Post-Election: Businesses Will Seek Protection on Legal Front

Cross-posted from Tort Deform: The Civil Justice Defense Blog


More on this issue soon, but in the short term this development speaks for itself. Talk about tort reform, these proposed changes are the tort "reform" movement's dream. How can we make corporations obey the laws of our nation if we can't enforce these laws in any meaningful way?


Why should corporations be given increased legal protection from criminal protection or private suits (nearing practical immunity) when human beings do not?


Tort "reformers" say that enforcement of our laws against corporations is bad for business, costs jobs, and makes us less competitive.


When individual human beings steal from each other and make a profit by selling these goods on the black market in violation of our criminal laws, they could also make a lot more money if they were protected from prosecution and suit by anybody trying to hold them to account.


Something to think about.


Businesses Seek Protection on Legal Front

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When Will Bloomberg Stop Fighting Heroes' Claims & Benefits?

Cross-posted from Tort Deform: The Civil Justice Defense Blog


When can I stop being right about NYC's treatment of Ground Zero first responders and cleanup workers?


I have written more than I wish I ever had to about the governmental response to the environmental effects of 9/11 and how it demonstrates a "profits over safety business model." This "profits over safety business model" in turn resembles the tort "reform" business model. In short, these two models involve:


1)    A knowing and/or intentional decision to generate profit or allow increased savings by way of putting human wellbeing at risk.


2)    A detrimental effect on human health and wellbeing caused by this decision.

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9/11 Ground Zero Worker Lawsuit Moves Forward & The Profits Over Safety Business Model Continues

Cross-posted from Tort Deform: The Civil Justice Defense Blog

"The city and its contractors are not immune from lawsuits brought by emergency workers sickened after toiling amid toxic dust at ground zero, a judge ruled, clearing the way for what he said should be the speedy resolution of thousands of claims.

In his decision Tuesday, U.S. District Judge Alvin K. Hellerstein said the city, its roughly 150 private contractors, and the Port Authority of New York and New Jersey were only partially immune from lawsuits, with the precise scope and extent of the immunity varying according to date, place and activity.

''If even a minority of the plaintiffs suffered serious injuries to their respiratory tracts arising from the acrid air of September 11, their claims deserve to be heard when a recovery could make a difference in their lives,'' the judge wrote, adding that the defendants are entitled to resolution at the earliest possible point." (Judge: NYC Open to Ground Zero Claims, THE ASSOCIATED PRESS, October 18, 2006)


This lawsuit is the litigation that Mayor Bloomberg most feared.

This lawsuit is what I have been indirectly discussing on Tort Deform over the last month.

This lawsuit is why the City of New York did not release medical guidelines for diagnosing WTC related illnesses until five years after the attacks. City officials were afraid of implicitly acknowledging a connection which they are likely to contest as to each worker in the later proceedings of this lawsuit. Although it may have helped their litigation strategy (although clearly not enough as it is moving forward), in large part because of this decision between 30-40% of sick Ground Zero workers were initially misdiagnosed.

Indeed, this lawsuit is why the City of New York has taken every possible opportunity to publicly challenge a causal link between exposure at Ground Zero and resulting illnesses.

Mayor Bloomberg has been the most public and most strident critic of the strength of the evidence of a link between exposure at Ground Zero and the resulting illnesses. He has done so (although less shrilly) even after the now well know Mt. Sinai Medical report, which conclusively linked exposure at Ground Zero to certain documented illnesses. Even after agreeing to fund treatment for those affected under intense public pressure, he still indirectly questioned the link albeit far less shrilly.

It should now be clear to all why he was so strident: he feared the success of this lawsuit.

I have previously written in detail in multiple posts about how the federal, state, and city governments all put financial interests over human safety in their response to the environmental cleanup.

Why the Challenges Faced by 9/11 Workers Affect Us All

9/11 & The Safety Is Too Expensive Business Model

Congress Rejects Aid For Sick 9/11 Responders: Puts Financial Safety Over Human Safety

9/11 Financial Safety Over Human Safety Narrative Continues

Federal and NYC Governments Make It as Hard As Possible for 9/11 Victims

In these same posts I have described the city's seemingly obsessive attempt to disprove a connection between exposure at Ground Zero, and the resulting illnesses affecting these workers, which we have all read about.

In responding to 9/11 the City of New York cut safety corners, didn't warn workers of the real dangers of breathing the air, and did not supply them with (and train them to use) the proper respiratory equipment.

