Drone

Here Comes The Future (Again)

We live in an era when the law is constantly working to keep up with new developments in science, medicine and technology.  And right now, we have a chance to watch the law surrounding drones emerge and evolve.

What do you do when a drone flies over your backyard, maybe while you’re sunbathing, or having a party?  Is it legal for a drone to hover outside your bedroom window? What if there is a camera attached to the drone?

What are the rules here?  What is the law?   What should the law be?

In July, the National Conference of Commissioners for Uniform State Laws, otherwise known as the Uniform Law Commission (ULC), began consideration of “a proposal for changing law across the United States to reflect the impact of unmanned aerial vehicles, or drones.”  Fidler, D., “The Drone Revolution Shakes Up Tort Law,” Council on Foreign Relations, August 14, 2018.  This is part of an attempt “to clarify property and privacy rights amidst proliferation of drones operated by hobbyists, companies, and government agencies.”

It’s an important issue.

Drones have proved fertile in producing legal controversies and calls for new law. Military drones used for targeted killings of terrorists and in armed conflict have generated heated debates under constitutional law, human rights law, and the laws of war. Law enforcement deployment of drones has provoked worries about expanded government surveillance. Aviation authorities around the world are crafting new laws to regulate unmanned aerial vehicles in airspace previously controlled only for manned flight. The rules on small unmanned aircraft systems adopted in 2016 by the Federal Aviation Administration (FAA) intensified legal concerns about how the integration of drones into the U.S. national airspace system would affect property and privacy rights at the local level.

Drones have caused legal and policy ferment because their combination of aviation know-how and digital control, connective, video, and sensor technologies produces capabilities beyond what traditional aircraft provide. These capabilities create new opportunities for recreational, commercial, and governmental purposes. However, taking advantage of these opportunities confronts legal regimes not designed for unmanned aircraft.

This is, in a sense, nothing new:  The law has long adapted to transformative technology, from automobiles to airplanes.  This has been done by cases which have created precedents, by regulations, and legislatively.

And now, it’s the drones turn.

At its heart, this is a dialogue about property rights, and privacy.

[A]viation policy and law never comprehensively addressed how public aviation rights and individual property and privacy rights aligned at lower levels of airspace, essentially below 500 feet above the ground. The FAA’s requirement that small unmanned aircraft fly below 400 feet has made this question acute, especially as commercial interest in exploiting drones more widely expands.

The draft proposal is not without controversy, however.  It contains two key provisions.

First, it contains a “new bright line” rule. Any intrusion—even those that cause no harm—by an unmanned aircraft into airspace above private property up to 200 feet without the owner’s consent constitutes a trespass, with exceptions, including for conduct during emergencies or pursuant to a court order.

Second, the draft act creates the tort of acquiring images, recordings, or physical or electronic impressions of private acts or trade secrets with a drone in a manner highly offensive to a reasonable person, excluding acquisitions protected by the First Amendment or that conform to the Fourth Amendment, a warrant, or court order.

Even if the proposal were to be adopted without change or challenge, there would still be enough ambiguity to keep lawyers in business:  What is acquisition of an image “in a manner highly offensive to a reasonable person?”  What does that mean?  But the proposal will be challenged, and already has generated some controversy.

The proposals provoked criticism, especially from drone companies and industry associations and alliances. Negative reactions included, among others, assertions that the draft act:

  • Interfered with the federal government’s exclusive authority to regulate the nation’s airspace and to pre-empt state and local regulations on drones;
  • Ignored that existing tort law on aerial trespass developed with manned aircraft in mind, which requires a showing of substantial interference with property rights, is very appropriate to apply to drones; and
  • Created new rules on property and privacy rights that will spawn litigation and uncertainty for drone operators and inhibit innovation and development of commercial opportunities.

Right now, this is only a draft proposal, but as the author of the article suggests, it is an important step.

Although only a discussion draft, the proposed act is a significant inflection point in policy and legal debates about drones. State lawmakers, who have been active in regulating drone use, will study this authoritative proposal. The draft act will also influence how executive branch activities, such as the Unmanned Aircraft System Integration Pilot Program, and proposed legislation in Congress, such as the Drone Federalism Act, further integrate drones into national airspace while respecting property and privacy rights.

So, readers, stay tuned.  Over the next several years, this emerging body of law will help shape the rights of drone operators, and the limits of personal privacy.

Aliso Canyon gas leak

They Thought That The Law Would Save Them, But…

Public Justice is working on a critical new case, and the facts will alarm you.

Over the course of four months in late 2015 and early 2016, a natural gas well in California released thousands of tons of methane and other chemicals into the air. To put the seriousness of this event into context, consider that the leak resulted in 220 times more methane escaping than in the 2010 Deepwater Horizon disaster.

The well blowout went on for months, causing Governor Jerry Brown to declare a State of Emergency and resulting in 15,000 area residents being forced to evacuate their homes over the course of six months. In fact, the situation was so severe that the Federal Aviation Administration restricted flights over the area out of a fear that planes could ignite fumes from the leak.

