Devalued Suffering & The Problematic Aspects Of the 9/11 Victim Compensation Fund

In the wake of the fifth anniversary of 9/11 we all have a lot of remembering to do.

First and foremost, we must remember the lives we lost on that horrible day.

Second, and perhaps at this point, even more urgently, we need to remember and take steps to assist those first responders, cleanup workers, and downtown residents who have become sick from exposure to the contaminants released by the WTC site.

However, after remembering these two points, we should also think further about the larger implications of the 9/11 attacks, and our nation's response to them. In the days before, the day of, and the days after the fifth anniversary, many commentators have and will focus on the national security and political undertones and implications of this anniversary.

Which political party and which politicians are using the anniversary to their advantage? How will these tactics affect the midterm elections? Are we safer as a nation?

Despite the importance of these questions, there is another "political" aspect to 9/11 that has as yet received little attention in the media. This issue is the tort "reform" aspects of the 9/11 Victim Compensation Fund ("VCF").

Although many critiques of it have been made, the VCF was in many ways beneficial to victims' families. The VCF allowed suffering families to get immediate financial compensation for their losses. In rendering speedy compensation, the fund may have helped families avoid a heartbreaking and drawn out litigation process.

At the same time, the VCF is unprecedented in that although it was primarily portrayed as humanitarian relief for victims families, it primarily served as a liability shield for airlines which was paid for by American taxpayers.

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

In recent weeks, New York's Daily News mounted a relentless campaign highlighting the plight of sick ground zero responders and workers. For the month of August, almost every morning there was a story, often with accompanying pictures, of sickened and suffering ground zero workers who rose to this nation's patriotic call for assistance in the immediate aftermath of the 9/11 terror attacks.

Consequently, this recent attention has resulted in the first substantial action by federal, state, and city executive government officials in support of these victims. In the past week, NYC officials announced funding for treatment of NYC residents (as opposed to the responders and ground workers who are already eligible through the WTC Health Effect Treatment Center) who have become sick from exposure to the WTC site. Last month, Governor Pataki signed a bill pushed by the NY state legislature which allowed the extension of the deadlines for filing workers compensation claims for ground responders and workers, and also allowed increased eligibility for benefits for those who volunteered. Lastly, in recent months, and after extensive lobbying by Senator Clinton, Congressman Nadler, and Congresswoman Maloney,  the federal government has for the first time made its own funds available for medical treatment for WTC responders, ground zero workers, and volunteers (the previous treatment program for responders and workers was funded exclusively by private donations - especially the Red Cross). Likely, as a direct result of this media pressure, federal officials recently stated (without saying how much it will ultimately cost) that they will continue to supply new funding for treatment as is needed.

Of course this is all a happy ending to a unique problem, which we can now all forget about.

I wish it were so simple.

The question we should all keep in the forefront of our minds, is how is it possible that it has taken 5 years for there to be a comprehensive governmental response to the health problems of ground zero workers?

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Launch of Tort Deform: The Civil Justice Defense Blog

The Drum Major Institute for Public Policy is pleased to announce the launch of Tort Deform: The Civil Justice Defense Blog. (www.tortdeform.com)  This blog is being launched in order to offer an alternative, and we believe, more accurate analysis of the state of our civil justice system than that presently provided by the majority of legal commentary blogs.

Over the last several decades, a relentless and more or less successful campaign has been waged by a collection of interests identifiable as the tort "reform" movement, aimed at closing the courthouse door to civil litigants as much as possible.  This group strives to make it as difficult as possible for victims of corporate or other misconduct to sue and hold accountable in court those who harm them.  Even more detrimentally, this same tort "reform" group has succeeded in shaping and leading important national narratives about the law and lawyers.  Now, more than ever before in recent history, lawyers, lawsuits, and an overly litigious society are blamed for everything from the rising costs of health care to the state of the economy.  

This blog is being launched to right this imbalance, and to affirmatively engage the tort "reform" movement's ideas in a popular medium that is accessible to lawyers and non-lawyers alike.