After making this error, and in doing so devaluing the health and well being of the heroes who rushed to the aid of possible survivors, the City of New York (primarily through Mayor Bloomberg) as well as the federal government, turned around and implicitly communicated that that taking proper care of these ailing heroes was "too expensive."
If this lawsuit continues, and if the 3,000 or so heroes who are a part of it get a substantial reward, it will be a result of the negligent and reckless decision on the part of these government officials, and not anything else, that is responsible for this liability and the resulting costs.

What's even worse about resistance to this health link and this lawsuit is that (and I am going to be looking into this issue more closely so don't quote me yet) it is not entirely clear that the City of New York itself would have to personally pay any or much of the costs if the lawsuit is successful.

The act which established the 9/11 Victims Compensation Fund capped NYC's and the Port Authority's immunity at their level of insurance coverage. In addition, the federal government contributed $1 billion fund to cover these kinds of costs related to the cleanup at Ground Zero.

I think every single worker who has become sick, would rather be alive and healthy than get compensation for their pain and suffering and for coverage for their medical treatment, however delayed it may be in coming now more than five years after the fact.

There is a lot to this case and this issue, and I will be writing about it more extensively over the next few days.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

There's more...

Trent Lott: Perhaps The Biggest Hypocrite of Tort "Reform" ... Ever

Cross-posted from Tort Deform: The Civil Justice Defense Blog


We have started a seriesover here at Tort Deform on the hypocrites of tort "reform."


These hypocrites are those who decry lawsuits and assist tort "reform" legislation which makes it more difficult to get access to the courthouse when a person is physically or financially harmed, but who go straight to court when they are personally injured. A lot of the best examples of these hypocrites have been collected by the Center for Justice and Democracy which we have relied upon for some great material from their reports.


However, their reports can't be updated every day, and we would like to draw your attention to Trent Lott, the former Majority Leader of the Senate (who stepped down after a media storm resulting from his praise of the racist goals of the 1948 presidential campaign of Sen. Strom Thurmond).


Trent Lott, there's a lot of negative things that I could say about him.


However, today I will just focus on his hypocrisy... on the issue of tort "reform." Trent Lott used to be an avid tort "reform" supporter.  Here are some choice quotes from him:

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Why You Should Be Afraid of Mandatory Arbitration Agreements

Cross-posted from Tort Deform: The Civil Justice Defense Blog (www.tortdeform.com)


An issue which has not yet been touched upon on in detail on Tort Deform is the horrible effect that mandatory arbitration provisions often have on unsuspecting consumers.


Mandatory arbitration agreements are perhaps one of the most dangerous developments within the American civil justice system. In short, a mandatory arbitration agreement is a contract which bars an aggrieved consumer from seeking redress in the nation's courts.


Unbeknownst to most Americans, corporations are making these mandatory arbitration agreements a part of an increasing amount of contracts. From credit card agreements, to pest control contracts, to home construction contracts mandatory arbitration agreements are becoming more and more common (if not the norm).


Well, luckily this issue will never effect you because you haven't agreed to any mandatory arbitration agreements as a part of any contracts.


Unlikely...

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2005 Was the Most Profitable Year Ever for the Insurance Industry

Cross-posted from Tort Deform: The Civil Justice Defense Blog


The debate about tort "reform" has many contours, subparts, and winding passageways to it.


However, at the crux of this back and fourth (which Lee Tilson so successfully described in his recent post) is the tort "reform" movement's reliance on the prevalence of increasing insurance premium rates as their justification for the need for tort "reform."


The story goes that insurers, especially medical malpractice insurers, are charging increasingly higher rates because of too many lawsuits and too many fraudulent claims.


Well, like Lee pointed out in his post, one has to ask themselves if insurance companies are being so squeezed by lawsuits that they have to increase rates simply to stay afloat and are not just choosing to do so to make more money, shouldn't they be making far less money than they used to?


The recent statistics on property and auto insurance company profits, even after Hurricane Katrina, do not fit well into this narrative.

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A Burden of Proof - For Heroes?

As chronicled by the Daily News, the federal government recently released draft guidelines for use in determining if a person died from a Ground Zero related illness.

What these guidelines highlight is the high burden placed upon our heroes, as well as regular Americans caught in the toxic plume or living in contaminated housing, when asked to prove that their injuries were caused by exposure at the Ground Zero site.

Wait a second, shouldn't we just be able to assume that (at the very least) our courageous first responders, and our patriotic cleanup workers, who fall sick with the types of injuries identified in the recent comprehensive Mt. Sinai report got sick at Ground Zero? We all saw what Ground Zero looked like. We have all heard what was released at the site.

And many of us have heard how our government misled us into thinking the site was safe for human habitation when it wasn't.

Isn't this an open and shut case?

Unfortunately, it's not.

