KUFM Commentaries - 2005
Return To All Commentaries

Safety or Secrecy? (January 25, 2005)

Medical Malpractice Sham (February 22, 2005)

Decrease Malpractice Costs? Apologize (March 22, 2005)

Montana Is Safer (April 19, 2005)

People or Corporations? (May 17, 2005)

The Insurance "Crisis" Scam (June 14, 2005)

The Importance of Juries (July 12, 2005)

McDonald's Coffee Case - What Do You Know? (August 9, 2005)

Who Best Determines Responsibility - Papers, Pundits or Jurors? (September 6, 2005)

Vioxx Verdict - It’s About Accountability (October 4, 2005)

States' Rights Conservatives? (November 1, 2005)

Holiday Safety (November 29, 2005)

Vaccine Immunity - Sleaze & Deceit in DC (December 27, 2005)

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KUFM Commentary - January 25, 2005
Safety or Secrecy?

Dangerous and defective products injure and kill unsuspecting Montanans. Our lives, or those of our families or friends can be quickly and severely altered or taken away by a defective product. It's a dirty little secret that corporations hide dangerous product defects that injure or kill Montanans - and they do it using our court system.

The mechanism for hiding deadly products are called "protective orders" or "confidentiality agreements." But whatever the name, orders that seal litigation documents amount to secrecy that can conceal lethal defects in a wide range of consumer products. "Protective Orders" prohibit parties who receive information in a case from distributing it to others. "Confidentiality Agreements" require that certain matters, once discussed or agreed to by the parties, remain confidential. A confidentiality agreement, for example, may prohibit disclosure of the cause of injury, the terms of settlement, or even the fact that a claim was ever filed. "Sealed Court Files" bar access to any details of a case, including the parties' names.

Secrecy in our state and federal courts undermines the right to know of every Montana and American citizen. Secrecy orders keep vital health and safety information out of the public realm. And it leads to even more needless injuries and deaths caused by defective products.

I’ve talked before about the tragedy of the loss of nine year old Gus Barber's life here in Montana - caused, in part, by a defective product. A Model 700 Remington rifle discharged when the safety was released - ending Gus' life. The gun firing was an unexpected event for Gus's mother, she didn't touch the trigger, she just released the safety. A Remington Model 700 rifle accidently discharging, however, was not unexpected, by Remington. They knew they had a problem because other people, including other Montanans, had been injured or killed by this defective product - and they knew of the problem as early as 1946. But the true depth and nature of the problem was successfully hidden from public view by secrecy agreements.

A couple of years ago, Gus' father, Richard Barber, contacted me and asked for my help in getting legislation passed here in Montana to prevent the use of our courts to hide knowledge of deadly products. His reason was clear and concise - he didn't want another Montana family to face the tragedy his had, simply because knowledge of a dangerous product was hidden from public view by a secrecy agreement.

I gathered information from other states and provided it to Mr. Barber. And he gathered masses of information himself. In 2002 I put him in touch with Bozeman area legislators and two, Senator Mike Wheat and Representative Chris Harris, agreed to carry legislation to prohibit secrecy agreements that hid from the public, knowledge of products that have injured Montanans and are likely to injure more Montanans. Their bills died in the 2003 legislative session.

Mr. Barber has persisted and this session, Senator Wheat and Representative Harris again introduced bills. Yesterday, the Senate Judiciary Committee held a hearing on Senator Wheat’s bill, SB 196, The Gus Barber Antisecrecy Act. Mr. Barber came to Helena and shared his experience while advocating for the bill - calling it a simple choice: either you were for the bill and the safety of Montanans or you were against the bill and for corporate secrecy.

SB 196 is a simple bill, it provides that parties cannot use our courts to hide public hazards. It defines a public hazard as any device, instrument, procedure, or product, or a condition of a device, instrument, procedure, or product, that has caused or is likely to cause injury. It prohibits court orders or written agreements that have the purpose or effect of concealing a public hazard as contrary to public policy.

The purpose of the bill is to protect Montanans from known public hazards by preventing those hazards from being hidden in our courts through secrecy agreements. With such hazards exposed, Montanans will be safer.

It is estimated that 200 additional lives were lost because the hazards of Firestone tires were kept hidden by secrecy agreements. Americans lost their lives in fiery crashes because the danger of GM’s side-saddle fuel tanks were kept secret for years. Gus Barber would likely still be alive today if his parents had known of the dangerous defect in their Remington rifle.

It is deplorable when the manufacturer of a product knowingly markets a product with a dangerous defect, especially when it has a safer alternative design for the product. It is unconscionable when a manufacturer then chooses to hide from the public the unnecessary risk the product poses, and uses our court system to do it.

Our civil justice system provides the means for individual consumers to influence a corporation or government agency to remove a dangerous product from the market. But that can't be done nearly as effectively so long as corporations can use our court system to hide knowledge of dangerous products.

Our Montana Constitution provides in Article XIII that "The legislature shall provide protection and education for the people against harmful and unfair practices by either foreign or domestic corporations, individuals, or associations." The Gus Barber Antisecrecy Act fulfills that constitutional duty. The Legislature will have to decide if the protection of Montanans' truly comes first, or whether protecting corporate secrecy and corporate profits, is more important.

Nothing can be done for Gus Barber - except to try and make sure that other Montanans don't become unknowing victims of a public hazard that was kept from public knowledge by a secrecy agreement. Call your Senators and urge them to put public safety first and support SB 196.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - February 22, 2005
Medical Malpractice Sham

During the campaign last fall, the White House took the lead for advancing political rhetoric instead of fostering a genuine review of facts geared toward finding actual solutions for pressing problems. Health care was just one example of White House campaign rhetoric trampling a genuine factual search for solutions - and the rhetoric continues in Congress.

If you were to look at the problem of rising costs of health care with an eye towards reaching a solution, it would seem that you would want to first look at what costs are rising. When the Kaiser Foundation looked at the numbers, the top factors that they came up with were 67% higher spending on prescription drugs, 59% higher spending for hospitals, 48% higher spending for physicians, 23% higher spending for better technology, and 44% higher insurance company profits.

So what has the White House focused on? Are they looking at reigning in drug costs? No, Bush’s Medicare bill in fact prohibits the government from demanding price decreases for drugs. Are they looking at reigning in insurance industry profiteering? No, Bush pushes for more opportunities for private insurance profits. The problem as Bush sees it is medical malpractice lawsuits - calling them "one of the main cost drivers." His solution is to call for the elimination of "wasteful and frivolous medical lawsuits." Sounds good, go after a "main cost driver" to improve health care.

Problem is, it’s all political rhetoric without a factual basis. All you have to do is look at the numbers - what are the costs for medical malpractice lawsuits? All malpractice costs - insurance, damages paid, legal fees, insurance company profits, etc - amount to a little more than 1% of our total health care costs. That’s right, the health care industry could receive total immunity from all lawsuits and it would lower health care costs by a whopping 1%. But that 1% savings is only realized if all lawsuits were eliminated. Bush just wants to reign in what he calls "wasteful and frivolous medical lawsuits."

The U.S. Senate is set to consider legislation that Bush supports as a key to stopping "wasteful" medical malpractice lawsuits. Now you’d think a bill that is so important to health care would have a round of committee hearings so Senators could gather facts in an effort to come up with a meaningful solution. But you’d be wrong - if past form holds true, there will be no hearings, no search for facts or genuine solutions - just political rhetoric on the Senate floor.

