Blog Topic
Threats to Plaintiffs' Rights
Adam Liptak Watch # 1
Posted by: Spencer Pahlke
March 30, 2008
Though I enjoy reading the New York Times, I'm often troubled by the pieces written by Adam Liptak. Commonly, his articles focus on the topic of plaintiffs losing their right to recovery. Instead of looking at the tremendous downside to being blocked from the courthouse, Mr. Liptak often casts a negative shadow on those who have been injured, their lawyers, and their right to be treated justly by the courts.
In response to these articles, I write letters to the editor of the Times. Here is my most recent letter, which was in response to Mr. Liptak's article on punitive damages:
- - - - -
In Adam Liptak's piece on punitive damages, he again overlooks the vast assault being conducted by business interests on the rights of injured persons to get a recovery for their loss. This time, his focus is on punitive damages, but his article defeats itself. Mr. Liptak asserts that "enormous punitive damages awards are relatively common"--but, of course, provides no statistics or data. A good source would have been Jeffrey A. Rosen's recent piece in the Times Magazine, where he points out that, contrary to Liptak's claim, "the median punitive award actually fell to $50,000 in 2001 from $63,000 in 1992." These are not "relatively common" and "enormous." Additionally, as Mr. Liptak admits, accurately, punitive awards "are often reduced or eliminated on appeal." Given that such awards neither common nor enormous and, when they do exist, they are cut down or barred on appeal, why is Liptak so concerned about them? I don't know, but I can say that Liptak continued assault of the injured person's right to recover will only embolden corporate interests and further decimate protections for citizens safety and protection.
- - - - -
Here at Walkup, we focus our efforts not only on helping those dealing with a traumatic injury or death in their family, but also in drawing attention to the threats posed to the right to justice when we are injured.
Supreme Court Inc.
Posted by: Spencer Pahlke
March 25, 2008
"Supreme Court Inc.," from the New York Times Magazine, sheds a glaring light on the Supreme Court's recent business cases. As author and law school professor Jeffrey A. Rosen repeatedly shows, the Court has moved toward protecting big business, at the expense of American citizens' safety and health. About the only thing funny about this article is its pictures--one of which I include here to make this post less depressing:
A dominant theme in the article is the organizational efforts put into big business's 35-year campaign to whittle away safety protections and the basic right to be compensated when injured by another's carelessness. The main culprit is the U.S. Chamber of Commerce, an entity with endlessly deep pockets and the ability to hire dozens of leading Supreme Court advocates to present every one of big business's cases.
Not only does the Chamber hire the expensive lawyers to argue and write the main brief in the case. It also pays top dollar for "a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address the issue in enormous depth," said David Vladeck of Public Citizen, a public interest law firm.
The result? In the last term, the Chamber "filed briefs in 15 cases and its side won in 13 of them"-an unbelievable success rate on paper. But considered in the real world, it signals a serious loss of injured persons rights.
- If Arthur Andersen enables an Enron collapse, destroying investors' nest eggs, you may only recover against Andersen if it knew what they were doing was criminal. Try proving that.
- If you suffer from a predictable injury due to an obviously faulty MedTronic medical device, you cannot recover--period.
- If a company helps another company inflate its earnings--and hurt its investors--you can only recover if you relied on the fraudulent behavior.
See what I'm getting at?--the bottom line is that the companies get to keep their ill-gotten gains--and the people injured by their behavior are left out in the cold. Sound like a problem? Yes, especially when a recent Pew survey found that "65 percent of Americans agreed that corporations make excess profits."
As Allison Zieve, an attorney with Public Citizen points out, big business is changing the legal landscape, but the people most affected by those changes don't notice. In her words, "any time I talk to a nonlawyer about it, they're shocked." They're shocked because "People think: of course, if somebody makes a defective product you can sue." Nope--not if the FDA approved that product.
The bottom line is that out legal rights are not simply slipping away--they are being actively, but quietly, taken away. One right at a time, Americans are slowly losing access to one of their most venerable institutions: the courthouse, and its ability to right a wrong.
Product Liability Protections Eroded By Highest Court
Posted by: Michael A. Kelly
March 21, 2008
As lawyers committed to protecting consumers rights, we are outraged by what is being done on a systematic basis to consumers' rights by big business, big Pharma, big corporations and the legislators and judges who they get elected and appointed.
The most recent example of the elimination of the rights of the average citizen is the U.S. Supreme Courts decision in Riegel v. Medtronic.
On February 20, 2008, the United States Supreme Court closed the doors of the courthouse to people harmed by defective medical devices where the product has undergone "premarket approval" by the FDA.
The decision terminated the serious injury claim of Charlie Riegel, who sustained serious injury when a balloon catheter burst while he was undergoing an angioplasty. Mr. Riegel and his wife brought an action against Medtronic alleging negligence in the manufacture, labelling and design of the device. Medtronic, which no longer makes the balloon catheter in question, claimed all fault was with the doctor.
The Court dismissed the case saying that federal law prohibits suing device manufacturers in state courts if the device was approved as safe by the FDA. The decision is expected to have negative ramifications for medical consumers in pending lawsuits against manufacturers of breast implants, defibrillators, artificial heart pumps and valves, drug-coated stints, spinal cord stimulators, and prosthetic hips and knees.
The Supreme Court has now effectively immunized all manufacturers from common law claims of product defect and negligence based on a contorted interpretation of the 1976 Amendments to the FDA Act. The amended provision provides that "no State may establish or continue in effect any requirement ... which is different from, or in addition to, any requirement applicable under this chapter to the device."
When manufacturers of medical devices are granted blanket immunity that protects them from all lawsuits, they no longer have any reason to make their products safe. They only need to seek FDA approval, not genuine product safety. History tell us the FDA grants its approval to deadly products on a regular basis; one need only look to Vioxx and Resulin, for evidence on the defective drugs side and Medtronic defibrillators on the device side.
With the U.S. Supreme Court handing medical device manufacturers complete freedom from accountability, the American public has absolutely no legal recourse for the harm caused by dangerous medical devices, even if they are defective. At Walkup, we are committed to providing legal representation to those injured by defective products--the more obstacles big business sets up against injured persons and their right to recovery, the harder we work for our clients.