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Federal and NYC Governments Make It as Hard As Possible for 9/11 Victims

Every time I write about how the response to the 9/11 illnesses caused
by exposure to Ground Zero are being handled in a way which follows a
profits over safety model and the tort "reform" movement, it is harder
to believe that it is actually happening.

But it is happening. It is very much happening.

There's more...

9/11 Financial Safety Over Human Safety Narrative Continues

I was planning to take a break from my discussion of the challenges faced by the 9/11 Ground Zero health victims, and the profits over safety business model, but this additional information was impossible to ignore.

There are also breaking developments on this issue which I will cover later in the day.

In my previous posts on this issue I emphasized that a way to understand instances in which people or corporations endanger human health is explained by the profits over safety business model.


Why the Challenges Faced by 9/11 Workers Affect Us All

9/11 & The Safety Is Too Expensive Business Model

Congress Rejects Aid For Sick 9/11 Responders: Puts Financial Safety Over

9/11 Financial Safety Over Human Safety Narrative Continues

In responding to the developing illnesses of those exposed to contaminants at Ground Zero, the actions of the federal, state, and city governments have consistently followed this model.

There's more...

Congress Rejects Aid For Sick 9/11 Responders: Puts Financial Safety Over Human Safety

Yesterday, Republican Senators blocked Senator Clinton's proposal to fund almost 2 billion for medical treatment for sick 9/11 responders. As reported in NYC's Daily News:

Senate leaders invoked parliamentary rules, saying Sen. Hillary Clinton's (D-N.Y.) amendment to a measure funding port security was not "germane." - NY Daily News

As I have repeatedly explained this past week (1,2,3), the federal government's response to the environmental effect of the WTC Ground Zero site almost precisely follow the profits over safety business model sometimes adopted by corporations.

This recent denial of comprehensive funding by the Senate further supports this characterization of the governmental response. In the wake of 9/11, federal officials downplayed and affirmatively misrepresented the danger of exposure to the WTC Ground Zero site.

I have previously gone into detail about just how reckless federal officials' conduct appears to have been. Others have also provided additional details. Congressmembers are urging criminal that charges be brought against Christine Todd Whitman, the Bush appointed former EPA chief who made the most forceful public misrepresentations that the site was safe. Indeed, A NY federal court recently found that her conduct "shocked the contemporary conscience" and waived the usually granted governmental immunity.

In short, it is clear that federal officials misrepresented the danger at ground zero, and I and others have argued that they did so, at least in large part, to save money.

So, after it is clear beyond a doubt that government officials are responsible for knowingly endangering the public health, this same federal government refuses to pay for the effects of its error.

Why?

How can you not pay to undue a wrong that you committed? Clearly, the EPA can't blame anybody else. Christine Todd Whitman said, and I quote:

"As we continue to monitor air and drinking water in and around New York City, and as EPA gets more comprehensive analysis of this monitoring data, I am relieved to be able to reassure New York and New Jersey residents that a host of potential contaminants are either not detectable or are below the Agency's concern levels....Results we have just received on drinking water quality show that not only is asbestos not detectable, but also we cannot detect any bacterial contamination, PCBs or pesticides."Christine Todd Whitman Sept. 21, 2001.

Even while her agency's own testing directly contradicted that statement.

In her more than 80 page decision, Federal Judge Deborah Batts denied Whitman immunity against the class action lawsuit and said:

"No reasonable person would have thought that telling thousands of people that it was safe to return to lower Manhattan, while knowing that such return could pose long-term health risks and other dire consequences, was conduct sanctioned by our laws....The allegations in this case of Whitman's reassuring and misleading statements of safety after the Sept. 11, 2001 attacks are without question conscience-shocking."

What about the usual conservative mantra of personal responsibility?

What about governmental responsibility?

No, it's too expensive.

As I have said before, this approach to governance follows the profits over safety business model currently being advanced by the tort "reform" movement. An alternative description of this model can be "the political economy of the tort 'reform' movement."

This model is described in detail here, but a summarized version is below.

In short, an entity which makes a decision on account of profits or savings which it knows will likely endanger human life.

However, when human health and well being is negatively affected as the entity knew was likely to occur, this entity cries foul and says that righting this wrong (even if a worthy cause) would be "too expensive."

In denying this 1.9 billion in federal funding for treatment of 9/11 responders, the Republican controlled Congress did exactly that.

I'm tired of hearing about personal responsibility.

Let's talk about collective responsibility.

Let's talk about a responsibility to some of our nation's greatest heroes, as well as to all Americans who are put in harm's way by the reckless choices of government officials.

Let's talk about putting human safety..... over financial safety.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

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