The legislation is being sold as a solution for rising health care costs and medical malpractice premiums . The main problem with the bill is that it does absolutely nothing to lower malpractice premiums - there are not even any promises by the insurance industry, let alone statutory mandates, that insurance premiums will go down.

And, it does absolutely nothing to address the so called "frivolous lawsuits." What the bill does do is restrict and eliminate the rights of women, children and the elderly who have suffered harm because of negligent conduct by health care providers.

The main aspect of the bill is limiting non-economic damages to $250,000. That’s right the main feature is to limit damages for those who have legitimate injuries - those that a jury finds have been harmed by the negligence of health care providers. How does that stop "frivolous lawsuits" - it doesn’t, it just limits the damages of women, children and the elderly who have suffered legitimate injuries.

What’s the big deal you might ask - aren’t we just talking about "pain and suffering?" Well, the bill does cap the pain and suffering of a mother who loses a child to medical negligence. It also caps the damages of a woman who loses her ability to ever bear children. It caps the damages of a baby facing a lifetime of pain and permanent disability. Most importantly, the cap most severely impacts those that do not have classic economic damages of lost wages – the elderly, children and mothers who choose to stay at home.

This bill would be bad enough if it was just about medical services provided by doctors - but it is not. The bill provides protections for not just doctors, but also drug companies, medical device manufacturers, HMOs and other insurance companies. The bill applies to all drugs and devices related to medical care. The bill would benefit the manufacturers of drugs like FenPhen, devices like IUD’s, and insurers that deny legitimate health care claims. Even doctors wonder how this helps healthcare.

Will this bill accomplish its two main goals - decrease both malpractice premium rates and health care costs? No, it won’t. The insurance costs will not be lowered, and no insurance companies will say that they will be. State after state has enacted draconian tort reforms without a corresponding reduction in insurance premiums. Health care costs will not be lowered either - eliminating all medical malpractice costs amounts to only about 1% of total health care costs. This bill just limits the amounts paid for legitimate malpractice claims, and would not even make a dent in overall health care costs.

Federal malpractice legislation is just about political rhetoric. It is no solution for doctors facing rising premiums. It is no solution for consumers facing higher health care costs. It is certainly no solution for women, children and the elderly who have been maimed, harmed or killed by a negligent doctor, a deadly drug, a defective medical device or a callous HMO. The only beneficiaries are drug companies, medical device manufacturers, HMOs and the insurance industry. Is it only a coincidence that these same industries were among the biggest contributors to the Bush campaign?

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - March 22, 2005
Decrease Malpractice Costs? Apologize

This legislative session has seen a number of bills regarding legal aspects of medical malpractice. Most of the legislation has passed by wide margins because the Montana Trial Lawyers and the Montana Medical Association worked together to craft bills that give physicians some relief, but assure that rights are not limited for those patients who have been injured by malpractice.

One of those bills, HB 24 sponsored by Representative George Golie of Great Falls, is what has been called the "apology bill." Friday’s Missoulian ran an editorial on this apology legislation. Unfortunately, the Missoulian missed the mark.

The bill should give doctors comfort in making apologies, without sacrificing the rights of those persons injured by malpractice. The legislation will hopefully encourage Montana physicians to express their sincere apologies to patients and their families when a patient is harmed while undergoing medical care. Specifically, the bill provides that a doctor can apologize, express sympathy, condolences or compassion to a patient or the patient’s family, and that apology cannot be used for any purpose in any subsequent legal proceedings. This gives doctors some relief.

At the same time, admissions of fault by a doctor are still admissible. This protects the rights of injured patients. Why is an admission of fault not also protected? As the Missoulian noted a genuine apology is profound. But what is profound about an apology conditioned upon a promise of no responsibility or consequences for the action being apologized for?

While trial lawyers supported the bill, was it really needed? The Missoulian opined that it was, because "courts have proved that anything they say can and will be used against them." That statement repeats the same mantra that got us to where we are today - doctors afraid to apologize for fear of being sued. The reality seems to be the opposite - the more doctors apologize, the less often they are sued.

The University of Michigan hospitals system challenged the accepted notion that a doctors silence was a necessary legal protection. It has been employing, without any legislative protection, an "I’m sorry" policy for several years. Simply, the policy encourages physicians to acknowledge mistakes and apologize for errors. It also offers adequate compensation when appropriate. The program was instigated by a former lawyer, who admits that he mistakenly told his physician clients over the years to not say anything. Has it worked?

Malpractice claims at the Michigan hospitals were averaging from 250 to 260 claims at any one time. Since the I’m Sorry policy they are averaging 120 to 130 malpractice claims. I’m Sorry cut the number of claims in half. The legal costs of defending those claims went from $3 million a year to $1 million. And, the time for resolving the cases went from an average of three years down to an average of less than one year.

The Missoulian opinion fuels the irrational fear that "apologizing will be used against you in a court of law." Even though you would be hard pressed to find one case where a jury or judge found a doctor negligent solely on the basis of an apology. Doctors in Montana will have statutory protection, but it will likely be the true power of a sincere apology that benefits doctors and patients the most.

The Missoulian went beyond the apology bill to repeat other medical malpractice myths. One being that medical malpractice cases are a principal factor in driving up health care costs. This same assertion is being made by the Bush administration as justification for the draconian restrictions on injured patients’ rights being pushed in Congress right now. But, according to the Congressional Budget Office, all premiums, damages and legal costs for medical malpractice amount to less than 2% of total healthcare costs. That’s right eliminate all malpractice costs and healthcare costs go down less than 2%.

The Missoulian also opined that defensive medicine - ordering unnecessary tests - is driving up healthcare costs astronomically, another myth. The Government Accounting Office reviewed all available information on "defensive medicine" costs and concluded that "the results cannot be used to reliably estimate the overall prevalence or costs of defensive medicine practices." The GAO even noted a Montana hospital official’s comments that a motive for extra testing can also be attributed to revenue enhancement.

The Missoulian also lamented the rise in the amounts of jury verdicts and settlements, citing a median of $1 million for jury verdicts and $500,000 for settlements. Well, amounts of verdicts and settlements are up, as are the costs of healthcare and income, two of the biggest components in malpractice damages. But, damages haven’t "skyrocketed," in Montana the median of actual payments for physician malpractice in 2003, the last year with full data reported, was $200,000 - hardly the mythical averages of $1 million jury verdicts or half million settlements the Missoulian cited.

Unfortunately, the repetition of malpractice myths by news sources, like the Missoulian, perpetuate irrational fears, and, most importantly can lead to the enactment of public policy based on fear and myth rather than fact. That is what we face in Congress today.

Bush’s federal malpractice legislation is just about political rhetoric. It is no solution for doctors facing rising premiums. It is no solution for consumers facing higher health care costs. It is certainly no solution for women, children and the elderly who have been maimed, harmed or killed by a negligent doctor, a deadly drug, a defective medical device or a callous HMO. The only beneficiaries are drug companies, medical device manufacturers, HMOs and the insurance industry.

Malpractice is real - 44,000 to 98,000 people die in American hospitals from medical errors each year. Our children, parents, spouses, siblings and friends - they can all be severely injured or killed by medical malpractice. Let’s not forget them as we jump on the medical malpractice reform bandwagon.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - April 19, 2005
Montana Is Safer

Dangerous and defective products injure and kill unsuspecting Montanans. Our lives, or those of our families or friends can be quickly and severely altered or taken away by a defective product. It's a dirty little secret that corporations hide dangerous product defects that injure or kill Montanans - and they do it using our court system.

