2012 KUFM Commentaries 

Return To All Commentaries

LR 119 – Rules and Numbers March 13, 2012
Independence From Corporate Tyranny? July 3, 2012 
Defensive Medicine? July 31, 2012
Injured Patients the Cost of Rising Health Care Costs? August 28, 2012
What Corporations Want From Elections September 25, 2012 
Gun Safety - Get Your Remington Repaired October 23, 2012
Holiday Safety November 20, 2012
Corporate Assault on Our Constitutional Rights December 18, 2012


March 13, 2012
LR 119 – Rules and Numbers

This past legislative session we had a relatively large number of bills that were legislative referendum to be sent to the voters instead of straight up legislative bills or constitutional initiatives passed by the legislature. There are a couple of reasons for that – first, referendum bills were not subject to the Governor's veto iron, and second, they require only a majority vote to pass the legislature rather than the two thirds vote required for a proposed change to the Montana Constitution.

One of those is scheduled for a vote in the June primary, rather than the November general election. LR 119 seeks to change how we vote for justices to the Montana Supreme Court. Now, you have the right to vote for all 7 Supreme Court Justices as their 8 year terms come up for election – you can vote in EVERY Justice election as 1 to 2 seats come up for election every two years. LR 119 divides Montana into 7 districts, and restricts you to voting for the Supreme Court Justice seeking election in your district – instead of voting in all 7 justice elections, you vote for only one justice every 8 years.

Whether LR 119 should even be on the ballot is being challenged in court by Montana voters and taxpayers. The Montana Constitution has only one residency requirement for Supreme Court justice candidates – that they reside in the state of Montana. LR 119 requires by statute that justice candidates reside in the district that they will be elected from. The lawsuit argues that this restriction on the constitutional residency requirement in fact amends the constitution without following the rules for amending the Constitution, and it should therefore not be placed on the primary ballot.

Whether LR 119 followed the rules and goes on the ballot, at additional cost to taxpayers for a special primary voter information pamphlet, will soon be determined by the courts. The decision will not decide if LR 119 is a good or bad idea, rather it will determine whether the appropriate rules were followed.

What about that question – is LR 119 a good or bad idea? Let's look at what the proponents argue are reasons for this change.

Proponents argue that the Montana Supreme Court hasn't reflected the geographical diversity of the state because to many justices come from within 90 miles of Helena. That fixes a problem which doesn’t exist. The Supreme Court has historically been geographically diverse. In the last thirty years, justices came to the Court from Billings, Bozeman, Butte, Chester, Cut Bank, Glendive, Great Falls, Havre, Helena, Kalsipell, Missoula, Polson, and Whitefish.
The Supreme Court is not a legislature. A legislature is designed to be a representative body, and to reflect the varied local interests of the voters. The Court, however, is not designed to represent varied local interests. The Supreme Court is responsible only to upholding the Constitution and laws of Montana. A Constitution and law that are the same across the state.

Proponents also argue that district elections would mean your vote would be worth seven times more with districts, because you have more influence electing “your justice.” Well let's look at some numbers.

Nearly 90% of cases are heard and decided by a rotating 5 justice panel. Under LR 119, “your justice” would end up not participating in 25% of the cases. For that, you lose the right to vote for 100% of the justices.

What is taken away by LR 119? Well, the seven districts have about 90,000 voters each. There are usually two justices up for election every two years. In those years, voters in five districts would have no vote – that's 450,000 voters denied the right to vote for a supreme court justice every two years. In 2018, only district 4 would vote for a justice – depriving 540,000 Montana voters of their right to vote.

Proponents argue that special interests like trial lawyers dominate the state wide elections for Supreme Court elections, and that LR 119 would negate such special interest influence. Well, even if that assertion were true, creating seven districts doesn't fix that. If anything, district elections would arguably encourage more influence by special interests – they could spend seven times as much money per voter. It is a heck of a lot more effective for a special interest that spends millions on state judicial elections, like the U.S. Chamber of Commerce, to come into Montana and target their money on one or two media markets in a district, rather than having to put money in the seven or more media markets required in a statewide election.