There’s no doubt the incident – which single-handedly increased California’s greenhouse gas emission by an astounding 25% – had a major impact on the climate and the residents who were forced to leave their homes for months as the Southern California Gas Company tried – no fewer than 8 times – to “kill” the blowout. But it also had a significant and dire impact on another community, too: The small business owners whose livelihoods were jeopardized by the Gas Company’s irresponsible behavior and inability to fix the crisis they created.

It gets worse:

[M]ore than 400 small businesses (including a daycare center and various non-profits) – allege that negligence by Southern California Gas led to the collapse of the local economy, which naturally impacted our clients significantly. (It turns out that the company actually removed the well’s safety valve and then lied to regulators about having done so for more than three decades.)

So the businesses sued.

Guess what? They lost.

Despite the alarming evidence that this was a disaster that could have been prevented – and despite the economic impact it has had on local businesses – a California appeals court threw out the lawsuit, saying the claims were barred by the economic loss rule, a doctrine that has been colorfully likened to the 1958 B-movie classic The Blob and called an “ever-expanding, all-consuming alien life form” that could “consume much of tort law if left unchecked.”

That doesn’t seem right? Why did they lose?

The court’s decision held that these local small businesses only (yes, only) incurred economic damages – meaning, lost business because residents didn’t want to frequent a neighborhood where the air could literally be lit on fire because of the chemicals floating around – and not property damage or personal injury and, therefore, weren’t owed one penny from Southern California Gas. It didn’t matter, the court held, if their economic losses were a direct, foreseeable result of the company’s gross negligence. It also didn’t matter if the company knew darn well that its negligence could result in the worst methane gas leak in U.S. history.

That still doesn’t seem right. Or fair.

It’s not. That is why Public Justice has taken the case on, in an appeal to the California Supreme Court. The reason is clear, and good. “When a company’s gross negligence seriously injures local businesses relying on a thriving community for their livelihood, the company should compensate the business owners for their losses.”

You can learn more, and read this article on the Public Justice website, publicjustice.net. They are a great outfit, fighting for justice against unfair laws, unjust corporate acts, and wrongdoing that injures real people.

The article, “Public Justice Fights “The Blob” In The California Supreme Court,” can be found here: https://www.publicjustice.net/public-justice-fights-the-blob-in-the-california-supreme-court/

Corporate Supreme Court

A Corporate Court

By Richard Newman & Tom Lebert

The world is becoming increasingly driven by large corporations and those who would benefit from them as wealth inequality skyrockets and antitrust law is seldom used. The tort law system we celebrate at the American Museum of Tort Law has helped to protect the people from the wrongdoings of such corporations, but the rules of this system can change based on precedent from the nation’s highest court.

For this reason, the judicial philosophy and temperament of those person selected to serve as Justices of the Supreme Court is really important. Our president and senators have some degree of control over who shapes the legal system of this country through our courts. Through the confirmation process and through the legal history of individuals nominated to the courts, we can gather an idea of how these people will rule if confirmed.

On July 22, 2018, the New York Times’ Editorial Board responded to the nomination of Brett Kavanaugh through an editorial titled “Brett Kavanaugh Will Fit Right In at the Pro-Corporate Roberts Court,” which highlights an important issue for those who have concerns about the excessive concentration of corporate power, and undue deference to corporate rights.

Corporate interests haven’t had it so good at the Supreme Court in a long time.

Under Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively if the Senate confirms Brett Kavanaugh, President Trump’s choice to replace Justice Anthony Kennedy.

Corporations won the power to spend unlimited amounts of money on political campaigns in the 2010 Citizens United decision. The owners of businesses have earned the right to cite their personal religious beliefs to deprive workers of reproductive health care. At the same time, the justices have made it harder for employees and customers to sue big businesses by allowing corporations to require mandatory arbitration clauses in contracts people are forced to sign if they want jobs or want to buy goods and services. The court has also made it easier for polluters to get away with poisoning the air and water. . .

Just last month, in a blow to public-sector unions with contracts covering nearly seven million workers, their 5-to-4 ruling dismissed a unanimous 40-year-old decision that state governments and unions had long relied on. In the recent case, Janus v. American Federation of State, County and Municipal Employees, the court held that government workers covered by union contracts do not have to pay fees for collective bargaining expenses if they are not members. The ruling does not directly involve businesses. But it will hurt all workers because benefits won by unions often establish benchmarks that help improve wages and working conditions even at companies without unions. . . .

The past few decades have seen the Supreme Court greatly expand corporate power, largely at the expense of worker and consumer protections. This persistent trend has left average Americans with fewer options to defend themselves against harmful corporate actions. As the Editorial Board explains, these decisions aren’t just by chance:

Over the years, conservative groups like the Federalist Society and the Heritage Foundation have worked to make sure that Republican presidents appoint judges and justices who are reliably pro-corporate. Partly as a result, the Roberts court has been much more adamant in opposing regulation and much more expansive in establishing corporate rights. Chief Justice Roberts and Justice Samuel Alito Jr., both appointed by President George W. Bush, are the most pro-corporate justices since 1946, according to the Epstein, Landes and Posner research.