The myths:

Question: Why are medical insurance premiums costs so high?
Answer: Lawyers.

Question: Why can't I get a good doctor in my community?
Answer: Lawyers.

Question: Why isn't the economy in my state improving?
Answer: Lawyers.

Question: Why is American culture disintegrating?
Answers: Lawyers.

Question: Why did my wife leave me?
Answer: Lawyers.

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Follow Up: Tort Victim Tragedies Third Edition - "Cheaper is Better Than Safer"

My August 11th "Tort Tragedies" piece is now buttressed by a recent ruling in the Vioxx trials. On August 17th:


The jury of eight men said Merck was negligent for failing to adequately warn doctors about the risks associated with the drug. The jury also found that Merck "knowingly misrepresented or failed to disclose" information about the drug to the plaintiff's doctors.
(more click here).....Of course, if you live in Michigan, the only state in which drug companies have successfully pushed through full immunity for all drugs at some point approved by the FDA (even if subsequently withdrawn), you are legally precluded from suing because the FDA previously approved the drug.

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Follow Up: Tort Victim Tragedies Third Edition - "Cheaper is Better Than Safer"

My August 11th "Tort Tragedies" piece is now buttressed by a recent ruling in the Vioxx trials. On August 17th:


The jury of eight men said Merck was negligent for failing to adequately warn doctors about the risks associated with the drug. The jury also found that Merck "knowingly misrepresented or failed to disclose" information about the drug to the plaintiff's doctors.
(more click here).....Of course, if you live in Michigan, the only state in which drug companies have successfully pushed through full immunity for all drugs at some point approved by the FDA (even if subsequently withdrawn), you are legally precluded from suing because the FDA previously approved the drug.

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Nationwide Insurance is On Your Side - Unless a Katrina Victim

The Homepage of Nationwide Insurance



At Nationwide, we're working hard every day to meet the insurance and financial needs of our customers, at every stage of life. Whatever happens.


You can count on it. With more than $157 billion in statutory assets, Nationwide is one of the largest insurance and financial services companies in the world.


We offer a full range of products and services for your home, your car, your family, and your financial security. We're easy to reach no matter where you are, day or night, from any one of the 50 states and Washington D.C. to Europe and Latin America.


Simply put - Nationwide is On Your Side


Unless you are victim of Hurricane Katrina.


Despite the broadly smiling African-American man on their website's homepage, Nationwide is doing nothing close to making hundreds of the many African-American Katrina victims smile.


The insurance company is systematically denying homeowner insurance claims by Katrina disaster victims. The company claims that its home insurance policy only covers damage from wind and not from water.  

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How to Get Countries to Outsource their Businesses to the US

One of the hottest issues today is the outsourcing of American jobs overseas. The story goes that America is not keeping up with its competitors. It is cheaper, easier, and more efficient to transport manufacturing and service jobs abroad. For clothing manufactures, sweatshops, while possible to maintain in the United States, are simply less publicly damaging, cheaper, and easier to run and maintain in different legal systems with relaxed worker safety standards. Indeed, the average businessman or businesswoman may find a whole host of reasons why operating in a developing country is more favorable: lower taxation, less regulations, less oversight, cheaper wages, less organized labor, a more economically desperate and compliant workforce, weaker civil society, smaller middle class (the list goes on). However, one especially important business advantage is - the absence of a robust and effective legal system.

In Indonesia, China, India, Honduras, Mexico or whichever developing country to which jobs are being outsourced, one shared characteristic is that these country's civil justice systems are rather weak. There are less suits against corporations being filed by well oiled effective plaintiff law firms. Because the courts in the home country cannot be trusted to be fair/are not fair, and/or the procedural barriers to get into court (let alone to do so in class action lawsuit) are immense, many major civil cases against corporations that harm others in developing countries have actually been brought under the Alien Tort Statute in US courts.

