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Archive for Wednesday, May 14, 2008

Rules issued by Bush administration limit consumer lawsuits

May 14, 2008

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— Faced with an unfriendly Congress, the Bush administration has found another, quieter way to make it more difficult for consumers to sue businesses over faulty products. It's rewriting the bureaucratic rulebook.

Lawsuit limits have been included in 51 rules proposed or adopted since 2005 by agency bureaucrats governing just about everything Americans use: drugs, cars, railroads, medical devices and food.

Decried by consumer advocates and embraced by industry, the agencies' use of the government's rule-making authority represents the administration's final act in a long-standing drive to shield companies from lawsuits.

President Bush has campaigned for lawsuit reform since his days as Texas governor. As president, he has made little headway on the issue in Congress. He's been thwarted by Democrats every time he's tried to tackle the issue head-on.

Turns out there was another way, one little-noticed step at a time.

If the rulemaking at the various agencies had been a centralized effort in the White House or the Justice Department, "it would have failed because immediately everybody would have mobilized resistance," said Michael Greve of the American Enterprise Institute, a conservative Washington think tank.

Limits on lawsuits have been ordered or proposed for drug labeling and packaging - one issue that will get a big airing today, because of a case involving actor Dennis Quaid's newborn twins - and for rules ranging from mattress flammability standards to school bus passenger seating to dietary sweeteners and roof-crush requirements in car rollovers.

Of the 51 regulations, 41 came from the Food and Drug Administration and the National Highway Traffic Safety Administration, or NHTSA.

Ten of 15 federal traffic safety regulations from last year have been finalized by NHTSA and are now in force or soon will be, a development that has gotten minimal public attention.

Underlying this bureaucratic version of lawsuit reform is the concept of federal pre-emption - a legal idea that is hard to build widespread public interest in.

Rooted in the Supremacy Clause of the Constitution, federal pre-emption refers to circumstances in which federal law and regulation trump state law, in this instance state laws that govern when one person may be held liable for another's injury.

Frequently filed in state courts, where juries often are more receptive to plaintiffs' claims against corporations, product liability lawsuits are often moved at the request of business defendants to more restrictive federal courts.

Regardless of where the suits end up, the issue is increasingly about whether companies can use broad pre-emption language in regulatory preambles to get cases thrown out.

The preambles are the agencies' interpretation of whether the federal regulatory law permits pre-emption of lawsuits. An expansive interpretation of pre-emption leaves little room for consumers to sue, and that is what the national trial lawyers group, the American Association for Justice, says is taking place.

Jon Haber, AAJ's chief executive officer, says the agencies are engaging in "a brazen end run around Congress, the Constitution and the states in an effort to let negligent corporations off the hook and knowingly put consumers at risk."

The real-world impact of pre-emption will be on display today when a congressional committee hears from actor Dennis Quaid and his wife, who have sued a maker of the blood-thinner heparin in Illinois state court.

The Quaids sued after their newborn twins were given massive doses of the blood thinner at a hospital. The Quaids claim the manufacturer was negligent in packaging different doses of the product in similar vials with blue backgrounds.

The company - Baxter Healthcare Corp. - is seeking to use the doctrine of preemption to shield it from any civil liability, claiming that once FDA approved the labeling and packaging at issue in the case, the company is immune from civil suits for money damages.

Comments

cowgomoo 5 years, 11 months ago

Tort refrom is sorely needed. Two suggestions:1. The losing party ALWAYS pays the other party's attorney fees and costs. It wont prevent legitimate claims from going forward but will greatly curtail the nuisance suits. It's worked well in England.2. Punitive damages should be paid to the state, not to the plaintiff, and no award of attorney fees should come from a punitive damage award.

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jrudyhawk 5 years, 11 months ago

Kansas778, couldn't agree with you more on your 2nd to last post. But .."You have no right to use deadly force to regain stolen property. Human life is worth more than $100 in cash..."Good ol' Willie, already a convicted robber, and apparently a career criminal as he's doin' a "hold-up" again...well, far as I'm concerned he's forfeited his 'rights'. He most certainly should not be afforded the right to sue anyone because someone retaliated against him.As far as the story, noone's being denied the right to sue corporations. In certain cases the suit may be moved to federal court instead of state court because the state courts are historically overly sympathetic and award ridiculous settlements. With the Quaid case, the argument is that the drug company is liable, but the blame rests solely on the person who administered the blood thinners, they were reckless and did not read the label. The heparin is bottled with blue labels, they all look the same but they differ in dosage strength, which is written legibly on the label (my sister was a nurse at Cedars Sinai when that all went down). Considering D. Quaid's fame and the fact that this horrible, barely averted tragedy involved twin babies, it stands to reason that this case would play heavily on the sentiments of a SoCal jury. Better to let impartial minds apply the law in such matters, so it's moved to federal court. Just my opinion, but seems prudent to me.

