TOV Injury and Safety Blog

Our activist and anti-consumer court majority

  In yet another display of its arrogance and anti-consumer sentiment, the four member Republican majority of the Michigan Supreme Court today denied standing to Michigan citizens to protect the water table in Mecosta County.  The Nestle Corporation bottles water in Mecosta and local citizens sued in 2001 to control the amount of water Nestle could remove.  The judge who heard the case found that Nestle was damaging the local watershed and limited Nestle's water-taking activities pursuant to the Michgian Environmental Protection Act.   

          The four member majority of our Supreme Court, in another decision favoring large corporate interests over the interests of ordinary citizens, reportedly struck down the provisions of the MEPA that allow citizens to file suit.  It arrogated this legislative decision to itself and refused to honor the will of the Legislature--despite clear constitutional authority for the Legislature's action.  It seems that this Supreme Court won't be satisfied until all of the laws of our state have been returned to the status of the so-called "Gilded Age" at the turn of the 1900s, when citizens, employees, victims and even the government had no protections from avaricious corporations.  We have only heard news reports and haven't had the opportunity to read the court's opinion, but it certainly promises to be depressing reading.

More on drug safety and money

        Dr. Steven Nissen, a cardiologist from the Cleveland Clinic and University of Michigan Medical School graduate, has been a leading critic of the country's pharmaceutical industry.  It was his close examination of previously unavailable data on the diabetes drug Avandia that lead to a federal safety alert in May and the upcoming re-examination of the safety of the drug by a federal panel. 

          Dr. Nissen was also the critic who sounded the alarm on Vioxx and prompted its removal from the market, after his detailed investigation of the manufactuer's safety data identified cardiac risks that the manufacturer had not disclosed to the public.  Dr. Nissen and others have made effective use of manufacturer's clinical trial data that was previously unavailable to the public and which was obviously not thoroughly examined by the FDA in the past.

          Nissen's work also points out the enormous sums of money that are involved in the sale and marketing of pharmaceuticals in the United States.  Avandia sales had earned 3.2 billion dollars for GlaxoSmithKline in the prior year, and the federal alert issued in response to Nissen's work led to a 30 percent decline in sales:  that is, about a billion dollar loss of income.  That makes for substantial resources to fight regulation or investigation.  Some critics of Nissen point out that he is actively involved in industry-financed drug research and approval, himself, and that his Cleveland Clinic has been paid hundreds of thousands of dollars for drug research, including research into drugs that are the direct competitors of Avandia.  Nissen's response is to direct investigators to the charities to whom he has directed all income that he personally would have received from this research.  Those charities include medically-related institutions and the Cleveland Museum of Art.

          The influence of the enormous sums of money involved in the American pharmaceutical industry is pervasive.  Last night, while I was waiting to meet with a physician to discuss a client, a drug salesman visited the doctor's office to schedule a lunch for the ten-person staff.  They picked a date that fitted the salesman's schedule between other physician staff lunches, and chose a very expensive nearby restaurant.  They laughed over whether or not the salesman would have five minutes to explain how to confirm prescription coverage for "his drug":  Procrit.  This salesman represents only that drug, and only for some uses.  His co-worker markets the drug with local doctors who would use it to treat cancer and certain other maladies.  With his business concluded, the salesman went back to his car and retrieved what appeared to be a very nice pastry for the office staff to enjoy the following day.  All-in-all a successful marketing visit for his employer if it will mean more prescriptions written for Procrit.

          The next day, the NYT carried an article that examined the implications of the Bush administration's tax policy on pharmaceuticals.  Despite a "one time" holiday on offshore taxes that allowed the industry to avoid billions in income taxes a few years ago, the major drug manufacturers continue to play games with American drug income that in some cases maintains their tax liability below six percent of income, rather than the scheduled liability of one-third that would normally apply to 3 or 4 billion dollars of income.  It is news to no one that U.S. citizens pay more than other people for medications, and that the leading problem in health care costs today is the cost of medication.  Unfortunately, these costs are not driven by research, but rather by marketing campaigns, including ubiquitous TV ads for so-called "lifestyle" drugs, and extensive payments to physicians [refer to previous weblogs for details and amounts].  Until American taxpayers gain control over this industry, it will continue to drive manufacturing overseas, to control access to the courts for victims [in places like Michigan, for example, where FDA approval by an industry-laden panel immunizes drugs from liability], and to evade its share of taxes through overseas corporate gimmickry.

