Getting Justice: Getting Justice: Why Access to Courts is a Why Access to Courts is a

Critical CheckCritical Checkon Corporate Abuserson Corporate Abusers

June 9, 2007June 9, 2007Laura MacCleeryLaura MacCleerywww.citizen.orgwww.citizen.org

www.thewatchdogblog.orgwww.thewatchdogblog.org

A Counter to Corporate AbuseA Counter to Corporate Abuse

Public Citizen delivers credible information based on facts, represents everyday people in the halls of power, and fights relentlessly until we win on the issues that matter most.

How Most of Us See ItHow Most of Us See It

And the More Things Change…And the More Things Change…

The Henhouse Is Saved! The Henhouse Is Saved! We stopped NAM We stopped NAM

lobbyist Michael lobbyist Michael Baroody, nominated by Baroody, nominated by Bush to chair the CPSC.Bush to chair the CPSC.

Bush Nominee To Get Payment From Old JobMay 16, 2007, WednesdayBy STEPHEN LABATON Appointed Hobblers of Government

May 18, 2007, Friday Editorial Desk

Candidate for Safety Agency Withdraws Amid CriticismMay 24, 2007, ThursdayBy STEPHEN LABATON

Hand in GloveHand in GloveBaroody oversaw NAM’s efforts to:Baroody oversaw NAM’s efforts to:

– Eliminate or severely limit medical malpractice Eliminate or severely limit medical malpractice remedies; remedies;

– Limit the ability of consumers to use class Limit the ability of consumers to use class action lawsuits to seek redress; action lawsuits to seek redress;

– Prevent government agencies from pursuing Prevent government agencies from pursuing legal cases against companies that engage in legal cases against companies that engage in harmful activities; and harmful activities; and

– Shield corporations from liability for damages Shield corporations from liability for damages caused by unsafe products and practices. caused by unsafe products and practices.

Attack on Civil Justice Attack on Civil Justice “ “What’s happening all across this country is that What’s happening all across this country is that

lawyers are filing baseless suits against hospitals lawyers are filing baseless suits against hospitals and doctors. That’s just a plain fact. And they’re and doctors. That’s just a plain fact. And they’re doing it for a simple reason. They know the doing it for a simple reason. They know the medical liability system is tilted in their favor. Jury medical liability system is tilted in their favor. Jury awards in medical liability cases have skyrocketed awards in medical liability cases have skyrocketed in recent years. That means every claim filed by a in recent years. That means every claim filed by a personal injury lawyer brings the chance of a huge personal injury lawyer brings the chance of a huge payoff or a profitable settlement out of court.”payoff or a profitable settlement out of court.”

- President George W. Bush (2005)- President George W. Bush (2005)

George Bush vs. The FactsGeorge Bush vs. The FactsThe number of medical malpractice payments declined 15.4 percent between 1991 and 2005.

Average annual payments declined 8 percent over the same period.

The Real Problem is Medical ErrorThe Real Problem is Medical Error In 1999, a landmark study by the Institute of In 1999, a landmark study by the Institute of

Medicine (IOM) found that an estimated 44,000 to Medicine (IOM) found that an estimated 44,000 to 98,000 patient deaths occur each year in hospitals 98,000 patient deaths occur each year in hospitals as a result of preventable medical errors. as a result of preventable medical errors.

Another IOM report in 2006, found that “medication Another IOM report in 2006, found that “medication errors are surprisingly common and costly.” errors are surprisingly common and costly.”

The problem of medical errors is, in large part, a The problem of medical errors is, in large part, a bad apples issue. Public Citizen research shows bad apples issue. Public Citizen research shows that since the start of the NPDB, 5.9 percent of that since the start of the NPDB, 5.9 percent of U.S. doctors were responsible for 57.8 percent of U.S. doctors were responsible for 57.8 percent of medical malpractice payments. medical malpractice payments.

The vast majority of doctors – 82 percent – have The vast majority of doctors – 82 percent – have never had a medical malpractice payment since never had a medical malpractice payment since the NPDB was created in 1990. the NPDB was created in 1990.

Doctor Discipline is LaxDoctor Discipline is Lax Only 33.26 percent of doctors who made 10 or more malpractice

payments were disciplined by their state board – two-thirds of these egregious repeat offenders went undisciplined.