By the numbers, LR 119 makes no sense: every two years 450,000 voters deprived of their right to vote for a justice; voting for one justice every eight years rather than voting for one or two justices every two years; and, giving special interests seven times the power to influence supreme court elections.

Taking away our right to vote just doesn't add up.

This is Al Smith for the Montana Trial Lawyers

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July 3, 2012
Independence From Corporate Tyranny?

Tomorrow is Independence Day –  the day we celebrate our declaration of independence from England.  Most of us remember our grievances that led to the American Revolution as being against King George.  What most of us don't remember, or never learned, was that many of our grievances were with King George carrying out the bidding of the few corporations that dominated colonial America, like the East India Company – the original tea partiers threw its tea into Boston Harbor.  In 1776 we declared our independence not only from British rule, but also from the corporations of England that dominated and controlled us, and extracted wealth from us.

There is more than a bit of irony that as we celebrate our independence this year, we are experiencing ever more of the corporate dominance that we rebelled against at our nation's birth.  Our country's founders retained a healthy fear of the threats posed by corporate power and sparingly granted corporations a limited business role.  As Thomas Jefferson said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."  Those 'moneyed corporations' Jefferson warned about were banks and financial speculators.

Last month the U.S. Supreme Court summarily voided Montana's Montana's Corrupt Campaign Practices Act, thereby approving American Traditions' challenge to Montana's ban on corporate expenditures in independent expenditure races.  The result is that corporate money can be used to fund independent expenditures in Montana state campaigns, just as the Court's Citizens United case had done for federal campaigns.  

The Court rejected a full hearing, and showed no deference to the founders concerns with the corrupting influence of corporate power, or our state's right to decide how our state will regulate campaign finances in our state elections.  The Court refused to even listen to Attorney General Steve Bullock's argument that Montana has not had corporate corruption of the electoral process since the days of the Copper Kings precisely because we have had effective, and constitutional, laws to prevent such corruption.  I'm not even sure a resurgence of Copper King like corruption would sway this Court in the future. 

What did corporate spending look like in our recent election?  In the Republican primary race for Attorney General, a Virginia group spent over $100,000 in corporate money to support Jim Shockley's opponent.  The Virginia group at least identified it's corporate contributors – Yahoo, Walgreens, Endo Pharmaceuticals, the national Pharmaceutical lobby, a DC lobbying firm and last, but not least, Altria, the progeny of tobacco giant RJ Reynolds.  Most likely more corporate money will be seen in the general election - either attacking Attorney General candidate Pam Bucy, or supporting her opponent, or both.  This time though, I would not be surprised if the money comes without the corporate sources being identified.

We will see more front corporations who gather corporate money, refuse to identify where the money comes from, flaunts campaign laws, and floods mail boxes with sleazy attack pieces.  This primary season we had a Montana corporation, Montana Growth Network, that officially spent $42,000 on an independent expenditure campaign attacking Supreme Court candidates Elizabeth Best and Ed Sheehy.  MGN also likely spent money on a push poll that was the basis for their attack mailers and for radio ads – expenditures not reported.  In it's official filing MGN does not identify any source, not even itself, for the contributions that are funding it's attack pieces.  Who is funding these attack ads – MGN, another corporate front group, Montana corporations or out of state corporations, or even foreign corporations?  MGN and it's treasurer, Jason Priest, aren't saying in reporting to the political practices commissioner.

While supporters of Citizens United, like Dennis Rehburg, say that we will have transparency – we get to see who is spending the money on campaigns – that is at best a half truth.  The money will be filtered through front groups, and those front groups will refuse to divulge their contributors.  American Tradition is currently fighting Montana's disclosure laws, while refusing to divulge its contributors.

In one bright spot, U.S. District Judge Charles Lovell rejected a request from the Sanders County Republican Central Committee to strike down the Montana law banning political parties from endorsing nonpartisan judicial candidates.  The Sanders Republican Party committee said it wanted to endorse candidates running for the Montana Supreme Court and a local state district judgeship.  But stay tuned, Lovell only declined to grant a preliminary injunction, and set a hearing for September on whether to void the law.

