Tortdeform

Kia Franklin

More FEMA Abuses Alleged

Will we ever have reason to hope that FEMA will get it right when it comes to helping disaster victims? Meh.

McALLEN, Texas — A farmworker rights organization and 14 poor South Texas residents sued the Federal Emergency Management Agency on Thursday alleging that the agency refused to help thousands of poor families repair their homes after Hurricane Dolly.
The lawsuit, filed in federal court in Brownsville by Texas RioGrande Legal Aid on behalf of the residents and La Union del Pueblo Entero or LUPE, says that FEMA denied requests for money to cover home repairs to 10,000 to 15,000 residents in the Rio Grande Valley since the July 23 hurricane. It asks the court to force FEMA to release the standards it uses to decide who gets aid for home repairs and make the agency reconsider its denials. (Houston Chronicle, chron.com)

Hat tip to the Center for Justice and Democracy for this info.

Posted at 7:42 PM, Nov 21, 2008 in Permalink | Comments (1) | TrackBack (0)

Kia Franklin

On Civil Justice Issues, Focus on Senate, Not White House

Prof. Anthony Sebok’s recent article in FindLaw explores the likely influence President-elect Obama will have on the torts system. Sebok concludes that it may be more about a Pro-Civil Justice Senate than President:

But the real question is not what Obama will want to do with the civil justice system, but what Congress will want to do with it. The Democrats now firmly control the Senate, and some of them may want to reverse the achievements of the tort reform movement. Will Obama want to stand in their way? I don’t think so.
So what will the Senate Democrats try to do? I don’t think that they will try to reverse any current legislation. This is because the tort reformers really did not get that much important legislation through Congress over the last eight years. Their real successes, other than CAFA, were either at the state level or through the Supreme Court. Thus, putting CAFA aside, there is not much for Congress to undo.

However, the Senate might be interested in doing a little tort reform in the other direction-that is, by changing the law to tip the playing field more in favor of plaintiffs.

Sebok goes on to outline a few ways the Senate could consider going about this. He mentions reversing the Bush administration’s course on the preemption issue, as well as banning pre-dispute binding mandatory arbitration clauses in contracts between consumers and corporations. He predicts that Obama would support the Senate if it decided to go in this direction, but that Obama would not likely take the lead on these issues himself.

Given what we’ve learned over the past year or so about Obama’s mixed stance on civil justice, this seems about right.

So—-how are we gonna let the Senate know that we want real reforms that strengthen the civil justice system, not the so-called tort “reforms” that only strengthen corporate power?

Read Sebok’s full article here.

Justinian Lane

Yet another reason to oppose preemption

Regular readers of TortDeform know that we staunchly oppose preemption because we believe it is bad public policy. Those who support preemption argue that it’s good public policy because it ensures that expert scientists are making safety decisions. But now a group of FDA scientists have accused the FDA of forcing those expert scientists to change their opinions:

WASHINGTON — Top federal health officials engaged in “serious misconduct” by ignoring concerns of scientists at the Food and Drug Administration and approving for sale unsafe or ineffective medical devices, the scientists have written in a letter to Congress.

The House Committee on Energy and Commerce will investigate the accusations, first aired when eight agency scientists wrote a private letter in May to the F.D.A. commissioner, Andrew C. von Eschenbach.

“These allegations are deeply concerning,” said the committee chairman, Representative John D. Dingell, Democrat of Michigan, “and we intend to uncover whether any F.D.A. activity has compromised the health and safety of American consumers.”

….

The letter says that the scientists have documentary evidence that senior agency managers “corrupted the scientific review of medical devices” by ordering experts to change their opinions and conclusions in violation of the law.

Source: F.D.A. Scientists Accuse Agency Officials of Misconduct - NYTimes.com

I was lucky enough to have met John Dingell several years ago, and the man impressed me with his depth of knowledge and concern for the welfare of average citizens. I’m glad he’s looking into the matter, and I sincerely hope this practice (if it occurred) ends.

