KUFM Commentaries - 2006
Return To All Commentaries

Asbestos Corporation Bailout (January 24, 2006)

Bush Rules Serve Corporations  (February 21, 2006)

Clean the Water, Save the Baby  (March 21, 2006)

Law Day  (April 18, 2006)

Say Yes To Montana Families, No To Insurance Industry Profits  (May 16, 2006)

Why The Bottom Of The Barrel?  (June 13, 2006)

Judicial Recall: Where's The Money Coming From?  (July 11, 2006)

Judicial Recall: Who's The Money From?  (August 8, 2006)

Judicial Recall: Proponents Fraud & Deceit?  (September 5, 2006)

CI-97, CI-98, and I-154: Pervasive Fraud  (October 3, 2006)

Cow Pies Wrapped in Iridescent Packages  (October 31, 2006)

Holiday Safety  (November 28, 2006)

Insurers Profit From "Tort Reform"  (December 26, 2006)

 


KUFM Commentary, January 24, 2006
Asbestos Corporation Bailout

Corporation Relief Act is in the news again. And once again the people of Libby, Montana are at risk of being victimized.  First we had the so-called Fairness in Asbestos Compensation Act of 1999. It certainly got a lot of attention, as well it should have. That bill would have adversely affected workers nation wide, including the hundreds of former WR Grace workers and their family members in Libby who have died or are dying from exposure to asbestos. That bill was rightly killed.

Now we have the Fairness in Asbestos Injury Resolution Act (S. 852). It is being considered by the Senate early next month. While Senators Baucus and Burns have been effective in getting some provisions that are helpful to Libby, a critical medical criteria has been gutted, and as the bill stands it is harmful to Libby victims. In fact, this Act harms all victims of asbestos – and it is appropriate to remember that it is the people who are suffering and dying from asbestos exposure who are the victims. The asbestos corporations are not the victims and insurance companies are not the victims.

A key starting point to distinguish fact from fiction with this Act is to look at who wants, and doesn’t want this legislation, and why it is even being considered. It is not the people injured by asbestos who have asked for this legislation – they oppose it. And they oppose it because it would severely restrict and delay their ability to hold asbestos companies accountable and responsible.

So, who supports it? It is a few asbestos companies who have asked for this legislation, companies who have spent millions of dollars to push this legislation.  Why would asbestos companies spend millions of dollars to push legislation like this? Have they suddenly developed a benevolent interest in their workers? No, they want this legislation because they know it will decrease the amount of damages that they have to pay for having knowingly exposed
hundreds of thousands of Americans to killer asbestos.

In Libby we had the WR Grace corporation that was knowingly exposing its workers, their families and the community to a deadly hazard. As you probably know, Grace filed for bankruptcy in 2001. So, shouldn’t the people of Libby want legislation that would provide some compensation since Grace is in bankruptcy? Funny thing about bankruptcy, it didn’t end Grace, it just gave them some protection. The people of Libby harmed by Grace can still pursue their claims, though limited, in bankruptcy court.

That is one reason why Grace and other asbestos corporations want this legislation. Under the current Asbestos Corporation Relief Act it is estimated that Grace would have to kick in about $420 million into the trust created by the Act to compensate asbestos victims. But, under bankruptcy, it is estimated that Grace will have to pay the bankruptcy
trust from $1.2 to 2.4 BILLION. That’s right, the Act potentially saves Grace from having to pay $600 million to nearly one BILLION dollars!

Is it justice for the people of Libby to allow a corporation like Grace to be rewarded by this Act? Is it justice to deny the people of Libby, injured through no fault of their own, the right to receive fair and reasonable compensation for the injuries they have suffered?

Grace and their corporate asbestos cronies certainly were not in Congress in the 1980's asking for “fairness” legislation to help their injured workers. No, they were fighting virtually every claim tooth and nail – employing an army of lawyers to deny responsibility and to seek to avoid accountability. They now want “fairness” for themselves, not injured workers.

The critical aspect of this Act for the people of Libby is the medical criteria required under the act before a person is eligible to receive compensation. The medical criteria is based upon asbestos disease associated with chrysolite asbestos, but the asbestos in Libby is different, it is tremolite asbestos. Diffusion capacity is recognized in the medical literature and in clinical practice as an accurate and appropriate indicator of the severity of asbestos disease, especially for those injured by tremolite asbestos. A provision was inserted in the Act by Senator Baucus that would have made diffusion capacity a recognized medical guideline, but that criteria was stripped out of the bill.

The effect of diffusion capacity not being recognized as a medical criteria is that some 40% of the people injured by tremolite asbestos in Libby would be ineligible to receive immediate compensation under the Act. People from
Libby that have been diagnosed and treated for asbestos disease, some currently on oxygen full time, would not be eligible to receive immediate compensation under the Act. And, they may not be eligible even before they die of their asbestos caused disease.

From a public policy standpoint, this Act should be killed. It rewards asbestos corporations, and it does not hold them accountable for their misconduct. It denies immediate benefits to those like the victims in Libby who have suffered devastating harm. And, the funding provided for in the Act is not enough to compensate all asbestos victims - then the public pays, not the corporations that caused the harm. If an Asbestos Corporation Relief bill does pass, it is essential that the people of Libby are protected, and under the current Act they are not.

Let’s hope that one day we hear that the people of Libby, Montana are truly being taken care of - that their medical care is being taken care of and that they receive a measure of justice for the devastating harm inflicted upon them. The sooner that day comes, the better for the people of Libby.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary, February 21, 2006
Bush Rules Serve Corporations

The United States Consumer Product Safety Commission, the CPSC - the name has a nice ring to it. It certainly gives us the impression that there is a federal agency that is looking out for our interests. For many years the CPSC has done that, it looked out for the consumer. There have been times when the CPSC seemed oblivious to threats to the safety of consumers and more concerned with the industries it regulated, but overall it has been one of those government success stories - a federal agency that actually helped protect citizens from injury and death.

The CPSC, however, is poised to take action that will make it unabashedly an agency devoted to corporate interests. Following the lead of the National Highway Traffic Safety Administration and the Food and Drug Administration, the CPSC is considering a rule change to preempt lawsuits against mattress manufacturers for defective products, if the corporate manufacturer meets CPSC standards.

Back in August of 2005 the Bush administration began this strategy of using federal administrative rules to preempt state laws that protect consumers. 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 was 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.