The hurdles to civil justice in many developing countries are not merely aspects of the legal system, but are also practical. In countries without significant access to the internet, without cheap access to phone service, with a poor system of public roads, or with a large inaccessible rural population, it is hard to get the information needed/hard for the information to surface and get to the right people.

The "tort reform" movement consistently emphasizes the "harm" that a robust civil justice system will do to a state's economy.

Let's assume, for the sake of argument, that they are right.

The argument then goes that the more protective we are of the bodily integrity, health, and safety of a state's residents, the less attractive we become for businesses. The less civil legal protections that we offer in our state, the more businesses will come to our state. Therefore, placing modest limitations on the ability of residents to hold corporations accountable will create modest gains in the state's economy. In this way, if Texas just minimizes its protections a little bit, it can gain a competitive advantage over, for example, Oklahoma.

But why stop here? If we're willing to cap non-economic damages, cap punitive damages, or if we're willing to require more proof of an injury or more severe injuries to get a day in court - why not just eliminate the system of legal protections entirely?

If we eliminated the system, all of those costly protections the average person has from being poisoned harmed, or in any affected by corporations and other wrongdoers dealt with. Indeed, we may get some of those outsourced jobs that went to work in India to come back this way.

Now this is obviously being discussed in an overly simplistic manner. Workers in developing nations have the competitive appeal of being willing to work for far less. Moreover, it is also not true that the "tort system" costs business money in the way the "tort reform" movement attempts to frame it. Businesses that abide by the laws adopted by the state legislature are unlikely to be overly and/or unfairly exposed to the civil justice system.

But the logical extension of the "tort reform" movement is that we would all be better off without civil law protections - because we would have more jobs. Many smaller developing countries adopt this logic as the rational for the creation of small free trade industrial zones. These localized free trade areas, free of taxes and most regulation or legal oversight, are notorious for permitting the mistreatment of workers and simultaneously giving little benefit to any but the few super-rich members of the county. Moreover, these zones are equally famous for providing miniscule wages to the workers they employ that does not support a fair standard of living based on the profits they provide for the foreign owners.

If the tort reform movement gets its way, the entire US would become a special commercial zone, with likely similar effect.

As I mentioned in a previous post, one of the tort reform groups, the Pacific Research Group ("PRG"), ranked states as to how "good" they were based on the laxness of their civil justices systems. Ironically, the top ten states, as ranked by PRG, have a personal income that is on average $4,021 lower than the ten bottom ranked states. As such, it appears that states with more robust civil justice laws have economies that provide more income for individuals in the state. (click here for more discussion of this issue)

Although the claim that a weak civil justice system helps business is a different discussion in and of itself - even if it does -

Do you really want to live in a developing world legal system?

Sure, maybe we may get jobs outsourced back to us from India -  but - would you really want to live under these conditions - just for a few more jobs?

In any event, it is far from certain that a strong civil justcie system is actually bad for business, but even if it is -  a few extara jobs can't be worth our basic human well being - wouldn't you agree?

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.

To read my previous posts on civil justice issues, click here.

For a comprehensive overview of the logical shortcomngs of the "tort reform" movement, read William Haltom & Michael McCann's Distorting the Law, or contact me for additional online resources.

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

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Tort Victim Tragedies: Third Edition - "Tort Reformers" Say Cheaper is Better Than Safer

Welcome to Tort Victim Tragedies.

Each week (first edition, second edition) I will highlight the case of an injured person who was (or likely will be) denied full justice because of changes made to state law by the national anti-civil justice movement (aka the "tort reform" movement).

Unknown to most Americans, their right and their ability to access the courts are under assault from what is truly a mass movement by business interests to shield themselves from liability for their misconduct.

This "tort reform" movement frames its agenda as reasonable reform geared to protect corporations from what they describe as frivolous lawsuits which drive up the cost of business, and ostensibly hurt the state's economy.

In most of my posts, I will be addressing the fallacies of the anti-civil justice movement arguments. However, every Tuesday, I will do something unique and perhaps unprecedented.