Snow and ice in Michigan

     Judge William Murphy and Judge Jessica Cooper recently filed an opinion in Kaseta v. Binkowski that for the first time illustrated the hypocrisy of the current holdings addressing black ice as a safety hazard.  In Kaseta, the Plaintiff was invited to the Defendants' home to execute legal papers; on leaving she fell on black ice on the sidewalk and suffered severe injuries.  Judge Bill Whitbeck, an Engler associate, dissented from the majority opinion and would have distinguished between whether "a reasonable person in the Plaintiff's position would foresee the danger" and "whether a particular plaintififf should have known that the condition was hazardous".  Whitbeck would argue that these statements support different standards of inquiry.  On reasonable reflection, that seems to be so much semantic nonsense.

          Whitbeck's position--the insurer's position--is that any Michigan resident should always recognize the potential of slippery conditions in Michigan during winter months, even upon casual inspection, and that therefore landowners owe no duty to correct these conditions.  Setting aside the fact that this is bad law and unfortunate public policy--since it removes any duty to improve hazardous conditions, this theoretical lack of duty is inconsistent with the insurers' position in no fault auto claims. 

        The same judges who hold a pedestrian responsible for failing to anticipate black ice also allow motorists who lose control on black ice and cross the centerline, causing death or serious injuries, to claim the "unexpected" and "unanticipatable" black ice as a "sudden emergency" excuse for crossing the centerline or losing control.  Judges Murphy and Cooper pointed out that the standard and the inquiry in each case is the same:  if a motorist can be surprised by black ice in the winter, then a pedestrian can also.  If one can claim surprise by the condition as a defense, it should also be available as a potential argument for injury victims who did not recognize its presence.

The independent judiciary

          Although she was not expressly addressing the situation in Michigan, former Supreme Court Justice Sandra Day O'Connor made her opinion clear when she described partisan elections for judges as "ghastly" at the National Governor's Convention in Traverse City.  The former Justice, a highly respected and relatively conservative Republican, decried the influence of politics in our courts and urged the nation's governors to use their influence to keep the courts above raw partisanship.  While the Justice focused her talk on national and federal issues, her arguments about destroying the needed balance in the judiciary apply with even greater weight to Michigan's system where state Supreme Court Justices are nominated by the political parties at their conventions, or, as in the current situation, hand-selected by a highly partisan Governor.   

        During his last few years in office, John Engler manipulated the system and took advantage of circumstances that allowed him to hand-pick four Justices for the Supreme Court.  He deliberately chose arch-conservatives with an agenda:  for example, he appointed the Chief Counsel of AAA to the Court and he appointed the husband of his own chief of staff.  Together, they have marched in lock-step with the most conservative wing of the Republican Party and destroyed any vestige of independence in our state judiciary.   While the Party has been decrying "activist" judges, the Republican majority on our Court has been aggressively over-turning fifty years of established law--by one count, overturning established precedent in every sixth case they decide.

"Serious impairment of bodily function"

    The appellate courts of Michigan continue to be distracted with arguments over the serious impairment standard.  The No Fault statute requires that a jury find a "serious impairment of bodily function" in order for a person injured by the negligence of another driver to receive non-economic compensation beyond PIP coverage.  [There are two other exceptions that have not resulted in much controversy:  persons suffering death or permanent serious disfigurement also may sue.]  Since 1974, the meaning of "serious impairment" has been tweaked by courts and the legislature, but never so dramatically as in 2004 when the Supreme Court adopted its Kreiner decision requiring that a "seriously impaired" person prove a "life-altering" injury.  As noted elsewhere on our website and weblog, this decision--with little support in the legislative history--has been a windfall for Michigan insurers and denied compensation to many innocent victims. 