For example, Physician Number 35454 had at least 18 malpractice payments between 1991 and 2005, 12 times for improper performance of surgery, twice for improper management of surgery, once for equipment problems during surgery, once for failure to obtain consent for surgery, once for an unnecessary surgical procedure, and once for an unspecified surgical error. The total damages were $8,237,500.

More Bush Fear-MongeringMore Bush Fear-Mongering

“Because lawsuits are driving many good doctors out of practice – leaving women in nearly 1,500 American counties without a single ob-gyn – I ask the Congress to pass medical liability reform this year.”

– GWB, 2006 State of the Union

Access Improving: A Decreasing Access Improving: A Decreasing Number of Counties Lack Ob/GynNumber of Counties Lack Ob/Gyn

We also found that the number of ob-gyns per woman of child-bearing age in the United States has grown significantly over the past decade.

- Public Citizen report, February 2007

There is no “litigation crisis.”There is no “litigation crisis.” Tort trials in federal court fell 80 percent Tort trials in federal court fell 80 percent

between 1985 and 2003; between 1985 and 2003; In state courts the number of jury trials fell In state courts the number of jury trials fell

23 percent from 1992 to 2001; 23 percent from 1992 to 2001; Median jury verdict in tort cases plummeted Median jury verdict in tort cases plummeted

56 percent between 1992 and 2001, from 56 percent between 1992 and 2001, from $64,000 to $28,000.$64,000 to $28,000.

Business-to-business lawsuits are 4 times Business-to-business lawsuits are 4 times as frequent as consumer lawsuits.as frequent as consumer lawsuits.

- U.S. Department of Justice and Public Citizen research- U.S. Department of Justice and Public Citizen research

Karl Rove, Pick-Pocket Karl Rove, Pick-Pocket

Baroody was a Republican party operative.Baroody was a Republican party operative. Bringing complex cases on a contingency fee basis Bringing complex cases on a contingency fee basis

– you only get paid if you win – is a high-risk – you only get paid if you win – is a high-risk economic gamble by plaintiffs’ attorneys.economic gamble by plaintiffs’ attorneys.

Reducing compensation for victims – or punitive Reducing compensation for victims – or punitive damages – means fewer cases can be brought.damages – means fewer cases can be brought.

It also means that trial attorneys – who typically It also means that trial attorneys – who typically back Democrats – will have less money. back Democrats – will have less money.

This issue has been treated as a partisan football – This issue has been treated as a partisan football – obscuring the moral harms to real people and to the obscuring the moral harms to real people and to the integrity of our courts. integrity of our courts.

Destroying Corporate AccountabilityDestroying Corporate Accountability Arbitrary caps hurt those without direct economic Arbitrary caps hurt those without direct economic

losses (i.e., older people or children);losses (i.e., older people or children); ““Loser pay” rules hurt low-income people and those Loser pay” rules hurt low-income people and those

who bring valid claims but lose; who bring valid claims but lose; The explosion of new tricks to avoid the courtroom:The explosion of new tricks to avoid the courtroom:

federal preemption of state common law;federal preemption of state common law;special insurer-dominated panels misleadingly special insurer-dominated panels misleadingly

labeled “health courts;” or labeled “health courts;” or pre-dispute binding mandatory arbitration.pre-dispute binding mandatory arbitration.

These reduce economic exposure for corporate These reduce economic exposure for corporate interests at the expense of injured victims.interests at the expense of injured victims.

An Evolving Duty of CareAn Evolving Duty of Care Tort liability is a needed complement to regulatory Tort liability is a needed complement to regulatory

compliance because:compliance because:– It imposes an obligation based upon an It imposes an obligation based upon an evolving duty of evolving duty of

carecare to ensure the safe foreseeable use of a product, and to ensure the safe foreseeable use of a product, and is therefore broader than a compliance standard.is therefore broader than a compliance standard.

– Regulations can become Regulations can become obsolete or remain incompleteobsolete or remain incomplete, , and agencies can become and agencies can become capturedcaptured..