One of the strengths of the anti-civil justice movement is its ability to put the spotlight on specific ludicrous sounding lawsuits in order to characterize the entire civil justice system as "out of control."

As I've described before in my previous post "Why You Should be Able to Sue McDonald's if You Spill Coffee on Yourself," and as I will continue to describe, often these characterizations distort and re-tell critical aspects of these cases which would otherwise support a finding that they were not frivolous.

One organization has a representative list of said spotlights.  

This constant media barrage of outrageous lawsuits has shaped the public opinion against the very civil justice system which protects us.

As a response to this anti-civil justice media barrage, each week I will highlight the other side of this coin: the real victims who are left without access to full justice because of the effects of the laws pushed through the state legislatures by the anti-civil justice movement.

Please join us each week to read incredibly sobering stories regarding the effects of the anti-civil justice movement on real people's lives and families.

This third week highlights two cases from Michigan.

The first is Leslie Richter:

Lansing resident Leslie Richter, 62, says she should have the option of suing.
Her husband of 42 years, Richard, retired from General Motors Corp. in April 2000. They enjoyed going to casinos and taking an annual trip across the Upper Peninsula together.

"He always used to say,'Just you and me, honey,'" Leslie Richter said. "We laughed and laughed until we had tears in our eyes."

Other than arthritis, she said, Richard was in good health. His doctor put him on Vioxx in 2000.
He suffered his first stroke in June 2002. He couldn't move his left side or arm and needed a wheelchair. He suffered another stroke the following January and died 44 days later.

Leslie Richter said her jaw dropped when she later learned that Vioxx was being discontinued for side effects.

She says Michigan residents should have the same rights to recourse as people in other states.

"Somebody has to be accountable for the mistakes if mistakes are made,"she said.

The second is Dr. David Cox:

Dr. David Cox says he was in perfect health before he took Vioxx. "I suffered a stroke to my brain stem - I had a thriving practice."

But that all came to a screeching halt for Dr. Cox three years ago, when he says Vioxx nearly killed him.
Today, with chronic health problems, Dr. Cox can't work or do much else.

"I don't do a whole lot of anything any more,"Dr. Cox said.

Although Vioxx has been withdrawn from the market, and suits against its manufacturer are progressing in other states, these two potential victims of the company's decision to market a drug with significant risks have no remedy. The drug company is shielded by complete immunity because of a 1995 Michigan law. If they lived across the border, they would have access to justice.

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Important Victory for Access to the Courts in New Jersey

Yesterday, there was a major victory for supporters of the right to a day in court. A decision by the New Jersey Supreme Court prohibited the use of binding arbitration agreements to strip the right of consumers to file class action lawsuits in New Jersey.

Class action lawsuits are the primary, if not the only, means by which low-income consumers can bring suit for corporate misconduct for claims the value of which does not reach into the thousands. The class action mechanism is essential because it allows a few attorneys to work on behalf of thousands of plaintiffs on a contingency fee basis. Without this mechanism, it is often prohibitively expensive to file suit against a large corporation for relatively minor, but very real sums of money such as two hundred dollars.

The Drum Major Institute's hat goes off to the great work of Trial Lawyers for Public Justice.

Read more details below:

Trial Lawyers for Public Justice and a team of consumer rights advocates won an enormous victory in a consumer rights battle of national significance: the New Jersey Supreme Court held that corporations cannot use class action bans in their consumer contracts to avoid liability for cheating consumers. In Muhammad v. County Bank of Rehoboth Beach, Delaware, the Court rejected an attempt by a payday lender charging 608% interest to use a class action ban to avoid accountability and struck down the ban as "unconscionable and unenforceable."

Today's decision in Muhammad preserves the right of cheated customers to use class actions to hold corporations accountable. The ruling is crucial. As Legal Services of New Jersey told the state's high court in an amicus brief, "From the perspective of low-income New Jersey consumers, this is one of the most important cases ever to reach this Court."