So, what can be done with all these assaults on Montana's campaign laws?  You can support candidates who support people and not corporations.  And, you can take a close look at I-166, a citizen's initiative that will be on November's ballot.  I-166 tries to reassert a little more citizen control over corporations in the electoral process, as it's backers say “Quite simply, corporations are not people, they shouldn’t be granted the same rights as people, and they certainly shouldn’t be allowed to buy elections.”

It's hot and dry out there, please heed all fire warnings and have a safe and happy Fourth!
This is Al Smith for the Montana Trial Lawyers.

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July 31, 2012
Defensive Medicine?

Our political discussions regarding health care often take a familiar turn. Too often those discussions build upon the principles of the modern father of propaganda, Joseph Goebbels, of Nazi infamy. Especially prevalent is his principle that, “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.”

One of the new “big lies” constantly repeated over the past couple of years is that so-called “defensive medicine” is a significant factor in health care costs. Supposedly doctors order unnecessary tests and medical procedures as a means to avoid lawsuits. And of course, the only cure for defensive medicine is to limit or deny the rights of persons who have been harmed by medical negligence – so-called 'tort reform.' We've recently heard it again as the primary focus of how Congressman Rehberg intends to replace the Affordable Care Act. Of course, that's not just his idea - the number one alternative being presented by those pushing to repeal the entire Affordable Care Act is stripping injured patients of their legal rights.

There are some basic factual questions that should be asked, and answered, in Montana and nationally – is defensive medicine even a significant cause of higher health care costs? Are there real facts to back up such claims, or has propaganda created another falsehood, that with repetition has come to be accepted as truth?
Nationally, there just aren’t facts to back up the claim that defensive medicine is a significant factor in health care costs. The Congressional Budget Office, when it actually studied the issue, called the evidence of defensive medicine “not conclusive,” and summarized, “On the basis of existing studies and its own research, CBO believes that savings from reducing defensive medicine would be very small.”

Why do physicians order tests and procedures? One government agency found that when doctors ordered tests they almost always did so because of medical indications. Other reasons include, the desire to maintain a good doctor-patient relationship, caving into patient demands due to the influence of advertising by the medical industry, the simple availability of sophisticated technology, the desire for diagnostic certainty, the fear of missing a diagnosis that could harm a patient, and financial gain – a side effect of our traditional fee-for-service payment system.

Doctors may actually practice defensively because it generates more income, according to the GAO. They identified revenue-enhancing motives as one of the real reasons behind the utilization of extra diagnostic tests and procedures. In Florida, health authorities determined diagnostic-imaging centers and clinical labs were ordering additional tests because the majority were physician-owned and the tests provided a lucrative stream of income. Federal law now prohibits the referral of Medicare patients to certain physician-owned facilities, many of which charge double the amount in lab fees.

The New York Times recently ran a story about a scam doctors are running to increase their revenues, while increasing costs for health insurers – and ultimately the rest of us that pick up the health care tab in the end. The Times found that “At a time of soaring health care bills, experts say that doctors, middlemen and drug distributors are adding hundreds of millions of dollars annually to the costs borne by taxpayers, insurance companies and employers through the practice of physician dispensing.”

The Times found that “Instead of sending patients to drugstores to get prescriptions filled, doctors dispense the drugs in their offices to patients, with the bills going to insurers. Doctors can make tens of thousands of dollars a year operating their own in-office pharmacies. The practice has become so profitable that private equity firms are buying stakes in the businesses, and political lobbying over the issue is fierce.”

We have absolutely no valid studies on medical decision making in Montana, or anywhere else. But we do know that Medicaid and Medicare require that medical tests and procedures must be medically necessary. Truly defensive medicine – tests and procedures ordered not because they are medically necessary, but only to lessen liability exposure, is fraud. When this issue came up at Congressional hearings in 2011, the doctors who first testified to performing unnecessary tests essentially wound up denying it when members of Congress asked if they billed Medicare for them. But, as the recent Times story reveals, the health care industry can always figure out how to get around rules designed to stop unnecessary care.

