Every year ATRA, the American Tort Reform Asssociation (the group’s membership is large corporations and the group’s purpose is to take away the average person’s right to judicial remedy), puts together a list of “judicial hellholes”. It is an unscientific list of venues corporations hate to be sued in.
Corporate lawyers across America send in their list of places where judges and juries have hammered them (whether their corporate client deserved to be hammered or not is not addressed in the list) and ATRA publishes the results. This is not a list of venues that treat consumers unfairly, which I would consider a real hell hole. Again, these are venues corporations don’t like. Atra’s list of Judicial HellHoles for 2007 is found here.
Law.com has an article on the list.
The Center for Justice and Democracy issued a press release calling the report unfair and dishonest. The article debunks some of the information found in ATRA’s report. Also, a Washington Times article quotes the head of Alabama Trial Lawyers group, who laments the fact that Bama is no longer included on the listing. He states that when a venue is on the list it means ”the courts (are working) properly and (holding) wrongdoers accountable”. Amen.
The CPSC has recalled Tot Tower Toy blocks, imported by eeBoo Corporation of New York. The blocks were sold in sets of 10 blocks of various sizes. The product is a toy block made of cardboard, with plastic laminate film coverings depicting images and letters. There are two reports of the plastic covering detaching from the block in children’s mouths. No injuries reported so far. The toy poses a choking hazard for children.
Tot Tower Toys were sold at various gift and specialty shops nationwide between January 2003 and September 2007.
In September Allstate Insurance Company was ordered by the Missouri Supreme Court to produce documents regarding their claims payment practices. According to an article in the Kansas City Star, the documents show a pattern of abuse in regard to claims handling procedures at Allstate, a pattern that has allegedly allowed the company to reap huge profits at the expense of shortchanged customers.
Allstate incurs a $25,000 contempt fine each day they refuse to comply with the court’s order. The price tag for its refusal to comply at this point, December 2007 is $2.4 million. Obviously not complying with the court’s order is more valuable than $2.4 million to Allstate. How much more valuable is still to be seen.
Conagra has removed diactyl, a chemical used for butter flavoring in microwave popcorn, from its Act II and Orville Redenbacher brands of microwave popcorn. Scientests linked the chemical to a severe lung disease, bronchiolitis obliterans, in 2001. The chemical caused three deaths and caused hundreds of cases of severe lung disease in popcorn plant workers who were exposed to the chemical in a dust form.
While disease related to the chemical has been limited to popcorn plant workers, according to an article in the Milwaukee Journal Online, doctors found health problems similar to those in the plant workers in a man who ate 2 bags of microwave popcorn everyday.
A study, scheduled to be published in JAMA this week, concludes that older diabetics who take Avandia and Actos have a significantly increased risk for heart attack, congestive heart failure and death. Actos is produced by Takeda Pharmacutical North America and Avandia is produced by GlaxoSmithKline. The findings of this study are similar to the findings of a study published earlier this year in the New England Journal of Medicine.
Glaxo was quoted in an article in the Chicago Tribune as saying that the findings “are not consistent with other epidemiological studies and long-term clinical trials, which do not show a difference in cardiovascular risk between Avandia and other anti-diabetic medicines,” Glaxo said. “The inconsistency could be due to the fact that the Avandia patients were older, sicker and had more chronic diseases.”
A spokesman for Actos, Dr. Bob Spanheimer, stated in the article that there “is no increase in heart attacks or deaths with Actos.”
Earlier this year an FDA panel required the makers of Avandia and Accots to put a “black box” warning regarding heart failure on the drug’s packaging.
The Supreme Court of Texas recently found that a premesis owner is immune from a negligence by a contract worker on its premesis, because of workers compensation. In TX a company that purchases worker’s compensation insurance is immune from tort suits by employees for negilgent acts. This immunity arose as a trade off between workers and employees. The worker got non-fault based benefits when injured and the employer got immunity from tort.
In Texas, the immunity does not extend to anyone other than the direct employer. But the Texas Supreme Court, in another act of Judicial Tort Reform, has changed the law. According to an article in the Houston Chronicle, a bipartisan group of legislators has asked for a rehearing on the case. The group, two democratic lawmakers and two republican lawmakers, claims the Supreme Court has violated the separation of powers clause of the state constitution, by legislating from the bench. The lawmakers say that the legislature has had the opportunity to debate whether premesis owners should receive the immunity and has repeatedly declined to extend that immunity.
The attack on the average guy in Texas continues.
State Farm policyholders in Nebraska have sued State Farm over Medpay policies the company wrote in Nebraska. The suit alleges State Farm has wrongly denied claims under medpay since 1990. According to an article in the Houston Chronicle, State Farm’s documents show that rather than allowing their insureds to go to the doctor of their choice, State Farm used a “managed care” approach and denied claims in order to obtain cost savings.
Article in New York Times describes the worsening condition of the Social Security disability system. Some facts from the article: of the cases that are rejected initially, 2/3 of the people that appeal have their claims granted. Since 2000, the backlog of cases on appeal has soared from 311,00 to 755,000. In 2000 the wait for an appeal took 238 days, now the wait is over 500 days.
Many people lose their houses while waiting for their appeal to be heard. Some are kicked out of their apartments. Others die during the wait. Congress passed a bill that would have added more judges to the system, but unfortunately the bill was vetoed.
Addendum: New York Times editorial about the situation does a good job of tracing the origins of the problems in the system.
In 2003, as part of tort reform measures, Florida passed a horizontal immunity statute. The statute require a worker on a jobsite working for one subcontractor, to prove gross negligence in actions against other subcontractors who negligently injure such workers on a jobsite. The gross negligence standard means to knowingly undertake a dangerous act likely to result in injury.
An article on Jacksonville.com talks about a recent verdict in a case using this new law. The plaintiff lost, as the jury was unwilling to say gross negligence applied to the facts. Another instance of working people suffering the consequences of tort reform and the businesses who paid for tort reform shirking their responsibility for their actions.
Congress will soon take up the question of mandatory arbitration clause reform. Mandatory arbitration clauses appear in various legal documents consumers come into contact with everyday. Car salesmen include them in their contracts routinely. Credit card companies also use them in all consumer contracts.
The clause takes away the consumers right to sue the business if they are wronged by the business. By agreeing to mandatory arbitration, the consumer agrees to address any grievance with the company they are doing business with through an arbitration company. Why would a business, like a car dealership or credit card company want to arbitrate all claims against it? Because the arbitration company they use will rule in their favor the majority of the time. According to an article on the subject titled “Suckers Wanted”, arbitrators rule in favor of the businesses that hire them 94% of the time. Pretty good odds.
One of the reasons business wins over consumers in arbitration is that the businesses name the arbitrator. So if an arbitrator rules in favor of consumers, he isn’t hired by the business again. The article cites a study of HMO arbitration cases. The study found that if an arbitrator ruled in favor of the patient, the HMO never hired that arbitrator again.
Congress is gearing up to amend the Federal Arbitration Act, to outlaw the type of mandatory arbitration clauses that consumers are bound by in credit card contracts and car sales contracts, as well as to stop mandatory arbitration clauses in employment contracts.
The Chamber of Commerce is cranking up an ad campaign to convince the public that arbitration clauses are good and that trial lawyers are behind the anti-arbitration movement. Larry Akey from the Chamber had the following quote in the article:
“Efforts to force people to hire attorneys for even the smallest dispute are wrong…(consumers don’t need a lawyer in arbitration). The real motive on the part of the trial bar is to wipe out prohibitions on class actions, not to protect consumers.”
No the real motive is to allow consumers to protect themselves when they transact business with an unscrupulous company.