It’s no accident that the Supreme Court has shifted in recent decades to support corporations. Party politics and private organizations have infiltrated the makeup of the Court and led to this degradation in protections against corporate wrongdoing.

While the Court has often had a majority of pro-corporate justices in the recent past, the margin has at times been thin. Brett Kavanaugh may change that.

Judge Kavanaugh, who serves on the United States Court of Appeals for the District of Columbia Circuit, fits neatly into the Roberts-Alito worldview.
In 2012, Judge Kavanaugh wrote an appeals court opinion striking down an Environmental Protection Agency rule that required upwind states to reduce power plant emissions that cause smog and soot pollution in downwind states, a decision that was later struck down by a 6-to-2 majority of the Supreme Court. And in 2016, he wrote an opinion that said the leadership structure of the Consumer Financial Protection Bureau was unconstitutional because Congress decided that the president could only fire its director for cause. The full appeals court reversed that portion of his decision in January. . .

Kavanaugh is a uniquely pro-corporate judge who would serve to not only continue, but strengthen the pattern of pro-corporate decisions we’ve seen from the Supreme Court. His past decisions are not to be taken lightly; we know what his thoughts are on the relationship between the law and corporations, and these beliefs must be considered by our senators when the time comes to vote on his confirmation. A vote for Kavanaugh may be a vote for fewer legal protections for workers and consumers and a signal to corporations that their immoral conduct is perfectly fine. As the New York Times puts it:

The court’s pro-corporate decisions are widening the chasm in power and wealth between the country’s elite and everybody else. And the Roberts court is also increasingly preventing lawmakers, regulators and the public from doing anything about that growing problem.

Will Kavanaugh be confirmed?  Will he be as pro-conservative as prognosticators predict?  Stay tuned. . .

Corporate Chickens

Legal Immunities Mock the Law

So there’s this gimmick, see? A special interest group of one sort or another goes before a legislature somewhere – a State Capital, or Washington D.C., and says, “We’re so important, but at the same time so helpless, that you must preserve and protect us, by making us immune from lawsuits.”

It’s a clever gimmick, too. It means, that instead of taking steps to make people safer, the immunized groups are just above the law – they can’t be sued for their wrongdoing. It’s not a new phenomenon – special interests having been trying this for years. Here’s a link to an article from 2004 showing actual laws that protected special interests from accepting their responsibility for harming others. https://centerjd.org/content/top-10-zany-immunity-law-awards-2004. Here’s one example:

In Arizona, the term “double header” has taken on a whole new meaning. The major league baseball park in Phoenix was designed so that people who leave the viewing area to buy hot dogs can still get hit in the head with foul balls coming through large openings in the walls. So, what did the ballpark owners and architects do to make the fans safer? More effectively separate the concession areas from the field of play? Of course not. Why should they, when it’s so much easier to just to make sure that if someone does get hit on the head, they can’t hold you responsible!

And this problem is still going on. Right now, for example, used car dealers are trying to get this special form of coddled protection from friendly legislatures:

Nine out of 10 Americans believe that car dealers shouldn’t sell used cars with safety defects. Despite this fact, dealers have successfully pushed in Tennessee and Pennsylvania — and are now trying to pass in New Jersey — legislation to allow used car dealers to sell used cars with unrepaired safety defects. . . . What’s more, the dealers would not be liable for resulting injuries or deaths caused by the safety defect. All the car dealer has to do is “disclose” (i.e. bury in paperwork) when selling the car that it’s under safety recall. But obviously, the whole idea is to allow these dealers to pressure and confuse customers into buying unrepaired cars, and then not be on the hook for selling them.

Doroshow, J. “’Hot Buys,’ ‘Low Mileage,’ ‘We’ll Finance!’ We’ll kill you.” July 3, 2018

These legislative immunities are dangerous: They carve out whole industries from the responsibility that tort law imposes, and give a free pass to unsafe or dangerous practices. And now, a whole new dimension in this bad business has come into play: “MGM Resorts Sues 1,000 Victims of Las Vegas Shooting, Seeking to Avoid Liability,” (by Richard A. Oppel, Jr., published in the New York Times on July 17, 2018).

You may recall the horror on October 1, 2017, In Las Vegas at the Mandalay Bay hotel, where, “from a room on the 32nd floor, Stephen Paddock shot and killed 58 people and wounded more than 500 others attending a country music concert below. It was the worst mass shooting in modern American history.”

The hotel is owned by MGM Resorts, and some of the victims have sued MGM for “what they call a failure to provide adequate security and for allowing Mr. Paddock to bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Many more victims are expected to do the same.”

But here’s a twist:

Faced with potential lawsuits from hundreds of victims of last year’s mass shooting in Las Vegas, MGM Resorts International is trying an untested strategy: suing the victims first. . .
MGM is not suing for money, but the company wants a federal court to rule that it cannot be held liable for the shooting by more than 1,000 victims and others it named in the suits. The company said it named only people that have already sued or given notice that they intend to do so.

