2014 KUFM Commentaries 


Return To All Commentaries

Out of State Money In Montana Supreme Court Races, October 21, 2014
Gun Safety - Get Your Remington Repaired, September 23, 2014

Justice At RiskAugust 26, 2014

Vilification Of The Comp Claimant, July 29, 2014
Corporate ReligionJuly 1, 2014
Court Secrecy Kills, Again,  June 3, 2014
Pride In Our Legal System, May 6, 2014
Federal Regulators – Whose Interests Do They Serve?,  April 8, 2014

Civil Justice System - Protecting All Citizens, Even Hypocrites, March 11, 2014
Work Comp – You Can Help, February 11, 2014

Arbitration - Corporate Paid Umpires?, January 14, 2014


 


October 21, 2014

Out of State Money In Montana Supreme Court Races

Last month seven former Montana Supreme Court justices had an opinion piece published in the Missoulian. The title of the piece was Will Montana Judges Be For Sale?

The former justices described out of state money pouring into state judicial elections. They presented facts that can't be argued with – reports to state officials of campaign spending, from the websites of several of the groups spending the money and in the words of these groups' spokespeople in news interviews. Money – millions of dollars were being targeted on state supreme court races in states like Arkansas, North Carolina, and Tennessee.

One of these groups, the Republican State Leadership Committee (RSLC) announced it had amassed $24 million dollars just in the first half of this year. It spent money this August trying to take out Tennessee's sitting justices. Also active in Tennessee was the Koch brothers Americans for Prosperity group.

The former justices warned that, just as in other states, money from out of state groups would be coming here to influence Montana's judicial races. That is now a fact in Montana. The Washington DC based RSLC is currently spending money on judicial TV ads and direct mail in Montana – and, based on their TV buys, likely have already exceeded the amount they spent in Tennessee. Americans for Prosperity has also jumped into Montana's race.

Financial disclosure forms from the RSLC aren't due until Friday. So we don't yet know who exactly has been providing the money, or how much. But thanks to OpenSecrets.org we do know the RSLC's supporters in 2014. Their out of state corporate benefactors include tobacco companies Reynolds and Altria, Koch Industries, WalMart, CitiGroup and Exxon Mobil among others.

Montana Growth Network spent money in the 2012 Supreme Court election. It did not report where their money came from and only partially reported their spending. Was that money from Montana, Texas, Washington DC or even China? We don't know because these truly “dark money' groups thumb their noses at our campaign laws requiring disclosure.

At this time there is at least one other out of state group that is also trying to influence our court election. We don't know who they are because they don't identify themselves, a violation of our campaign laws. When you click “CONTACT” on their website, you get a map identifying their location as Scottsdale, Arizona.

One of the points the former justices made was: “Montanans have the right to know where the money is coming from, who is spending it, and what that contributor’s agenda is. …. Montanans deserve fair, impartial, independent and non-partisan judges and justices elected by Montana voters – not political hacks, bought and paid for by out of state dark money.”


The former justices have been criticized because some received election support from trial lawyers. Now, there is nothing wrong with naming supporters of candidates. That's exactly what the justices said – we should know where the money is coming from, who is spending it and what is their agenda. The only reason the justices could be criticized is because Montana trial lawyers comply with Montana law and report every penny – how much we receive, who it came from, and who spent it and what they spent it on.

Here are the facts about trial lawyers spending in Supreme Court elections that anyone can check out in our filings with Montana's Commissioner of Political Practices. In 1998 we spent nothing. In 2000 we spent $161,000 on two races – one candidate we supported won, one lost.

In 2002 we spent $96,000 to support the re-election of one justice. His opponent was an inexperienced attorney trying to turn the nonpartisan race into a partisan race. This attorney was later sent to federal prison for cocaine charges – I guess we were right in our assessment of who the better candidate was.

In 2004 we spent $326,000 to help re-elect a justice who had originally been appointed to the Court by a Republican governor. As in 2002, his opponent was a relatively inexperienced attorney trying to turn the nonpartisan race into a partisan race.

In 2006, 2008, 2010 and 2012 trial lawyers spent nothing, zero, on independent expenditures in Supreme Court races.


And, what's our agenda? Well, it's pretty simple – for us, the best justice for all Montanans is someone with extensive Montana legal experience, with a proven record of being a fair and impartial justice. That's our agenda – an experienced, fair and impartial court to hear the cases of the Montana families and small businesses that we are proud to represent.

What have the judges that we supported done? They have decided cases both for and against our members' clients, but we got what we sought - an experienced, fair and impartial court to hear those cases.

Will Montanans know who is spending money on Montana judicial races? Past experience here and in other states indicates that the answer is no, not fully, we will be in the dark when it comes to much of the spending. You will, however, know about every penny raised and spent by the trial lawyers. This election we support Justice Wheat, the RSLC supports VanDyke.


This is my last commentary – thanks for listening all these years, it's truly been a pleasure.

 

This is Al Smith for the Montana Trial Lawyers.


September 23, 2014


Gun Safety - Get Your Remington Repaired


 


 

It happens every year for me, those crisp early mornings, the angle of the light, even the smell, tell me, in a way that no calendar can, that hunting season is upon us. 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. In my experience, the stories from hunting trips are not primarily about the kill, but rather about the experience of being with family and friends in Montana's wild country. This time of year I also think about the reality that a Montana family may lose a loved one to a preventable 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.
 

Fourteen 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.


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 and the tenacity of the bill sponsor, then Senator Mike Wheat and now Supreme Court Justice Wheat, we have been able to pass legislation in Montana to ban these secrecy agreements. The legislation covers all dangerous products not just guns. 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.