Earlier this year, the administration took the same approach with the FDA. Their proposed preemption language would shield corporate drug giants from state lawsuits if the drug was approved by the FDA. Never mind that the FDA has become more and more dependent upon, and subservient to, the drug industry. Never mind that the FDA relies upon drug industry testing to determine whether a drug is approved. Never mind that drugs that have been approved by the FDA are later found to be harmful or fatal, and that the corporate drug giants knew of the potential harm but kept the information from the FDA. No, the important work of the FDA is now to protect the corporate drug giants.

So what’s the problem with the CPSC and mattresses, what’s the hazard? Mattresses catch fire easily from open flames, burning fiercely, and maiming or killing quickly. Mattresses contain the equivalent of what some call "solid gasoline" in the form of non-flame-retarded polyurethane foam. A match or lighter in the hands of a child can turn an otherwise harmless home furnishing into a column of flame in mere minutes.

We have had rules for years for smolder fires - like those caused by a dropped cigarette. The CPSC mattress open flame rules, or the lack of them, however, has been one of the less than stellar performances of the CPSC. The CPSC and mattress makers have known of solutions to the open flame hazard to mattresses for decades, but have taken no effective action. The CPSC has had studies and analysis on open flame hazards since 1971, but it has failed to mandate an open flame standard. A single sheet of newspaper could pass their original smoldering standard. While the CPSC waited for the results of one study after another by the mattress industry, other nations enacted effective open flame standards that are saving the lives of their children.

The British government banned such foam from their mattresses more than a decade ago. This nation’s prisoners and other "high risk" occupants have slept on fire-safe mattresses for many years, while no safe alternative has been offered to the ordinary consumer.

Now the CPSC and the mattress industry say they are ready to adopt open flame standards, but only if manufacturers are protected from all lawsuits. The problem is that such federal standards are the minimum. They take years or decades to be set, are usually written by the industry and do not take into account developing technology that can provide more protection with reasonable and feasible safety modifications.

The preemption of state lawsuits removes a significant incentive for industries to improve the safety of products. Often, industries agree to safety standards only after they have been held accountable by juries in state courts for injuries and deaths that could have been prevented with reasonable and feasible safety modifications.

The question is, do we want a commission that protects people, or do we want a commission that protects industry?

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary, March 21, 2006
Clean the Water, Save the Baby

Earlier this month, NPR’s All Things Considered aired an extensive story about silicosis lawsuits in Texas. The focus of the story was on allegations that lawyers representing workers, companies that did mass diagnostic screenings of workers and the doctors working with the lawyers had taken part in making fraudulent legal claims for injuries due to silicosis. Two thirds of the lawsuits were thrown out, the judge had assessed significant monetary sanctions against the attorneys involved and was considering additional sanctions, and the justice department was said to be looking at possible criminal charges as well.

While the story was disturbing, the reaction of corporate America has been even more disturbing. Predictably, the corporate line was to call for eliminating the rights of injured workers with legitimate claims to access the courts - not just for those harmed by silicosis, but also those harmed by asbestos related diseases. Silicosis and asbestosis are different diseases, they have different sources of exposure, and are rarely found in the same individual. It is beyond shameful that asbestos companies would use this case as an opportunity to push their bailout agenda. It was the classic “throw the baby out with the bath water” refrain that is all to common when people try to hold corporations accountable and responsible for the harms they cause.

The legal system saw that the bath water was dirty and appropriate legal steps have been initiated to clean the water while saving the baby - preserving the right of persons with legitimate claims for injuries caused by corporate negligence and indifference to access the courts to hold those corporations accountable and responsible. The attorneys, screening companies and doctors should have their day in court, and if the charges against them are substantiated they should be held legally accountable and responsible, to the fullest extent possible, for the harm they caused.

It is appropriate to condemn fraudulent activity by any attorney, whether they represent people or corporations. The vast majority of lawyers, those that conduct themselves in a professional and ethical manner, believe that those found guilty should be prosecuted to the fullest extent of the law.

What is not appropriate is the corporate effort to protect those corporations that have harmed thousands of American workers through their negligence and indifference. Large corporations are trying to use this case as an excuse to pass legislation that would deny badly-needed help to silicosis and asbestos victims while providing corporate friends with another multi-billion dollar bailout.

According to the National Institute for Occupational Safety and Health, an estimated 1.7 million U.S. workers are potentially exposed to breathing crystalline silica, a cause of silicosis. In addition, 3.7 million U.S. agricultural workers may be exposed to dust containing a significant percentage of breathable crystalline silica.

This exposure continues despite pledges from corporations and federal officials dating back to the 1930s to prevent exposure to this deadly substance. The U.S. Department of Labor declared in 1938 that “silicosis can and shall be prevented.” Yet some studies indicate that OSHA has yet to develop an effective standard to protect workers from silicosis.

Silicosis is a preventable yet incurable disease. Workers with silicosis suffer from lung scarring, often develop tuberculosis, and many eventually die from exposure – corporations that knowingly endangered the health of their workers only to increase corporate profits should be held accountable and responsible for the harms they cause. Injured workers should not be left without a legal remedy, and the taxpayer should not have to bailout these corporations.

It would be more appropriate for corporations and Congress to use the new-found focus on silicosis as an opportunity to bring greater attention to the problem of silicosis disease, work to develop national standards and laws to protect workers from silicosis, finally fulfilling the promise of the 1930's, and address the continued failure of corporations to provide adequate safety protections to their workers.

While we should not condone abuses of the legal system, it is also important to remember that the civil justice system is often the only means that people have to bring to light the actions of corporations that endanger the lives of workers and the communities they live in. In Montana, we have no better example of this than the asbestos tragedy in Libby, Montana.

Who exposed that tragedy? Was it WR Grace and other asbestos companies who sought to right a wrong? No, they kept their workers and the public in the dark, and then denied responsibility and sought to avoid accountability. Was it because state and federal agencies sought to protect workers? No, our government agencies were too busy cooperating with the companies, keeping the dangers of asbestos hidden from workers and the public. Was it the press? No, the press didn’t dig for a story, they just swept a little dust away from the skeleton of a story that had already been uncovered. It was injured workers, their families and trial lawyers using the civil justice system to try to hold indifferent corporations responsible and accountable that were responsible for uncovering the tragedy in Libby.