Looking at the numbers, all malpractice costs - malpractice insurance premiums, damages paid, legal fees, etc - amount to less than 2% of our total health care costs. The health care industry could receive total immunity from all lawsuits and it would lower health care costs only 2%. Yet the primary health care solution we get from Congressman Rehberg is to make it harder for people to seek justice, a solution that comes at a high cost – the further erosion of our constitutional rights.

This is Jamie Carey for the Montana Trial Lawyers Association.


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August 28, 2012
Injured Patients the Cost of Rising Health Care Costs?

Well, the political campaign season is heating up. Tis the time for politicians to spout sound bites about how they will cure what ails us. All too often, it seems that politicians spend most of their efforts touting poll tested slogans for their 'cures' and ignoring the facts.

Now no one disagrees that the decades long increase in health care costs is a serious problem. Whether it's increasing health insurance premiums, rising drug costs, or escalating hospital prices, everyone agrees those costs need to be constrained, or even lowered. And, we seem to have agreement among top Republican office seekers on how to do that. Congressman Rehberg and former Congressman Hill tout the 'tort reform' slogan as the primary way to cure what ails our health care system. Does 'tort reform' - stripping or inhibiting injured patients of their Constitutional right to a trial by jury for the injuries they have suffered - 'cure' our health care cost problem? Political sloganeering says yes, but the facts say no.

Perhaps Congressman Rehberg and former Congressman Hill are ignorant of the fact that Montana already has much of the so-called 'tort reform' they are touting. The Montana Medical Association has praised the forty plus pieces of 'tort reform' legislation passed over the past decades – including a cap on damages. So what has all that stripping of Constitutional rights gained for Montana when it comes to health care costs? Well, the facts say nothing, actually.

According to research done by the Kaiser Foundation found at statehealthcosts.org, Montana's per capita health care costs are around $6,640 per year. Nearby Wyoming has virtually no 'tort reform' and no cap on damages, yet their per capita costs are only 6% higher than Montana's. So, does that mean tort reform saves that 6% in costs in Montana? Well, no, there is no link – for example, North Dakota has 'tort reform' – including a cap on damages – and its per capita health care costs are 17% higher than Montana's. The only logical factual conclusion is that there are other factors at work when it comes to actual health care cost differences.
Further proof of that comes from Texas, where their nearly decade long experiment with tort reform has not yielded the promised lowering of health care costs. A recent study published in the Journal of Empirical Legal Studies examined the effect of Texas' 2003 tort reforms.

They looked at Medicare spending prior to 2003, and observed that spending levels and trends were similar in high- and low-risk counties – risk based upon previous levels of malpractice claims. After 2003 they found “no evidence that spending levels or trends in high-risk counties declined relative to low-risk counties.” The study actually found “evidence of increased physician spending in high-risk counties,” contrary to the political slogan expectation that protected by tort reform the health care industry would have lower costs as so-called defensive medicine deceased. The study also compared spending trends in Texas to national trends, and found “no evidence of reduced spending in Texas” after the reforms. The study actually found “evidence that physician spending rose in Texas relative to control states.” The study's conclusion: “In sum, we find no evidence that Texas’s tort reforms bent the cost curve downward.”



So, no direct link between tort reform and health care costs, what are the causes. The Kaiser Foundation has looked at the numbers behind health care cost increases. The top factors that they came up with were higher spending on prescription drugs, higher spending for hospitals, higher spending for physicians, higher spending for better technology, and higher insurance company profits. Medical malpractice costs didn't even make their cost driver radar.


While the particular percentages change from year to year, prescription drugs and new medical technologies continue as primary contributors to the increase in overall health spending. Kaiser also cites the rise in chronic diseases, with longer life spans and greater prevalence of chronic illnesses placing ever increasing demands on the health care system. Estimates put health care costs for chronic disease treatment at over 75% of health expenditures. And, administrative costs continue to be an increasing cost – those of government programs and the net cost of private insurance - overhead, reserves, taxes, and profits/losses.
The Affordable Care Act is not the be all-end all of health care cost containment, but it does at least offer some factually logical ways to reduce costs. So what do Congressman Rehberg and former Congressman Hill think of the Affordable Care Act? They want to repeal it.