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jmadison 5 years, 11 months ago

Individuals could sue others for civil claims, but the taxpayers shouldn't bear the burden of the court costs for such individual suits. Taxpayers should pay for the criminal court system, but in individual civil claims, the parties involved should bear the costs of litigation, as they benefit from the results. As in the English system, the loser should pay all the costs of both sides of the litigation.

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Clint Gentry 5 years, 11 months ago

I just don't understand why anyone would place industry's rights higher than consumer's rights. Maybe a brain addled by Limbaugh could handle such a ridiculous point of view...

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Daytrader23 5 years, 11 months ago

Anonymous userscott3460 (Anonymous) says:"Big corporate lawyers mostly vote Democrat." Why? Because they are educated.

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Bowhunter99 5 years, 11 months ago

I could have bet 100K that bozo or some other moronic individual would have sided with the idiot that sue mcdonalds' over HOT coffee...or the drunk guy that should have not been served alcohol etc... any moronic act performed by random individuals is someone else's fault. never theirs...

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kansas778 5 years, 11 months ago

Haiku_Cuckoo (Anonymous) says: According to the April 18, 2003, Indianapolis Star: "A convicted robber is suing the convenience store clerk who shot him as he fled after a holdup. Willie Brown, 44, claimed the clerk acted 'maliciously and sadistically' in firing five shots as Brown ran out of Zipps Deli with money from the store's cash register."*****You have no right to use deadly force to regain stolen property. Human life is worth more than $100 in cash.

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kansas778 5 years, 11 months ago

The issue here is one of public policy. Regardless of whether you like big corporations or not, they provide most of the jobs in this country and a lot of the products and services (at least distribution). We want drug companies to make new drugs, we want them to be affordable, and we want them to be safe. There has to be a balance between these goals. If we allow any and all plaintiffs with an injury to recover, then prices go up and the drug companies delay new drugs that could be beneficial. However, allowing plaintiffs to recover spreads the cost of their injury out, and not allowing them to recover would lead to more drugs being introduced that weren't safe. It's not open and shut and there's no easy answer, but a line has to be drawn somewhere that seeks to achieve some balance. Not only that, but there needs to be predictability in order for the companies and the law to operate efficiently. The case described at the end of the article shows how allowing this case to go forward would cause unpredicability. The company complied with all the federal standards and the FDA approved the labeling and packaging. Allowing the case to go forward would be to say: yes, you did everything right according to all the rules, but you still should have done more. How is any company going to know just how much more they will have to do to avoid liability?

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Haiku_Cuckoo 5 years, 11 months ago

"The wife of a hockey fan who crashed his car after drinking too much at a Minnesota Wild game has sued the hockey team, saying her husband who was paralyzed in the Feb. 8, 2002, auto crash shouldn't have been served so much alcohol."According to the July 10, 2002, Akron Beacon Journal, "Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway (next to a water heater!), caused an explosion, were burned badly, sued and won $8 million dollars."According to the April 18, 2003, Indianapolis Star: "A convicted robber is suing the convenience store clerk who shot him as he fled after a holdup. Willie Brown, 44, claimed the clerk acted 'maliciously and sadistically' in firing five shots as Brown ran out of Zipps Deli with money from the store's cash register."

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BrianR 5 years, 11 months ago

I agree Bea, this action makes it difficult or impossible to stand up to corporations, some of which will (GASP) behave recklessly to make a buck. I am truly surprised that to date, no one has gone postal on a corporation or insurance company.

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just_another_bozo_on_this_bus 5 years, 11 months ago

As far as the drunk woman who drowned in a Honda-- Unless you were at the trial, you can't know all the circumstances or the evidence presented. I would imagine that the reason Honda was found 75% liable because the seat belt design was very difficult to open even by someone who is completely sober, and this was demonstrated by the plaintiffs in the trial.

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just_another_bozo_on_this_bus 5 years, 11 months ago

The McD's coffee suit wasn't frivolous at all. Before that, it was company policy to keep their coffee at barely below boiling, which is way hotter than most folks can drink it, and guaranteed to seriously scald if it it's dumped on someone. Since then almost all companies changed their practices on how hot they serve drinks.So the real effect of the lawsuit has been to prevent countless serious injuries from a stupid and needless practice.

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i_tching 5 years, 11 months ago

Seems like a lot of people here do not wish to have any self-protective legal recourse against corporate malfeasance. And they don't want anybody else to have it, either.Isn't that; well, stupid?Why yes. Yes it is.