In a 5-1 decision, the court protected consumers by preserving class actions. The Court's opinion, written by Justice Jaynee LaVecchia, affirmed the value of class actions to consumers and the public interest: "The public interest at stake in [the plaintiff's] ability and the ability of her fellow consumers effectively to pursue their statutory rights under this State's consumer protection laws overrides the defendants' right to seek enforcement of the class arbitration bar in their agreement."

The case was brought by Jaliyah Muhammad, a New Jersey woman who took out a $200 loan from a payday lender called "Easy Cash". Because Muhammad had to "roll over" the loan twice, she had to pay a total of $180 in interest on a $200 two-month loan -- a 608% annual percentage rate (APR) -- despite a New Jersey law that makes it a crime to charge interest above 30% APR. Muhammad sued on behalf of New Jersey borrowers, alleging that Easy Cash and two other companies were the true lenders and were violating New Jersey's usury statute, Consumer Fraud Act, and civil racketeering statute.

"This is an enormous victory for low-income consumers who were charged interest rates of 600 percent and higher," said plaintiff's counsel Michael J. Quirk, now of Williams, Cuker & Berezofsky in Philadelphia (and formerly of TLPJ), who argued the appeal for Ms. Muhammad before the New Jersey Supreme Court on February 14, 2006, while he was serving as TLPJ's Power-Cotchett Attorney. "By allowing these borrowers to bring their claims for class-wide relief, the Court ensured that high-cost payday lenders like these can be held accountable under New Jersey's consumer protection laws."

TLPJ Staff Attorney F. Paul Bland, Jr., also assisted in the case. Lead counsel in the case are Mark Cuker of Williams, Cuker & Berezofsky and Donna Siegel Moffa of Trujillo, Rodriguez & Richards in Haddonfield, New Jersey.

To read TLPJ's press release about this victory, click here.

To read the New Jersey Supreme Court's decision, and TLPJ's key briefs in Muhammad v. County Bank of Rehoboth Beach, Delaware, click here.

To read the amici brief filed by the state's Attorney General and Division of Consumer Affairs in support of our position, click here. To read Legal Services of New jersey's amicus brief, click here. To read the amici brief filed by National Association of Consumer Advocates, AARP, and Consumers League of New Jersey, click here.

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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Follow Up To: It's Legal to Sexually Harass Your Tenants!

* This post is submitted on behalf of Professor of Law Rigel Oliveri. Professor Oliveri co-wrote the law review article on which my original post "Notice to Sexually Predatory Landlords: It's Legal to Sexually Harass Your Tenants!" was primarily based.Professor Oliveri's article "A New Look At Sexual Harassment Under the Fair Housing Act: The Forgotten Role of 3604(c)," is accessible through lexisnexis or westlaw by way of the following citiation 2002 Wisc. L. Rev. 771.

I am an ex-fair housing lawyer who prosecuted several civil sexual harassment cases for the Department of Justice's Civil Rights Division, on behalf of aggrieved women. (I also co-wrote the article that Cyrus cited at the beginning of this diary.)

I want everyone to know that sexual harassment in housing happens a LOT.  There aren't any good statistics out there, but I know from my experience on these cases that we were barely scratching the surface.  Some observations, again just from my own experience and that of my colleagues:  Housing harassment is not usually an isolated phenomenon, but rather a situation where the landlord makes it his standard operating procedure to rent to and harass vulnerable women.  Most of the time, there are multiple victims in each case.  (The smallest number of victims I ever had was 7, the most was 21.  I think one of my colleagues had a case with 24.)  

While I have read about cases of landlords who harass middle-class tenants, the usual targets are low-income women with children.  All but one of my cases involved women who qualified for public or subsidized housing.  (The exception, horribly enough, was a trailer park outside of a military base, where wives of men who were in Iraq were being harassed by their landlord.  A few of the women couldn't move because there was not enough base housing for families, and the other trailer parks in the area were full.)   In fact, some of the women in my cases were IN Section 8 housing when they were harassed.  That's right -- their landlord was receiving taxpayer dollars for the pleasure of harassing them.  