By throwing out non-meritorious suits and defenses, the courts ensure the civil justice system works better for those who are truly injured. By protecting the rights of injured people to hold corporate wrongdoers accountable and responsible in our courts for the harms they cause, the civil justice system works to protect all of us.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary, April 18, 2006
Law Day

May 1st is Law Day, America's yearly celebration of and reflection upon the unique role our legal system plays in this nation's democracy. Law Day was first proposed by American Bar Association president Charles S. Rhyne in 1957. He envisioned a special day to honor our strong heritage of liberty, justice and equality under law. This dream became a reality in 1958, when President Eisenhower established "Law Day U.S.A." In 1961, Congress designated May 1 as the official date of Law Day.

In many places Law Day has become Law Week, as national associations are joined by state and local bar and trial lawyer associations, businesses and schools in conducting thousands of programs on America's legal system and the many freedoms and protections it provides us.

When we think of America's legal system, it seems we most often think of our criminal justice system and the protections it offers to hold criminals accountable while also shielding innocent citizens from governmental abuses. In some ways, the more remarkable part of our legal system may be our civil justice system and the contributions it and our jury system have made to consumer health and safety.

For over 200 years, the American justice system has been an important vehicle for positive social change. No matter their wealth or social standing, men and women across this country know that if they or loved ones are injured by another, they can hold the wrongdoer accountable. And, often they play a role in ensuring that no other family suffers the same tragedy, by forcing corporations to take unsafe products off the market.

Our justice system has resulted in improved health and safety for all Americans:

- The anti-miscarriage drug DES, the Dalkon Shield IUD and super-absorbent tampons that cause toxic shock are no longer on the market, ensuring that the health of women will never again be jeopardized by these products.

- Football helmets have been vastly improved, helping to reduce deaths and serious injuries to our children each season.

- Children’s pajamas that burst into flames no longer sit on store shelves. Unsafe cribs no longer strangle infants.

- Firestone tires that blew their treads causing accidents that injured and killed Americans are now off the market.

- Auto fuel systems no longer explode upon impact. Garage doors now have automatic reverse mechanisms, trucks have back- up beepers, farm tractors have roll bars -- the list goes on.

These changes have come about thanks to courageous and determined citizens, and the attorneys who represent them. Together, they have forced the negligent and reckless to account for their acts. Our legal system provides for justice -- through juries composed of ordinary citizens acting as the conscience of the community.

These days we often hear from corporate CEOs that product liability lawsuits are too costly. But, how much does improved safety really cost us? Product liability insurance costs passed on to American consumers amounts to about 26 cents out of a purchase of $100 for a product – one quarter of one percent – that’s $52 on a $20,000 vehicle. Consumers get a pretty good deal. What corporations are really concerned with is being held fully accountable and responsible for the harm they cause.

The importance and success of our civil justice system cannot be overlooked, especially now that this very system is under continual assault by corporate America. At a time when Americans increasingly sense an erosion of personal responsibility in society, our civil justice system remains the one institution that holds individuals and corporations and their CEOs responsible for their behavior, and forces them to change their conduct for the better.

Corporate CEOs however, are continually seeking ways to avoid legal accountability. Recently the U.S. Chamber of Commerce, on behalf of the CEOs of the large corporations whose interests the Chamber serves, released a report purportedly ranking the civil justice system’s of all fifty states. How did the Chamber gather the data for this report? Did they study court data or conduct their own research of court statistics? No. Did they interview judges, plaintiffs and defendants, attorneys for plaintiffs and defendants, jurors, politicians, or even members of the public? No. The only thing they did was to poll over 1,400 attorneys who represent corporations. For Montana, there were fewer than 100 corporate attorneys polled who professed to having any knowledge of our civil justice system.

The Chamber has used the report in advertising in some states and in Washington DC to try to convince the public and lawmakers that corporations need more protections and citizens need fewer rights. Using this report to make public policy makes as much sense as polling 100 prisoners at Deer Lodge and using their views as the sole basis to revamp our criminal justice system – forget the judges, crime victims, prosecutors, or the public, make policy based solely on the opinion of wrongdoers.

The enviable record amassed by America for consumer health and safety has made our justice system the envy of the world. No wonder Great Britain, whose "loser pays" attorneys fees rule keeps large numbers of poor and average-income people from seeking justice, is considering adopting American-type "contingency fee" arrangements as well as broadening the availability of punitive damages. And, Japan recently adopted tougher, American-style liability laws in order to keep dangerously defective products out of its market.

We should be proud of our system, and be ever-vigilant that citizens never lose their essential rights. In America, justice belongs to people, not politicians; to juries, not insurance companies; to individuals, not government; to injured workers and their families, not corporate CEOs.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary, May 16, 2006
Medical Malpractice Shell Game

Senator Burns is unhappy his support for limiting the legal rights of people harmed by medical malpractice has been challenged. Limiting the rights of injured women and children to hold negligent healthcare providers legally accountable is, according to Burns, necessary in order to decrease “frivolous lawsuits” and healthcare costs.

If you were to look at the problem of rising costs of health care with an eye toward 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 Senator Burns focused on? Is he looking at reigning in drug costs? No, the Medicare bill he supported prohibits the government from demanding price decreases for drugs. Is he looking at reigning in insurance industry profiteering? No, Burns pushes for more opportunities for industry profits - profits that pay for outrageous CEO salaries and bonuses. The problem, as Burns sees it, are Montana women and children with devastating injuries who have the temerity to go to court to hold the healthcare providers who caused the injuries accountable.

The U.S. Senate recently considered medical malpractice legislation. As in the past, there were no hearings, no search for facts or genuine solutions - just political rhetoric on the Senate floor.

Burns supported the legislation as a solution for rising medical malpractice premiums and health care costs. But, the bill did absolutely nothing to lower premiums - there was no commitment from the insurance industry, let alone statutory mandates, that premium rates would go down.

As usual, it was all political rhetoric - malpractice cases are not even close to being a significant factor in healthcare costs. All you have to do is look at the numbers. All malpractice costs - malpractice insurance premiums, damages paid, legal fees, 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, only if all lawsuits are eliminated.

The main purpose of the bill was limiting non-economic damages to $250,000. That’s right, the main feature was to limit damages for women and children whose injuries are proven in court - those that a jury finds have been harmed by the negligence of health care providers. Does that stop “frivolous lawsuits?” No, it just limits the damages of women, children and the elderly whom juries determine have suffered injuries due to malpractice.

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 parent 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. It caps the damages for a retired person living the rest of her life with a permanent brain injury. The cap most severely impacts those that do not have the usual economic damages of lost wages – the elderly, children and mothers who choose to stay at home.

