August 2007


Report on Arizona Star website regarding sick Iraq war vets.  Soldiers who served in a region of Iraq populated by unregulated industrial plants are coming down with various types of cancer at alarming rates.  The soldiers are also concerned about their exposures to depleted uranium.  The substance is used to coat munitions and is used to help the munitions penetrate armor better.  A fine dust is dispersed when the munitions explode, exposing those in the area to the dust particles. 

Congress has ordered a study on depleted uranium exposures.  Congress is also looking at a “DU” bill, that would identify vets exposed to DU and provide for medical testing.  This is a subject that unfortunately might be around for a while.  Hopefully it will be addressed in a more timely manner than agent orange was.

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Good post at California Personal Injury Blog, regarding a widely reported story that surfaced last week.  Progressive Insurance Company hired a private investigator to follow a couple who made a claim against their own Uninsured Motorist policy.  The investigator joined the couple’s church and a prayer group where the members discussed intimate details of their personal life.  The investigator was looking for dirt to use against the couple in the court case against their insurer (who was refusing to pay fair value on their claim).

This is a case of an insurance company out of control.  Things like this should make consumers think twice when they are looking for an insurance company.  Haven’t heard a story about spying this intense since the cold war ended. 

New study by the New York Department of Health and Mental Hygiene finds increased risk of asthma in Ground Zero workers (story in New York Times).  Ground Zero workers have a 12 times greater chance of developing asthma than the general popluation.  The risk of developing asthma is greater in those who were at the site initially, when the smoke and dust clouds were thick and few respirators were available, as well as in those who stayed at the site longer, suggesting the risk is dose related.     

One of the authors of the study concluded that the study corroborates the other studies regarding Ground Zero workers, that have found the workers are at an increased risk for lung disease because of their exposures at the site.  The author suggests that every worker should be enrolled in a medical monitoring program or under a physician’s care.

The study also found respirators provided a moderate amount of protection for the workers.  But, the study found that even among workers who reported wearing masks, the incidence of asthma was increased.  The study found that paper masks and utuility masks did not prevent the inhalation of toxic dust in the workers who wore such masks, which explained the increased risk in these workers.   

Story on Forbes.com called Courts Gone Wild attacking the legal system. The bad guys in this story are judges (a regular target of tort reformers) and the poor. Of course, as with most tort reformers the author leads off with scary stories, but like most tort reformers, the author only tells a part of the story. The part they like.

The article leads off with the story of the guy who sued a dry cleaner for millions of dollars, because they lost his pants. It was a silly lawsuit. The author fails to say that the system worked, because the case was found to be without merit. The plaintiff was ordered to pay the dry cleaner’s court costs. In addition, the plaintiff, a judge, may lose his job over this. Hardly a case of the system not working.

Next example of the out of control legal system in this country is the “bizarre” story of Mary Meckler, a woman who was attacked by a squirrel in an outdoor mall and sued the mall for the squirrel’s actions. Of course it is an outrageous lawsuit that doesn’t pass the smell test. That is why it was dismissed by the judge. But the article doesn’t mention that fact. The legal system worked, the bogus claim was dismissed.

But those facts aren’t good for a story about an out of control legal system.  Citizens use the judicial branch of government to right wrongs.  The system is there for everyone.  When someone brings an action that is without merit, the system kicks the case out.  In the two cases mentioned above the system was not broken, the system worked. 

After stirring the readers up with these half told tales, the author of the article turns to his real purpose, an attack on judges and the poor. The article attacks elected judges with the following statement: “To an elected judge, a plaintiff is a constituent. And what better form of constituent service than to take money from an out-of-state corporate defendant and give it to an in-state plaintiff?” This is a ridiculous statement and an insult to the thousands of elected judges in this country who work their tails off every day to hand down thoughtful well reasoned decisions. The judges I know believe it is their duty to be fair and just. No wonder former Justice O’Conner is concerned about the war on the judiciary in this country (see prior post).

The article cites the following factoid: a “study” found that verdicts against out of state defendants in jurisdictions with an elected judiciary are 42% higher than in states which have appointed judges. Then the article makes this statement: “Such awards help judges get re-elected.” Is this because the person who gets this “out of state money” votes for the judge? The article doesn’t have stats on the number of people receiving large verdicts in the cases it refers to, but I would dare say it is a minuscule portion of the electorate and may account for a part of a percent of all voters. A very ineffective way to buy votes and probably not a very realistic political strategy. But good fodder for a tort reform article.

