According to a story on the Legalnewsline.com, two congressmen have introduced a new tort reform bill in Washington.  Representative Lamar Smith, R-Texas and Senator Chuck Grassley, R-Iowa, have introduced the so-called “Lawsuit Abuse Reduction Act of 2011″.  As reported in the previous article, there are no studies showing that there is a lawsuit abuse (ie. frivolous lawsuit) problem, but that has not stopped these two Congressmen from charging forward with their bill.

Smith was quoted as saying, “(l)awsuit abuse has become too common in American society, partly because the lawyers who bring these cases have everything to gain and nothing to lose”.  That statement is wrong, lawyers fund lawsuits for plaintiffs and do not fund lawsuits that are frivolous, because they will not get their money back.  Smith goes on to say that, “(p)laintiffs lawyers can file frivolous suits, no matter how absurd the claims, without any penalty”.  As I said, the penalty is the lawyer loses the money he put into the lawsuit.  Getting a lawsuit off the ground can be a substantial endevor, and taking a case to trial costs serious money.  If lawyers take frivolous cases they will go broke.  Smith continues, “(m)eanwhile, defendants are faced with the choice of years of litigation, high court costs and attorneys fees or a settlement. Our legal system encourages frivolous lawsuits while defendants are left paying the price even when they are innocent”.  

The bill would require mandatory sanctions, under the Federal Rules, for lawyers who file lawsuits with no basis in Federal Court.  According to the article, the proposal “reinstates mandatory sanctions for attorneys who file meritless suits and forces them to pay the defendant’s attorneys fees and court costs. It also reverses a 1993 amendment that allowed parties and their attorneys to avoid sanctions for making frivolous claims by withdrawing them within 21 days after a motion for sanctions has been served”.  Similar to the bill in Texas, reported below, the measure does not require sanctions for defendants who pursue meritless defenses.  The bill appears to be another solution to a non-problem.

According to a story in the Houston Chronical (also reported on in the New York Times), Texas tort reformers are at it again.  On the horizon in the Texas Legislature this year are several bad and unneeded “reforms”.  One law being proposed is called “loser pays”.  It is an old idea with a deceiving moniker.  The law, as proposed in a draft by Governor Perry, would make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit.  That might sound fair to some, but the law is one-sided.  The only time the loser pays is when the loser is the plaintiff.  If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees.  Not anyone’s idea of fair.  But fairness is not the point.   

The law is being proposed as a measure to stop frivolous lawsuits.  In the Times article, a professor at the UT School of Law said no serious studies on frivolous lawsuits have found that frivolous lawsuits are a real problem.  If the law is a solution to a non-existent problem, why are taxpayer dollars being wasted on this issue.  It is time for the politicians to get back to work and quit raising the lawsuit boogeyman promoted by insurance and business interest.  These special interest groups raise this issue every couple of years to promote their goal of limiting their personal liability and ultimately to shirk their personal responsibility to average citizens.

“Loser pays” is a measure designed to put fear in the heart of the average person who wants to assert their right to seek justice and make a claim.  Any attorney the claimant consults with will be required to tell the claimant that if there is an unjust outcome and they lose the case, they will owe the defendant their attorneys fees.  Even when someone feels they are right, they will be reluctant to bring a suit, out of fear that an already bad situation could possibly be made worse.  This is the response business and insurance lobbyists are looking for in this measure.  But business and insurance interests will never have that same fear, because the proposal does not ask them to pay costs if the person who brings the suit is successful.

Texas is also looking at regulating attorney fees.  We all know that big businesses and insurance companies can hire any lawyer they want.  In fact many insurance companies have lawyers on their payroll.  A regular person sometimes can’t afford to hire an attorney.  Contingency fees make it possible for the little guy to get legal representation on par with what big businesses can afford. 