          This week was no exception, as Stacy Buys, an innocent passenger in a vehicle struck by the at-fault, was denied compensation under the "drunk driver's relief act".  Ms. Buys suffered a badly fractured ankle that required surgery and the insertion of pins and a tubular plate.  Her attorney may have been a little too confident in responding to the insurer's motion for summary disposition, as she apparently filed her medical records with the court anticipating they would be adequate to create a question of fact about the seriousness of her injuries.  The Court held that as a matter of law she was not "seriously" hurt--according to the Supreme Court's standard. 

          During the same week, the Court of Appeals refused to overturn a verdict for another young woman victim of a car wreck.  Despite the fact that she suffered from back pain and radiculopathy in her left leg, despite the fact that she had surgery on her left knee and was still receiving treatment five years later, the insurance company appealed a verdict of $330,000.00 in her favor.   Only $30,000.00 of the verdict was non-economic (i.e. for things like "pain and suffering").  Despite the fact that her claim was supported by two medical specialists and a vocational rehabilitation specialist who testified that there were "no jobs" that she could do after the accident injuries, the insurer argued that her injuries were not a "serious impairment" as a matter of law.  One judge would have agreed with the insurer, citing the Kreiner decision, despite the wealth of testimony and the jury's decision to the contrary.

Medical malpractice "reform" and insurance rates.

          In the July 16 issue of the Michigan Lawyers Weekly, dramatic rate information was published, documenting the impact of twenty years of malpractice "reform" on insurance premiums:  for the most part, the impact was non-existent.  Although the reforms had reduced the number of paid claims by about fifty percent, and the number of filings even further, the cost of premiums continued to increase dramatically faster than the rate of inflation for every insurance company except one.    The newspaper headlined the fact that after twenty years of "reform", filings dropped by 75 %, while rates experienced average overall increases of nearly 150 percent.

          The newspaper noted that the subject "reforms," which dramatically diminished the right to compensation of injured citizens, were justified by the  need to reduce malpractice premiums.  The primary sponsor of the House bill, Richard Bandstra, confirmed to the authors the legislative intent to lower premiums or to prevent their escalation.    While the resulting malpractice court filings have "plummeted"  (3,500 in 1986; 1,500 in 1992; 930 in 2006); and payments to victims have shrunk from 1017 made in 1995 to 472 in 2005 (median payment of $96,000.00); the cost of malpractice insurance has continued its exorbitant rise with most carriers.

The Michigan Supreme Court and malpractice

          Perhaps a growing reputation as an ornamental shill for the insurance industry is causing second-thoughts on Michigan's Supreme Court.  This week, after declining on nine separate occasions to "correct" the lower courts' "mis-application" of the "reforming" majority's Scarsella decision, the Supreme Court finally corrected an injustice it had allowed to linger for nearly seven years.  The Scarsella decision was widely believed to require that a reviewing Court dismiss any medical malpractice claim if the Affidavit of Merit filed to support it was defective--even if the defect was marginal and even if the Defendant waited until after the statute of limitations had run to raise the issue of the claimed defect.  This harsh approach to Plaintiff's pleadings has been a constant for the "reforming" majority of the Court.

          This month, the Supreme Court overturned a lower court decision that had allowed a sand-bagging Defendant to wait until the statute of limitations had run, and then permanently dismiss a claim that was based on an affidavit containing a defect-- without affording the Plaintiff any right to amend.  The Court belatedly held that the time remaining to the Plaintiff when the affidavit was filed would remain available to the Plaintiff after a Court ruled its original affidavit was inadequate.  In this way, clerical and other minor errors can be repaired if they are addressed promptly.  There will be no advantage to any party associated with playing games with deadlines or alleged errors.  Unfortunately, this belated response to the lower courts' misapprehension of Scarsella and the other Supreme Court decisions which had implied such a harsh result, comes too late for a significant number of Plaintiffs whose appeals were previously denied by the Court, or who gave up without filing for Leave.