The article next attacks the fact that lawyers give judges campaign contributions. There are many reasons lawyers contribute to judicial campaigns. Lawyers in fact know the judicial candidates better than most others in the community. Lawyers have colleagues and enemies running in any given election and may have worked with a candidate in some way in the past. Lawyers know which candidate is levelheaded and which candidate could not be trusted to thoroughly research an issue. Plus lawyers have to practice in front of these judges.

Yes, lawyers are concerned about electing quality judges. Rather than assigning a nefarious motive to this activity, which also makes for a less titillating story, the tort reformer could have said lawyers want to elect judges who will treat their clients fairly. Oh, the story fails to mention that the lawyers who contribute to judges are both plaintiff lawyers and defense lawyers. Meaning – both sides of the tort reform issue give money to judicial campaigns. (See the Alabama and Texas Supreme Court elections of the last ten years for an example of tort reformers spending millions on judicial elections).

Next the article states we have an out of control legal system because of the poor, the portion of society who has no voice. The article cited a study which put awards in counties with less than 5% poverty at an average of $400,000. Counties with poverty rates greater than 35% had awards that averaged $2.6 million. If I were researching this issue, I would forget about trying to find faults in the legal system and start wondering how we can have areas with 35% poverty rates in this great country.

So judges and the poor are ruining our legal system. Judges are buying our votes by awarding us all big judgments. Lawyers are buying these rulings with campaign contributions (note: the article doesn’t explain why judges need campaign contributions when they are buying votes by handing out huge verdicts). The poor cannot be trusted to serve on juries. Sounds like the answer is to allow the big corporations who funded these studies to police themselves and only pay for the damage they cause when they feel like it.

Judges do not deserve this type of disrespect. They work too hard, often for too little pay. Lawyers do not deserve to be accused of buying justice. Lawyer jokes are ok, but to accuse lawyers in states that elect judges of buying justice is wrong. And the poor, a boogie man people pull out when they want to scare the masses, do not deserve to be made a scapegoat for corporate sponsored tort reform propaganda. The poor deserve respect and deserve to be helped. Period.

Story in the LA Times about a ruling that could have far reaching implications for consumers.  Cingular Wireless (now AT&T) includes an arbitration clause in the cell phone contracts their customers sign, mean arbitration is mandated in the case of a dispute, rather than being allowed to pursue a regaular lawsuit in a court of law.  The clause prevents consumers from suing bringing class action suits when they are wronged by the company. 

The case is important because credit card companies, retailers, phone companies and many other large corporations use these clauses in contracts with their customers.  In a case where a company rips thousands of consumers off for a couple of hundred dollars each, the individuals don’t have the strength to go after the company for the couple of hundred dollars they took. 

That type of litigation could cost a few thousand dollars to pursue, nothing a normal person would do to recoup their couple of hundered dollars.  But consumers can band together in class action suits, where the economy of scale works to bring justice to those who otherwise would not be able to afford it by themselves. 

The California court found Cingular’s arbitration clause unconscionable because the contract was drafted by somone with superior bargaining power, the dispute involved a small amount of damages, and the party with the superior bargaining power was accused of trying to cheat a large number of people out of the small amount of money.   

This is a good case for consumers.  Hopefully this reasoning will be followed in other jurisdictions. 

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Laboratory tests show that certain Chinese made baby bibs at Toys R Us are contaminated with lead. The bibs, sold in the stores under the “Especially for Baby”, “Koala Baby”, and “Disney Baby” labels for under $5 each, contain pictures of baseball bats, soccer balls, and Disney’s Winnie the Pooh characters. Two separate labs found lead levels three times the level allowed in paint in several styles of bibs purchased from Toys R Us stores. Story at the New York Times.

EDIT – CNN is reporting Toys R Us is removing the bibs from their shelves.  Customers who purchsed the bibs can return the bibs for a refund.

The CPSC announced a second Mattel toy recall today (complete story on the events surrounding the recall at CNN).  This recall involves various Mattell toys.  The toys have been recalled because of lead paint and magnets.  The lead paint is an obvious problem.  Magnets have caused severe problems in small children who swallowed the magnets.  

Sarge diecast toys from the movie Cars are being recalled because the Chinese factory that made the toy used lead paint on the toy.  Barbie and Tanner doll sets are being recalled because they contain magnets which could harm children.  The Mattel Safety Recall Facts page has more detailed information on the descriptions of the toys involved in the recall.  See story on my blawg below for information on the first Mattel recall.

Edit – Links to more info on the specific Mattel toys involved in today’s recall, including pictures of the products: Polly Pocket toys (magnets), Doggie Day Care toys (magnets), Batman action figure sets (magnets), and One Piece figure sets (magnets), from the CPSC webpage.  Good article in the New York Times with more details about the events surrounding the recall.

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