Texas legislators want to cap contingency fees at a low-level.  Free enterprise is the cry of every legislator who would push this kind of bill and no one is suggesting a cap on what insurers and big businesses pay their lawyers.  But it is ok to limit what kind of representation the little guy can receive, while encouraging the deep pockets that would obstruct access to the system.  Think what would happen if the NBA decreed that half of the teams can pay as much as they want for their players and put a cap on what the other teams could pay.  Not a fair system.  But fairness (justice) is not the goal.

The CPSC issued a recall on 82,000 Pottery Barn Kids drop side cribs, according to Reuters.  The recall is being issued for cribs sold between January 1999 and March 2010, at Pottery Barn Kids retail stores, online at www.potterybarnkids.com, and through the Pottery Barn Kids catalog.  The CPSC reports 36 instances of malfunctions with the drop sides resulting in seven injuries where children got their legs caught or fell out of the crib.  The CPSC reports that one child’s head became stuck, but that instance did not result in injury. 

Over the past five years the CPSC has issued 12 recalls of drop side cribs, made by various manufacturers, resulting in the recall of more than 7 million cribs.  The CPSC reports that over the last ten years, 32 infants and toddlers have died as a result of incidents involving drop side cribs manufactured by various companies.  Additionally, the CPSC received reports of 14 other deaths possibly related to drop side cribs.  The CPSC plans to have news rules in place by the end of the year regarding the manufacture of drop side cribs.

John Stossel, gnat-like reporter for Fox News has published a column titled “Parasitic Tort Lawyers” and also aired a program on Fox with the same message.  He leads off the story with the sentence, “Tort lawyers lie.”   His story goes on, “as one of America’s first consumer reporters, I’d avenge harmed consumers by bringing cameras to the offending business and confronting the crooks. My work warned others about the dangers in the marketplace but didn’t do much for the victims.”  I’ll get to the video of him “confronting the crooks” in a minute. 

Stossel quit consumer advocacy reporting years ago and was quoted as saying, “I got sick of it (consumer advocacy reporting)…  I also now make so much money I just lost interest in saving a buck on a can of peas. Twenty years was enough. But mainly, I came to realize that the government was doing far more harm to people than business and I ought to be reporting on that. Nobody else was”.  He has also claimed attorneys do more harm to people.  Stossel has denied making the comment, but a tape of him making the comment has surfaced, and his actions certainly lend credibility to the people who have used this quote.  Even if he has grown weary of helping average people, they still need help.  Every day.  Average people still get injured, whether Stossel cares or not.

The lie that tort lawyers tell, according to Stossel, is that lawsuits make society better.  That is not the purpose of lawsuits and Stossel knows this.  Some may claim this as a by-product.  But the purpose of a lawsuit is to compensate the injured individual.  The compensation comes from the person who caused the harm.  The person who caused the harm is held accountable for their mistake or intentional wrong doing.  The reason Stossel knows this is that he has personally participated in lawsuits.

This is a video of one of Stossel’s confrontations.  He confronted a “crook wrestler”, and asked him to admit to the world that wrestling is a fake sport.  When the wrestler took offense to Stossel’s questioning, the wrestler hit Stossel up-side the head, to prove that wrestling is not fake.  What did Stossel do to right this wrong.  Did he whip up on the guy who beat him.  No he ran.  To the nearest lawyer. 

Stossel sued, and according to several sources, settled for more than $400,000.  This confrontation with the wrestler did not leave him bloody, Stossel walked (well ran) away from the confrontation, nothing was broken.  He sued and got over $400,000. 

Stossel’s column goes on to say that after he began to report on bad companies, that he “started referring hurt consumers to lawyers.  Imagine my shock when consumers called to say their lawyers took most of the money.”  Stossel does not say in the story how much he got from the wrestler payout or how much his attorney got.  Stossel continues, “even when the lawyers do help their clients, they hurt everyone else because fear of their lawsuits takes away many good things.” 

When lawyers help their clients, they help everyone else, because they force the person who is responsible for causing the damage to pay the victim and the victim does not end up relying on the state (me and you) to take care of them.  So no John Stossel, lawsuits do not hurt everyone else.  You cannot be against government sponsored programs and against lawsuits.  If it were not for lawsuits, victims of other’s negligence would be on the dole.  That is a fact.