What? Why? How can this be? The possible answer is

based on a federal law passed after the Sept. 11 terror attacks, which is known as the Support Antiterrorism by Fostering Effective Technologies, or Safety, Act.

The law is intended to shield federally certified manufacturers of security equipment and providers of security services from liability should they fail to prevent a terrorist attack, which the law defines as an unlawful act that causes mass destruction to citizens or institutions of the United States. The Department of Homeland Security said in a publication that it has approved hundreds of applications for Safety Act protection for products and services including software, sensors and security planning.

MGM contends that under the law, which Congress passed in 2002, it is immunized from liability because it met two conditions: A security company that was hired for the concert had a certification from the Department of Homeland Security, and the shooting qualified, in the company’s view, as an “act of terrorism.”

It is a new theory, and one that has never been tested in court. In fact, MGM’s lawyer has asserted that “no court opinions apply or interpret the statute.” Lawyers for those who were killed or wounded in the shooting have reacted angrily,

calling the move an unprecedented and specious attempt to protect the company no matter what the facts eventually show. ‘It’s all about immunizing themselves from liability and staying out of state courts,’ said Craig Eiland, a lawyer in Austin, Tex., who represents hundreds of shooting victims. ‘They want to say that it does not matter how negligent MGM was” in allowing Mr. Paddock to stockpile an arsenal in his Mandalay Bay hotel room.

The stakes are high. If this interpretation of the law stands, if MGM wins, then the Federal judge will throw out all of the lawsuits filed by wounded victims, and the families of those killed. They’ll never get their day in court; never have a jury decide if MGM and its security forces were negligent in letting Mr. Paddock bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Is that justice? Is that fair?

But there is a larger issue here – the scope and extent to which this law might protect other so-called security companies from liability, even for gross negligence. As Attorney Eiland said in the Times article,

MGM’s effort to use the law this way, if successful, could provide a road map for other companies to escape responsibility for future mass-casualty attacks.

“Their theory is that this security company goes to D.H.S. and gets some type of certificate, and so now MGM is immune, and everybody in the future who hires the company is immune,” he said. “It’s outrageous, and that’s not what the law is, and we would all be less safe.”

Why should this be? Why should federally certified manufacturers of security equipment and providers of security services be shielded from liability? If they exist to protect us all from terrorism, and they negligently, wrongfully fail to do so, why should they get a free pass? How are we safer? Is this what Congress intended? And if so, why? Why shield companies whose negligence contributes to the death or injuries of hundreds of people?

And here’s another thought: Maybe MGM and its security forces were NOT negligent in letting Mr. Paddock to bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Why shouldn’t that be a question that the jury decides? That’s exactly what juries do. That’s exactly what juries should do.

These immunity laws – well, what do you think? Good idea, or bad?

For Shame

Tort law, as noted historian Eric Foner put it, is the “weapon of the weak.”  It lets the wrongfully injured hold wrongdoers accountable.  It is a centuries–old mechanism whereby juries – regular people like you and me –  decide how much money will fairly compensate someone who has been devastated by the wrongful, harmful act of another.

Wrongdoers hate and fear tort law, because it hurts them in their pocketbook.  Wrongdoers could strive to do right, but all too often, their response is to try to mutilate the system of tort law.

In a recent article, Joanne Doroshow, head of the Center for Justice and Democracy, spells out just how one such attack on the tort system played out, and it is both heartbreaking and maddening.

In her article, “Wisconsin’s Judicial Hearbreak,” published June 29, 2018, on line on the Daily Kos, Doroshow explains a relentless attack on the integrity of the tort system in Wisconsin, in a way that clearly lays out the deliberate strategy of adding judicial insult to horrible physical injury.  Listen:

A court decision that overrules longstanding law that had protected the most vulnerable.  A political court that accepts false information as fact. A corporate court willing to overlook the obvious cruelty of an unnecessarily sweeping ruling.

On Wednesday, the Wisconsin Supreme Court told Ascaris Mayo, a 53-year-old mother of four, that despite the amputation of all four of her limbs due to medical malpractice and despite her having won her negligence case and proving before a jury that she would suffer $25.3 million in damages, she would only get a fraction of that amount due to a state law that severely caps compensation to patients like her.

Yet this is a law that should never have been.

And she goes on to clearly, and specifically, explain how and why this miscarriage of justice was implemented, step-by-deliberate step.

In a recent note, I put forth some reasons why the idea of “frivolous lawsuits” in tort cases just doesn’t make sense.  And clearly Ms. Mayo’s case was rock solid, and meritorious. And yet, we are left with a politicized State Supreme Court which has upheld a politicized legislative decision to weaken our system of jury trials.

This is shameful.

This should make you mad.

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On Frivolous Lawsuits

We’ve all heard about them – frivolous lawsuits – that are allegedly plaguing the courts, bedeviling the civil justice system, making jurors skeptical.

