June 2007


Thursday the Supreme Court reversed 96 years of jurisprudence on minimum pricing pacts.  In 1911, the Supreme Court found that minimum pricing agreements were in violation of the Federal antitrust laws.  Today the Supreme Court ruled the pacts are not per se violations of federal law but must be analyzed on a case by case basis – blowing the doors off of a century of consumer protection law.   Justice Breyer commented in the dissent that “the only safe predictions to make about today’s decision are that it will likely raise the price of goods at retail”.  Justice Alito was in the majority on this one (see my recent post below on his voting record).  Higher prices for consumers and hard times for small businesses are on the horizon because of this decision.  See more in depth commentary on the decision at WSJ lawblog. 

Princeton Insurance refused to pay policy limits of $1 Million in a suit against a bar.  The suit was based on the acts of the manager of the bar who served himself alcohol, drove drunk, hit the victim who was working directing traffic, and fled the scene.  The acts of the tavern manager made the victim, Joseph Tuski, a quadriplegic.  Mr. Tuski had $1.6 million in past medical expenses, $2 million in lost earnings and the jury found he needed $18 million for future medical expenses.

The jury in the underlying case awarded a $75 million verdict.  The judge in the case reduced the jury’s verdict to $37.5 million.  The owners of the bar assigned the claim against their insurance company, for failing to pay Mr. Tuski’s claim timely, to the plaintiff, Mr. Tuski. 

In a story about the case, Plaintiff’s counsel said Princeton had actual knowledge of the serious injuries the plaintiff suffered from and knew there were no defenses to hide behind.  Princeton ignored the facts and law and refused to make an offer.  The insurance company could have avoided the verdict and the subsequent settlement had they done the right thing and paid the claim timely.  This is not an incident isolated to this insurance company, this is a nationwide trend, affecting consumers everywhere, especially here on the Gulf Coast, where consurmers have been at war with insurance companies over denial of claims since Katrina hit. 

Justice Sam Alito has made himself the brightest star in a galaxy of shining stars.  This Supreme Court is the most business friendly court in years, and Alito is the most friendly of the bunch.  In an article on Bloomberg.com, Robin Conrad, executive VP of the US Chamber of Commerce’s litigation unit, called this year’s term “absolutely stellar” and “the best in the unit’s 30-year history”. 

A quote from Maureen Mahoney, a lawyer at Latham & Watkins in Washington, sums up the term this way: “I always thought of the Rehnquist court as a good forum for business, I think we now know that the Roberts court is even better”.

This term the court limited state government’s authority to regulate national banks, made it harder for plaintiffs to sue in shareholder lawsuits, tightened restrictions on punitive damages, and limited consumer’s rights under federal credit reporting laws, in a case where the court sided with insurers over consumers.

But the stats tell the tale, Alito sided with the US Chamber of Commerce 13 out of 14 votes – making him a superstar for business by any standard.  See the US Chamber’s victory press release here.  Consumers are in for a bumpy ride the next few years. 

 Alito

Continuing the EPA’s parade of incompetence, there is an article in the New York Times regarding Whitman’s testimony on the EPA’s response to the 9-11 clean up.  Whitman repeatedly denied the agency downplayed their findings regarding air quality around the attack site in the days following 9-11.  Whitman might still be in denial, but the proof is in the pudding.  There was ample evidence of dangerous environmental conditions around the site immediately after 9-11, particularly evidence on dangerous levels of dust in the air, including hazardous silica dust and asbestos dust.  Now there is medical proof of the dangers in the worker’s afflicted with World Trade Center dust disease (see previous posts). 

Two quotes from the story:

“She (Whitman) said that she was addressing residents of Lower Manhattan — not workers at ground zero — when she said a week after the attack that the air was safe to breathe”,  and

“(s)everal members of the subcommittee also pressed Ms. Whitman to acknowledge that exposure to the dust from the collapsed twin towers had made workers and residents sick. Ms. Whitman declined to do so, saying that the evidence linking the dust to disease was not conclusive.  She said she had not read clinical reports from the Mount Sinai World Trade Center Screening and Monitoring Program. A preliminary study released last year showed that 70 percent of the first 9,000 workers examined had reported developing some kind of respiratory problem after working on the debris pile.”

She could have come to the hearing and taken responsibility for what she did, but she chose not to.  What a shame.

There is an article in the Times Picayune regarding the EPS’s handling of the post Katrina clean up.  The agency is criticized for not monitoring for asbestos fibers during demolition and clean up.  This mistep could lead to thousands of clean up workers coming down with illnesses similar to the diseases experienced by 9-11 workers. 

The agency is also criticized in the report for taking too long to remove hazardous materials from wildlife refuges.  The delay in removal allowed containers of hazardous materials to leak into the refuges, endangering the ecosystems.

In addition, it appears the agency failed to provide guidance to local authorities in storm debris disposal, which resulted in the improper removal to landfills of various storm debris materials and could result in a negative impact to the environment in the long term. 

Only 16% of Kentucky coal miners get screened for black lung disease, an occupational lung disease caused by prolonged breathing of coal mine dust.  As early as 1822 the disease was recognized in coal miners.  It was called miner’s asthma at that time.  Black lung is preventable, just like all occupational diseases. 