Posted at 10:48 AM, Nov 20, 2008 in Permalink | Comments (2) | TrackBack (0)

Kia Franklin

What a Holder Appointment Means for Civil Justice

On TortDeform we’ve talked extensively about a Pro-Civil Justice Presidential Platform, but access to justice for every American requires leadership and hard work from more than just the President. “America’s lawyer” and “top cop”, the Attorney General, has perhaps the most important role in advancing policies that preserve Americans’ cherished legal rights and strengthen their access to effective, fair civil courts.

He still has to undergo the formal vetting process, but Eric Holder looks to be Obama’s AG pick. So, how will Holder hold up when it comes to civil justice? Here are three quick things worth considering:

First, Holder is an influential Board Member for the American Constitution Society. ACS, while not a political organization, represents many of the progressive values that guide the access to justice movement. In fact, ACS’s Access to Justice Group “addresses barriers to access to our civil justice system, including… efforts to strip courts of jurisdiction, raise procedural hurdles, remove classes of cases from federal court, insulate wrongdoers from suit, limit remedies and deprive legal aid services of resources. It focuses attention on ways to ensure that our justice system is truly available to all.” (emph. added)

Second, something I pulled up from a cursory Google Search indicates that as Deputy AG, Holder was part of an initiative to bring more diversity into the legal profession and ensure that “the profession provides full service to communities of color so that those communities can enjoy equal access to our system of justice.” This may indicate a willingness on his part to engage the civil justice community on access to justice issues like Civil Gideon and binding mandatory arbitration, among others.

Continue reading "What a Holder Appointment Means for Civil Justice"

Posted at 6:57 AM, Nov 20, 2008 in Attorneys General | Decision 2008 | Permalink | Comments (1) | TrackBack (0)

Justinian Lane

If you don’t get a runaway jury in a KKK case…

I think I speak for most Americans when I say the only good thing about the KKK is that it demonstrates just how broad our First Amendment rights are. While I personally find their message repugnant, I am deeply thankful that the First Amendment allows them to spread it. Kia recently wrote about the wonderful verdict against the KKK because its members, while acting on behalf of the Klan, viciously beat a 16 year-old U.S. Citizen of Panamanian descent.

The victim of the beating received a broken jaw, a broken arm, two cracked ribs, permanent nerve damage, and psychological trauma after being stomped on repeatedly by Klan members who were wearing steel-toed boots.

Despite the severity of the injuries, and despite the unpopularity of the defendant, the jury returned a reasonable verdict: $1.5 million dollars in compensatory damages, and $1 million dollars in punitive damages. This $2.5 million verdict is less than half of the $6 million the plaintiff was originally seeking.

The fact that the jury didn’t return an outlandish multibillion dollar verdict, or even give the plaintiff $6 million, shows that juries can and do weigh the evidence and make their decisions based on evidence and not emotions.

Posted at 11:03 AM, Nov 19, 2008 in Permalink | Comments (0) | TrackBack (0)

Kia Franklin

Right Now on Firedog Lake

Live Chatting with Diane Levine… take your questions to FiredogLake.Com (login required).

UPDATE: 3:44pm EST. I asked Diana Diana what she would say to proponents of implied preemption, who say that efforts like hers are just about helping plaintiffs lawyers. She said in response the following:

I never envisioned myself as someone who would sue. It’s certainly not about me getting a new Mercedes or house in Provence. It’s about holding a company who is at fault responsible, and inspiring them to change the label and prevent this from occurring again. I’m up here in Vermont with a country lawyer who is supremely ethical. There has to be a mechanism in place.

Nan Aron of Alliance For Justice also responded:

There are multiple groups beyond the “trial bar” that are interested in the outcome of Diana’s case. In fact, career professionals inside the FDA, including former FDA commissioner David Kessler, have spoken out against preemption. But, also, consumer and health and safety groups, the Journal of American Medicine, various states attorneys general and a host of other organizations are against this radical shift.