Turning his back on women and children harmed by medical malpractice wasn't enough for Senator Burns – he had to insult them, too. Burns stood on the Senate floor and declared that the only people who stand to be hurt by the proposed changes are "the folks who make a living just in frivolous lawsuits'' – a remark as insensitive as it is dead wrong. Senator Burns can’t name even one malpractice attorney in Montana who makes “a living just in frivolous lawsuits.”

Perhaps Senator Burns would like to tell the parents of a brain-damaged infant or a woman who is unable to have children as the result of medical malpractice that he considers their pain and lives to be frivolous. These are the people truly harmed by the changes Burns supported.

Would the bill accomplish its two main goals – decrease both malpractice premium rates and health care costs? No, it wouldn’t – the insurance industry in fact says it will have no impact on rates. State after state has enacted draconian tort reforms without a corresponding reduction in insurance premiums. Health care costs will not be lowered either. The bill would not have even make a dent in overall health care costs, it just limited the amounts the insurance industry would have to pay for malpractice claims proven in court – increasing industry profits.

Maybe Senator Burns recognized the pain and tragedy that Montana families suffer each year from malpractice. Burns didn’t do the right thing, voting to say NO to insurance industry profits and YES to Montana families. After all his rhetoric, he didn’t vote at all.

After the rest of the Senate voted, a Harvard medical school study on medical malpractice was released. Conducted by doctors and health professionals who reviewed nearly 1,500 actual cases, the study concluded that, "portraits of a malpractice system that is stricken with frivolous litigation are overblown." In fact, the study noted that the incidence of patients seriously injured as a result of medical negligence who do not receive any compensation is a far larger problem than the few unsubstantiated claims that were compensated. Finally, the report concluded that tort reform efforts like capping damages “will have a limited effect on the caseload and costs of litigation."

When these bills arise in the next session of Congress, let’s hope Burns’ successor heeds facts, not rhetoric, and actually votes for Montana families.

This is Al Smith for the Montana Trial Lawyers Association.


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KUFM Commentary, June 13, 2006
Why the Bottom of the Barrel?

It seems that when it comes to fostering economic development, the main topic of discussions is how we need to move our standards to the bottom of the barrel. Doesn’t matter what the topic is - environmental regulations, taxes, employment laws, or workers compensation costs - according to corporate lobbyists, business professors and Republican politicians, we need to strive for the bottom of the barrel. The discussion isn’t about what is right or fair for Montanans, it’s about how we can be in the best position to be exploited for the least cost to corporations.

Recently, a report from UM business professors that was long on anecdotal perceptions and short on hard data was touted by a corporate lobbyist as more evidence that Montana needs to strive harder for the bottom of the barrel. Among the concerns expressed were workers’ compensation costs in Montana. That one surprised me since Montana’s workers’ compensation benefits are already near the bottom of the barrel.

Workers’ Compensation was developed to meet two needs: the need of employers to protect themselves from lawsuits brought by injured workers; and, the need of injured workers to obtain prompt medical treatment,
rehabilitation and fair compensation for injuries that they received on the job. Employers gave up the right to have injured workers prove that they were injured due to the negligence of the employer. Workers gave up the right to sue the employer for negligence.

Employers and workers relied upon the state to enact the laws and procedures governing the Workers Compensation system. And, they relied upon the state to manage a state insurance fund, through which employers could purchase coverage to pay for their injured employees.

The system, while not perfect, worked reasonably well for decades. Private insurance companies, seeing an opportunity for profit, also offered workers’ compensation insurance. Workers generally received prompt medical
treatment, rehabilitation and fair compensation for their injuries.

In the 1980's the system experienced problems, chiefly medical and rehabilitation costs started rising rapidly, and, the state bureaucratic system was increasingly inefficient. To cover increased costs, insurance rates rose. This led to employers demanding lower rates.

Heeding the employers’ call, the state, made a political not a business response. It lowered rates, but it did not adequately address the costs and inefficiencies that had led to the problems that caused higher rates in the first place. Soon, contrary to good fiscal practices, the state was not bringing in enough rate revenue to cover the costs of the system. Private insurers were unable to compete with the state’s below cost rates.

It didn’t take long for the system to implode. A staggering debt was left behind, to be paid through the Old Fund Liability Tax by employers who had been paying artificial, below cost rates and by employees, whose only fault was that they were powerless to force the state to operate the system in a fiscally responsible manner.

Needed changes were made and the system began to operate more efficiently. Not satisfied with the savings from a more efficient system, the legislature then began a series of cuts in benefits to be paid to injured workers.

The result today is a system that is supposed to be so simple and straightforward that an injured worker shouldn’t even need a lawyer, but the reality is a system so complex that lawyers have a hard time understanding it.

Trial lawyers have fought for workers as benefits have eroded. Unfortunately, legal action can only help so much. And, legal gains that help injured workers are usually taken away in the next corporate dominated legislative session. Additionally, legislation has specifically limited an injured worker’s ability to obtain legal representation. Why? Because workers who are not represented can be more easily denied the compensation and benefits they are entitled to, thereby keeping costs down.

While benefits for injured workers have been cut, employers have received dividends and executives at the State Fund have enjoyed pay raises and bonuses. Funny isn’t it, how businesses can decry a living wage or even an
increase in the minimum wage, and then defend, with a straight face no less, bonuses and raises for executives as necessary to keep them on the job? Funny, except to those injured workers who see the bonuses and raises
coming from the monies denied them as compensation for their injuries.

Employers still receive the benefit that was the original basis for the Workers’ Compensation system: they are protected from lawsuits brought by injured workers. Workers, however, no longer receive their quid pro quo
benefit. Injured workers no longer obtain the prompt medical treatment, rehabilitation and fair compensation that they bargained for when they gave up the right to sue their employer for negligence.

Unfortunately, when government caters to corporations, all too often money quickly becomes the bottom line – how much profit can corporations make. The well-being of the people to be served quickly goes to the bottom of the barrel as corporations’ fiscal bottom lines prevail.

Can’t we have economic development with environmental regulations that protect the health and welfare of Montana’s citizens, land, air, and water? Can’t we have economic development with a workers’ compensation
system that is fair to the people it was ostensibly created to help, injured workers? Do we really need to strive for the bottom of the barrel in order to have economic development?

Maybe we need to foster economic development that meets Montana’s standards, rather than striving for the bottom of a barrel, a bottom that is always receding, in order to increase corporations’ profits and already obscene salaries and bonuses for their CEOs.