          There is widespread speculation with regard to whether the conservative majority will apply this decision with equal force to minor flaws identified in the Notice of Intent which the Plaintiff is required to file prior to initiating a Complaint or conducting discovery.  In equally surprising news, the Supreme Court concluded that the provision which grants mentally incompetent people temporary relief from the statute of limitations applies to malpractice claims:  while it was assumed for several decades that this provision of the Revised Judicature Act applied to all personal injury claims, the conservative majority of the Court recently held that it does not apply to grant a reprieve to children or incompetent adults with no fault claims.  There was widespread suspicion that if any half-reasonable argument could be identified to justify it, the majority would extend their nullification to malpractice claims as well.  Oddly, they didn't.  Two Democratic Justices and one Republican cited the "plain language" of the statute in a concurring opinion that refused to engage in the nugatory nonsense which has become a trademark of the current Supreme Court majority.

Slow progress by Bush's Consumer Product Safety Commission

          Under intense pressure from consumer groups, physician groups and the Democratic Party, the Administration's political appointees at the Consumer Product Safety Commission have promised to prepare regulatory proposals to respond to public concern over the safety of imported products.  The Republican acting-chairwoman of the CPSC has insisted on drafting the new regulations, and it is anticipated that the new regulations will be inadequate, tardy and rely too heavily on self-regulation and self-reporting.

          It was hoped by consumer advocates that the Commission would adopt rules allowing it to seize or block entry of dangerous products, and to enforce "voluntary industry standards" on consumer products.  Currently, the Commission cannot act until defective products are actually marketed in the U.S. and then its only alternative is to seek a recall of the product.  It was hoped that the new regulations would also prohibit discount retailers and internet-based companies from selling products that have been recalled.  The Commission does not currently enjoy that power.  According to the New York Times, Sally Greenberg, senior product safety counsel for the Consumers Union, which publishes Consumer Reports, suggested that the new regulations should include repealing a current legal provision that prohibits the release of information about product-caused injuries and deaths prior to consulting with the manufacturer.  Ms. Greenberg explained that this consulting requirement frequently prevents the publication of such injury and death reports entirely.

          We are confident that the Bush administration will use this announcement to put off meaningful change for as long as possible; and if any consumer-conscious change is made during the Bush administration, it will be as unobtrusive and ineffective as possible.

Unsafe food

          The New York Times recently published an article demonstrating that China is not our sole source of concern over contaminated food.  Relying heavily upon FDA data and former employees of the FDA, the Times revealed some stunning and troubling statistics.  The FDA inspects only one percent of the food shipments entering the United States.  Despite this limited sampling, it stopped 2723 shipments from China, 2620 shipments from India, 1876 shipments from Mexico and 887 shipments from the Dominican Republic--just to name the more commonly identified sources of contaminated food.  If this many shipments of contaminated food were identified in the one percent of shipments that were investigated, imagine what entered the country in the other 99 percent?

          Salmonella was the primary reason food from India was rejected, and it was found in black pepper, coriander powder and shrimp, for example.  Indian government representatives blamed food contamination on the fact that so many foods are processed in very small facilities, making it impossible to regulate.  Chinese authorities offered similar excuses and estimated that twenty percent of the Chinese food manufacturing industry is tainted or substandard.  The primary reason for stopping food from Mexico was the description "filthy", and foods rejected included lollipops, crabmeat and dried chili.  It was suggested that Mexican products are more thoroughly inspected because of the entry of Mexican products by highway, rather than through ports.

          Chinese imports to the U.S., which totalled more than $288 billion dollars in 2006, resulted in food alerts or bans 391 times in 2006, and a ban on the import of five species of farm-raised seafood.  Import alerts were also announced, in May of 2007, on Mexican cantaloupe and basmati rice from India.  Produce from the Dominican was stopped on 817 occasions in 2006, usually because traces of illegal pesticide were identified.  Candy from Denmark was impounded 520 times, due to mislabeling.

          Authorities noted that while food imports have virtually exploded in the past 10 years, the staffing of FDA inspection facilities has actually declined, and a plan to adequately staff them was shelved in 2003 due to budgetary constraints.  Nancy M. Childs, a professor of food marketing from St. Joseph University in Philadelphia, noted that the problems we have experienced are an expected byproduct of downward price pressure:  the defective or unsafe products identified are coming from economies and cultures where cheap products can be produced with little regulation and no enforcement.

