That's the shocking headline of a story by Houston's KHOU TV station. The story concerns political contributions to the justices on the Texas Supreme Court, and how those contributions might give the appearance of influencing judicial decisions. Watch the video.
The Washington Post has an article today that illustrates the fallacy in the current trend of the Bush administration and the U.S. Supreme Court to push the doctrine of "preemption." This is the legal theory that basically states if a federal agency approves a product, then consumers are forbidden to file any claims for damages caused by that product. The argument against premption is that the government is starving the federal agencies by reducing their budgets, thereby reducing their abilities to adequately test products. The story is about safety concerns with the chemical compound bisphenol A (BPA). Here are excerpts.
Despite more than 100 published studies by government scientists and university laboratories that have raised health concerns about a chemical compound that is central to the multibillion-dollar plastics industry, the Food and Drug Administration has deemed it safe largely because of two studies, both funded by an industry trade group.
The agency says it has relied on research backed by the American Plastics Council because it had input on its design, monitored its progress and reviewed the raw data.
The compound, bisphenol A (BPA), has been linked to breast and prostate cancer, behavioral disorders and reproductive health problems in laboratory animals.
As evidence mounts about the risks of using BPA in baby bottles and other products, some experts and industry critics contend that chemical manufacturers have exerted influence over federal regulators to keep a possibly unsafe product on the market.
Congressional Democrats have begun investigating any industry influence in regulating BPA.
"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product.
Scientists first flagged possible health risks of BPA more than a decade ago. From 1997 to 2005, 116 studies of the compound were published, many of them focused on its effects in low doses. Of those funded by government, 90 percent showed a health effect linked to BPA. None of the industry-funded studies found an effect; all of them said BPA is safe.
Recent actions by federal regulatory agencies, combined with a U.S. Supreme Court decision are extremely troubling to consumer advocates. The gist of the problem is that federal agencies under the Bush administration are taking the stance that their rules trump state court verdicts.For example, if a federal agency said a prescription drug was safe, then a state jury verdict finding the drug to be unsafe would be void.
Aside from the overarching argument that federal agencies have no constitutional right to exert control over state courts, the problem with this approach is that political considerations can decide whether the agencies find certain products to be safe. If a giant pharmaceutical company makes a large contribution to a presidential candidate, there will be a natural tendency for the president to influence the federal agency to protect the financial interests of the pharmaceutical company. Some consumer advocates think that's exactly what's happening now.
Who gets hurt by this process? Consumers who have legitimate legal claims against manufacturers, but are prevented from filing those claims.
The Dallas Morning News ran an interesting story about this Pre-emption by Preamble." Here are excerpts.
If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards.
The Consumer Product Safety Commission says you can't sue a mattress maker if your mattress bursts into flame despite meeting commission standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration proposals for stronger roofs.
Plaintiffs' attorneys call it "silent tort reform." But it's part of tension existing since the nation's founding: conflict between state and federal law.
If they clash, state laws give way. That's in Article Six of the Constitution. But in areas where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. That includes product liability.
A developing body of judicial opinion could place new limits on the rights of those who buy or use products, consumer advocates say. It also could mean the savings of billions of dollars by companies insulated from lawsuits.
What's riling plaintiffs' lawyers, consumer groups and some regulators is agencies' assertions their rules override state product liability laws. Most such claims are rooted in statements in the introductions to their rules, not the rules themselves.
"These pre-emption preambles may be only the beginning," New York University law professor Catherine Sharkey wrote in the DePaul Law Review. She projected preambles may "displace competing or conflicting state regulations or common law as a matter of course."
The practice varies by agency but is spreading. "It's absolutely a trend," said Deepak Gupta, staff lawyer for Ralph Nader's public citizen Litigation Group.
One example of what this means to the average person is found in NHTSA proposals for new SUV rollover rules.
Attorneys general from 26 states asked the organization in 2005 to drop lawsuit protection from the rules, which could go into effect as early as July 1.
"State governments and the federal government will have to cover millions of dollars in health care costs which they will pass along to taxpayers, costs that, by all rights, should be the responsibility of manufacturers," the attorneys general wrote.
Sen. Patrick Leahy, D-Vt., at hearings last fall, said agencies have issued at least a dozen rules to shield drug and other product manufacturers from liability.
Indeed, plaintiffs lawyers say "pre-emption by preamble" has been coming in waves during the Bush administration.
