Tort Reform and You

Mesh Medical Device News Desk, April 16, 2013 ~ We generally don’t discuss politics on MDND because the community of medical device-injured patients is united by the common denominator of pain and a sense of injustice. Everything else is secondary.

But I’d like to share some thoughts about the movements underway in the country as I just returned from Mass Torts Made Perfect, held in Las Vegas. That is a gathering of lawyers from around the country who talk about trends in the law, share notes on cases and look to litigation on the horizon. [Editor's note-I paid my own way].

The overarching theme is simple – you are losing your rights to the courts. Lawyers  are concerned because this will mean their business goes away. A law firm is, after all, a business.

But consumers need to be aware that the path to the courtroom (the only level playing field)  is eroding every day – a story that is not being told by the mainstream media.

In opening statements, Mike Papantonio of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor in Pensacola talked about what many injured consumers already sense – the media is part of the problem.  “Pap” explained that in talking to local television, radio, newspapers and national broadcast and print outlets, they will tell you they are interested in a story on Yaz birth control strokes in young women or surgical mesh injuries experienced by the thousands, but the story never gets told.

Readers of MDND understand all too well that their stories rarely make the nightly news.

It goes beyond being beholden to advertisers, which is an obvious conflict of interest for the media, (see the Society of Professional Journalists Code of Ethics here).

Media driven by corporate interests tends to be conservative and bash about the head anything that is in the public interest, especially if it stands in the way of a profit-at-all-cost mentality. Makes sense if you want to be in charge.

For every three hours of media beholden to corporations and advertisers, there is 6 minute of progressive media in the public interest and Pap predicted it's going to get worse. Papantonio warned those in attendance other corporate-mandate-driven broadcast and cable efforts are underway. Without a critical media, we may never know who is behind them.

Those behind this movement include the U.S. Chamber of Commerce and groups with uplifting names like ALEC, Americans for Prosperity, and their funders, the Koch brothers. Forbes reported on the Koch Brothers here.

Bill Moyers recently had a segment on ALEC here.

PR Watch has for years done a great job debunking the “spin” put out by corporations to most Americans, but the look behind the spin at the actual puppet masters almost never makes it to the public.

All are working from the “Grassroots up” in the state legislatures to advance the course of corporations over citizens, to run over your path to the courthouse door. Unions and lawyers are the target.

One need not look far to see it is industries with the most to lose in court are behind the “tort reform” movement.  It began with Big Tobacco and asbestos and it continues today. The fewer avenues you have to justice, the better off they are.  So with lawyers as bogeymen, which many Americans bought into, the tort reform movement laid its foundation.

But who is really being hurt by this movement?

It is the tort reform movement that names “Judicial Hellholes” for corporations. These also happen to be the best place to be a plaintiff, the most likely to yield a generous jury award.

It is the tort reform movement that has pushed immunity for corporations from a medical device injury. If you are injured by a medical devices that passed through the FDA's premarket approval process (PMA), you are preempted from suing.  (See Riegel v. Medtronic.) The manufacturer has complete immunity.

Mesh-injured folks have a slight advantage in that their product never went through PMA.

Now immunities may extend to generic drug makers.

The New York Times reports (here) about Karen Bartlett of New Hampshire who sued the maker of an anti-inflammatory drug, sulindac, after her doctor prescribed it for shoulder pain in 2004. She argued the drug is defective after it caused her to go blind, lose 2/3rds of her skin and damaged her lungs and esophagus. Two years ago the U.S. Supreme Court limited Americans ability to sue manufacturers ruling that generic drug makers had no control over warning labels therefore should not be sued for failing to alert patients to the risks of their drugs.

There has been no decision rendered yet but if the high court agrees with the drug maker, consumers will have few options to sue if they are injured by a generic drug.

President Obama is no help. Obama had his administration argue on behalf of the drug company  arguing that the court should throw out the verdict because juries cannot decide if a drug is too dangerous to be on the market.  The court decision could come in June. More here.
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Media Blackout and Points of Light

Because of the media blackout that shows little interest in reporting on the powerful, Papantonio along with Bobby Kennedy Jr. started Ring of Fire radio which has a reach of 40 million homes.

There is also Free Speech TV which since 1995 has brought you topics that ABC, CBS, NBC, Fox and even PBS tend to shy away from.

Greg Palast with BBC (here) was in the audience and referred to by Papantonio.

Tell as many lawyer jokes as you want, but at the end of the day, America still offers the opportunity to come face to face a named defendant in the courtroom. That is what makes America’s judicial system the best in the world and one worth preserving.