          Hopefully you can trust your local grocer, if you are fortunate enough to have one.  For people who shop at price-driven giants like Wal-Mart, who buy in enormous quantities in a world economy, the traditional health and food protection that we Americans have long taken for granted is no longer viable. 

FIRM HOSTS FORUM ON CONSTITUTIONAL RIGHTS

On June 21, 2007 Thompson O’Neil & VanderVeen hosted a gathering of progressive lawyers and concerned individuals from the Community for a forum on the erosion of our constitutional rights. Featured speakers included Bill Goodman, former Director of the Center for Constitutional Rights in New York and Buck Davis and Cynthia Heenan members of the National Lawyers Guild who represent prisoners currently being held without charge at the U.S. Detention Center in Guantanamo Bay, Cuba.

The Firm has a long history of supporting liberal candidates and causes. Its offices have been the site of numerous fund-raisers and rallies for progressive campaigns including those of Senators Carl Levin and Debbie Stabenow, Attorney General Frank Kelly, Supreme Court Judges Michael Callahan and Marilyn Kelly and Governor Jennifer Granholm.

DAN O’NEIL RE-APPOINTED TO EXECUTIVE BOARD OF MICHIGAN ASSOCIATION FOR JUSTICE

Our partner Dan O’Neil has been re-appointed to serve as a member of the Executive Board of the Michigan Association For Justice (formerly the Michigan Trial Lawyers Association) for 2007. Dan has been a member of Association since 1990 and a member of the Board for 10 years.

The Michigan Association for Justice is an organization of 2000 Michigan lawyers who are dedicated to helping working families seek justice when they are injured by unsafe products, drunk drivers or another person’s negligence. Association members work to promote safety for all Michigan citizens by standing up for individual and corporate account ability and responsibility.

Thompson, O’Neil and VanderVeen has a long history of supporting the Michigan Association for Justice. All of the partners are members of the Association and provide financial support, serve on its committees and regularly teach other lawyers on trial advocacy and other legal topics at Association sponsored seminars.

CHINA’S MINSTER OF TRADE EXECUTED FOR FAULTY PRODUCTS

Chinese-style product liability reform

        American injury victims who are denied compensation because their injuries were caused by defective Chinese products whose manufacturers are beyond U.S. authorities' jurisdiction,  will be relieved to know that Chinese authorities are actively pursuing reform.  On July 10, China announced that it had executed its former top food and drug regulator, Zheng Xiaoyu, who had been sentenced to die on May 29.  Some forms of Chinese justice are apparently more "efficient" than others.  Chinese officials did not explain how the sentence was carried out, however, the norm in China--which executes more people than the rest of the world combined--is a pistol shot to the back of the head.

         China is the world's largest exporter of consumer products and "as a developing country, [its] current food and drug safety situation is not very satisfactory" according to China's own deputy policy director of the State Food and Drug Administration.  No wonder.  The 7/11/07 New York Times reports that China has about 200 million small farms and 450,000 food processing companies (most of which have fewer than ten employees).  China hopes to see significant progress in regulation by 2010.  It makes no promises about reforms that would allow compensation of victims.  Victims will need to focus on retributive justice, instead.

         Is the shrinking, flattening world going to change our values as well as our purchasing habits?

Pennsylvania reforms unearth malpractice data

        An interesting by-product of Pennsylvania's effort to bring down health care costs was the development of data documenting the added cost of medical malpractice.  Although the study was not designed to identify or measure the cost of malpractice, it did identify several areas of substantial added cost that contributed to significant health care expense.  For example, it documented 19,154 cases of hospital-acquired infections in 2005, generating nearly 400,000 additional patient days at a total cost of more than 3.5 billion dollars. 

        Of course, some nosocomial or hospital infections are unavoidable, particularly in tertiary care centers.  We have gathered many ill people under the same roof and some have particularly contagious illnesses or greatly reduced defense mechanisms.  Nevertheless, the number of hospital infections can be controlled, and Pennsylvania has already significantly reduced infection rates at several Pittsburgh hospitals through the adoption of basic hygiene practices as simple as hand-washing more frequently. 