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beatrice 5 years, 11 months ago

Bowhunter, how dare you use the word scumbag! Don't you know that women, even young women, might be reading this! And what about the mothers! Oh the horror.(I'm so upset, I think I'm going to sue LJWorld.)I find it odd that people are arguing about McDonald's coffee lawsuits, but the story describes drug companies being granted special protections under the law, not sellers of fastfood. If a drug company makes a drug that kills someone because it was incorrectly labeled, why should they be protected from a lawsuit? The other part of the story is how the corporate-loving Bush administration has again done something slimy that favors the rich. Damn, I can't wait until Obama is President.

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scott3460 5 years, 11 months ago

"Some claims are real but just hard to prove, like a racial discrimination claim."That requires complex and subtle thought. Not something for which the corporate media screamers are known. It is far easier to rail against the McDonalds coffee situation and demand an overly broad remedy. Why anyone listens to a thing any of them have to say is beyond me, but they do seem in control much of the time. I turned them off a long time ago. We'd be a better country if more people did.

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kansas778 5 years, 11 months ago

Haiku_Cuckoo (Anonymous) says: Not always. It prevents lawyers and idiots from cashing-in on frivolous lawsuits.****Judges are supposed to prevent lawyers and idiots from bringing frivolous lawsuits. A judge can sanction a lawyer for doing so and dismiss the case. Forcing the losing side to pay for the other side's attorney fees is overbroad, and will hurt people who are not bringing frivlous claims but lose. Some claims are real but just hard to prove, like a racial discrimination claim.

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Clint Gentry 5 years, 11 months ago

But oil companies supporting Bush's campaign is okay with you? So dumb...

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Clint Gentry 5 years, 11 months ago

"Look at who is behind the biggest ambulance chaser of all: John Edwards" - bowhunter99John Edwards isn't even involved in this, are you okay? You seem to becoming delusional...

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scott3460 5 years, 11 months ago

"Look at who is behind the biggest ambulance chaser of all: John Edwards: Look at the list of largest contributors: you'll find every lawyer based organization behind that scumbag:"NEWS ALERTLawyers want one of their own for President

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Bowhunter99 5 years, 11 months ago

Look at who is behind the biggest ambulance chaser of all... John Edwards... Look at the list of largest contributors... you'll find every lawyer based organization behind that scumbag...

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scott3460 5 years, 11 months ago

"Big corporate lawyers mostly vote Democrat."Hope you have some proof to back this statement up. Certainly not so in my experience.

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jackie 5 years, 11 months ago

Where do you get your facts? Do you even know what corporate lawyers do?

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scott3460 5 years, 11 months ago

Of the 51 regulations, 41 came from the Food and Drug Administration and the National Highway Traffic Safety Administration, or NHTSA.Because we all know how abusive the lawsuits have been in these industries. What a traitorous creep.

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Harderfaster 5 years, 11 months ago

Big corporate lawyers mostly vote Democrat.Why is that?

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BrianR 5 years, 11 months ago

Bow, Ok, I just wasn't sure where you were coming from. You are using the most extreme examples and generalizing to all lawsuits and from that perspective, it is a bit bizarre.

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Clint Gentry 5 years, 11 months ago

Why is anybody backing up McDonalds? Have you been so confused by BushCo to think that major industry won't walk over anyone of you? It's necessary to be able to sue these conglomerates to insure they follow the laws, it's that simple. Big industry, big religion, big guns have detached your cerebellum from your mouths.

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Bowhunter99 5 years, 11 months ago

YOU spill hot coffee (which you just ordered) on your own lap... why can you possibly sue McDonald's for it?If you're too friggin' drunk to operate a seatbelt, why is the car company responsible for YOU not being able to open the buckle?there are so many people out there just wanting/dying to sue anyone... just to get free money. leeches...

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logicsound04 5 years, 11 months ago

"Not always. It prevents lawyers and idiots from cashing-in on frivolous lawsuits."--------------Actually, the jury and/or judge is supposed to prevent this from happening. If someone's case is frivolous or lacking merit, then the safeguards contained within the system should begin doing their jobs.In every lawsuit where some idiot sues a company for their own lack of personal responsibility, there is another idiot or group of idiots that agrees with them and rewards them.Administratively pre-empting the people's right to recourse for consumer abuse is a bad idea. Corporations are already somewhat unaccountable because there is no direct personal responsibility. The bottom line is often the only real way to derive any accountability, so removing the ability to make a company pay for it's mistakes and negligence will encourage them to become less stringent and more willing to cut corners.