First, let’s be clear:  The fact that a lawsuit is lost does NOT mean that the case was frivolous. Lawsuits are adversarial, meaning that when a case goes to trial, one side wins and the other sides loses, based upon the the jury’s decision of right and wrong. So the fact that someone loses a lawsuit does not mean that the case was frivolous; only that the jury disagreed with one side of the other.  No, the term “frivolous cases” means something crazy, or something with no legal merit, something that is not legally justifiable.

But there’s sort of a problem with the whole concept of frivolous lawsuits, in the realm of tort law – they simply don’t make sense.  There are two reasons why:

First, in a tort case lawyers are paid on a contingent fee.  That means they only get paid out of the money that is collected from the wrongdoer.  So, why would a lawyer file a frivolous lawsuit?  How does it make any sense for a lawyer to file a case that he or she knows will be lost? There will be no fee.

Second, judges have the power to throw frivolous cases out of court, well before trial.

So, in tort law, at least, frivolous cases shouldn’t really be a problem.  And even cases that people think might be frivolous, like Liebeck v. McDonalds (the hot coffee case), turn out to be good cases, where the lawsuit was NOT frivolous, and the jury system worked just exactly the way it should have.

And yet – Everyone knows (or think they know) about frivolous cases; and this widespread, but erroneous belief has weakened our faith in our court system, and tort law, and the entire system of civil justice.  And sometimes lawsuits are filed that do seem frivolous.  But why?  What sense does it make?

Could it be a deliberate effort to undermine trust in our system of law?

One lawyer is trying to find out.  Florida Attorney John Uustal has issued a $100,000 reward for “the first person who provides proof that leads to a judgment finding that a lawsuit was filed in the last three months in the Southern District of Florida as a result of a corporate conspiracy to manufacture frivolous lawsuits.”

Uustal was recently interviewed by the corporate Crime Reporter, and had this to say:

A Florida trial attorney recently filed a consumer class action lawsuit against McDonald’s claiming that the burger giant was charging consumers the same amount for a quarter pounder as it charges for a quarter pounder with cheese.

To John Uustal, a fellow Florida trial lawyer, the case sounded like a frivolous lawsuit – the kind that corporate lobbyists use to mock and undermine the civil justice system. . . .

“Of course, every case deserves to be decided on the law and the evidence,” Uustal said. “But I look at some of these lawsuits, and I cannot imagine that they have any chance of success. When they fail, the lawyer will have lost plenty of time and money.”

“Why would any lawyer try to lose money?”

“We know that big corporate interests have successfully attacked the credibility of our civil justice system by highlighting frivolous lawsuits. They do it so they can eliminate truly righteous lawsuits.”

“It’s worth remembering that these righteous lawsuits are the only hope for justice against these powerful corporations when they knowingly decide to act in ways that kill people. …

“Frivolous lawsuits are poison. They not only create unfair costs for innocent defendants, they also allow powerful corporate interests to create a smoke screen to hide their truly despicable conduct.”

“When a frivolous lawsuit gets filed, that’s bad enough. But is there any possibility this is even worse?”

“Could an entire lawsuit be a scam? A scam to create more smoke for corporate lobbyists so they can destroy our rights to get justice against a manufacturer who knowingly and intentionally refuses to fix a defective product that kills, or against a bank that steals money from its customers?”

“Look at how the tort reform lobby is already using this new Quarter Pounder lawsuit. They’re perpetuating the idea that lawyers are shifty scammers. They are brainwashing us to think that lawsuits in general are frivolous.”

“Corporations point to suits like this to claim that the civil justice system must be ‘reformed.’ And they get laws passed that supposedly ‘reform’ the civil justice system but which, in reality, eliminate or limit righteous lawsuits.”

“Some people are wondering if there is a lawsuit scam, designed to further weaken the power of the people against wealthy corporations. It seems impossible to believe, but if it’s true, the public deserves to know.”

“If there’s any evidence at all, I don’t have it. But if it exists, I’d like to see it. So I’m offering, . . . up to $100,000 to the first person who brings me proof that leads to a judgment finding that a lawsuit filed within the last three months in the Southern District of Florida was a scam created in a corporate conspiracy to destroy our rights.”

“To be absolutely clear, this is the only way I can think to get evidence about the potential conspiracy that I have heard lawyers speculate about. I have no evidence that the conspiracy exists, and I am not implying that it does. Moreover, even if it exists, I can’t imagine that the recently filed McDonald’s case is a part of it.”

“But I feel that there is more than we yet know about the corporate strategy against frivolous lawsuits, and I want to find out whatever I can.”

“Think of poison ivy for a moment. It’s a plant, but we all know it’d be ridiculous to say that all plants are bad just because some few are poisonous. Lawsuits are like that. Some few are poison. But don’t be fooled. Lawsuits, like plants, are good. Without them, we’d be in big trouble. The courtroom is the only place in the world where the people hold powerful corporate interests to account.”

“So, don’t let those corporations fool you into thinking that lawsuits are the problem. Because if you get scammed like that, you’ll let them treat all lawsuits, even the most righteous ones, as frivolous.”

