For years the mantra of the Republican party has been that we need to reduce “frivolous lawsuits.” The din has been deafening during the recent health care debate in Washington. As soon as the President began to sign the health care bill into law, state Attorneys General (including Attorney General Corbett in Pennsylvania) did what to challenge the law? They filed a lawsuit!

My friend Anthony Tarricone, President of the American Association for Justice (of which I am a Governor from Pennsylvania) has authored a great piece that was carried by the Huffington Post: “Tort Reform Hypocrites: Do As I Say, Not As I Sue”. I commend Anthony’s article to any of you who understand the hypocrisy of the lawsuits filed to challenge the health care bill.

So let me come back to a concept you’ll hear a lot about as these cases churn their way through the courts: pre-emption. It’s the constitutional law concept that is defined as follows by Black’s Law Dictionary (the dictionary that every law student swears by as we are taught in law school): “Doctrine adopted by U.S. Supreme Court holding that certain matters are of such a national, as opposed to local, character that federal laws pre-empt or take precedence over state laws.” In other words, states don’t get to say that a federal law (read: the health care bill) is illegal under state law.

Anthony’s article cited several prominent examples of tort reform hypocrisy in his article. In Pennsylvania we had our own version when Rick Santorum was our U. S. Senator. After he had railed against frivolous lawsuits for years, guess who filed one with his wife after she was injured as a result of health care malpractice? That’s right Mr. and Mrs. Santorum. In the interest of full disclosure I must point out that when it became politically expedient for the senator to continue railing against trial lawyers, he discontinued his part of the suit…while Mrs. Santorum’s claims continued.

This story will be an interesting one to follow.

Ford Pinto…Ralph Nader’s “Unsafe at Any Speed”…Lemon Laws. If you have a Chrysler (and soon a GM) vehicle and if you take any of the pro-consumer protections associated with these phrases for granted, you better think again.

With the stroke of a pen, the bankruptcy judge handling the Chrysler bankruptcy, has freed Fiat (the buyer of Chrysler Corporation emerging from bankruptcy after a hurry-up bankruptcy) from any and all legal responsibility for the liability claims of the old Chrysler Corporation.

That means that if you bought a brand new Chrysler the day befor ethe bankruptcy filing, and you find out down the road that it was defective (if for example the seat backs collapse in an accident sending you hurtling into the steering wheel, or if the airbag is defective and doesn’t deploy, or if the columns supporting the roof are too weak and the roof collapses rather than protecting you in a rollover, or any other “product liability” claim), you have now lost your ability to sue Chrysler Corporation for injuries caused by that defective product.

Fortunately, legal objections have been filed and that portion of the judge’s decision is being appealled. 

Not surprisingly, as soon as that sweeping protection was given to Chrysler, the corporate lawyers who filed for GM’s bankruptcy on Monday morning quickly added that same protection to their bankruptcy “wish list” and they are seeking identical legal protection.

Christopher Jensen, who writes the “Wheels” blog in the New York Times, has been covering all of these developments. I commend you to his blog to read more about this troubling development.

Also, to track the good fight being fought by one of the objectors, check out coverage by Public Citizen.

This is a form of corporate immunity that vastly exceeds any tort reform ever conceived in the wildest imagination of any fatcat boardroom in the United States. Throughout the Bush years they tried to argue that if the National Transportation Safety Board set regulatory “standards” then any state tort law claims should be pre-empted if they met those bare minimum standards. Forget pre-emption, this is a lifetime “get out of jail free” card to two of the world’s biggest corporations.

Every now and then I read something that just makes me nod my head in agreement. I am copying below an article by Wayne Willoughby, Esq. Wayne is a fellow Board member of Public Justice (www.publicjustice.net ) and he is the past President of the Maryland Association for Justice.

The Empire Strikes Back: How the “Tort Reform” Movement is Responding to a Major Defeat in the Supreme Court.