Looking at the numbers, all malpractice costs amount to less than 2% of our total health care costs. The health care industry could receive total immunity from all lawsuits and it would lower health care costs only 2%. Yet the primary health care solution we get from Congressman Rehberg and former Congressman Hill is an empty political sound bite, 'tort reform.' Making it harder for injured people to seek justice is no solution, and it comes at a high cost – the further erosion of our constitutional rights.

This is Al Smith for the Montana Trial Lawyers Association.

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September 25, 2012
What Corporations Want From Elections

Have you had your fill yet of political ads? Now that's a rhetorical question if there ever was one, we've all seen more than we want to, and it doesn't matter what we feel about them, the ads will just keep coming.

This is the first election cycle with full scale use by monyed interests of the Citizens United holding that corporations are free to spend their corporate funds on elections, 2010 being just a tune up. Nationally the so-called super PACs are raising and spending hundreds of millions of dollars to influence our elections. Here in Montana we've seen an onslaught of ads from these groups attacking Senator Jon Tester.

While supporters of Citizens United, like Congressman Dennis Rehburg and the majority of the Court, say that we will have transparency – we get to see who is spending the money on campaigns – that is at best a half truth. The money has been filtered through front groups, and those front groups are not divulging their contributors – in fact, they solicit money on the basis that their donors' names will be kept secret. In fact, these groups had a hard time raising money until they figured out how to hide their donors. The reality is that there is no transparency, something Congressman Rehburg knows very well, and something the majority in Citizens United was, at the least, naive about. Remember American Tradition, the Virginia group that had Montana's ban on corporate money in elections shot down in the U.S. Supreme Court? It is currently fighting Montana's disclosure laws, while refusing to divulge its contributors.

So what do these corporations want? Unlike their usual corporate ads, there usually is not any “product” they want to sell in the ads they are funding. Their money is instead usually used to attack opponents on issues that have absolutely no relationship to the giver's business. Now, we the public may not know who is funding these ads, but the candidates being supported certainly know where the money is coming from. Do you think the corporate funders will have anything to ask of the candidates that win? Do you think they feel the money they've spent entitles them to preferential treatment?

Remember the recent Republican primary race for Attorney General? A Virginia group spent over $100,000 in corporate money to support Tim Fox. The Virginia group at least identified it's corporate contributors – Yahoo, Walgreens, Endo Pharmaceuticals, the national Pharmaceutical lobby, a DC lobbying firm and last, but not least, Altria, the progeny of tobacco giant RJ Reynolds. Well they're back for the general election – recently buying TV and radio ads for nearly $600,000 to again support Tim Fox. That is more than AG candidates Pam Bucy and Fox have raised in total. When asked about the ads, the group's spokesman said “We think that our candidate is a solid candidate and look forward to him serving as the next attorney general.” Our candidate?? Corporations, none of whom are headquartered in Montana, and who act through a front in Virginia, consider Fox to be “our” candidate? Seems that what this group of corporations wants is a literal Fox guarding the metaphorical chicken house that is our state.

A previous bright spot in the assault on Montana's campaign laws, U.S. District Judge Charles Lovell's rejection of a request from the Sanders County Republican Central Committee to strike down the Montana law banning political parties from endorsing nonpartisan judicial candidates, has gone black. The Ninth Circuit recently threw out our law, and political parties are now free to endorse non-partisan candidates for the judiciary. And, of course, corporate treasuries are free to try to buy judicial elections.

What does that mean for us individual human citizens? Judge Schroeder's dissent in the 2-1 Ninth Circuit decision is worth repeating:

 This decision is a big step backwards for the state of Montana, which we all agree has a compelling interest in maintaining an independent and impartial judiciary. The majority ignores the practical effects of its decision on that interest when it takes a formulaic approach to First Amendment doctrine. This is the first opinion to hold that even though a state has chosen a non-partisan judicial selection process, political parties have a right to endorse candidates. This means parties can work to secure judges' commitments to the parties' agendas in contravention of the non-partisan goal the state has chosen for its selection process.