Thanks to PopTort for his great coverage of the gnat.

A panel of doctors and occupational health experts published an article in Environmental Health Perspectives, a scientific journal, calling on all governments to ban asbestos, according to CBC News Canada.  In 1983, Iceland became the first country to ban asbestos use.  Today several dozen countries ban the use of the deadly substance and worldwide consumption of the product has been cut in half.  The article points out that while use of asbestos has dropped greatly in developed countries, use has skyrocketed in developing countries.

The countries who do not ban asbestos include the US, which is shocking, considering the horrible toll asbestos has taken on our country.  The article states that the majority of the population of the world lives in countries where the substance is not banned. 

Those who advocate against the ban, mostly the asbestos mining companies, argue that if safe handling practices are used, the product is harmless.  However, those who study the substance and the diseases caused by the substance, such as mesothelioma, agree there is no safe level of exposure.  The article lists several studies of the Quebec mining industry, performed by the National Public Health Institute of Quebec, which show the mines themselves do not follow the safety measures which amount to “controlled use” of asbestos.  It is hard to imagine that third world countries can achieve controlled use of asbestos, when Canadian mines cannot do it. 

It is time to ban asbestos use worldwide.  It is a known public health threat and deserves the same level of attention that eradication of deadly diseases has received over the years.  If not, many more deaths will occur.

According to the AFL-CIO blog, an OSHA rule created to protect workers from asbestos hazards has been upheld by the U.S. Court of Appeals.  In 2003 a contractor in Houston, Texas hired 11 immigrant workers to perform an asbestos abatement job.  The contractor, Eric Ho, did not train the workers or give them appropriate protection, such as respirators.  A city inspector ordered the job stopped because of the asbestos violations, but the contractor made the workers perform the job behind locked gates, after hours; putting the workers at great risk. 

OSHA issued 22 separate violations to the contractor.  Eleven violations for not providing each worker with a respirator and eleven for not training the workers on how to properly work around asbestos.  A Bush Administration Commission overturned most of the citations, saying the contractor could only be cited once for the training violation and once for the respirator violation, consequently reducing the number of fines facing the contractor from 22 to 2.

OSHA subsequently re-worded the rules to clear up the issue, stating that separate citations can be issued for each worker who is not properly trained and separate citations can be issued for each worker who is not given a respirator.  The National Association of Home Builders sued the government, claiming OSHA did not have the authority to rewrite the rule.

In National Association of Home Builders C. Occupational Safety and Health Administration, the U.S. Court of Appeals for the District of Columbia Circuit ruled that OSHA was operating within its authority when it made the rule.  The dangers of working with asbestos have been known for many years.  It can cause cancers including lung cancer and mesothelioma, as well as asbestosis.  The ruling of the court, that the employer can be fined for each worker it doesn’t protect, gives OSHA a hammer to combat employers who don’t protect their workers appropriately.

Garlock Sealing Technologies has filed for bankruptcy, according to a story on the WSJ Blog.  The company, founded in 1887, produces sealing materials for various sectors, including the petrochemical industry, the chemical industry, the power industry, and the paper industry.  For many years, approximately 1907 to 1980, Garlock produced gaskets, packing materials, and cloth that contained asbestos.  Garlock has been a defendant in numerous asbestos cases. 

In court documents Garlock listed the value of their assets at the $500 million to $1 billion range, and their debts in the $100 million to $500 million range.  The company is asking the court to establish a bankruptcy trust to pay asbestos related claims.  The filing also covers the Anchor Packing Company, an arm of Garlock that also produced asbestos containing products. 

Asbestos is a mineral widely used in the early to late part of the 20th century in industrial settings.  Breathing in asbestos can cause scarring of the lungs, which is called asbestosis.  This disease can prevent the lungs from expanding properly and leads to shortness of breath and even death.  There is no known cure for asbestosis, other than a lung transplant.  Asbestos also can cause cancer.  The most deadly cancer caused by asbestos exposure is mesothelioma.

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