Florida Trial Lawyer Offers $100,000 Reward for Evidence That Corporations Are Behind Frivolous Lawsuits Against Corporations

It is an interesting, and audacious move. And it’s certainly thought-provoking.  Could these worthless and frivolous lawsuits be part of a deliberate strategy to weaken and undermine trust in our system of law?  Perhaps Attorney Uustal’s strategy will pan out, and we can learn who or what is behind this smokescreen of frivolous lawsuits.

For more information (or to collect the reward) see:
https://www.johnuustal.com/conspiracy-evidence

To read the entire article about this, see 34 Corporate Crime Reporter 24(12), Monday June 11, 2018, (print edition only).

Opiod Crisis

Do You Think That This Stuff Just Happens?

You think that bad stuff just happens?

In 2016, 42,000 Americans died because of opioids. 40 percent of those deaths were due to prescription opioids.

That is a lot. A lot of dead Americans. But that’s just one year. “Over the past two decades, more than 200,000 people have died in the United States from overdoses involving prescription opioids.”

You think that this just happened?

You think that no one knew?

Purdue Pharma knew. Or to be somewhat more precise, the New York Times is reporting that “federal prosecutors investigating the company found that Purdue Pharma knew about ‘significant’ abuse of OxyContin in the first years after the drug’s introduction in 1996 and concealed that information.” Meier, B., “Origins of an Epidemic: Purdue Pharma Knew Its Opioids Were Widely Abused,” NY Times, May 29, 2018.

And that’s important for two reasons:

First, because Purdue Pharma “has long claimed it was unaware of the powerful opioid painkiller’s growing abuse until years after it went on the market.”

That, it turns out, was not true.

Second, because the drug maker “continued ‘in the face of this knowledge’ to market OxyContin as less prone to abuse and addiction than other prescription opioids.”

And that, too, was not true.

The New York Times article reveals a shocking story of reprehensible – and purposeful – behavior. Below are excerpts from that expose:

When the Food and Drug Administration approved OxyContin in late 1995, the agency permitted Purdue Pharma to make a unique claim for it — that its long-acting formulation was “believed to reduce” its appeal to drug abusers compared with shorter-acting painkillers like Percocet and Vicodin.

Purdue Pharma viewed the agency’s decision as “so valuable” that it could serve as OxyContin’s “principal selling tool,” an internal 1995 company report shows. The drugmaker admitted in 2007, when confronted with evidence gathered by prosecutors, that it trained sales representative to tell doctors that OxyContin was less addictive and prone to abuse than competing opioids, claims beyond the one approved by the F.D.A.

Company officials had received reports that the pills were being crushed and snorted; stolen from pharmacies; and that some doctors were being charged with selling prescriptions, according to dozens of previously undisclosed documents that offer a detailed look inside Purdue Pharma.

Prosecutors found that the company’s sales representatives used the words “street value,” “crush,” or “snort” in 117 internal notes recording their visits to doctors or other medical professionals from 1997 through 1999.

[Emails showed] that Purdue Pharma’s owners, members of the wealthy Sackler family, were sent reports about abuse of OxyContin and another company opioid, MS Contin.

Based on their findings after a four-year investigation, the [federal] prosecutors recommended that three top Purdue Pharma executives be indicted on felony charges, including conspiracy to defraud the United States, that could have sent the men to prison if convicted.

But top Justice Department officials in the George W. Bush administration did not support the move, said four lawyers who took part in those discussions or were briefed about them. Instead, the government settled the case in 2007.

In 2007, Purdue Pharma pleaded guilty to a felony charge of “misbranding” OxyContin while marketing the drug by misrepresenting, among other things, its risk of addiction and potential to be abused. Three executives — the company’s chief executive, Michael Friedman; its top medical officer, Dr. Paul D. Goldenheim; and Mr. Udell, who died in 2013 — each pleaded guilty to a misdemeanor “misbranding” charge that solely held them liable as Purdue Pharma’s “responsible” executives and did not accuse them of wrongdoing. The company and the executives paid a combined $634.5 million in fines and the men were required to perform community service.

That decision followed meetings with a Purdue Pharma defense team whose advisers included Rudolph W. Giuliani, a onetime United States attorney and former New York mayor. Mr. Giuliani, who was then regarded as a potential Republican presidential candidate, is now a legal adviser to Mr. Trump.

The Justice Department hailed the settlement as a victory. But several former government officials said the decision not to bring more serious charges and air the evidence prosecutors had gathered meant that a critical chance to slow the trajectory of the opioid epidemic was lost.

“It would have been a turning point,” said Terrance Woodworth, a former Drug Enforcement Administration official who investigated Purdue Pharma in the early 2000s. “It would have sent a message to the entire drug industry.”

It is a shocking, and sad history. The entire article is worth reading.

Here’s the question of the day: If and when governmental regulatory agencies fall short, what recourse is left for citizens to hold powerful corporate wrongdoers accountable? (Hint: It has something to do with tort law).

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When Madness Walked the Earth

In 2012, the unspeakable happened. A madman, armed with rifle designed for war, slaughtered little children in a school in Sandy Hook, Connecticut. Butchered them. Left their small lifeless bodies bleeding. An act of horror.