The government provides free programs to screen miners for black lung.  But, according to a story in the Appalachian News, miners avoid screenings out of fear of losing their jobs: 

“Miners must share their black-lung diagnosis with their bosses almost immediately if they want to receive state benefits. And if miners are found to have black lung, there’s often no safe place for them to work in a mine. That leaves many worried that their employers would find reasons to let them go.”  

The highest paying jobs are the ones that expose miners to a lot of dust.  Additionally black lung disease has a long latency period, it does not manifest itself until years after the initial exposures occurred.  The disease is also dose related.  If you are taken out of the dusty environment it will slow the progression of the disease.   

In Kentucky, black lung disease death have increased 38 percent from 1998 to 2004, whole the rates have dropped in other coal mining states.  KY miners who were x-rayed last year had several times higher rates of black lung disease than expected.   

This situation needs to change.  Miners should not have to suffer from a preventable disease.  The government needs to change the rules regarding compensation, so that miners are comfortable diagnosing the disease earlier.  The companies that use up these employees, until they are no longer fit for any employment, need to be held accountable for the condition they leave their employees in and the employment laws need to be changed to prevent firings.  Unions might be the answer.

Occupational dust disease is preventable.  The levels which cause disease are known and dust control measures that would prevent disease can be implemented.  Companies have refused to do this for many years.  No reason to believe they will change any time soon.

COAL MINING

Workers at a Boeing facility brought a lawsuit in Federal Court in Mississippi asking for medical monitoring.  The workers claim they were exposed to beryllium dust at the facility.  Exposure to beryllium dust can cause scarring of the lungs that can be fatal.  The claim brought in a suit for medical monitoring is not that the worker has a physical injury, but that the worker has fear of an injury and that is an injury in and of itself. 

Had the case not been denied, the workers would have sought to create a fund to pay for their monitoring in the future.  This is something that, considering the state of the health care system in this country today, is absolutely necessary for the hard working men and women of this country – when they have been exposed at their worksite to a known toxic material.  Score another one for big business.

The New York Times has an editorial on the amount of money spent in this country on judicial races.  Interesting facts: business interests contributed $15 million to candidates running in state supreme court races.  By contrast lawyers contributed only $7 million in the same races.  Several years ago business interests succeeded in “flipping” the Alabama Supreme Court – changing the court from a court that protects consumer/worker’s rights to one that protects business interests.  The same thing also happened with the Texas Supreme Court.  Over 17,000 ads were run in the race for Chief Justice in Alabama recently.  

Business interests in this country are attacking consumers’ rights to fair compensation for injury.  These same groups are not advocating taking away big business’ right to sue.  These companies that are advocating taking away consumers’ rights are the same companies who routinely get multi-million dollar judgments in the court system.  Don’t know what the solution is, but consumers deserve better than the current system.  

Editorial in the New York Times today regarding drug company funding of continuing education for doctors. Doctors are required to take a certain number of hours of continuing education a year to maintain a license to practice medicine. Historically, universities and medical societies sponsored these continuing education classes. Since 1998 the amount the drug industry has spent on continuing education for doctors has gone from $302 million a year to $1.2 billion a year, a four fold increase. In the past decade the drug industry has taken over providing most of the continuing education for doctors in this country. A quote from the editorial sums up the danger in this trend: “Because pharmaceutical companies now set much of the agenda for what doctors learn about drugs, crucial information about potential drug dangers is played down, to the detriment of patient care”.

A story that goes hand in hand with this item played out in Congress this week. In a hearing before a congressional committee a doctor testified how a drug company threatened to sue him for billions of dollars in stock losses because he talked about health concerns related to a drug they sell.

The makers of Avandia, a diabetes drug, threatened to sue Dr. John Buse because he questioned whether there was a risk of heart problems associated with the drug. A new study published in the New England Journal of medicine found patient’s risk of heart attack could increase 40 percent in patients taking Avandia. It appears, based on these findings, that Dr. Buse’s concerns about Avandia had some basis.

Hopefully, for consumers, the trend of allowing doctors to get the bulk of their continuing education from drug companies will not continue. Drug companies bombard the public with ads for pills to improve your sex life (viagra, cialis), pills to improve your sleep) and pills to improve anything else you can think of. Doctors should diffuse the effects of direct marketing to the consumer, not play along with it. The medical community should police itself on this matter. Physician heal thyself.

Medical Pic

The family of a retired naval machinist was awarded $5.2 million by a jury in Los Angeles, in a suit brought against asbestos manufacturers alleging exposure to their products caused asbestos related cancer.  Richard Walmach, a mesothelioma victim, passed away in 2006.  The jury found Foster Wheeler Corporation acted with malice and awarded a verdict of $5.2 million, including $2 million in punitive damages.  Walmach removed asbestos from Foster Wheeler boilers during his career as a machinist.  Walmach worked at the Long Beach Naval Shipyard in the 1960s and worked for 37 years at the Puget Sound Naval Yard.

 asbestos

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