By Wayne M. Willoughby, Immediate Past President, Maryland Association for Justice

Recently the consuming public won a major victory in the courts. In a 6-3 decision, the United States Supreme Court held in Wyeth v. Levine, 129 S.Ct. 1187, 173 L.Ed. 2nd 51 (2009), that federal law did not preempt a state law claim brought by a musician who lost her arm to gangrene as a result of a defectively labeled nausea medication. The action alleged that the manufacturer’s label was defective because it did not warn health care providers of the substantial risk of loss of limb if the drug is administered by IV push. The Court specifically rejected the pharmaceutical company’s defense that because Congress empowered the Food and Drug Administration to approve drug labels, that federal action preempted state products liability laws. This major decision assures that irresponsible companies cannot misuse the laws designed to promote food and drug safety to avoid liability for producing and selling unsafe products.

Not to be undone in the public’s eye by such an important loss, the forces behind the decades old movement to protect businesses from being held accountable for corporate misconduct fired back. The United States Chamber of Commerce (acting through its benignly named “Institute for Legal Reform”) has begun to push a “Faces of Lawsuit Abuse” campaign at local movie theaters with two-to-three-minute advertising trailers before movies.

One such trailer in the Chamber’s campaign tells a story about a Rockville swimming pool business sued when a Canadian goose nesting near the store attacked a customer causing her to fall and break her hip. In order to subject the legal system to ridicule, the Chamber distorts the facts of the case and omits one tiny little truth: the defense attorney who represented the company stated that the action was NOT a frivolous case.1 The Chamber is not alone in warping reality in order to produce a compelling anti-consumer/ anti-justice message.

Last month a group with the innocent sounding name, Maryland Citizens Against Lawsuit Abuse (MdCALA), joined with the National Federation of Independent Business (NFIB), to issue a joint survey claiming widespread fear of lawsuits by small business owners. Aside from the fact the study was unscientific and was comprised of only 129 on-line responses, MdCALA failed to mention that the results of its paltry survey pool were in marked contrast to a much larger survey (3,530 small businesses surveyed) conducted by the NFIB only ten months earlier. This earlier study concluded that so-called “lawsuit abuse” is not a major concern for small business owners. In fact out of 75 possible priorities and concerns, small businesses ranked the “costs and frequency of lawsuits/threatened suits” at 65th on the list.2

To the well informed it comes as no surprise when a group name containing the words Citizens Against Lawsuit Abuse (CALA) in its name unfairly attacks the legal system.3

The CALA movement began in the early 1990’s when the American Tort Reform Association and a Washington, D.C. law firm that represents Big Tobacco retained APCO & Associates, one of the nation’s leading “grassroots” lobbying/public relations firms, to build a network of local organizations to act as the mouthpieces for anti-consumer tort law changes.4

Masquerading as “grassroots” organizations, but bankrolled by big tobacco, big pharma and insurance companies, when CALA issues an alleged study or survey, the public should expect nothing less than another attack on the laws which protect consumers from the excesses of corporate greed. For more information on CALA and the tort reform movement in general, read, “The Attack on Trial Lawyers and Tort Law”, a report by the Commonweal Institute.5

At some point, however, the public will come to see CALA groups for what they are: Astroturf movements by powerful business and political interests that want to overpower the people’s right to justice in our courts in order to protect corporate profits no matter how those profits were obtained.

The Empire may strike back, but ultimately the truth will prevail. Until then, the Maryland Association for Justice will continue to fight for the people’s right of access to the courts, right to trial by jury, right to due process and right to equal protection under the law.

1. Tamber, Caryn. “Take a Gander at This Movie Trailer.” The Daily Record 22 Apr. 2009 Web. 12 May 2009. <http://www.mddailyrecord.com/article.cfm?id=11409&type=UTTM>.

2. “Small Business Problems and Priorities.” NBIF Research Foundation June, 2008 Web. 12 May 2009. <http://www.nfib.com/Portals/0/ProblemsAndPriorities08.pdf>.