The horror deepened when conspiracy theorists began claiming that the parents of the dead children were “actors in an elaborate scheme to enact stricter gun control laws.” The conspiracy theorists asserted that the grief-stricken parents, were, hoaxers; that there had been no slaughter; that the story was fake.

One of the loudest voices promoting this cruel theory has been Alex Jones, “a right-wing conspiracy theorist,” who is a popular radio host, and operates the “conspiracy theory website Infowars.” According to the New York Times, he “has long claimed the shooting was ‘completely fake’ and a ‘giant hoax’ perpetrated by opponents of the Second Amendment.” He “has questioned for years whether 20 children and six adults died in the school massacre in Newtown, Conn.” Haag, M. “Sandy Hook Parents Sue Alex Jones for Defamation, NY Times, April 17, 2018. (All quotes herein are from the Times article).

Now some of the parents are fighting back. On Tuesday, April 17, 2018, three parents whose children were murdered in the school sued Alex Jones for defamation. The tort of defamation is “the offense of injuring a person’s character, fame or reputation by false and malicious statements.” Black’s Law Dictionary, De Luxe Fourth Ed. (1951).

According to the Times, Jones issued “a rambling 10-minute response” to the lawsuit, in which he stated that he “believed Sandy Hook happened.” This comes, however, after repeated statements to the contrary. As the Times reported, the parent’s lawsuits claims that the statements from the Infowars site “were a continuation and elaboration of a years-long campaign to falsely attack the honesty of the Sandy Hook parents, casting them as participants in a ghastly conspiracy and cover-up.”

We will have to see how this lawsuit plays out in court. There is, after all, a right of free speech in the country, guaranteed in the Bill of rights. But it is well-established that there are limits to that speech – You can’t falsely yell “Fire!” in a crowded theater, for example. Did Jones act maliciously? Will he and the staff at Infowars fight this lawsuit, or settle?

By all means, let us protect, defend and preserve our Constitutional right of free speech. But let persons like conspiracy theorists beware of making false, malicious and defamatory statements of such cruelty.

march-for-our-lives

Another Step

The gigantic March for our Lives event on March 24, 2018 was, perhaps, a watershed moment in American efforts to get some measure of control over gun violence and the all-too-frequent mass slaughter of civilians.  Those efforts have been mischaracterized as an effort to repeal the Second Amendment, but that is too simplistic a view. The Marchers did not seek to repeal or eliminate the right to keep and bear arms, set out in the Second Amendment to the Constitution as part of the Bill of Rights.  Rather, they seek universal background checks on all gun sales; raising the federal age of gun ownership and possession to the age of 21; a restoration of the 1994 Federal Assault Weapons Ban; and a ban on the sale of high-capacity magazines in the United States.

That there are, and should be, limits to the rights to keep and bear arms is self-evident.  No-one thinks that there is a Second Amendment right for individuals to own nuclear weapons.  Likewise, no one would give randomly loaded guns to five year olds. Thus, this national dialogue about the scope and extent of the reach of the second amendment is a legitimate part of the evolution of our society. Indeed, the ideas put forth as part of the March are neither new, nor revolutionary, and fall fairly within the first part of the Second Amendment – “A well-regulated militia…”

In this regard, the New York Times ran an interesting Op-Ed on March 24th,  “Stop Shielding Gun Makers,” by Brad S. Karp, and H. Christopher Boehning. In it, the authors point out an additional way to reduce gun violence: Repeal the law that prevents negligent gun manufacturers from being sued.  The law they are talking about is the “Protection of Lawful Commerce in Arms Act” (PLCAA), 15 U.S.C. §§ 7901-7903, which essentially prevents gun manufacturers from being sued when their guns are used to kill civilians.

As the authors note,

A bedrock principle of the American legal system is accountability for wrongdoing. Businesses that cause harm may be held legally responsible in a court of law. Through the imposition of financial liability, our legal system encourages businesses to reduce harm to consumers by making their products safer and disclosing the risks associated with their use.

Thanks in part to the accountability imposed by lawsuits, society knows more about the dangers of smoking, and tobacco companies market their products more responsibly. Automakers continually develop and install new safety features, and these innovations deliver results: From 1975 to 2016, the rate of motor vehicle deaths decreased by nearly half. While motor vehicle deaths have declined over the last two decades, firearm deaths have not: According to the most recent statistics from the Centers for Disease Control and Prevention, more people now die from firearms than motor vehicle accidents.

This disturbing reality exists in large part because, unlike other industries, gun manufacturers and sellers are shielded from legal accountability. . . The law bars most suits against gun manufacturers and sellers for the harm they cause, immunizing the gun industry from accountability for the tens of thousands of gun deaths that occur in the United States each year.

This is bad policy and a bad law, for two reasons.  First, it permits the carnage to continue; Second, it deprives gun makers of incentives to make their guns safer, and implement policies to prevent gun violence.

As to the first point, the authors note the following data:

A recent study shows that firearms are now the third-leading cause of death for children ages 1 to 17 and, according to C.D.C. data, the leading cause of death for 15- to 24-year-olds. Numerous scientific studies indicate that keeping guns in a home endangers its residents. Studies have also shown that guns in the home are far more likely to be used in criminal assaults, homicides, suicides and accidental shootings than in self-defense.