– For example, the U.S. federal safety standard for airbags For example, the U.S. federal safety standard for airbags in the 1990s measured the impact of airbags only upon a in the 1990s measured the impact of airbags only upon a 5050thth percentile male dummy. But a duty of care requires percentile male dummy. But a duty of care requires automakers to make an airbag that is safe for children automakers to make an airbag that is safe for children and all other possible users.and all other possible users.

Regulatory Failure: Roof CrushRegulatory Failure: Roof Crush

This Ford E-250 would comply with a 2005 proposed new federal standard for roof crush strength, yet its occupant, Reverend Lawrence Harris, became a quadriplegic in a rollover.

Rev. Harris is able to continue working for his Rev. Harris is able to continue working for his church due to compensation from his settlement.church due to compensation from his settlement.

How it All Fits TogetherHow it All Fits TogetherTort law is one essential part of our health and Tort law is one essential part of our health and safety system, which also includes: safety system, which also includes:

regulation by government agencies to set a regulation by government agencies to set a common baseline; and common baseline; and

robust sources for consumer information to enable robust sources for consumer information to enable fully informed choices in the marketplace. fully informed choices in the marketplace.

All three elements work symbiotically to produce All three elements work symbiotically to produce evolving standards for business conduct and evolving standards for business conduct and products. products.

It is also a matter of fundamental justice that those It is also a matter of fundamental justice that those responsible for harm compensate the victimsresponsible for harm compensate the victims..

Lawsuits channel the very human but very Lawsuits channel the very human but very dangerous desire for revenge into dangerous desire for revenge into a quest for a quest for justicejustice. Lawsuits make people work through the . Lawsuits make people work through the system, not against it. system, not against it. Lawsuits take place in the Lawsuits take place in the openopen. Lawsuits . Lawsuits provide procedural protectionsprovide procedural protections for for everyone involved. To win a lawsuit you have to everyone involved. To win a lawsuit you have to be be rightright. It is not enough to be angry. Most . It is not enough to be angry. Most important, lawsuits provide a space in which important, lawsuits provide a space in which reason, diligence, and justice can sometimes reason, diligence, and justice can sometimes prevail against even the richest and most powerful prevail against even the richest and most powerful organizationsorganizations. Lawsuits provide one of the few . Lawsuits provide one of the few such spaces in America today. such spaces in America today.

- Tom Baker, - Tom Baker, The Medical Malpractice MythThe Medical Malpractice Myth

Gagging the CourtsGagging the Courts Secrecy agreements between parties – Secrecy agreements between parties –

signed as a condition of settlement – are signed as a condition of settlement – are now commonplace. now commonplace.

Plaintiffs get bribed by corporate defendants Plaintiffs get bribed by corporate defendants and muzzled, and crucial documents about and muzzled, and crucial documents about safety hazards never see the light of day.safety hazards never see the light of day.

This means that the court system – This means that the court system – designed to serve as the canary in the designed to serve as the canary in the mineshaft by alerting regulators about mineshaft by alerting regulators about surfacing health and safety hazards – surfacing health and safety hazards – cannot function properly.cannot function properly.

On March 23, 2005, the BP refinery in Texas City, Texas, exploded, killing 15 people and injuring 170 others. The explosion was the worst U.S. workplace accident in 16 years. Company e-mails showed the company had known of safety problems for more than two years before the explosion.

BP At Fault for DisasterBP At Fault for Disaster The managers of the plant –part of a corporate The managers of the plant –part of a corporate

‘culture of risk taking’ as noted by an internal ‘culture of risk taking’ as noted by an internal report – compromised worker safety due to report – compromised worker safety due to budgetary concerns and failed to upgrade budgetary concerns and failed to upgrade process safety mechanisms that would have process safety mechanisms that would have prevented the explosion. prevented the explosion.

Within two months, BP announced it would pay Within two months, BP announced it would pay $700 million to settle claims. To avoid a trial, the $700 million to settle claims. To avoid a trial, the company settled them quickly and kept the company settled them quickly and kept the amounts and documents secret. amounts and documents secret.

After conducting an investigation, OSHA fined After conducting an investigation, OSHA fined BP a record $21.4 million for more than 300 BP a record $21.4 million for more than 300 willful safety violations.willful safety violations.