3. Mencimer, S.. “Blocking the Courthouse Door; How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue.” Free Press 2006 Web.13 May 2009.

4. “The CALA Files: The Secret Campaign By Big Tobacco And Other Major Industries To Take Away Your Rights.” Center for Justice and Democracy and Public Citizen Web. 12 May 2009. <http://www.centerjd.org/archives/issues-facts/stories/cala.php>.

5. Johnson, David C.. “Th e Attack on Trial Lawyers and Tort Law.” Commonweal
Institute 01 Oct 2003 Web. 12 May 2009. <http://www.commonwealinstitute.org/cw/files/AttackTrialLawyersTortLaw.pdf>.

This news is too important for me to take the time to write a blog. I’m copying below an e-mail I just received from Arthur Bryant at Public Justice:

The U.S. Supreme Court has just issued a major decision rejecting federal preemption and preserving access to justice! The Court held 6 to 3 today in Wyeth v. Levine that federal law does NOT preempt — i.e., wipe out — lawsuits against drug manufacturers for failing to warn of their drug’s dangers. Public Justice had filed an amicus brief on behalf of 10 current and former editors and authors of the New England Journal of Medicine (NEJM) urging the Court to rule as it did.

The Court’s powerful decision, authored by Justice Stevens, emphasizes that “the purpose of Congress is the ultimate touchstone in every pre-emption case” and that “in all pre-emption cases, …we start with the assumption that the historic police powers of the States were not to be superseded unless that was the clear and manifest purpose of Congress.” It notes that the federal Food, Drug, and Cosmetic Act (FDCA) never contained any provision expressly preempting injured consumers’ claims against drug manufacturers and emphatically rejects the drug companies’ argument that drug failure-to-warn claims are implicitly preempted. It also rejects the U.S. Food and Drug Administration’s new pro-preemption position under President Bush, holding that it “does not merit deference.”

The Court rebuffs the drug companies’ arguments in plain and simple terms, stating “Wyeth contends that the FDCA establishes both a floor and a ceiling for drug regulation: Once the FDA has approved a drug’s label, a state-law verdict may not deem the label inadequate, regardless of whether there is any evidence that the FDA has considered the stronger warning at issue. The most glaring problem with this argument is that all evidence of Congress’ purposes is to the contrary.”

The Court emphasizes, as our amicus brief did, the important role damage suits play in protecting the public. It says, “The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge. State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA’s premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times.”

Finding no pre-emption, the Court concludes, “Congress has repeatedly declined to preempt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight.”

This is an enormously important decision that preserves access to justice for millions and will terminate many of the pre-emption battles now being fought in drug litigation nationwide, which took off after the Bush Administration switched the federal government’s position. It has major implications for future preemption battles in numerous areas.

Of particular significance is Justice Thomas’s concurrence, which advocates eliminating the type of “implied conflict pre-emption” that the Court has found in some past cases and the drug companies pushed for here. It says, “Because such a sweeping approach to pre-emption leads to the illegitimate – and thus, unconstitutional – invalidation of state laws, I can no longer assent to a doctrine that preempts state laws merely because they ’stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives’ of federal law as perceived by this Court.”

To read the Supreme Court’s decision in Wyeth v. Levine, click here.

To read the amicus brief filed by Public Justice on the NEJM’s editors’ and writers’ behalf, click here.

Wyeth v. Levine was filed on behalf of a professional guitarist, Diana Levine, who lost an arm after an injection of the nausea drug Phenergan. She claims Wyeth failed to adequately warn of the drug’s risk and won a judgment of $6.8 million in a Vermont trial. The Vermont Supreme Court upheld the verdict, saying that the FDA’s approval of the drug’s label should not affect her ability to sue for her terrible injuries, which could have easily been prevented by a proper warning label. The Court affirmed that ruling today.

Congratulations and thanks to Gerson H. Smoger, the President of the Public Justice Foundation, who authored the brief with assistance from Public Justice Staff Attorney Leslie Brueckner and me (Arthur Bryant).