Secrecy in our state and federal courts undermines the right to know of every Montana and American citizen. Secrecy orders keep vital health and safety information out of the public realm. And it leads to even more needless injuries and deaths caused by defective products.

I’ve talked before about the tragedy of the loss of nine year old Gus Barber's life here in Montana - caused, in part, by a defective product. A Model 700 Remington rifle discharged when the safety was released - ending Gus' life. The gun firing was an unexpected event for Gus's mother, she didn't touch the trigger, she just released the safety. A Remington Model 700 rifle accidently discharging, however, was not unexpected, by Remington. They knew they had a problem because other people, including other Montanans, had been injured or killed by this defective product - and they knew of the problem as early as 1946. But the true depth and nature of the problem was successfully hidden from public view by secrecy agreements.

A couple of years ago, Gus' father, Richard Barber, contacted me and asked for my help in getting legislation passed here in Montana to prevent the use of our courts to hide knowledge of deadly products. His reason was clear and concise - he didn't want another Montana family to face the tragedy his had, simply because knowledge of a dangerous product was hidden from public view by a secrecy agreement.

I gathered information from other states and provided it to Mr. Barber. And he gathered masses of information himself. In 2002 I put him in touch with Bozeman area legislators and two, Senator Mike Wheat and Representative Chris Harris, agreed to carry legislation to prohibit secrecy agreements that hid from the public, knowledge of products that have injured Montanans and are likely to injure more Montanans. Their bills died in the 2003 legislative session.

Mr. Barber has persisted and this session, Senator Wheat and Representative Harris again introduced bills. Mr. Barber came to Helena and shared his experience while advocating for Senator Wheat’s bill, SB 196, The Gus Barber Antisecrecy Act. He called it a simple choice: either you were for the bill and the safety of Montanans or you were against the bill and for corporate secrecy.

SB 196 is a simple bill, it provides that parties cannot use our courts to hide public hazards. It defines a public hazard as any device, instrument, procedure, or product, or a condition of a device, instrument, procedure, or product, that has caused injury and is likely to cause injury again. It prohibits court orders or written agreements that have the purpose or effect of concealing a public hazard as contrary to public policy.

The purpose of the bill is to protect Montanans from known public hazards by preventing those hazards from being hidden in our courts through secrecy agreements. With such hazards exposed, Montanans will be safer. It is estimated that 200 additional lives were lost because the hazards of Firestone tires were kept hidden by secrecy agreements. Americans lost their lives in fiery crashes because the danger of GM’s side-saddle fuel tanks were kept secret for years. Gus Barber would likely still be alive today if his parents had known of the dangerous defect in their Remington rifle.

Our civil justice system provides the means for individual consumers to influence a corporation or government agency to remove a dangerous product from the market. But that can't be done nearly as effectively so long as corporations can use our court system to hide knowledge of dangerous products.

Our Montana Constitution provides in Article XIII that "The legislature shall provide protection and education for the people against harmful and unfair practices by either foreign or domestic corporations, individuals, or associations." The Gus Barber Antisecrecy Act fulfills that constitutional duty. The Legislature decided in the past that the protection of Montanans' was not as important as protecting corporate secrecy and corporate profits.

Well, it indeed a new day in Montana. The 59th Montana Legislature has reversed it’s previous stance in favor of corporate secrecy and corporate profits. The Gus Barber Anti-secrecy Act has passed the legislature and has been transmitted to the Governor for his signature. It is expected that Governor Schweitzer will sign the bill into law.

Richard Barber made a promise to his son Gus. The Gus Barber Anti-secrecy Act helps fulfill that promise, so that other Montanans don't become unknowing victims of a public hazard that was kept from public knowledge by a secrecy agreement.

When you see your state Representatives and Senators after they have returned from Helena, let them know that you appreciate their vote for the Gus Barber Anti-secrecy Act. Let them know that you appreciate their willingness to make Montanans’ lives and our family’s safety more important than corporate secrecy and corporate profits. With encouragement from you, Governor Schweitzer and Montana’s legislators will continue to put the rights and safety of Montana citizens first.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - May 17, 2005
People or Corporations?

Montana’s 59th legislative session ended last month. It was a session for Montana’s individual citizens that was much different than past sessions. Overall, most bills that harmed the rights of individual citizens were defeated, and some bills that advanced the rights of Montana’s citizens passed. This legislature, and Governor Schweitzer, were more interested in protecting Montana citizens, than in protecting the profits of corporations at the expense of Montanans. A couple of bills followed by the Montana Trial Lawyers illustrates this point.

SB196 Prohibit order concealing public hazards - The Gus Barber Anti-secrecy Act is a public policy bill. It forbids any final order, judgment or settlement which keeps secret a known public hazard. SB 196 defines a public hazard as a device, instrument, or manufactured product, that has caused injury and is likely to cause more injuries, endangering public safety or health. Secrecy in our courts keeps vital health and safety information out of the public's reach. And it leads to even more needless injuries and deaths in Montana caused by defective products. The message was simple - protect Montanans and vote yes, or protect corporations and vote no. The change brought by SB 196 will save Montanans from preventable injuries and deaths.

This same bill was before the legislature last session, and it died because of Republican leadership in the Senate. This session, the bill passed 33 to 17 in the Senate, and 64 to 36 in the House, and every no vote was from a Republican.

SB 375 Revise venue of out-of-state railroad defendants - Railroad workers do not get workers’ compensation - they have to sue for on the job injuries. For 80+ years, railroad workers injured on the job could bring a suit against their employer in any county, the venue, where the railroad did business. In 1997, the Republican controlled legislature heeded the call of railroads and restricted which counties workers could sue in - a benefit to the railroads. SB 375 reversed that law, and now injured railroad workers can again bring a claim in any county in which the railroad does business. With the exception of one Democrat in the House, every NO vote on this bill was from a Republican.

SB 209 Regulate postclaim underwriting - this bill tightened up the language on postclaim underwriting - actually requiring insurers to do the underwriting up front. Underwriting is the process where insurance companies gather information to determine if they will write a policy, and set the rates, based upon the risk presented. Insurers have been issuing policies and then conducting further underwriting after an insured presents a claim - post claim underwriting. Too often, insurers have denied claims on this after the fact underwriting based on information they did not ask about before they wrote the policy, and based on information that had nothing to do with the claim itself. For example, a doctor presents a disability claim because of a brain tumor, and after post claim underwriting the insurer denies the claim because the doctor failed to report a back injury, even though the forms provided by the insurer never asked about back injuries, and more importantly, the claim has nothing to do with the prior back injury. This bill said a policy could not be rescinded after post claim underwriting unless fraudulent statements were made, or the insurance company had done due diligence to investigate a material misrepresentation prior to issuance of the policy. It passed the Senate easily, and then died on a party line tie vote in a House committee thanks to the leadership of the House Republican caucus heeding the call of the insurance lobby.

Over the past twenty years, Montanans injured on the job have seen a steady erosion in their ability to bring workers’ compensation claims, and in the level of benefits they are entitled to for their injuries. This session eight bills were brought forward to restore a portion of the benefits taken from injured workers over the years. All but one of those bills died on tie votes in the House. Although Permanent Partial Disability awards for injured workers have plummeted in dollars received, and when inflation is taken into account have nearly vanished, the idea of giving something back to Montana workers injured on the job was met with fierce resistance from the business and insurance lobbies, and the House Republican Caucus.