It’s a good discussion going on over there. They’re talking about the mechanics of the case, what happens after the Supreme Court issues a ruling, how the November 3rd arguments went, and what Diana’s personal experience has been over the past ten years pursuing this claim.

Go check it out while they’re still on!

UPDATE 3:50pm EST.

Continue reading "Right Now on Firedog Lake"

Kia Franklin

This Afternoon—LiveChat w/ Diana Levine!

Some of the text of the following announcement is borrowed from an e-mail from AFJ. I just thought this would be of great interest to TD readers who’ve been following the preemption debate:

Alliance for Justice will be hosting a livechat with FireDogLake tomorrow afternoon, featuring Diana Levine of Wyeth v. Levine. Wyeth v. Levine was heard by the Supreme Court on November 3 and is arguably the most important consumer rights case of this term. So pay attention!

AFJ recently released its film Access Denied, which features Diana and her story. AFJ thought that this chat would be a fantastic opportunity to let the public ask her questions directly. Details below:

When: Tuesday, November 8, 2008 at 3pm EST
What: LIVE Web Chat with Diana Levine
Where: FireDogLake, www.firedoglake.com (NOTE: in order to have full commenting rights, you must register your email account (free of charge) with FireDogLake)

I plan on logging on for this conversation. It’s not often that this kind of opportunity arises. Maybe I’ll “see” you there.

Kia Franklin

Civil Justice Victory Fights Racism

From the Southern Poverty Law Center:

In a blow to one of the nation’s largest Klan groups, jurors yesterday awarded more than $2.5 million to a teenager who was assaulted by Klansmen at a county fair in rural Kentucky.
The verdict is expected to shut down the Imperial Klans of America (IKA), which has 16 chapters in eight states. “We intend to collect every dime we can on the judgment and do everything within our power to put the Imperial Klans out of business,” said Southern Poverty Law Center President Richard Cohen at a press conference after the verdict announcement.

The SPLC sued IKA leader Ron Edwards of Dawson Springs, Ky., contending that members of his Klan group attacked a 16-year-old U.S. citizen of Panamanian descent because they thought he was an “illegal spic.” Also named as a defendant was Jarred Hensley of Cincinnati, who served nearly three years in state prison for assaulting the teenager at a county fair in northwest Kentucky.

After deliberating for more than six hours on Friday, the jury returned the verdict shortly after 9:30 p.m. The jury found that Edwards had failed to properly supervise the Klansmen who attacked the teenager and that he had encouraged their violence.

Tort “reformers” criticize trial lawyers for going after the deep pockets. But when those deep pockets also happened to be paired with deep-seated racism and philosophies of violence that end in serious injuries to innocent people, I say, have at ‘em. I am glad that this verdict not only brings some justice to the teenager who was assaulted, but that it also might help minimize the future impact of racist organizations like Klan affiliates.

Civil justice good, hate crime bad.

Posted at 7:23 PM, Nov 17, 2008 in Civil Justice | Racial Discrimination | Permalink | Comments (1) | TrackBack (0)

Kia Franklin

More on an Obama Administration Supreme Court appointee

From the LA Times today: more speculations about an Obama Administration Supreme Court appointee.

“I think Obama would want to make a statement with his Supreme Court justices. We hope for a justice who can replace the lost voice of an Earl Warren or Thurgood Marshall or William Brennan,” said Nan Aron, president of the Alliance for Justice, a coalition of public interest and civil rights groups. “It’s critically important to have an Obama justice who can be a counterpoint to [Chief Justice John G.] Roberts and [Justice Samuel A.] Alito.”

I have the audacity to hope that’s true. But Obama has said himself that he often “serve[s] as a blank screen on which people of vastly different political stripes project their own views.” So author Dan Savage warns folks not to get too carried away with what they think Obama would do if the time came to appoint a new Justice to the highest court. Savage writes:

…It is not clear that Obama hopes to put the kind of person on the court that Aron and other liberals are dreaming about.