A Victim Stands UpA Victim Stands Up Eva Rowe, whose parents were both killed in the Eva Rowe, whose parents were both killed in the

blast, pressed BP much further. blast, pressed BP much further. She had two preconditions for reaching a She had two preconditions for reaching a

settlement, which were to release millions of settlement, which were to release millions of pages of documents from the case proving BP’s pages of documents from the case proving BP’s negligence and liability in the public domain, and negligence and liability in the public domain, and for BP to honor the memory of all those killed in for BP to honor the memory of all those killed in the blast with donations to workplace safety the blast with donations to workplace safety organizations. She got $32 million for donation.organizations. She got $32 million for donation.

Her Web site, at Her Web site, at http://www.texascityexplosion.com/http://www.texascityexplosion.com/ contains the contains the documents and a memorial to all of the victims. documents and a memorial to all of the victims.

Other DevelopmentsOther Developments Eva Rowe’s attorney still has a request pending before Eva Rowe’s attorney still has a request pending before

the Texas State Supreme Court to depose BP’s ex-CEO the Texas State Supreme Court to depose BP’s ex-CEO John Browne – who resigned a month ago after John Browne – who resigned a month ago after admitting he lied to the court. admitting he lied to the court.

The BP explosion also inspired new federal legislation to The BP explosion also inspired new federal legislation to ensure equal treatment of workers by authorizing federal ensure equal treatment of workers by authorizing federal prosecutors to pursue criminal cases against employers prosecutors to pursue criminal cases against employers whose willful violations of safety rules lead to the deaths whose willful violations of safety rules lead to the deaths of contract workers. of contract workers.

A criminal investigation of the BP explosion was begun A criminal investigation of the BP explosion was begun by the Department of Justice, but could not proceed by the Department of Justice, but could not proceed because such prosecutions are today only possible when because such prosecutions are today only possible when a company's violations are tied to the death of a direct a company's violations are tied to the death of a direct employee.employee.

The Tort System in ActionThe Tort System in ActionThe BP case shows why tort is a necessary check on The BP case shows why tort is a necessary check on corporate abuse:corporate abuse:

The regulatory system governing safety standards at The regulatory system governing safety standards at oil refineries failed to enforce them effectively;oil refineries failed to enforce them effectively;

A corporation willfully disregarded safety standards;A corporation willfully disregarded safety standards; This negligence caused death and severe injury;This negligence caused death and severe injury; The victims sought compensation for the company’s The victims sought compensation for the company’s

violation of their rights to a safe workplace;violation of their rights to a safe workplace; The lawsuits brought to light internal documents The lawsuits brought to light internal documents

which led to further investigation of the company’s which led to further investigation of the company’s negligence; andnegligence; and

The lawsuits also led to new legislation expanding The lawsuits also led to new legislation expanding the scope of legal protections.the scope of legal protections.

What You Can DoWhat You Can Do Goal of Big Business’ $Billions: to poison the jury pool.Goal of Big Business’ $Billions: to poison the jury pool. Our response: Our response: OrganizeOrganize and challenge. and challenge. Our jury system is a critical bulwark of democracy: it Our jury system is a critical bulwark of democracy: it

gives ordinary citizens the tools to confront abuse of gives ordinary citizens the tools to confront abuse of corporate power. See corporate power. See www.citizen.orgwww.citizen.org and take and take action!action!

Coming to a state near you:Coming to a state near you:– Tired ol’ “tort deform” (Oklahoma)Tired ol’ “tort deform” (Oklahoma)– ““Health courts” (insurer-run make-the-case-go-away panels)Health courts” (insurer-run make-the-case-go-away panels)– Binding Mandatory Arbitration (StopBMA, DC bill)Binding Mandatory Arbitration (StopBMA, DC bill)– Public funding for judicial elections Public funding for judicial elections – Challenge and expose corporate involvement in judicial Challenge and expose corporate involvement in judicial

elections (IRS and FEC complaints)elections (IRS and FEC complaints)

Representative government and trial by Representative government and trial by jury are the heart and lungs of liberty. jury are the heart and lungs of liberty. Without them we have no other fortification Without them we have no other fortification against being against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds..

– – John Adams, 1774John Adams, 1774

A Last WordA Last Word