The major reason that the interests of Montana Trial Lawyers and the individual Montana citizens we represent fared so well this session was the change brought by Democrats having control of the Senate, and having a Democrat in the Governor’s office. Now, not all Democrats agree with us all the time, but they at least listen to the facts we present and the arguments we make. And, MTLA has been able to work with a number of Republican legislators over the years, and we continued those relationships this session. However, the Republican legislative leadership, and the party itself, remain steadfastly opposed to the interests of MTLA members and our clients. One plank of the Montana GOP platform says it all:

Tort reform remains an important issue in Montana that must be addressed by both the state and federal governments in an effort to reduce frivolous lawsuits and unreasonable awards, driving up the costs of products and services.

"Tort reform" is simply a catchy phrase for relieving corporations of accountability and responsibility by limiting or eliminating the rights of individual citizens. These bills that were good for individual Montanans, died this session solely because the House Republican caucus directed their members to vote NO to the interests of Montana’s consumers and workers.

Hopefully, the Republican Party will return to the ideals of Lincoln, a trial lawyer, and do more to protect the rights of individual Montanans, rather than continue to blindly follow corporate directives.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - June 14, 2005
The Insurance "Crisis" Scam

You have probably noticed that you have been paying higher premiums for your insurance over the past few years. Whether it is auto insurance, home insurance, business insurance, or, for professionals like doctors and lawyers, malpractice insurance - rates have been going up.

Why are liability insurance rates soaring again? The conventional wisdom is that it’s our court system - runaway juries award big bucks for groundless claims filed by greedy lawyers. In the face of huge losses, our poor insurance companies have no choice but to raise premiums. We know this to be true – because that's what we're told - by the insurers that rake in the rate increases and repeat the "it’s the lawyers’ fault" mantra.

The problem is – it's not really true. The numbers of lawsuits haven’t been rising, and the amounts being paid out in claims haven’t been rising beyond inflationary factors. The truth is insurance rates have been going up because economic and market conditions were causing insurance companies to lose money. And when insurance companies aren’t making enough money off of their investments, they raise the costs of insurance premiums to make their profits.

It’s all there in black and white, in the insurance industry’s own documents from over the past three decades. When they can’t make enough through their investments of your premiums, they come back to you demanding ever higher premiums.

But that is not all the insurance companies demand. Through surrogates like George Bush, they also demand restrictions on citizens’ rights, your rights, to hold those that harm you legally accountable and responsible for the injuries and devastation they cause. They call those many varied restrictions on your rights "tort reform." And each time the insurance industry begins to lose money on their investments of your premiums, they come to state legislatures and Congress and demand tort reforms. The result - you pay more premiums and get less coverage – because even when tort reforms pass insurers don’t lower premiums, they just pay out less in claims because your legal rights and remedies have been restricted, or even prohibited.

Here’s how it works, insurance companies are really investment companies and they sell insurance so they can get more money to invest. When the economy is booming – interest rates are high and the bond and stock market returns bring nice profits – insurance companies want as much money as they can get to invest. They lower their premiums to sell more insurance, offer questionable lines of coverage and loosen their underwriting standards – often taking on risky business.

Insurers don't like to pay out on claims, because that is less money that’s invested. But in good times, when the investment markets are hot, the risk of claims is acceptable and they can still make profits from investing your premiums.

When times are bad it’s a different story. With falling interest rates the profitability of investments plunge, and insurers retreat from providing insurance. They raise their rates to unaffordable levels, abandon their more risky lines of insurance and reduce the risks they accept. Of course, businesses, consumers and professionals start complaining.

And when you complain about rising rates, the insurance industry says "Don’t blame us, it’s the fault of those greedy lawyers. Just pass some more tort reforms and everything will be OK again." And, too often, legislatures, Congress, and presidents fall for this shell game. They pass laws to restrict or prohibit the ability of injured people to exercise their rights to hold those responsible for their injuries legally accountable.

But do these tort reforms work? The black and white truth from the industry’s own documents is that states with little or no tort law restrictions have experienced the same level of insurance rate increases as those states that enacted severe restrictions on victims' rights. People in states with tort reform see their premiums go up at the same rate as those in states without restrictions on their rights. The big difference is that in states with tort reforms, your rights to hold the corporation or person who injured you legally responsible are diminished or prohibited. Tort reform is a heck of a deal for the insurance industry, but people, professionals and businesses buying insurance get the short end of the proverbial stick.

So who has been looking at the insurance industry’s documents to reach these conclusions? Must be those lawyers again, right? Well, we certainly do look closely at insurance industry practices, but it’s not trial lawyers who have done the studies and reached these conclusions.

Publications like the Wall Street Journal, Business Week, Forbes and Business Insurance have all reported in the past few years that the current insurance "crisis," like those of past decades, is due to the insurance industry’s investment problems. The most exhaustive studies have been directed by J. Robert Hunter. Hunter, an insurance actuary and former insurance commissioner on the state and federal level, has his studies available on line at www.insurance-reform.org.

Bottom line – we have been paying higher insurance rates to make up for the insurance industry’s losses on their investments of our premiums. Passing tort reforms have not lowered rates in the past, and they won’t in the future. The name and purpose of the reform - whether it’s medical malpractice or class actions - doesn’t matter. In the end, passing restrictions on the rights of injured people only helps the insurance industry - they make more profits and have less risk.

You might think rates would go down when the market improves. Well, insurers have been seeing record breaking profits over the past two years. Have your insurance rates gone down? I didn’t think so.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - July 12, 2005
The Importance of Juries

The basic premise of our civil justice system is that if you are physically injured, if your property is damaged or if your rights are violated, by the wrong doing or negligence of another, you have the right to seek to have the wrong doer held responsible and accountable in a court of law. The constitutions of the United States and Montana guarantee our rights of access to our courts and to have our cases heard by a jury of our peers.

The jury was an important aspect of English law that was very much a topic at the time of our nation’s birth. Juries in England and in the colonies were during that time restricting the power of government and powerful commercial interests to run roughshod over ordinary citizens. One of the colonists’ grievances in the Declaration of Independence was depriving colonists in many cases of "the benefits of trial by jury."

Our U.S. Constitution did not originally include the right to a trial by jury, and that omission very nearly prevented the ratification of the Constitution. The anti-federalist arguments for the civil jury resonated with a broad segment of society. Juries meant direct citizen participation in government. Speakers during the ratification debates often proclaimed that the jury box was at least as important to true democracy as the ballot. Thomas Jefferson was of the opinion that citizen participation in the judicial branch as jurors was more important than citizen participation in the legislative branch.

It was only upon the promise that the first Congress would adopt a Bill of Rights, including the right to trial by jury in civil actions, the Seventh Amendment, that the Constitution was ratified.

Over the past several decades the public has been deluged with misleading rhetoric that portrays trial lawyers, juries and the civil justice system as the scourge of the land. An un-American scourge that, if unchecked, will lead to the destruction of the country itself. This rhetoric flows from so-called tort "reformers," groups and individuals that are almost always fronts for corporations. The same corporations that trial lawyers hold legally responsible for the injuries their actions or products cause.

Such rhetoric is not new. The powerful elite of the industrial revolution and Gilded Age periods also attacked the civil justice system and juries. The attacks came because the powerful were being held legally responsible for the injuries their actions or products caused. While those powerful interests succeeded in severely limiting the power of juries, they could not eliminate them. And, populist and progressive pressures were successful in assuring jury trials for injured railroad workers and seamen.