I have written a couple of times about the recent ethics charges against certain justices on our Texas Supreme Court, and many times about the moral challenges this Court seems unable to overcome. Now Paul Burka has today written an excellent post on his blog about the same subjects. I encourage everyone to read his post in full. I'll quote only the concluding paragraphs:
The Texas Supreme Court has become a public spectacle. It's bad enough that a majority of the Court performs as a wholly owned subsidiary of Texans for Lawsuit Reform. Now it's apparent that a third of the judges -- Nathan Hecht, Paul Green, and David Medina -- have no compunction about flouting ethics rules by using campaign funds as a piggybank for their personal travel to and from work. Texas Watch has filed complaints against all three judges with the Texas Ethics Commission.
The larger concern is that the judges did not make sufficient effort to investigate the legality of their conversion of sizable sums of money from their contributors. They used campaign funds to subsidize their lifestyle. Judges should be held to the highest standard of ethics. Let me rephrase that. Judges should hold themselves to the highest standard of ethics. But the judges on the Texas Supreme Court do not have to worry about how they are perceived, because there is no accountability. The judges are bulletproof. All of them are Republicans. While Democrats have had some electoral success in courthouse and legislative races, they haven't won a statewide election since 1994. Republican judges have little to fear at election time because they are protected by TLR and the big firms with the big clients who always win -- BP being the most recent example. The Court is consistently criticized for being result-oriented at legal conferences, but there is no incentive for judges to change their behavior, either in their decisions or in their ethics, and there won't be until somebody loses a race.
Please read Mr. Burka's post, and while you're there, subscribe. It's always worthwhile and enlightening reading.
Here is a very good discussion of the medical malpractice insurance crisis by the Center for Justice & Democracy.
WFAA TV in Dallas reports that a Texas District Court judge has ruled that the state's largest workers' compensation insurance carrier committed fraud against an injured worker. It is interesting to note that this insurance company has lobbied extensively before the Texas Legislature for immunity from bad faith claims arising from the wrongful denial of benefits to injured workers. I guess now we know why this issue has been so important to them. Here are excerpts from the story:
Texas Mutual Insurance Company has already been accused of callously denying claims against injured workers, but allegations of falsifying records could be a first.
Questions about Texas Mutual's business practices were first raised in a News 8 Investigation four years ago.
Injured workers complained that the insurance carrier was randomly denying their claims and robbing them of much needed medicine and benefits.
District Judge Martin Hoffman issued a ruling declaring "Texas Mutual Insurance Company committed fraud on this court" by "falsifying a critical medical record."
The record was a doctor's report in which someone added letters that tend to support the insurance company's position in the case.
"This fraudulent conduct was committed knowingly by agents and representatives of Texas Mutual Insurance Company," Judge Hoffman said.
The judge ordered Texas Mutual to pay $30,000 and publish the court's ruling on their home page on the Internet.
State Workers Compensation officials said they are already reviewing the facts of the case. Texas Mutual officials have yet to respond.
A case currently before the U.S. Supreme Court has the potential of stripping consumer rights established over long years of legislative and judicial processes. The case involves the doctrine of preemption, and specifically relates to a medical device approved for sale by the U.S. Food & Drug Administration.
Preemption is a doctrine pushed hard by big business, Republican legislators, and conservative judicial activists. The gist is that if a product is approved by a federal agency, and then is found to be defective, consumers are prohibited from suing the manufacturer. An unspoken but necessary component of preemption is the emasculation of federal agencies through the budget process. In other words, starve the agencies so they can no longer subject new products to adequate testing, then when the unsafe products are approved, declare them to be beyond the scope of personal injury lawsuits. It's a beautiful thing if you happen to be a manufacturer. It's raw politics at its ugliest if you happen to be an injured consumer.
The Web site LawyersAndSettlements.com has a good article on the current preemption case, involving a Medtronic balloon catheter.
The Dallas Morning News recently ran a lengthy article on a subject I have mentioned many times -- the Texas Supreme Court has a definite bias toward big business and against Texas consumers and injury victims. Please read the full article. Here are some excerpts:
Texas' Supreme Court justices aren't in the habit of defending their judicial records, much less from lawyers grilling them as they would an uncooperative witness.
But that's just what happened in September at a continuing education event at Horseshoe Bay Resort hosted by the Dallas Bar Association, where lawyers peppered two justices with questions about their impartiality.
Sample query: Do the justices hunt for plaintiff victories in appeal courts just so they can overturn them?
"To be honest, I've never seen anything quite like that in a bar group," Justice Paul Green told Texas Lawyer magazine after the event.
The incident has added fire to a decade-long debate over whether Texas' highest court favors big business in lawsuits.
The perception is bolstered by data showing that the court's rulings increasingly favor defendants in lawsuits – upward of 87 percent of the time, one study said.
In one case, they complain, the court seemed to cherry-pick state laws to find a way to give a property owner the same protections from an injured worker's lawsuit that a contractor has compared with an employer. The worker, hired by a contractor, was injured in a plant owned by Entergy Gulf States.