This is Al Smith for the Montana Trial Lawyers Association.


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KUFM Commentary, July 11, 2006
Where’s The Money Coming From?

Later this month we will learn what ballot initiatives will be voted on in the November election. Based on press reports it seems safe to say that enough petition signatures have been gathered to put several measures up for a vote. Those include statutory initiatives: I-151 to raise the minimum wage; I-153 to prohibit lobbying by former state officials; I-154 to amend eminent domain laws to provide that state and local governments compensate property owners for lost value due to government regulations and prohibit governments from using eminent domain to transfer property to another private entity. Also likely to be on the ballot are constitutional initiatives; CI-97 to artificially cap state spending in addition to the current constitutional requirement that the state budget be balanced; and CI-98 to allow the recall of any state or local judges for any reason - not just the reasons already provided for in state law.

Most of the ballot measures have gotten a fair amount of press, and I'm sure we will hear more as the election approaches. One of the initiatives hasn't received much attention, and that is CI-98 - the constitutional initiative to recall judges.

Montana statutes currently provide for the recall of public officials, including state court justices or judges, for physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense. Additionally, there is a constitutional provision for disciplining and removing judges through a judicial standards commission. Why then CI-98? Right now, it seems that all we can do is ask the question.

Nobody has really come out publicly and said why CI-98 is needed. When I asked a signature gatherer at my polling place in June, I got an interesting response. He said it was for case law, and used the example of the judge who gave probation to a sex offender because the judge deemed prison too dangerous for the 5' 1" defendant. I pointed out that that was not a Montana judge or a Montana case – it was a Nebraska case. I asked if he had any examples of Montana judges where CI-98 would be needed because none of the existing laws would work. He couldn't give me a single example.

As an aside, maybe the legislature should consider amending the initiative statutes to prohibit signature gatherers from saying anything about the initiative other than the specific language approved by the Attorney General for the petition. I wonder how many people signed CI-98 petitions because the signature gatherer used a similar hot button, but non-Montana case, like the Nebraska sex offender case?

Who is behind CI-98? The group nominally pushing CI-98 is the Citizens Right To Recall committee. That group seems to be a branch of Montanans in Action. And, that group seems to be a front for Americans for Limited Government. Which in turn seems to be a front for Howard Rich, a New York developer, and other conservative businessmen. Rich was one of those involved with US Term Limits, a supposedly grass roots organization that had 50 some "finance committee" members who gave $2 million a piece to that effort.

Montanans in Action has spent nearly $1 million already, $300,000 on Montana initiatives I-154, CI-97 and CI-98, and $600,000 for a California initiative. Now, I've been involved with initiatives and campaigns in Montana for quite some time. I can't think of an example of where a Montana organization, just happened to have an extra $600,000 laying around that they could donate to an out of state initiative effort. Maybe, they can do that because most if not all of their money comes from out of state to start with – who knows?

No one knows where the money comes from, except Montanans in Action spokesman Trevis Butcher of Winifred. And, he's not saying, at least publically, where the money is coming from. He maintains that Montanans in Action is a public education group that isn't required to divulge where its funding comes from. Curious, because Butcher is listed as the author of I-154, CI-97 and CI-98 and has spoken for those initiatives. I guess being a rancher, Trevis has learned to juggle a lot of hats.

Jon Motl, a Helena attorney, is challenging whether Butcher can keep the source of funding for Montanans in Action secret. Motl is concerned that secret money being spent on initiatives may harm the future of initiatives, possibly leading to legal changes and restrictions that will hinder the ability of real Montana citizens to use the initiative process.

For now, we'll just have to wait and see where the money comes from to support CI-98. When we see who has been giving the money, my guess is that it is not Montanans.

So what about the substance of CI-98? Well, we already have statutory and constitutional provisions for recalling, disciplining and removing judges for failing to do their jobs. Which leads me to believe that the purpose of CI-98 is to try to recall judges who do their job. It would work for someone who doesn't like the result of a case, and rather than wait until the judge comes up for re-election, launch a recall petition.

CI-98 further politicizes the judiciary. We can not possibly have a judiciary which operates according to the polls, according to the popular will of the state or county at any given moment in time or according to the will of a vocal, mudslinging minority threatening recall. We must have independent and neutral judges that protect our constitutional rights, even when that protection is afforded to people or causes that the majority disapproves of - that is the essence of our constitutional democracy.

The only purpose for CI-98 would seem to be to try to remove judges, before their terms are up, for the decisions they make. State and local judges in Montana would become the one group of elected officials who could be recalled from office simply for doing their jobs - upholding our constitution.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - August 8, 2006
Judicial Recall: Who's The Money From?

Well it looks like
CI-98, the constitutional amendment to allow the recall of any elected state or local judges for any reason - not just the reasons already provided for in state law - has qualified to be on this November’s ballot. I say "looks like" because the signature gathering process for CI-98, as well as CI-97 and I-154 raises some serious concerns as to whether the letter of the law, let alone the spirit of the law, was followed.

I suspect one of the reasons that people signed the petitions is because the ability to recall elected public officials is a good, populist idea. That’s why Montanans decided decades ago that giving citizens the right to vote to recall judges was a good idea.

Montana statutes already provide for the recall of public officials, including elected state court justices or judges, for physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense. Additionally, there is a constitutional provision for disciplining and removing judges through a judicial standards commission. And, Montana judges face an election to get into office and/or to continue in office.

So, if we already have the ability to vote to recall judges, why then CI-98? Nobody has really come out publicly and said why CI-98 is needed. When I asked a signature gatherer at my polling place in June, I got an interesting response. He said it was for case law, and used the example of the judge who gave probation to a sex offender because the judge deemed prison too dangerous for the 5' 1" defendant. I pointed out that that was not a Montana judge or a Montana case – it was a Nebraska case. I asked if he had any examples of Montana judges where CI-98 would be needed because none of the existing laws would work. He couldn’t give me a single example.

So what about the substance of CI-98, is there a clue there? Well, we already have statutory and constitutional provisions for recalling, disciplining and removing judges for failing to do their jobs. Which leads me to believe that the purpose of CI-98 is to try to recall judges who do their job. It would work for someone, a vocal out of the mainstream group or an out of state corporation, that doesn’t like the result of a case, and rather than wait until the judge comes up for re-election, launch a recall petition.

