March 2008


According to a story on Newsday.com, the U.S. 2nd Circuit Court of Appeals has decided the workers’ cases alleging dust disease from the WTC cleanup can proceed against the Port Authority and New York City.  The defendants argued that they were immune from suit.  Contract workers and emergency workers were brought in to clean up the aftermath of the attack.  They were not properly warned of the dangers lurking in the area, included severe dust hazards.  In addition the workers were not given adequate safety protection for the work environment.  For example, some workers were given dust masks, when the environment cleary mandated they be given fresh air masks.

 Workers exposed to the ground zero dust have died from illnesses related to their exposures.  Even more workers have severe illnesses related to their work at ground zero. 

The CPSC has announced a recall of MagnaMan Magnetic Toy Figures, a product manufactured by MEGA Brands of America.  The toys contain small magnets which can detach, then can be swallowed or aspirated by young children.  If multiple magnets are swallowed, the magnets can attach to each other in the body and cause intestinal perforations or blockages, which can be fatal.

The toys were sold at Walmart, Target, Toys R Us, K-Mart and other toy stores from January 2005 through December 2007 for around $10.   

 A second recall of MEGA Brands products, this one on Magtastik and Megnetix Jr. Preschool Magnetic toys was also issued by the CPSC.  These products pose the same risk as the action figures listed above, small magnets which can be swallowed by young children.  The toys were sold at the same stores and during the same time frame as the action figures as well. 

magnetix

According to the San Francisco Chronicle, a jury in San Francisco awarded a mesothelioma victim $20 million dollars.  The jury assessed one third of the fault to Georgia Pacific, a manufacturer of asbestos containing joint compound.  So GP is responsible for $7 million dollars out of the total award. 

Mesothelioma is a deadly cancer, whose only known cause is exposure to asbestos.  The mesothelioma victim, Joan Mahoney, was exposed to the joint compound while participating in a house remodeling business she owned with her husband.  The joint compound was used to fill in cracks in sheetrock and the asbestos fibers became airborne when the joint compound was sanded.  The lawsuit claimed that Georgia Pacific used asbestos fibers in its product long after the connection between asbestos and cancer was known and long after competitors began using different materials in their products.  GP only stopped using asbestos in their products after the federal government outlawed the practice in 1977. 

A wooden ice cream sundae playset manufactured by Battat Inc., and sold exclusively at Target Stores between 12/06 and 12/07, has been recalled due to choking hazard.  The set contained six wooden scoops of ice cream, three wooden cherries, wooden banana slices, a spoon and a bowl; and the pieces attached to each other with velcro strips.  The wooden cherries are small enough to pose a choking hazard to young children.  Consumers should not allow small children to play with the set and should return the toy immediately to Target for a refund.

Ice cream

That is the premise of a story by Kia Franklin at Tort Deform.  She argues that while the debate is framed by the tort reformers as business versus trial attorneys (or should I say “evil” trial attorneys), the real struggle is between big business and the average Joe.  Makes sense, the people who suffer when big business, like the health insurance industry, make huge profits, are everyday people.  The people who suffer when someone is injured are the guy who is injured and his family.  Not the person who caused the injury.  The person who caused the injury isn’t at the hospital every night, they aren’t at the physical therapy clinic every day.  They don’t have to deal with the consequences of their actions, unless a trial lawyer is inolved.

The tort reform movement is about gaming the system, so the insurance company or big business who is responsible for paying for the loss never has to pay, or pays a reduced amount.  The way the tort reformers are gaming the system is through passing laws that prevent the average Joe from pursuing a claim, putting judges on the bench who “legislate” from the bench (ie. make tort reform laws in their rulings), and through media propoganda against junk lawsuits, which is meant to taint the jury pool.

Our country from the very beginning embraced a democratic system whereby wrongs are addressed by an independant judiciary and individuals have an opportunity to bring their grievance before a jury of their peers.  Chief Justice Marshall, the Great Chief Justice, stated in Marbury v. Madison that “the very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection”. 

The Supreme Court in Chambers v. B&O Railroad (1907) stated “the right to sue and defend in the courts is the alternative of force.  In an organized society it is the conservative of all other rights, and lies at the foundation of orderly government.  It is one of the highest and most essential privileges of citizenship.”

By trying to subvert the judicial system, tort reformers are trying to subvert our system of government, and make it a government run by corporations, something akin to the system Mussolini had in Italy.  If big business is not held accountable, they are elevated up above the rank of the average citizen, who is always held accountable for their actions.  Tort reform is about taking power from the people, it is about taking away the only power an average citizen has in our government.  

Right now an average citizen does not have the power to walk in to a legislator’s office and bend the ear of a legislator, or walk into the governor/president’s office and spend an hour discussing legislation.  Big business does and exercises this power everyday.  But the average citizen does have the power to file a lawsuit, that is what big business is scared of.  People can be heard through a lawsuit.  Big business wants to take this power away from people.  By taking away the right to a jury, they will accomplish that.