"I'd say that right now Texas is on the forefront of the business-friendly legal environment," said Rogge Dunn at Clouse Dunn Khoshbin LLP in Dallas, who handles some workers' compensation cases. "If you're an insurer here or a large company getting sued, you've got the Supreme Court as your safety net."
Alex Winslow of Texas Watch is tracking the court's rulings for its 2006-07 term, as he has for the last decade.
By his count, civil defendants won favorable rulings in a relatively equitable 52 percent of cases in the court's 2000-01 term, but the number has been soaring since then. In 2005-06, 82 percent of rulings went in favor of defendants, he said.
"This is an anti-consumer court," he said.
He called the Entergy ruling "egregious" because he thinks the court hunted for a way to rule for the company.
The Entergy ruling ignored the Legislature's previous actions on the issue that were pro-worker. A ruling the previous week involving another energy company cited legislative intent, Mr. Winslow said, "making them unbelievably inconsistent, except for the fact that the energy company won both times."
In a separate study, law professor David Anderson of the University of Texas at Austin found 87 percent of lawsuit defendants received favorable rulings in the 2004-05 term.
What's especially galling to critics of the court is what they see as the court's "activism," a complaint more common from conservative politicians against liberal judges on social issues.
Critics have focused on Justice Hecht, who accepted $16,000 in contributions from Houston home developer Bob Perry's political action committee to help defray costs related to a judicial ethics investigation, as The Dallas Morning News reported in April. The contribution was made as the court was about to hear a case related to Perry Homes.
THREE CASES
These Texas Supreme Court rulings in favor of businesses have been some of the most talked about in the legal community recently.
Entergy Gulf States vs. John Summers
Mr. Summers injured himself at Entergy's Sabine Station plant while he worked for a contractor hired by Entergy. Along with his worker's compensation claim, he tried to sue the utility for negligence. The Supreme Court overturned an appellate ruling in his favor, establishing that Entergy – the "premises owner" – also qualified as a "general contractor" and hence was immune from the injury suits.Harmar Bottling vs. Coca-Cola
Harmar, a Royal Crown Cola distributor based in Paris, Texas, alleged that Coca-Cola tried to drive it out of business by establishing preferential agreements with grocers in nine Texas counties and three Oklahoma counties. A jury awarded Harmar $16 million in damages and attorney fees, but the Supreme Court ruled that the state's antitrust law doesn't apply in other states and that Harmar hadn't proved damages in Texas.Lamar Homes vs. Mid-Continent Casualty Insurance
Homeowners sued Lamar Homes for cracks in the walls of houses and for foundation problems. Mid-Continent, Lamar's insurer, declined to cover the suit, and Lamar sued, arguing that the work had been undertaken with the intention of doing it correctly, making any defects "accidental" and covered under the policy. Some consumer advocates praised the ruling as helping homeowners in battles with builders, but others predict insurers' higher rates will simply be passed on to homebuyers.
The e-mail about the "Stella Awards" has been circulating for years, and so have articles proving these stupid stories are lies. But the e-mail just won't die. The latest newspaper column debunking the Stella awards was printed yesterday in the Houston Chronicle. Take a look. The article concludes:
Here's the lesson: The next time an Internet tale makes you think things are even worse than you thought, check it out. Especially when the tale suggests that the American system is stacked against wealthy corporations.
One easy way: www.snopes.com, an excellent site that investigates urban myths. It took less than 30 seconds to ask for "Stella Awards" and receive the verdict: "False."
On Friday, October 5, 2007, the New York Times published an article on the "rush" of doctors coming to Texas to practice after the medical malpractice liability caps were passed in 2003. Below is Texas Trial Lawyers Association President Jay Harvey's Letter to the Editor delivered to the New York Times the same day.
Dear Editor:
In your article "After Texas Caps Malpractice Awards, Doctors Rush to Practice There" (10/5/2007), the cheering section for stripping legal rights from patients injured by medical errors conveniently omits several telling statistics. According to the 2006 Census, states limiting the compensation for medical errors have 249 physicians per 100k population; states without caps have 283 per 100k. While hailed as a cure for counties without an obstetrician, three years after the cap was enacted Texas had four fewer counties with obstetricians.
Also not mentioned is the importance of fair access to the courts for families devastated by malpractice. Caps are routinely used by defendants to make pursuing claims more expensive than any possible recovery. Thus malpractice can be kept from public scrutiny and bad hospitals and doctors can continue to put patients at risk. Caps may be good new for bad doctors, but they are bad news for all patients.
Jay Harvey, President
Texas Trial Lawyers Association
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