Another clue to the answer to "why CI-98?" would be to see who is behind CI-98. The group nominally pushing CI-98 is the Citizens Right To Recall committee. That group seems to be a branch of Montanans in Action. And, that group seems to be a front for Americans for Limited Government. Which in turn seems to be a front for Howard Rich, a New York developer, and other conservative, out of state business interests.

Montanans in Action has spent over $1 million already, $600,000 on Montana initiatives I-154, CI-97 and CI-98, and $600,000 for a California initiative. Now, I’ve been involved with initiatives and campaigns in Montana for quite some time. I can’t think of an example of where a Montana organization had $600,000 that they could spend solely for gathering petition signatures. And, I certainly haven’t seen a Montana organization that just happened to have an extra $600,000 to donate to an out of state initiative effort. Maybe they can do that because virtually all of their money, except a token amount, comes from out of state to start with – who knows?

No one knows where the money comes from, except Montanans in Action spokesman Trevis Butcher of Winifred. And, he’s not saying, at least publically, where the money is coming from. He maintains that Montanans in Action is a public education group that isn’t required to divulge where its funding comes from. Curious, because Butcher is listed as the author of I-154, CI-97 and CI-98 and has spoken for those initiatives. I guess being a rancher, Trevis has learned to juggle a lot of hats.

When someone in politics refuses to be candid and transparent about funding sources, it is usually because there is something about the money that they are ashamed of, or there is a fear that disclosure may "hurt" their cause when the electorate finds out who is really supplying the money. In Montana, we’ve tried to enact laws to ensure that the money stream in politics is transparent. Trevis Buthcher and Montanans in Action have so far done their best to get around at least the spirit of the law.

Why? Where’s the money coming from? What is being hidden from public review and discourse? For now, we’ll just have to wait and see where the money comes from to support CI-98. When we see who has been bankrolling Montanans in Action, my guess is that it is not Montanans who are paying over a million dollars to change Montana’s laws. Maybe then they should change the name, my guess is that "Out of State Business Interests for More Profits at the Expense of Montana Citizens" will be an aptly descriptive name.

The money has made the signature gathering process for CI-98 suspect. There were signature gathers who swore in affidavits that "the signers of the petition knew the contents of the petition before signing the petition" yet the numbers of signatures and dates of the petitions one signature gatherer submitted under this sworn statement indicate that he was getting one signature a minute, 24 hours a day, for a week straight.

People have filed complaints that they were falsely told that they had to sign one petition three times to make it valid, when they were unknowingly signing two other petitions. If you signed one of these petitions and were told this story, or were told other untrue reasons for signing the petitions, I would like to hear from you - email mtla@mt.net or call 406-443-3124.

Let’s protect the integrity of our citizen initiative process. Demand to know where the money is coming from. Say no to CI-98 and yes to independent and neutral judges that protect our constitutional rights and our constitutional democracy.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary (September 5, 2006)
Judicial Recall: Proponents Fraud & Deceit?

The battle over ballot initiatives in Montana is heating up. Those include: statutory initiative
I-154 to amend eminent domain laws to provide that state and local governments compensate property owners for lost value due to government regulations, and prohibit governments from using eminent domain to transfer property to another private entity - something our state law already does: constitutional initiative CI-97 to artificially cap state spending in addition to the current constitutional requirement that the state budget be balanced; and constitutional initiative CI-98 to allow the recall of any state or local judges for any reason - not just the reasons already provided for in state law.

In my last commentary I stated that the signature gathering process for CI-98, as well as CI-97 and I-154 raised some serious concerns as to whether the letter of the law, let alone the spirit of the law, was followed. Since then a legal action has been filed challenging the signatures that were gathered for this anarchist triumvirate of initiatives, funded by shadowy, so far, out of state interests.

The group nominally pushing CI-98 is the Citizens Right To Recall committee. That group, like the groups backing I-154 and CI-97, seems to be a branch of Montanans in Action. And, that group seems to be a front for Americans for Limited Government. Which in turn seems to be a front for Howard Rich, a New York developer, and other conservative, out of state business interests.

Oklahoma has also been facing the gathering of signatures for initiatives like I-154 and CI-97. The group supporting the initiatives there is called Oklahomans in Action - I guess Americans for Limited Government only provides support for groups called "in Action." Like here in Montana, the same professional signature gathering group descended on Oklahoma. Like here, the signature gatherers were something less than above board in their efforts. And, like here, a legal action was filed defending the integrity of the initiative process and challenging the legality of the signature gathering process.

Last week the Oklahoma Supreme Court threw out signatures and prevented the initiative from being placed on the ballot. The decision was based upon "substantial illegal participation of out-of-state circulators" - some of the same professional signature gatherers that were at work here in Montana.

Here in Montana, the legal action was brought by Property Owners Against I-154, Montanans for Justice: Vote No on CI-98, and Not in Montana: Citizens Against CI-97. The suit alleges actions that violate Montana law and constitute a pervasive pattern of illegal and deceptive practices such as to pervert the entire ballot qualification process for all three initiatives. The suit seeks to throw out signatures gathered by the professional out of state crews, and determine that without those signatures the initiatives received insufficient signatures to qualify for the ballot.

Here are some of the allegations about the signature gatherers brought in from out of state to collect signatures for these ballot initiatives. The professional signature gatherers were encouraged to lie and generally engage in a pattern of devious and deceptive practices, including routinely providing false addresses on affidavits, signing other signature gatherer’s affidavits despite the fact they had not personally gathered the signatures, and purposely not leaving a trail as to their future whereabouts. In sworn testimony by Robert A. Colby in the Oklahoma case, Mr. Colby testified that after he and other paid signature gatherers worked in Oregon, they then came to Montana for a month to gather signatures and then proceeded on to Nebraska. In his testimony, Mr. Colby admitted that he lied in his affidavit in Montana by providing a false address. He also admitted that he lied on affidavits in other states and that he, and other paid signature gatherers, deliberately lie and violate the law in gathering signatures.

In addition to these dishonest practices, professional signature gatherers in Montana engaged in other deceptive practices to induce people to sign the petitions for CI-97, CI-98, and I-154, including misinforming voters as to effect of the initiatives if they were to be adopted by voters, failing to inform voters at all on the substance of the initiatives, and, most egregiously, using a "bait and switch" scheme whereby they would tell voters that they were signing copies of the petition sheets for I-154, when they were actually signing petition sheets for CI-97 and CI-98.