One of the present day tort "de-formers" more successful disinformation campaigns focuses upon jury awards, hammering home the message that jury awards and punitive damage awards in personal injury cases are out of control. I say successful because every day in courtrooms across Montana when prospective jurors are questioned about their knowledge and perceptions of the civil justice system, most are able to recite back the tort "de-formers" misinformation, and many admit to believing it.

The facts, however, show just the opposite. A RAND Institute study of jury verdicts between 1985 and 1994 found that "despite the attention they have received from policy makers and from the media, punitive damages are rarely awarded." Another study based on data from the National Center for State Courts, found that punitive damages were awarded in just 3 percent of all jury trial verdicts.

In sharp contrast to the "out of control" juries lampooned in anecdotes, the RAND study and other studies overwhelmingly have found that real juries perform their duties remarkably well. Juries follow the court's instructions conscientiously and base their decisions on evidence rather than emotion. Their decisions are generally in line with what judges or professional arbitrators would have decided, demonstrating that juries are capable of doing justice in even complex cases.

The favorite message of the tort "de-formers" is that it is those dastardly trial lawyers who are responsible. The solution they say is to change the civil justice system so that trial lawyers do not benefit. The problem, however, is that changes to the civil justice system championed by tort "de-formers" take away the benefits of the civil justice system from the people who are injured, not just their attorneys. And, they take away power from the purest form of democracy we have - the civil jury.

When you hear the tort "de-formers" message, remember where it is coming from. The "de-formers" are the same people who denied for decades that there was any connection between smoking cigarettes and lung cancer. The same people who sold vehicles with defective fuel systems that they knew could explode upon impact in an accident. The same people who sold children’s pajamas made with materials that they knew could burst into flames. The same people who knowingly exposed their workers and the public to asbestos

Can we people fight the power of commercial interests to influence the our governments and obtain special protections against accountability and responsibility? Do we still value the direct participation of ordinary citizens in our government?

If we do, we need to take the time to learn the facts before falling to the siren sound of tort "reform" and its elimination of jury trials. Otherwise, the next sound we may hear will be the court house doors slamming in our faces.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - August 9, 2005
McDonald’s Coffee - What Do You Know?

In our information age, with news coming at us 24/7 from papers, magazines, televisions, computers and radios, we tend to think we know a lot about many things. Too often we only hear a part of the story, and often what we hear isn’t completely true. And, too often we cannot distinguish what we truly know - the facts - from what we have merely "heard."

It is good to remember that what is reported in the mainstream media is often incomplete and/or misleading. So, how do you think you rate on the "know" versus "heard" scale? Everyone has "heard" of the McDonald's coffee case, but let's see what you really "know." Try this quiz.

 

1. When Stella Liebeck was burned, she was in the: A driver's seat; B passenger seat; or, C rear seat. 2. When the coffee spilled, the car was: A moving; B parked; or, C on the highway. 3. The cup: A was being handed to her and was dropped; B was in her crotch; or, C was between her knees. 4. When the coffee spilled, Stella was: A squeezing her legs together while reaching for her egg mcmuffin; B removing the lid to add cream and sugar; or, C eating her breakfast.

5. Stella received burns to her: A inner thighs; B perineum; C buttocks; D genitalia; E all the above. 6. these burns were: A 1st degree; B 2nd degree; C 3rd degree; D all the above. 7. Stella required: A 2 days in the hospital; B 5 days in the hospital; C 8 days in the hospital.

8. McDonald's quality assurance manager testified that the company actively enforced a requirement that its coffee be served between: A 140 to 150 degrees; B 150 to 170 degrees; C 180 to 190 degrees (hint coffee at home is about 135 to 140 degrees) 9. (true or false) McDonald's quality assurance manager testified that the company knew that coffee served at the required temperature was not fit for consumption because it would burn the mouth and throat. 10. According to the experts, coffee served at the temperature as required by McDonald's will cause full thickness burns to human skin in: A 2 to 7 seconds; B 10 to 20 seconds; C 30 to 60 seconds. 11. Prior to Stella's burns, McDonald's had received this number of coffee burn claims: A less than 100; B 200 to 300; C more than 700.

12. Prior to filing her lawsuit, McDonald's rejected Stella's offer to settle all her claims, medical bills, injury and scarring, for the total amount of: A $20,000; B $100,000 C $500,000. 13. The jury evaluated Stella's total damage claim for all of her medical bills, injuries, and scarring at: A $200,000; B $500,000; C $2,000,000. 14. Based on the evidence and testimony, the jury also awarded punitive damages against McDonald's in the amount of: A $2,700,000; B $4,300,000; C $10,000,000. 15. Which was later reduced by the court to D $480,000; E $1,500,000; F $5,000,000.

16. For Stella’s responsibility or fault for contributing to her own injury, the jury assessed fault against Stella in the amount of: A 0% her fault, 100% McDonald's fault; B 10% her fault, 90% McDonald's fault; C 20% her fault, 80% McDonald's fault.

Let's see how you did. When Stella Liebeck was burned, she was in the passenger seat. The coffee spilled while the car was parked. Stella had the cup between her knees, and the coffee spilled as she removed the lid to add cream and sugar. Stella received 1st, 2nd, and 3rd degree burns to her inner thighs, perineum, buttocks, and genitalia. She required 8 days in the hospital, including debridement and skin grafting surgery.

Your coffee at home is about 135 to 140 degrees. McDonald's required that its coffee be served between 180 to 190 degrees. A temperature that McDonald's knew was not fit for consumption because it would burn the mouth and throat. Coffee served at that temperature causes full thickness burns to human skin in 2 to 7 seconds. Prior to Stella's burns, McDonald's had received more than 700 coffee burn claims.

Prior to Stella filing her lawsuit, McDonald's rejected her offer to settle all her damage claims – medical bills, injury and scarring – for $20,000. The jury determined Stella's damages to be $200,000. Based on the evidence and testimony, the jury also awarded punitive damages against McDonald's in the amount of $2,700,000, which was later reduced by the court to $480,000.

The jury also found Stella to be responsible for 20% of her damages - with McDonald's 80% at fault. Surprised? At what? Your score, or the true facts?

Here are a couple more facts. Expert testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. If Stella’s's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

The punitive damages against McDonald's equaled about 2 days of McDonald's coffee sales - that’s like someone making $30,000 a year having to pay a $165 fine. After the damages were reduced to $160,000 to reflect Stella’s 20% responsibility, and after the court reduced the punitive damages to $480,000, the final judgment was $640,000, not the millions we so often hear.

There was some good news. An investigation after the verdict revealed that the McDonald's in the area where Stella was burned were serving coffee at an average temperature below 160 degrees.

It's too bad hundreds of people have to be senselessly injured, and courts and juries tied up for weeks, months, and years, before a big corporation will recognize that public safety is more important than profits. Then again, maybe the prospect of facing a jury in a courtroom is the only way to assure that corporations value our safety.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - September 6, 2005
Who Best Determines Responsibility - Papers, Pundits or Jurors?

Last month a Missoulian editorial chided a young man and his lawyers for claiming that the University of Great Falls should be held legally responsible for serious brain damage to one of its students who fell through a dormitory bathroom window. The Missoulian reached its conclusion that this young man is unworthy of having his day in court upon a few snippets from a news report based upon the filing of the lawsuit. In doing so the Missoulian displayed its ignorance of our civil justice system. Here’s a little explanation of how our legal system works.