So, what can be done with all these assaults on Montana's campaign laws? You can support candidates who support people and not corporations, candidates like Jon Tester, Steve Bullock and Pam Bucy who have condemned the effects of Citizens United. You can become more informed – a good start would be listening to Bill Moyers' interview with Trevor Potter tomorrow at 1:00 PM here on KUFM. And, you can take a close look at I-166, a citizen's initiative that will be on November's ballot. I-166 tries to reassert a little more citizen control over corporations in the electoral process, as it's backers say “Quite simply, corporations are not people, they shouldn’t be granted the same rights as people, and they certainly shouldn’t be allowed to buy elections.”

This is Al Smith for the Montana Trial Lawyers
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October 23, 2012
Gun Safety - Get Your Remington Repaired

The general rifle season for elk, deer, and antelope opened this past weekend. Hunting is a family tradition in Montana, a higher percentage of our population hunts than in any other state, and it is common to see hunting parties of two or three generations in the woods and on the prairies throughout Montana. Unfortunately, a Montana family may lose a loved one to a hunting accident.

It’s good to remind ourselves, and our hunting companions, to be extra careful with guns. Those of us who do own and use firearms, whether for hunting or sport shooting, need to make sure that we emphasize safe gun handling practices, for ourselves and those we are shooting with. We need to reinforce the safe handling of guns, remembering to treat each and every weapon as if it were loaded. We have come to place too much trust in the mechanical safeties on our guns, but that trust is misplaced.

Twelve years ago, here in Montana, on October 23rd, nine year Gus Barber lost his life when a hunting rifle that was being unloaded fired unexpectedly. Most of us who heard the news reports at the time were saddened to hear the reports, and it was especially so for parents confronted with the unimaginable pain of losing a child. For those of us who hunt, it was a sober reminder of the inherent dangers of firearms and the need to reinforce safe gun handling practices.

Unfortunately, the tragedy of the loss of nine year old Gus Barber’s life was caused, in part, by a defective product. While a Remington Model 700 rifle was being unloaded, the rifle’s safety was released, and the gun fired. The gun firing was an unexpected event for Gus’s family. A Remington Model 700 rifle accidentally discharging, however, was not unexpected, by Remington.

Over the years thousands of Remington Model 700 rifles have discharged unexpectedly, including many here in Montana. Faced with owner complaints and lawsuits, Remington, making a cost benefit analysis, chose not to recall the rifles. Remington chose instead to issue a statement to Remington rifle owners about proper gun handling. The statement did not alert Remington owners that there was a potential design problem with their rifles that required added attention to safety.

Remington knew it’s Model 700 rifles had problems. They even launched an internal program to develop a safer rifle. And they did develop a safer rifle, but chose not to market it.

We know all this about Remington Model 700 rifles because the victims of the tragedies that have resulted from Remington’s design defect have come to trial lawyers for help. Trial lawyers, and the victims’ concerned family members, like Gus's dad, Rich Barber, have uncovered the internal documents showing Remington’s knowledge of this problem, and of their knowledge of safer alternatives. Recently, Rich and his legal team were able to convince a federal judge here in Montana to unseal even more Remington documents in a Butte case settled in 1995.

One of the legal aspects of the Remington story received little attention over the years – secrecy agreements in previous litigation prevented much information about the dangers of the rifles from being made public. With Rich’s hard work we have been able to pass legislation in Montana to ban these secrecy agreements. Rich’s purpose was clear and concise - he didn't want another family to face the tragedy his had, simply because knowledge of a dangerous product was hidden from public view by a secrecy agreement.

While there has been no mandatory recall, Remington is offering to modify the defective mechanism for its models 700, 721, 722, 600, 660, XP-100 and 40-X. You can check the Safety Modification Program at remington.com under the news tab, and then safety link or call 800-243-9700 for the details of the program. There are still millions of defective rifles out there, and thousands here in Montana, please make sure one of them isn’t yours or one of your hunting buddy’s.