The suit alleges that one signature gatherer, Marvin King, alone, accounted for 41,761 total signatures on all three petitions. He supposedly did this at a rate of 49 signatures per hour for an entire week, around the clock. This impossible task was purportedly accomplished in counties some 400 miles apart. In the period June 1st to June 19th, King gathered at least 16,685 signatures from Missoula to Miles City. This is a rate of one signature in one minute, 42 seconds around the clock for 19 days in counties over 600 miles apart.

Because of the sheer volume of signatures claimed by King during these time periods, it was impossible for him to personally ascertain that the signers were genuine and that they each knew the contents of the three complex initiatives on which he gathered signatures.

Our initiative process was designed for Montana citizen participation, let’s keep it that way. The hearing on the suit to protect the integrity of Montana’s citizen initiative process is this Friday.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary, October 3, 2006
CI-97, CI-98, and I-154 - Pervasive Fraud

The battle continues over three ballot initiatives being pushed in Montana by out of state extremists. The three initiatives are: statutory initiative I-154 to amend eminent domain laws to provide that state and local governments compensate property owners for lost value due to government regulations, and prohibit governments from using eminent domain to transfer property to another private entity - something our state law already does: constitutional initiative CI-97 to artificially cap state spending in addition to the current constitutional requirement that the state budget be balanced; and constitutional initiative CI-98 to allow the recall of any state or local judges for any reason - not just the reasons already provided for in state law, not doing their jobs.

In my last commentary I related that a legal action had been filed challenging the signature gathering process for those three initiatives. The legal action was brought by Property Owners Against I-154, Montanans for Justice: Vote No on CI-98, and Not in Montana: Citizens Against CI-97. The suit alleged actions that violate Montana law and constitute a pervasive pattern of illegal and deceptive practices such as to pervert the entire ballot qualification process for all three initiatives.

A full day evidentiary hearing was held September 8th. Judge Dirk Sandefur of Great Falls was the presiding judge, after the proponents of the initiatives substituted out Judge Kenneth Neil at the 11th hour. Judge Sandefur heard from witnesses, received deposition testimony from witnesses who were unable to appear, and received written evidence.

On September 13th, Judge Sandefur issued his decision. The decision was 47 pages of detailed findings of fact, an exhaustive examination of the applicable law, his conclusions and his order. Judge Sandefur concluded that "the 2006 signature gathering process under Title 13, Chapter, 27, MCA, for CI-97, CI-98, and I-154 is permeated by a pervasive and general pattern and practice of fraud and procedural non-compliance perpetrated by paid, out of state, migrant signature gatherers commissioned by Proponents." Judge Sandefur invalidated the signatures gathered by paid out of state signature gatherers, and as a result of the significant numbers of signatures they accounted for, invalidated the Secretary of State’s certification of the three initiatives for inclusion on the ballot.

Judge Sandefur’s decision and order brought an immediate and virulent attack from the initiative’s proponents. The proponents attacks ranged from the suit being just about nine voters being deceived, to not having the opportunity to conduct discovery or present evidence.

Contrary to the simplistic misinformation touted by the proponents, the complaint and order were not about just nine voters who were deceived. Their stories were a part of the evidence that most of the signature gathering process was riddled with fraud - from giving false addresses, to bait and switch tactics, to swearing to false affidavits. There was also the sworn testimony of a professional signature gatherer detailing the fraudulent practices that were the norm of the industry, and that were used in Montana.

Judge Sandefur wrote: "In contrast, the Proponents presented no credible evidence to rebut Plaintiffs’ showing of a pervasive and general pattern and practice of fraud and conscious circumvention of procedural safeguards. As the parties who commissioned the professional migrant signature gatherers, the Proponents should have been in the best position to contact their signature gatherers and bring a sufficient number of them into court to rebut the Plaintiffs’ showing of fraud and irregularity. However, either because they were unwilling or themselves unable to locate them, Proponents failed to present any direct evidence from the best and most knowledgeable source to rebut Plaintiffs’ showing."

The proponents complained that they were unable to use the discovery process to develop evidence for trial. That’s curious, because the evidence the proponents said they couldn’t get was, as Judge Sandefur said in his order, the testimony of the signature gatherers that they paid for.

Judge Sandefur concluded that: "As recognized by other courts, and contrary to the politically-provocative rhetoric that is certain to follow, invalidation of the signature gathering process does not result in disenfranchisement of the people who support the Ballot Initiatives. As a matter of law and reason, the people who support the initiatives have no political or legal right to vote on them until Proponents have duly qualified them for the ballot in the manner provided by law, free from the taint of fraud. Thus, this decision does not preclude Proponents from fairly and lawfully qualifying the initiatives for a vote of the people on the merits in the next election cycle." (emphasis in original) Judge Sandefur’s order is at www.noci98.org.

The proponents had the choice to do it right, to follow the letter and spirit of Montana’s initiative laws, they chose instead to utilize out of state signature gatherers of dubious character who flaunted and broke Montana’s laws. The proponents blame the Judge that upheld the integrity of Montana’s initiative process. The real culprits are the out of state money men who got what they paid over $600,000 for - as many signatures as possible, using any means, legal or not.

Judge Sandefur did what judges are supposed to do - listen to all the evidence and apply the relevant law to the evidence. His decision is now before the Montana Supreme Court.

In the meantime, CI-97, CI-98and I-154are still on the ballot. All three ballot measures deserve a NO vote. Each has a component that makes sense - that’s why they are already Montana law - but in reality they’re just another bait and switch ploy.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - October 31, 2006
Cow Pies Wrapped in Iridescent Packages

The battle is over for three ballot initiatives being pushed in Montana by out of state extremists. The three initiatives are: I-154 to amend eminent domain laws to provide that state and local governments compensate property owners for lost value due to government regulations; CI-97 to artificially cap state spending in addition to the current constitutional requirement that the state budget be balanced; and CI-98 to allow the recall of any elected state or local judges for any reason - not just the reasons already provided for in state law.

I’ve talked before about the legal action brought by Property Owners Against I-154, Montanans for Justice: Vote No on CI-98, and Not in Montana: Citizens Against CI-97. The suit alleged actions that violate Montana law and constitute a pervasive pattern of illegal and deceptive practices such as to pervert the entire ballot qualification process for all three initiatives.

On September 13th, Judge Sandefur issued his decision. The decision was 47 pages of detailed findings of fact, an exhaustive examination of the applicable law, his conclusions and his order. Judge Sandefur concluded that “the 2006 signature gathering process under Title 13, Chapter, 27, MCA, for CI-97, CI-98, and I-154 is permeated by a pervasive and general pattern and practice of fraud and procedural non-compliance perpetrated by paid, out of state, migrant signature gatherers commissioned by Proponents.”