           The study also identified nearly 200 additional hospital medical errors that stood out during a 30-month period, many of which were classified as "wrong-site surgeries".  Unfortunately, the terms "medical malpractice", "frivolous lawsuits" and "trial lawyers" have been deliberately used to vilify a system of compensation that was designed to compensate innocent victims, identify errors and to deter unsafe [and expensive] practices.  As a result of this demagoguery, few elected officials are willing to examine these issues in a clinical and reasonable fashion, divorced from special interests (whether they be "trial lawyers" or the medical societies and their insurers).

        We have noticed over the years, though, that the public servants who have cried "wolf" over the cost and harm of litigation are frequently the same people who  express the greatest shock and dismay when they learn that they or a family member is precluded from taking legal action to right a perceived wrong.  A prime example would be Supreme Court Justice nominee Robert Bork who advocated "lawsuit reform" for two decades before he tripped while mounting the stage for a speech, and then had the audacity to file suit claiming millions of dollars in compensatory and punitive damages.   We wish him all of the success that he would have allowed himself if he were sitting as a judge.

A new low in judicial activism

   In Kwiatkowski v. Coachlight Estates, two judges of the Michigan Court of Appeals reached a new low in judicial activism and result-oriented reasoning.  The Court acknowledged that the Plaintiff was "severely" injured when he approached the trailer park manager's mobile home to meet with the manager.  The manager, Mr. Rupp, attempted to open the door for Mr. Kwiatkowski, accidentally struck Kwiatkowski with the door, and knocked him off the small exterior porch.  The Court acknowledged that the manager could see Mr. Kwiatkowski standing on the porch.

     In a remarkable piece of absurdist reasoning, two judges concluded that the case should be dismissed because there was NO evidence that the Manager was negligent or careless.  These judges suggested that it was not even a question of fact whether the manager opened the door at the wrong time or too forcefully.  They suggested that he bore no "moral blame" [a concept that we believe to be novel in Michigan jurisprudence, since we have never previously seen legal responsibility for negligence dependent upon proof of "moral blame"] and that there was "no degree of certainty" that opening a screen door into someone could cause them harm. 

        While paying lip service to the fundamental axiom that all persons owe a reasonable duty to others not to act in a manner that may cause injury, the two-judge majority concluded that a reasonable juror COULD NOT conclude that the property manager was negligent in causing Mr. Kwiatkowski's unfortunate and severe injuries.  These two judges even suggested that it was the small porch on the mobile home that caused Plaintiff's injuries, not the Manager's actions in opening the door in to him.  This argument turns the famous Palsgraf case on its ear by parsing cause and effect to a degree which even a five year-old would find laughable.

        The Dissent noted that the Court was REQUIRED to accept the Plaintiff's well-pleaded allegations as true when presented with a summary disposition motion, and that it was obligated to leave to the jury the factual determination of whether the Manager's actions were unreasonable and unsafe.  The dissenting judge would have agreed with the Trial Court, which had concluded that it was up to the jury to decide whether the Defendant had violated his common law duty by "slamming a door into someone".

           While persons of conscience can disagree with regard to whether we should have "premises liability" and "liability for negligence", that was not the question presented to these judges, and it is the height of judicial arrogance and activism for them to re-write the laws of our state in order to arrive at an outcome which they personally would prefer.  Our law makes everyone responsible for injuries that he or she has caused through unreasonable conduct, and it is the jury's province--if reasonable minds could differ--to decide what actions are unreasonable or negligent.  Allegedly "slamming a door into someone" standing on your porch is at least arguably negligent and a question for jurors.  Sometimes we are embarrassed by the intellectual dishonesty patent in court decisions:  it is hard for someone who believes in the rule of law to accept a decision such as this one.

         We're sitting here kind of wondering if maybe one of these judges was standing with his head too close to a door when someone "slammed it open".  If this is an honest opinion and it is not the thinking of someone suffering from a head injury, we wonder how this level of critical thinking survived law school.