First, to recover anything, the student must first prove that the University of Great Falls was negligent – that it acted unreasonably in designing, building or inspecting its dormitory. Does the University have any responsibility for the safety of its students? Was it reasonable to have a large, plate glass window put in a shower room low to the floor and three floors above a concrete walkway? Was it unreasonable not to use shatterproof glass? Was it unreasonable not to put a few simple bars across the window to keep anyone who might slip on the smooth stone floor from crashing through the window? Did the window and bathroom design meet minimum building codes and accepted safety design standards?

Just "parading a seriously disabled young man through a courtroom," as the Missoulian callously and meanly put it, does not win the case. If the student fails to prove negligence, he gets no recovery. If the jury were to award him damages solely out of "sympathy" – if negligence is not proven – the judge will direct the verdict for the defendant.

Second, if the student who fell through the window is wholly or partly to blame, the law allows the University of Great Falls to make that argument. Contrary to the impression left by the Missoulian, the lawyers representing the University will not be courtroom mannequins – they will be well qualified lawyers who will ably defend their client.

Third, after hearing all of the facts, a jury will decide if the University, the student, or both were "irresponsible." If the student is found to be more responsible for his injuries than the University, he will get nothing. If he is found to be partly at fault, but less responsible than the University, his damages will be reduced by the amount of fault he bears.

The jury will be selected from the registered voters of Cascade County whom we trust to decide who should lead our country, govern our state and many other equally important issues. After hearing all the facts the jury may agree with the Missoulian’s knee jerk reaction that the young man is 100% responsible for his injuries, or it may agree that the school bears some responsibility. The question is, why does the Missoulian have such contempt for this fair and equitable process, and for the participants - the injured student, his lawyers, the judge and the jury?

Only tortured logic, lacking any factual support, can support an opinion that people are more irresponsible simply because they can avail themselves of our civil justice system to assess responsibility for an injury. Following the Missoulian’s logic: open elevator shafts need not be covered because only "irresponsible" people will fall into them; guardrails along cliffs and rivers would be unnecessary because only "irresponsible" drivers will drive off the road; and, handrails on decks would be unnecessary because only "irresponsible" people would fall off them.

History, logic and facts, as well as studies, support the opposite conclusion - that citizens’ access to the civil justice system makes corporations and institutions more responsible for their products and actions, making all our lives safer. For a sampling of legal actions that halted corporate and institutional irresponsibility take a look at the report LIFESAVERS, at the Center for Justice &Democracy’s website - www.cjd.org. Contrary to the opinion of corporate apologists, the little money needed to place warnings on dangerous products are well worth the thousands of lives saved each year.

The Missoulian also attacked contingency fees. The University and its insurance companies can afford to hire the best lawyers to speak for them. These lawyers in Montana now charge upwards of $200 an hour for their time. They get paid whether their clients win or lose. How can an unemployable, profoundly brain damaged 18 year old college student pay that kind of money to get a good lawyer? His only opportunity for a level playing field is to find a lawyer who is willing to risk her time and money to prove that the University is responsible. It is the plaintiff’s lawyer who might, and sometimes does, wind up working for nothing because she fails to prove her case – she loses the time she put into the case, she loses expenses paid for staff that worked on the case, and, she loses the expenses of preparing the case - from fees paid for investigators to fees paid for expert witnesses. It is that possibility of losing time and money that helps weed out unmeritorious cases. Without the contingency fee system only the wealthy will have justice. This, of course, would suit corporations, institutions and their insurance companies just fine – they would never have to face responsibility for their actions.

The Missoulian was right in one respect, we all should be responsible. But, when responsibility is disputed, the best place to determine responsibility is in a courtroom before a jury that hears all the facts, which is why our founding fathers adopted the Seventh Amendment to the U.S. Constitution guaranteeing our right to a trial by jury. The wrong place to determine responsibility is in an opinion piece with virtually none of the facts.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - October 4, 2005
Vioxx Verdict - It’s About Accountability

Since a Texas jury found the makers of the drug Vioxx liable for the death of Robert Ernst, Americans have been hearing a lot about the size of the punitive damage award. But here’s another, more important number to consider: as many as 55,000. That’s how many Americans may have been killed by Vioxx according to David Graham, a scientist at the U.S. Food and Drug Administration (FDA). As many as 140,000 suffered heart attacks or strokes.

Those Americans didn’t have to die. Internal corporate documents revealed in the Vioxx trial show that Merck was aware of the cardiac risks of Vioxx as early as 1997. The company’s top scientist stated in March 2000 that a clinical trial of Vioxx confirmed that the drug had heart risks. In fact, this clinical trial showed that the drug caused five times as many heart attacks as another pain relief drug.

Merck executives knew about the danger of Vioxx. Merck had a legal responsibility to inform physicians of the risks of their product, so those physicians could help patients make informed decisions about their health care. Instead, they trained their sales reps to cover it up. Merck executives produced a game called "Dodgeball" to train their drug reps how to "dodge" questions from doctors about the cardiac dangers of Vioxx. Doctors who weren’t fooled by Merck’s deceptive marketing of Vioxx were targeted by the company. Merck worked to discredit these doctors and even threatened a Stanford University scientist who questioned the safety of the drug.

How do we know all this? Because these facts and others were presented to twelve citizens from Texas who spent five weeks of their personal time carefully listening to the facts and rendering a verdict in the Vioxx decision. These impartial citizens, with no financial stake in the outcome, determined that corporate profit at ANY cost is unacceptable.

During the trial the jury heard from witnesses presented by the Ernst family and to Merck’s witnesses. They examined dozens of Merck documents including internal memos, emails and opinion pieces by Merck scientists and corporate executives which clearly showed that Vioxx increased heart risks.

The twelve jurors spoke at length following the verdict: Juror Stacey Smith said she was shocked at evidence that showed the company knew the dangers of Vioxx long before it withdrew the drug; Juror Lorraine Blas said that "The evidence – after reviewing all the evidence in the jury room, I decided from looking at the paperwork they knew the problems this medication was causing and they hid it from us."

Belatedly, the FDA requested adding a warning label to Vioxx - Merck’s corporate executives ignored the FDA for four months. Why? Because the corporate executives calculated they could make an extra $229 million by waiting.

$229 million - that was the same amount the jury awarded in punitive damages. The jury sent a message - that corporate greed, corporate profits at the expense of American lives, is unacceptable.

Unknown to the jury, their message would be merely symbolic. There would be no real accountability and responsibility for Merck’s corporate executives. Texas law that replaces the judgment of jurors with that of politicians automatically reduced the punitive damage amount by 99% to $1.6 million. That’s how much Merck made in Vioxx sales every 6 hours and 40 minutes the drug was on the market. Compare $1.6 million to the more than $11 billion in Vioxx sales Merck made between 1999 and 2004, and the $37.8 million that Merck’s CEO made in 2004 from a salary, bonus, and stock options that he cashed in.

Negating the will of juries and avoiding accountability is one reason why Merck and other pharmaceutical companies have spent millions of dollars to lobby Congress and state legislatures for passage of legislation that would protect pharmaceutical companies and other corporations.

The American jury is the watchdog, the enforcer, the representative of the common citizen. Legislative limits on the authority of citizen jurors to render punitive and compensatory damage awards that match the crime and the injury caused makes juries toothless watchdogs.