Judge Sandefur’s decision was appealed to the Montana Supreme Court. And last week the Court upheld Judge Sandefur’s ruling in a unanimous (7-0) decision. In a lengthy decision, the Court addressed and dismissed the proponents’ arguments. The Court noted that “Some will argue that use of a “bait and switch” tactic does not warrant the invalidation of the signatures on the “bait” petition, as many persons arguably signed it voluntarily and knowingly. Others may claim that invalidating signatures due to the use of false addresses by 43 signature gatherers is excessive, and an elevation of form over substance. However, it bears emphasis that we are not deciding this case based solely on a conclusion that one or the other event occurred in isolation. As did the District Court, we consider here the totality of the circumstances of the claims before us, as well as the totality of the unrefuted evidence presented by Opponents without substantial objection from Proponents. Taking account of all the evidence, we conclude that the District Court did not err when it invalidated the signatures of Proponents’ out-of-state signature gatherers that were obtained in a manner that did not comply with Montana statutes and were tainted by or associated with deceptive practices and misrepresentation.

Responding to the argument that the people should get to vote on the initiatives, regardless of the legality of the process, the Court concluded “We acknowledge that many voters feel strongly that they should have the opportunity to vote on one or more of these initiatives, and that these people will feel disenfranchised by our decision. This is extremely regrettable. The fact remains, however, that if the initiative process is to remain viable and retain its integrity, those invoking it must comply with the laws passed by our Legislature. We can neither excuse nor overlook violations of these laws, for to do so here would confer free reign for others to do so in other matters. We must enforce the law as written and as the Legislature intended.” The Supreme Court decision and Judge Sandefur’s order are online at www.noci98.org.

The proponents had the choice to do it right, to follow the letter and spirit of Montana’s initiative laws, they chose instead to utilize out of state signature gatherers of dubious character who flaunted and broke Montana’s laws. The proponents blame the courts that upheld the integrity of Montana’s initiative process. The real culprits are the out of state money men who got what they paid over $1,000,000 for - as many signatures as possible, using any means, legal or not; and a blitz of false and deceptive advertising.

CI-98 was just one skirmish in what will likely be a long war. After the Supreme Court upheld Judge Sandefur’s decision invalidating the signatures gathered for CI-98, supporter Trevis Butcher said “Generally if something doesn’t win, you redouble your efforts through more ballot measures or through the Legislature.” While it is easy to dismiss Butcher, et al as anti-government extremists, we need to remember that they are just the bomb throwers, the more insidious danger is from the moneyed interests backing them.

It has been a steady drum beat over the last several years - activist judges, activist judges, activist judges, activist judges. Repeat a lie enough times and it becomes the conventional wisdom - the truth - for the public. Not content with their ongoing attack on trial lawyers, politicians (from the President to state legislators) and corporate interests like the US Chamber of Commerce - are stepping up their assault on the judiciary. In their lexicon an activist judge is any judge that rules contrary to their wishes. What they want is a pliant and subservient judiciary that bends to their wishes, rather than an independent judiciary that considers matters before them according to the applicable law - upholding the constitutional rights of everyone, not just the moneyed special interests.

In this war there will be plenty of propaganda, taking a page from the Nazis and Karl Rove, there will be lies about the judiciary repeated ad nauseam, in hopes that the lies will become the “truth.” As Mike Lamb, a Helena trial lawyer, put it: “There will be cow pies wrapped in iridescent packages with pretty pink bows being hawked by silver-tongued carnies on every street corner.” Don’t step in the “judicial activist” cow pies.

This is Al Smith for the Montana Trial Lawyers Association.

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KUFM Commentary - November 28, 2006
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, consumer involvement, 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. 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 900 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 tens of thousands of children are treated in hospital emergency rooms for toy-related injuries. Children ages 5 and under are at especially high risk - last year 20 of these young children died and over 70,000 sought emergency care

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, hundreds 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, 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 26, 2006
Insurers Profit From "Tort Reform"

As the new year begins, many of you have probably been receiving notices of premiums for your insurance, and rates are going down, not across the board and not as significantly as insurance industry profits go up, but rates are going down.  Why?

Four years ago at this time I asked "Why are liability insurance rates soaring again?"  The conventional wisdom then was that it's our court system - runaway juries award huge winnings for groundless claims filed by greedy lawyers. In the face of huge losses, our poor insurance companies had no choice but to raise premiums.  We just knew this to be true – at least, that's what we were told – by the insurers that rake in the rate increases and by the insureds who pay them, and repeat the "it's the lawyers' fault" mantra.

The problem with this conventional wisdom?  It's not really true.  The number of lawsuits haven't been rising, and the amounts being paid out in claims haven't been rising.  The truth is insurance rates were going up because the economic and stock market conditions were causing insurance companies to lose money. And when insurance companies aren't making 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 - they make their real money by investing your premiums.  And when they can't make enough through their investments of your premiums, they come back to you demanding higher premiums.

But that is not all the insurance companies demand - they also demand restrictions on citizens' rights, your rights, to hold those that harm them 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.  It's a sweet deal for them - they rake in higher premiums because even when tort reforms pass they don't lower premiums, and they have to 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, remember they make 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 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 and Congress 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 rates 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 who injured you legally responsible are diminished or prohibited. 

With tort reforms you pay more money for less compensation, and insurance companies make more profits for providing less coverage.  It's a heck of a deal for the insurance industry, but people and businesses buying insurance get the short end of the proverbial stick.

Publications like the Wall Street Journal, Business Week, Forbes and Business Insurance have all reported in the past few years that the 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 of the Consumer Federation of America, an insurance actury.  His studies are 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 did not bring lower rates, the change in the insurance cycle did.  In the past two years, all lines of insurance have been making record profits, even with disasters like Katrina.  Further proof that insurance premium woes are all about industry cycles, not people exercising their constitutional right to a jury trial.

Passing tort reforms only helps the insurance industry - they make more profits and have less risk.  While making it harder, or even impossible for injured Montanans to have their day in court.  Republican legislators have already submitted numerous tort reform bills for Montana's 2007 session - you have to wonder why they play Santa Claus for an insurance industry raking in record profits and Scrooge for the people of Montana.

This is Al Smith for the Montana Trial Lawyers, wishing you and yours a happy and safe New Year. 

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