Gus Barber’s death prompted us years ago to make this yearly plea. We do it because every year we hear from a listener who has had a defective Remington repaired. But, every year we also hear of another hunter injured or killed by a Remington that unexpectedly fired.

Safe gun handling practices are not enough, these rifles are defective - PLEASE, check your guns, tell your family and friends, and just get these Remington rifles fixed. Please don’t wait until another Montana family’s fall hunting tradition turns into yet another preventable tragedy - please do it this season.

This is Al Smith for the Montana Trial Lawyers Association.



CNBC prepared an hour long story on defective Remington rifles Remington Under Fire, it can be accessed at http://www.cnbc.com/id/39554936/
Federal Court Unseals Remington Rifle Court Documents (September 5, 2012) http://publicjustice.net/content/federal-court-unseals-remington-rifle-court-documents
The link to Remingtons's Safety Modification program is:

From this page: The unloading process for most bolt-action firearms with a bolt-lock mechanism cannot begin unless the manual safety is placed in the "F" or "Off or Fire" position. If you participate in the program your firearm will be modified to eliminate the bolt-lock feature and you will be able to unload your firearm while the safety is kept in the "S" or " On Safe" position. The operation of your firearm will not otherwise be affected.

If you have a bolt-action rifle with a bolt-lock mechanism, and you do not wish to have the lock removed, you must be sure to follow this IMPORTANT SAFETY NOTICE: Be sure the rifle is pointing in a safe direction anytime you move the manual safety to the "F" or "Off or Fire" position. As soon as you have lifted the bolt, immediately put the manual safety back in the "S" or "On Safe" position and then continue the unloading process.

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November 20, 2012
Holiday Safety

It’s the holiday season, a festive time for gathering with family and friends. It is a time for celebrating and for giving thanks. It is also a time that can quickly turn from joyful to tragic. You can take steps to ensure that holiday festivities don’t turn into family tragedies.

Soon, new toys will arrive in homes across Montana. We know that not all of these toys are 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. Over the years, through government and industry regulation, consumer involvement, and through litigation by trial lawyers, toys have become safer.

Now, some complain that government regulation is bad for business and must be eliminated. Still others complain that regulations are just part of a so-called “nanny state” that is unduly protective. I, for one, am thankful that 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, such as too small of parts and toxic lead paints. Currently there are hundreds of 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 over two hundred thousand children are treated in hospital emergency rooms for toy-related injuries. Children ages 5 and under are at especially high risk. 

Toys for riding and sliding, including bikes, unpowered scooters, skis and snowboards are always popular. Unfortunately, they are also the source of many injuries. Many injuries are preventable. If you do buy such items, 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. Toys with small magnets and watch type batteries are an often overlooked hazard for youngsters. 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. This is especially important for the many families that need to shop at thrift stores, where package warnings may not be present.  

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.

Keeping kids safe also means keeping your homes safe. 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. During this holiday season, please take the time to install smoke detectors, or new batteries in the ones you have, and TEST them.

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.

If you can, please donate your time and money to help those organizations that provide food, clothing, shelter and comfort to our community members in need. Wishing you a happy and safe holiday season, this is Al Smith for the Montana Trial Lawyers Association.

The 2012 Trouble in Toyland report is the 27th annual U.S. Public Interest Research Group survey of toy safety.



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December 18, 2012
Corporate Assault on Our Constitutional Rights 

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 of punitive damages in personal injury cases are out of control. The facts, however, show just the opposite. A RAND Institute study of jury verdicts 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, even in complex cases.

Here in Montana, there are already several bill drafts for the upcoming legislative session that will limit or take away our constitutional rights to a trial by jury. Many of these are the product of ALEC – the corporate front group that produces model bills for the states that limit or eliminate corporate accountability, and promotes corporate cronyism paid for by state taxpayers. You can go to alecexposed.org to see how ALEC works.

When you hear the tort "de-formers" message inspired by groups like ALEC, 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 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.

Wishing you a safe and happy holiday season, this is Al Smith for the Montana Trial Lawyers Association.

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