As to the second point, there are technologies that would make guns less easily used, when transferred from the original owner.  And sellers could be trained to identify psychotic people and others who should not purchase guns.  But this law removes incentives to work to minimize the slaughter that guns can cause.

After the Parkland shooting, American Outdoor Brands, Smith & Wesson’s parent company and the manufacturer of the weapon used in the Parkland shooting, announced that it would not “manufacture and market” products with additional safety features (including trigger-locking technology) and that it does not “invest in R. & D. in this area” because doing so would be “irresponsible.” Perhaps the repeal of the law would change this cynical narrative.

The N.R.A. claims that the law is necessary to keep gun manufacturers from going out of business due to baseless lawsuits. That is not true.  As the authors of the Op-Ed note, “our legal system has multiple checks to filter out lawsuits that lack merit. There is no reason for the gun industry to have special protections that are unavailable to other businesses that sell products that pose far less risk of harm.”  Repeal of this harmful law would let manufacturers be held liable when they should be; and that would pose the very real threat of economic harm to them.  In turn, that risk would motivate them to take all necessary steps to reduce the carnage which has seen so many American killed.

Repeal of this law would not be a panacea; probably nothing will prevent some level of gun violence, just as laws against murder do not prevent all murders.  But holding gun manufacturers accountable for their wrongdoing is a useful additional step that should be taken as our society debates the limits of the Second Amendment.

justice

Do You Want To Know Why Tort Law Is Important? I’ll Tell You

The Georgia Supreme court just upheld a $40 million dollar verdict against Chrysler in a case where a little boy burned to death in a Jeep Grand Cherokee. The problem was a plastic fuel tank, at the rear of the jeep, which ignited, so that the child died.  That, in and of itself, is tragic.  But it gets worse.

The Center for Auto Safety knew that the Jeep’s design was unsafe, and petitioned for a recall of the 1993-2004 model Grand Cherokees.  The National Highway Traffic Safety Administration, however, didn’t do that.  According to a present press release from the Center for Auto safety,

Had the . . . 2009 petition for a full recall of the 1993-2004 Jeep Grand Cherokee been acted on in a timely and effective manner, Remi would likely be alive today. Instead, he burned to death at the age of four in a vehicle that should have been designed for his protection, but was designed with a plastic fuel tank located behind the rear axle.

If the National Highway Traffic Safety Administration (NHTSA) had listened to the advice of its own internal experts in 2013, when they recommended the recall not only of the 1993-2004 Jeep Grand Cherokee, but of the 2002-2007 Jeep Liberty as well for the same fire risk, as many as 50 other deaths, including two just last summer in Ohio, probably would have been prevented.

Instead, in the summer of 2013, in a back room in an airport in Detroit, just weeks after career experts recommended a comprehensive approach to address this deadly defect, DOT failed. The agency’s political leadership negotiated with FCA CEO, Sergio Marchionne, to recall only a smaller group of vehicles, and approved what has again and again proven to be an ineffective “fix,” of attaching a trailer hitch to the back of the vehicle. Even Chrysler’s former Vice President of engineering testified under oath that the “tow package [which includes the trailer hitch] does not protect the [fuel] tank.”  The center for Auto Safety, “Georgia Supreme Court Rules Against Chrysler in Jeep Fire Case – Center for Auto Safety Renews Demand for Complete Recall,” March 16, 2018, https://www.autosafety.org/georgia-supreme-court-rules-against-chrysler-in-jeep-fire-case-center-for-auto-safety-renews-demand-for-complete-recall/

The original jury verdict was $150 million dollars, which the judge later reduced to $40 million.  Chrysler appealed, and lost.  Automotive News reports that Fiat Chrysler, which manufactures the Jeep, was “disappointed in the decision.” David Shepardson, “FCA loses appeal of fatal Jeep-fire case before Georgia Supreme Court,” March 15, 2018, Automotive news, http://www.autonews.com/article/20180315/OEM/180319788/fca-loses-appeal-of-fatal-jeep-fire-case-before-georgia-supreme-court

Here’s the kicker:  One of the grounds for the appeal was Chrysler’s claim that “it was prejudicial to raise Fiat Chrysler CEO Sergio Marchionne’s compensation, which totaled more than $68 million, during the trial. But the Supreme Court concluded that “the award was proper, in part because Marchionne was ‘alleged to have specifically interjected himself in a federal safety investigation to the detriment’ of [the boy’s] family.”

So here’s why tort law is important:  At a time when a CEO makes $68 million dollars from knowingly selling dangerous and unsafe motor vehicles, so that little kids burn to death; and the governmental regulatory agencies fail to do their jobs, tort law is the only remedy that people have, to protect their health, lives, safety, and the health, lives and safety of those they love.

Congratulations to James Butler, a Founder of the American Museum of Tort Law, for his untiring and inspiring devotion to the child’s family, and the cause of justice in this case.