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a_flock_of_jayhawks 5 years, 11 months ago

Our legal system in the US is already virtually closed to the average American. As others have pointed out, this move only increases the fact that, for the most part, only those with money can seek proper redress for negligence on the part of companies.What is especially odd is that the pharmaceutical companies work the system at the FDA to get questionable products on the market, and they are now working the other side of the system in relying on a compromised FDA review process as an exemption for liability. It looks like they figured out a way to twist a process that they've tried to get rid of, but couldn't. Protecting the company's interests over the people...that's wrong. USA ver. 2.0 - of the companies, by the companies, and for the companies.

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BrianR 5 years, 11 months ago

If a corporation screws you over and hurts you, being compensated is not extortion. Why do you believe it is?

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BrianR 5 years, 11 months ago

I think mine could be interpreted as praying that I hit what I'm aiming for.

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jackie 5 years, 11 months ago

Most of the comments here lead me to believe that if any of your family members were hurt by a negligent corporation, there would be no lawsuit to recover damages. YEAH RIGHT! you morons would be the first in line at the lawyers office. Hypocrites, the whole lot of you.

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BrianR 5 years, 11 months ago

Well if we can't rely in the courts perhaps we can cling to religion and firearms...

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Bowhunter99 5 years, 11 months ago

About time... no more worthless individuals extorting millions of dollars out of corporations such as McDonalds because they spilled their OWN coffee on themselves...or other great examples provided by others...

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kubacker 5 years, 11 months ago

I say do away with all the courts and the lawyers and have this country adopt BushCo. free market Darwinism. Survival of the fittest and everyone deserves to die, along with their children, if they're too ignorant to recognize they are using tainted/poisonous/defective or defectively labeled food, medicine or other third world manufactured products.

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Haiku_Cuckoo 5 years, 11 months ago

"So only justice for the rich, since this system will ensure that poor people are encouraged not to bring a suit because their costs are doubled if they don't win."==========Not always. It prevents lawyers and idiots from cashing-in on frivolous lawsuits. Examples of such lawsuits:"In 1991, Richard Harris sued Anheiser-Busch for $10,000 for false advertising. Harris claimed to suffer from emotional distress in addition to mental and physical injury. Why? Because when he drank beer, he didn't have any luck with the ladies, as promised in the TV ads. Harris also didn't like that he got sick sometimes after he drank.""In 1992, 23-year old Karen Norman accidentally backed her car into Galveston Bay after a night of drinking. Norman couldn't operate her seat belt and drowned. Her passenger managed to disengage herself and make it to shore. Norman's parents sued Honda for making a seat belt their drunken daughter (her blood alcohol level was .17 (nearly twice the legal limit) couldn't open underwater. A jury found Honda seventy-five percent responsible for Karen's death and awarded the Norman family $65 million.""In May 2003, Stephen Joseph of San Francisco sued Kraft foods for putting trans-fat in their Oreo cookies. Joseph wanted an injunction to order Kraft to stop selling Oreos to children."

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just_another_bozo_on_this_bus 5 years, 11 months ago

"So only justice for the rich, since this system will ensure that poor people are encouraged not to bring a suit because their costs are doubled if they don't win."Strange but true, we agree on something, k778.

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kansas778 5 years, 11 months ago

jmadison (Anonymous) says: Civil suits should be reformed to follow the system used in most of the rest of democracies throughout the world in that the loser of a civil lawsuit must pay for all the legal costs of both sides and the court costs.*******So only justice for the rich, since this system will ensure that poor people are encouraged not to bring a suit because their costs are doubled if they don't win.

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lucky_man 5 years, 11 months ago

The Clintons made tort cases and 'lawyering up' all the rage. This is merely my opinion and may or may not be backed up with actual facts.

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KsTwister 5 years, 11 months ago

Actually the Quaids have saved quite a few lives because of their ordeal, we applaud them. Still Bush is an idiot.

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Defender 5 years, 11 months ago

jmadison, I couldn't agree more. This way, only lawsuits of merit (mostly) would get carried out. Both consumer and business are protected.

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jmadison 5 years, 11 months ago

Time to reform the tort system which costs consumers billions of dollars a year. Civil suits should be reformed to follow the system used in most of the rest of democracies throughout the world in that the loser of a civil lawsuit must pay for all the legal costs of both sides and the court costs.In that way only lawsuits that have merit would be brought and the frivolous lawsuits brought by lawyers and plaintiffs fishing for a big payday would be reduced.

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just_another_bozo_on_this_bus 5 years, 11 months ago

"America needs to get over its lawsuit culture." Unfortunately, it will be replaced by a culture of greed-fueled irresponsibility and lack of accountability-- the hallmarks of BushCo.

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Daytrader23 5 years, 11 months ago

Sweet. The first time I agree with this jerk. America needs to get over its lawsuit culture.

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