The Vioxx verdict is another illustration of how, for ordinary Americans, the civil justice system is the last check – and sometimes the only check – against corporate executives who put profits and their obscene pay plans before the health and safety of their own customers. These jurors represented the last line of defense against corporate greed. The federal government was of little help and corporate executives cannot be trusted to police themselves when their profits are their primary concern.

Given the reduction of the punitive damage award, you might expect calls for repealing damage caps that shield corporate executives from accountability and responsibility, and there have been some. Unfortunately the response that seems to have garnered the most attention is a call to immunize drug makers whose products have been approved by the FDA.

That’s right, take a federal agency that is little more than an industry adjunct now, and let them decide what corporate executives should be protected from any lawsuits when their products kill people. The FDA has repeatedly demonstrated its inability to effectively protect the public, and it has repeatedly ignored the studies and opinions of its own scientists - instead making decisions based primarily on political or business factors.

Drugs that are safe and effective can be produced without greedy corporate executives being shielded from accountability. As Marsha Robbins, the forewoman of the jury, said, "We expect accountability, we expect them to be open with us, we expect them to be honest with us." Why should we expect any less?

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - November 1, 2005
States’ Rights Conservatives?

It has been a strange last couple of months in Washington DC. I know most people get overwhelmed with all the flak coming out of DC, and sometimes I think it is the result of a conscious effort to drive us to throw up our hands in disgust and despair. Then we won’t be aware that our rights are being sold off to the highest corporate bidders in DC. It’s hard enough to know when you are being bilked by the street con game of three card Monte, it’s almost impossible to stay abreast of the corporate con game in DC of thousand card Monte.

Virtually all the discussion of the Supreme Court nominations - whether it was Roberts, Miers or now Alito - has been about social litmus tests, primarily abortion. What has been lost in the debate is that each of the nominees has a record of supporting ever more expanding corporate power over our lives. Either by limiting how much our elected officials can regulate corporate actions, or by limiting or eliminating the ability of individual citizens to hold corporations accountable and responsible for the harms they cause.

That these nominees would reflect the corporate views held by the Republican establishment they have worked with and for over the past several decades is not surprising. What should be surprising is that so-called conservatives, especially those that fervently mouth support for states’ rights, are silent on these issues during the discussion of these nominees.

Then again these same conservatives have been either silent on, or supportive of, legislative and regulatory action that runs contrary to their supposed principles. Let me give you just a couple of examples.

Earlier this year Congress passed and the President signed a Class Action bill. The bill essentially federalized class actions, limiting or eliminating the ability of states to regulate corporate conduct in their state courts when their citizens are the victims of corporate greed. For example, financial companies that bilk thousands of Montana citizens can rest assured that they can move any class action lawsuit against them out of Montana’s state courts and into federal court, and very likely a federal court not even in Montana. Nary a whimper from states’ rights conservatives.

In August, the Administration took a different approach. The National Highway Traffic Safety Administration (NHTSA) announced a proposed administrative rule for new roof crush standards for automobiles. Never mind that the standards were written by the auto industry and their agents in NHTSA. Never mind that the standards do little to actually protect citizens from known safety hazards that account for 6,000 to 7,000 deaths each year. Never mind that the industry has known about a clear link between roof crush and severe injury since the 1960's, yet they continue to lobby for and get standards that fall well short of what they can do to protect consumers.

No, the real kicker is that a part of the proposed rules would prevent state courts from holding corporate manufacturers accountable for their failure to provide safe vehicles. NHTSA has set safety standards for years, usually only after the auto manufacturers have agreed to the standards, and often, only after they have been repeatedly sued in state courts for failing to take reasonable and feasible steps to market a safe vehicle.

Corporate auto makers have been very successful at convincing NHTSA of their point of view. Maybe the revolving door of working at NHSTA, then working for the corporate auto makers, then working for NHSTA again and so on, has something to do with that. They have been less successful, however, in convincing juries in state courts that they should not be held accountable for injuries and deaths that could have been prevented with reasonable and feasible safety modifications.

The proposed roof crush rule takes care of that. It specifically prohibits state court actions if the vehicle meets NHSTA standards. The state’s rights conservatives not only haven’t objected to this federal intrusion into our state courts, they have voiced support for it.

Last week the U.S. House of Representatives passed H.R. 420, a bill that would limit where an injured consumer can file a lawsuit. And it prevents some foreign corporations who sell unsafe products from being held accountable in U.S. courts.

Under current law, an injured family can sue a foreign manufacturer that makes a defective or dangerous product wherever there are sufficient contacts between that company and the jurisdiction – such as where the product is imported into the U.S. or where it is sold. This bill would require a suit be brought not where there are contacts – but where the corporate defendant’s principal place of business is located.

Suppose a corporation based in China makes defective cribs and they are sold in Montana. If a Montana family buys that crib and the defective crib collapses killing their child, that family would likely have to go to China to file a suit, and could not sue in Montana, because under the bill the proper venue is where the defendant corporation’s principal place of business is located.

This provision is to prevent so-called forum shopping - filing or moving lawsuits to jurisdictions where the party believes they have the best chance of success. Call me guilty of forum shopping, but I would want to file a lawsuit on behalf of a Montana family in Montana, not in China.

A prime supporter of HR 420 was Tom Delay - the same Tom Delay who wants to move his corruption trial to a county and court in Texas where he thinks he has a better chance of success. Forum shopping is bad for Americans injured by corporations, but it’s OK for Delay, a so-called states’ rights conservative.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - November 29, 2005
Holiday Safety

It’s the holiday season, and that means new toys will arrive soon in homes across Montana. But are all of these toys safe? Too often, families come to trial lawyers because a child has been seriously injured or killed by a seemingly safe toy. And, all too often trial lawyers find out that the manufacturer, the distributor, the retailer or the government knew the toy posed an unreasonable safety hazard, yet the toy was still on the market. Fortunately, over the years, through government and industry regulation, and through litigation by trial lawyers, toys have become safer.

We have laws to protect children from toys that create hazards because of toxic substances, and from toys that present electrical, mechanical or heat risks. Choking hazard warning labels are required on packaging for small balls, balloons, marbles and certain toys and games that have small parts and are intended for use by children ages 3 to 6. Toys intended for use by children under age 3 posing a choking, aspiration or ingestion hazard, are banned by law. We also have labels that give age range and safety recommendations for toys.

With all that's been done, there is still a risk that a child’s joy, a new toy, can become a family’s tragedy. Consumers shouldn’t be lulled into complacency. The U.S. Consumer Product Safety Commission (CPSC) does not test all toys and not all toys meet the CPSC safety standards. Many web based retailers do not include age guidelines or safety warnings on their on-line toy descriptions. There are unscrupulous manufacturers who fail to put the required safety warnings on packages. There are others who manufacture and distribute toys that they know present an unacceptable level of risk to young children. Currently there are over 600 toys listed on the CPSC website that have been recalled for various safety reasons.

While warnings help, parents and family members have to be careful in selecting toys that bring joy, not heart break. Unfortunately, toys often do not face a CPSC recall until after a child has been injured. Every year children die and hundreds of thousands of children are treated in hospital emergency rooms for toy-related injuries. Children ages 4 and under are at especially high risk.

Riding toys, including bikes, unpowered scooters and roller blades, are always popular. Unfortunately, they are also the source of many injuries. Many riding injuries are preventable. If you do buy items such as a scooter, bicycle, or in-line skates, please purchase the safety gear, especially a helmet, your child will need to use the toy safely and include it as part of the gift.