One woman in a case I had actually went to the Housing Authority and filed a complaint.  The HA told her they would permit her to move, but they couldn't give her assistance in paying the new security deposit or utility hook-up fees.  Because the woman couldn't come up with the $600 that she needed to move, she stayed in the house for ten months.  During that time the landlord entered her home and urinated on her belongings, repeatedly asked her to have sex with him and strip for him.  When winter came, she had no heat.  He refused to fix the furnace unless she had sex with him.  She refused, he locked her out, and she ended up living in a car with her little girl.  No action was taken against the landlord until after we won a jury verdict against him in federal court.  In fact, he continued to rent to and harass other Section 8 recipients.  

I think the correlation is obvious: landlord sexual harassment is directly related to the lack of affordable housing opportunities for low-income women with children.  When women have options, they do not have to remain in harassing situations.  Landlords know these women lack options, and use that to their advantage.

I'd also like to highlight the point Cyrus made earlier, that SERIOUS cases of sexual harassment ARE addressable by state and federal fair housing laws.  And often these cases do involve very serious conduct.  DOJ has had cases where the landlord masturbated and ejaculated in front of his tenant, grabbed their breasts, entered their bedrooms while they were sleeping, made lewd comments to young children, and, in the extreme, committed forcible rape.  Then of course there is the quid pro quo stuff -- demanding intercourse and/or oral sex and evicting women who don't comply, demanding that a woman strip before he will rent to them, etc.  All of this conduct will be reached by civil rights laws.  It is when the harassment is less severe or pervasive that the gaps in the law appear.  These gaps are problematic -- for all of the reasons people have been talking about in the comments to the diary -- but they only occur in "borderline" cases.

One poster was correct in making a point about criminal liability.  A lot of the conduct we would see was clearly criminal -- sexual battery, home invasion, forcible rape.  The problem is that few tenants were willing to report this sort of thing to police, because they feared (probably accurately) that the police would take no action.  Again, from my experience, and that of my colleagues:  The landlord is invariably of a higher social status.  He owns property (by definition), he is usually white, is usually in his 50s, 60s, or 70s (my office had more than one harasser try to use the "Viagra defense").  The victim is often black, very poor, and under 30.  Some of the victims in my cases have had criminal records, substance abuse problems, or mental health issues, making them even more vulnerable.  The very vulnerability that makes them fair game for the landlord also makes it less likely that they will feel like they can call the police, and that the police will believe them.  (One woman in a case I had called the police to report that her landlord was threatening to evict her unless she had oral sex with him.  The police arrested HER when they discovered she had an outstanding traffic warrant.  The landlord, meanwhile, persuaded the cops that she was just a bad tenant who was trying to get even with him for attempting to evict her.  Guess what happened?  He evicted her.)

Many of these women are living so close to the edge of homelessness (and caring for young children) that the very real fear that they will get kicked out of their housing if they say anything is often strong enough to keep them silent.  By the time they get out of the situation, it may be too late to complain.  The statute of limitations has run, police aren't interested in processing a 16-month old sexual battery complaint, etc.

As satifying as it would be if more of these guys were put in jail, I do think that the civil remedy can be a good thing if it results in the victims getting some $$ so they CAN get decent housing, and if the landlord gets barred from the business.  And the more publicity that these cases get the better, so that victims realize they are not alone and landlords realize they can't get away with this sort of thing.  Anyone can bring these cases, it doesn't have to be DOJ.  (In fact, for a variety of reasons, DOJ brings relatively few cases.)  There is a private right of action under federal and most state civil rights laws, plus fee-shifting provisions.  HUD and most state civil rights agencies will process individual complaints free of charge.  And there are lots of great fair housing groups out there who can handle complaints as well.

Sorry to go on for so long.  I obviously feel very passionately about this issue.  Thanks Cyrus, for publicizing it.  I am so happy to see that people are reading and commenting.

- Professor Rigel Oliveri

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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