In an interview with the Detroit Free Press editorial board in October, he described Warren, Brennan and Marshall as “heroes of mine… . But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”

He credited the Warren court with ending segregation and opening doors for African Americans. “The court had to step in and break that logjam. I’m not sure you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today,” he said.

What kind of activism does Obama mean? The role of “we the people” is to ensure that there is robust public dialogue about the difference between inappropriate law-making from the bench and a judiciary that is committed to taking necessary measures to protect the legal rights and protections to which we’re all entitled. Obama’s own statements (for instance his and Biden’s civil rights agenda from change.gov, or Obama’s statements from previous interviews) can help reveal where he stands on that distinction. Savage quotes Obama from a previous interview:

“A Harvard Law School graduate, Obama taught for 12 years at the University of Chicago and led classes on voting rights and equal protection of the law. In the Detroit interview, he praised Justices Breyer and David H. Souter, a Republican appointee, as “very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.
That’s the kind of justice that I’m looking for,” he went on. “Somebody who respects the law, doesn’t think that they should be making the law, but also has a sense of what’s happening in the real world and recognizes that one of the roles of the courts is to protect people who don’t have a voice.”

He added that the “special role” of the court is to protect “the vulnerable, the minority, the outcast, the person with the unpopular idea.”

So the role of the civil justice community is to remind Obama of these past positions and illuminate the rights at stake. Also, it’s important to do this keeping in mind his past references to trial lawyers and tort reform.

Also, Check out AFJ’s blogpost on Obama nominees.

Kia Franklin

How Much Would You Pay the CEO of Bear Sterns?

President-elect Barack Obama sponsored a Senate bill to require that the shareholders of all public United States companies vote on whether they want say on pay. This means that it could very well be on the agenda in 2009.
On Thursday morning, James Keyes will be joined by a fantastic panel to discuss the future of say-on pay and corporate governance reform. Info below:

Giving Shareholders a ‘Say On Pay’
THURSDAY, NOVEMBER 13, 2008 8:00–10:00a.m.
The Harvard Club
35 West 44th Street (Between 5th & 6th Avenues)
New York, NY 10036
light breakfast will be served

Space is limited. RSVP and registration are required. Admission is free.
Please RSVP by email to: dmi “at” drummajorinstitute “dot” org

FEATURING
JAMES W. KEYES
Chairman & CEO, Blockbuster Inc.

As compensation for top corporate managers has skyrocketed, even executives who mismanage their companies or demonstrate mediocre performance often receive lavish pay. Blockbuster Inc., led by CEO James Keyes, is at the forefront of efforts to provide greater accountability to shareholders. In March 2008, Blockbuster’s Board of Directors voted to grant shareholders an annual non-binding vote on executive compensation. Beginning in 2009, shareholders will directly advise the board on whether they approve of the pay levels of the company’s top executives. A majority of Blockbuster shareholders, headed by the New York City Employees Retirement System, first called for a ‘say on pay’ in 2007. In Britain, laws requiring say on pay have been credited with reining in exorbitant CEO retirement packages. A small number of other U.S. companies, including AFLAC and Verizon, have also adopted the reform.

Speakers include:
HON. WILLIAM C. THOMPSON
New York City Comptroller

TIMOTHY SMITH
Senior Vice President
Walden Asset Management

VONDA BRUNSTING
Assistant Director
SEIU Capital Stewardship Program

Moderated by
ANDREA BATISTA SCHLESINGER
Drum Major Institute for Public Policy
The Drum Major Institute for Public Policy is a non-profit, non-partisan organization generating the ideas that fuel the progressive movement.

For more information, please visit: www.drummajorinstitute.org.

Posted at 6:22 PM, Nov 11, 2008 in Permalink | Comments (3) | TrackBack (0)