Choking is a leading cause of toy-related deaths, especially for younger children. Children easily choke on small toy balls, balloons, marbles, small building blocks, or small pieces that were pulled off of a toy. And, unfortunately, there are manufacturers who fail to put proper choke hazard warnings on their toys. One of the best ways for parents to test whether toy parts pose a hazard to young children is to try and put the parts through the opening of a roll of bathroom tissue. If the part of the toy fits into that opening, don’t buy the toy.

Protecting children from unsafe toys is the responsibility of everyone, from manufacturers, to government, to parents and other family members. Selecting toys with an eye on safety and proper supervision of children at play are the best ways to protect children from toy-related injuries.

On dark December evenings, with holiday celebrations approaching, we are drawn to the warm comfort of a fireplace, the glow of candles, or the illumination of holiday lights. Creating a warm, festive look in the home is a part of the holiday tradition for many Montana families.

Please take steps to ensure that holiday festivities don’t turn into family tragedies. According to the National Fire Protection Association, December is the peak month for candle fires, with nearly twice the average number of fires. Candle fires alone result in, thousands of injuries, tens of millions in property damage, and hundreds of deaths each year.

If candles in your home are part of your holidays, make sure that you always use non-flammable holders; keep them away from fabric, dangling holiday decorations, and wrapping paper; place them in low-traffic areas, so that people will not knock them over or get burned; and never use lighted candles on a tree, wreath, or other combustible decorations.

Each year 7,000 people are treated in emergency rooms for injuries related to holiday lights, decorations and Christmas trees. Some holiday lighting safety tips include: checking all lights, old and new, for broken or cracked sockets, frayed wires and loose connections, and throwing away damaged lights; fastening outdoor lights securely so they are protected from wind damage; using no more than three standard-size light sets per single extension cord; and, turning off all lights on trees and other decorations before going to bed or leaving the home.

If you have a fireplace, remember to remove all greens, boughs, papers, and other decorations from the area immediately surrounding the fireplace, and make sure your chimney has been cleaned since last year. A screen should be placed in front of the fireplace opening at all times when the fire is burning.

We have provided links on our web site, www.monttla.com, to agencies and organizations where you can obtain more information on toy and holiday safety. If you do not have access to a computer, you can make a quick phone call to the Consumer Product Safety Commission at (800) 6 3 8 - 2 7 7 2 and request guides or fact sheets on shopping for toys and on holiday safety.

Finally, during this holiday season, please take the time to install smoke detectors, or new batteries in the ones you have, and TEST them. Wishing you a happy and safe holiday season, this is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - December 27, 2005
Vaccine Immunity - Sleaze & Deceit in DC

As the U.S. Congress wrapped up its business for 2005, they gave me reason to be thankful that the Montana Constitution has provisions to prevent our state legislature from succumbing to the sleazy and deceitful tactics that has become the usual course of business in Congress. One of those Montana provisions prohibits proposed bills from dealing with more than one subject matter. It’s too bad our U.S. Constitution doesn’t have a similar provision, because it is painfully obvious that Congress cannot limit itself.

One of the last bills up for a vote in 2005 was the must-pass Department of Defense Appropriations conference report - if it didn’t pass, the military’s money slowed to a trickle. For the Bush administration and some in Congress this was a great opportunity - attach other, non-military provisions to the bill. That way legislation that cannot pass on its own merits gets passed, with the added bonus of not having to hold committee hearings or floor debates that will arouse unwanted public attention. Another extra is that those in Congress that object, substantively or on principle, to the non-military provisions can get labeled as unpatriotic and accusations of failing to support the troops get thrown about.

One of those non-military provisions opened up oil drilling in ANWR - the Arctic National Wildlife Refuge. Members of the Senate were finally able to remove that provision. One of the non-military provisions that stayed was for vaccine liability.

Using scare tactics of an impending flu pandemic, U.S. Senator Bill Frist slipped a controversial provision into the Defense Appropriations bill that gives sweeping and unprecedented immunity to foreign and domestic drug companies for the manufacture of vaccines. The provision grants these corporations and their CEOs immunity even when they commit gross negligence by putting dangerous and deadly drugs on the market. Frist’s provisions give broad liability protections to vaccine manufacturers, even when they commit gross negligence or engage in reckless misconduct. For instance, Frist’s provision would protect drug companies even if they recklessly included a live bird flu virus in the vaccine, and gave the contaminated vaccine to the public, causing a pandemic that killed thousands.

It’s not the first time Frist has exploited national security to give the drug industry massive protections. In 2002, Frist inserted protections for Eli Lilly’s vaccine additive Thimerisol - a mercury linked to childhood illnesses - into the Homeland Security bill at the last minute. Only after a public outcry did Congress and Frist repeal the measure.

Frist has admitted that certain vaccines are unsafe, advising Capitol Hill staffers in 2001 to not take the anthrax vaccine. Acknowledge that vaccines may be unsafe and then tell the American people they have no remedy if they are injured by unsafe vaccines - hypocrisy is second nature to Frist. Do you think that the millions in contributions by drug corporation CEOs to Frist and his Republican colleagues in the Senate helped?

The drug companies claimed that without immunity there would be no vaccine production. But, public health officials at the National Institutes of Health, Centers for Disease Control and National Vaccine Advisory Committee all said last year that liability concerns had little or no effect on vaccine production. According to two Harvard University professors, there have been only 10 reported flu vaccine lawsuits over the last 20 years.

Vaccine manufacturers were investing in the vaccine market at a rapid pace even without immunity from lawsuits. Sanofi Pasteur, had previously announced: a $100 million contract with the U.S. to produce avian flu vaccine; signed four additional pandemic-related contracts with the U.S. government; and, began construction of a $150 million vaccine production facility in Pennsylvania. Merck wrote in its annual 2004 report, "We are rapidly building our capacity to successfully compete in … new vaccine markets." Last year Merck began construction of a vaccine manufacturing facility in North Carolina. Glaxo Smith Kline also recently announced its acquisition of a flu vaccine manufacturing company. In addition, the company: has more than 1,000 scientists working on vaccine development; said that it plans to launch five major new vaccines from its own research over the next five years with a combined market potential of up to $18.3 billion a year; and said in its annual report in 2004, "The Vaccine Business had a Strong Year."

Eliminating the right of individuals to hold negligent drug companies accountable removes an important incentive for drug companies to make safe drugs – especially considering that some big drug companies have a track record of putting their profits before the health and safety of the public. Without committee hearings or debate, the provision eliminates the right of individuals to hold drug companies that knowingly put dangerous and deadly drugs on the market accountable.

Numerous organizations including those that represent men and women in our military, public health organizations, first responders and the families of people injured by bad vaccines spoke out vehemently against the legislation. They had a common message: ensuring that the American people are protected against a pandemic flu outbreak should be a top priority of the government – and the best way to protect Americans is to produce safe vaccines not provide the big drug companies with special protections.

Unlike previous vaccine liability statutes, this provision does not provide for any compensation for people injured or killed by an unsafe vaccine. At the very least Congress should adopt a program that provides reasonable compensation to those injured or killed by vaccines protected by this provision. Otherwise, first responders (Nurses, doctors, EMTs) and others will refuse vaccination, which is exactly what happened when Congress passed a Smallpox Emergency Personnel Protection Act that did not include adequate compensation for first responders.

This is Al Smith for the Montana Trial Lawyers Association.
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