2003, President Bush signed Executive Order 13303 (This order has since been expanded and modified by E.O 13315, 13350 and one signed on November 29, 2004.). These orders deal with claims against the Iraq Development Fund, the Iraqi oil industry, and anything arising from the sale or marketing of Iraqi oil. Essentially, with four strokes of the pen, President Bush has eliminated tort liability for entities working in Iraq, making them effectively immune from civil tort claims. Anthony Sebrok and Claire Kelly have a really well written analysis of this decision by the Bush administration.

Essentially, this is one step beyond what the FDA is trying to do with its new labeling regulations for perscription medicines. Instead of merely limiting the injured's recourse, they are eliminating it entirely.

Interesting looks at medical malpractice

In between documents, I scan through the web for interesting articles to keep my mind occupied. Today, while looking at the guest columns on the Legal Underground, there was an interesting take on medical malpractice and tort reform. While I did not agree with it, it was one of the better writings I have read about the situation.

At least until I looked down in the feedback area of the posting. There I found a link to an article in Medical Economics. The article managed to do something I have not seen before: it did not blame a single group. Instead, the author laid out what his research had lead him to, and what I think is probably closer to the truth than what either the right or left wings of the country want to admit.

Essentially, he states, that there is no reason for the state of medical malpractice. Some of his proposed solutions I think would be unacceptable, but I like a few of them. Its an interesting article that you should look at before someone starts telling you how its all the (choose one Lawyers/Insurance Companies) fault.

Protecting Those Who Need It The Most #1

So I was making my sweep though the law blogs today when I ran across an item at GreedyTrial Attorney. Which lead me to this link, where Mr. Lamb talks about the latest in the Bush Administration's attempt at "tort reform". According to the source article, from the Wall Street Journal, the Bush Administration appointees at the FDA are contemplating releasing a new drug labelling regulation to enhance the current regulations. While everyone seems to agree that this new regulation is needed, what the appointees have apparently added into the regulation is some pre-emption language.

What are they pre-empting? According to the article by Anna Wilde Matthews, the new rule would, "declare that federally approved medication labels pre-empt state law, a move that could strengthen pharmaceutical makers' defenses against lawsuits claiming injury by the companies' products."

Essentially it would say that there is only one standard, the Federal one, and that state legislatures cannot enact laws which would extend additional rights to the Federally imposed minimums. Appparently the poor drug companies are just suffering too much from having to make their drugs safer. The industry's argument is essentially that with 50 states, plus the District of Columbia, able to establish a patchwork system of additional regulations on the drug companies. This is bad, apparently, because it second guesses the FDA.

And it also helps to protect the ailing the drug industry. Or is it an ailing industry, beset by lawsuits which the Bush administration and their appointees at the FDA have to protect? A quick glance at the Merck information shows that the gross profit over the last four quarters has remained between 4.0 and 4.3 billion dollars (there was a bad Q1 in 2005). Now I am not an economist, but to my layman's eye, it certainly looks like they are making a profit. Furthermore, Merck, which is going through a series of law suits (as of my last check, going 1 for 2 in verdicts) has seen an increase in non-operating expenses. However, in that same quarter (the end of last year) it also saw an upswing in its sales.

It is true that this past year, the big pharmaceuticals have seen a rather large loss of profits. However, as the Fortune article, available here on the CNN website, point.s out, this is largely due to the expiration of patents allowing generic drug manufacturers to get into the market.( So probably what they will want to do next is extend the patent expiration date, again.) Not only that, but in the past year, the drug industry, meaning the patent holding, research and development companies, released 56 new drugs between 2000 and 2005. These drugs, referred to as blockbusters earned them over a billion dollars, each, for their manufacturers in the past year. And there are more on the way, which should, implies the article, more than make up for the patents which have expired in the past year.

So it appears that in the name of "tort reform", the neo-conservative administration is protecting those most in need of it. The rich, seemingly very profitable drug companies.