This summer Remington confirmed it will offer to replace trigger mechanisms on millions of Model 700 bolt-action hunting rifles, as part of a class-action lawsuit settlement. The final details of that proposed settlement have not yet been reached.


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. While we await the final settlement there are several things you can do, including taking your Remington into a gunsmith knowledgeable about these defects. Also, Remington is offering to modify the defective mechanism for many of its models, including some made in 2014 – the written version of this commentary on KUFM's website will have links to several of those warnings and offers.


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, so we keep telling the story.


Safe gun handling practices are not enough, these rifles have a deadly defect - PLEASE, check your guns, tell your family and friends, and just get these Remington rifles fixed. Please don’t wait - please do it this season. Protect your right to a safe gun.



This is Al Smith for the Montana Trial Lawyers Association.

 

 

The Remington Arms Co. has confirmed it will offer to replace trigger mechanisms on millions of Model 700 bolt-action hunting rifles, as part of a class-action lawsuit settlement reported earlier this week. http://billingsgazette.com/news/state-and-regional/montana/remington-confirms-it-will-replace-millions-of-triggers/article_7e185b4b-e1c9-57f0-85d2-30f1a1d2e966.html#ixzz3EA3lsdGz

Remington Arms Company, LLC (“Remington”) is voluntarily recalling Remington Model 700™ and Model Seven™ rifles with X-Mark Pro® (“XMP®”) triggers, manufactured from May 1, 2006 to April 9, 2014.
http://www.remington.com/pages/news-and-resources/safety-center/safety-warning-recall-notice-Remington-model700-modelseven.aspx

Recall if you own a Remington Model 700 or Model 40-X rifles manufactured with a bolt-lock mechanism.
http://www.remington.com/pages/news-and-resources/safety-center/safety-modification-program/remington-model-700-and-model-40-X.aspx

The link to Remingtons's Safety Modification program is:
http://remington.com/pages/news-and-resources/safety-center/safety-modification-program.aspx
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.

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


Justice At Risk

August 26, 2014

 

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 constitutional right to trial by jury have made to consumer health and safety.


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 civil justice system also provides citizen access to the courts to try to prevent harms from occurring in the first place.


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.

*Unsafe cribs no longer strangle infants.

*Defective GM ignition switches that caused injuries and deaths are being replaced as I speak.

*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.


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. Whether it's through the U.S. Chamber of Commerce or the Koch brothers' Americans for Prosperity, they use code phrases like “tort reform” or “court reform” to lure people into supporting efforts to deny or limit their right to a trial by jury guaranteed by the Seventh Amendment.

Every year the U.S. Chamber of Commerce, on behalf of the CEOs of the large corporations whose interests the Chamber serves, releases a report purportedly ranking the civil justice system’s of all fifty states. How does the Chamber gather the data for this report? Do they study court data or conduct their own research of court statistics? No. Do they interview judges, plaintiffs and defendants, attorneys for plaintiffs and defendants, jurors, politicians, or even members of the public? No. The only thing they do is to poll some 1,500 attorneys who represent corporations. For Montana, there are usually fewer than 10% of the corporate attorneys polled who profess 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.


But, don’t be surprised if this year’s report becomes a catalyst in Montana’s supreme court elections as justices Rice and Wheat face reelection battles. The minions of the U.S. Chamber have been very active in other states, running particularly nasty independent expenditure campaigns known more for their mudslinging and campaign finance violations than for educating the public.

What corporations want with “court reform” is what they have with the banking system - to socialize the risk and privatize the profits. They want us Montanans to give up our Seventh Amendment rights.


We should be proud of our justice system, and be ever-vigilant that citizens never lose their essential rights – rights that Justice Rice and Justice Wheat have protected while on the Montana Supreme Court. When you see and hear the mudslinging, keep in mind it's only purpose is to obscure your view in hopes you'll fall for the siren song of “court reform.”


This is Al Smith for the Montana Trial Lawyers Association.

 

 


Vilification Of The Comp Claimant

July 29, 2014 - Tom Murphy

How often have you heard someone say something nasty about an injured worker? Was she accused of fraud? Did they suggest that she was faking her injury?  
Those are some of the insults facing injured workers in Montana.


Hi, I’m Tom Murphy. I’m an attorney from Great Falls, and I represent injured workers against insurance companies.


Worker's compensation is not a government program.  Worker’s compensation is insurance, and there are over 600 companies licensed to provide it in Montana. Unlike other insurance, there’s no watchdog at the Commissioner’s office alerting us to dangerous benefit reductions.  Instead, we rely solely on the Montana Legislature for protection.
 

Today, I invite you to think about this question: Why do we add insult to injury?  Why do employers treat injured workers poorly?  We would never dream of calling a wounded veteran a fraud, so why do we allow insurers to accuse our neighbors?  After their injury, most injured workers are immediately judged.  

Before their injury, they thought workers compensation would take care of them, but that was a false sense of security.  Overnight, co-workers turn against them, and they say mean things like, “Sam got hurt – he should toughen up.” Obviously, Montana workers are tough, and that’s a tough line, but it’s wrong. 
 

Montana workers are not invincible. Our workers fall off roofs, they have serious accidents, and they are hurt by dangerous machinery.

When a worker gets hurt, it hurts more if a neighbor calls him a “fake.”
 

Where does the incentive to mistreat injured workers come from?  After 30 years as a lawyer, I conclude that it’s about money.  In the worker’s compensation system, the insurer is an unsympathetic adversary.  Insurance companies hire private investigators to follow injured workers around town.  They may even record her activities in her backyard.  Insurance companies hire nurses to meet with doctors to try to turn the doctor against the injured worker.


And that’s only if the injured worker gets to pick her doctor.  Since 2011, the law gives the insurer the power to pick the doctor.  Guess which doctor they pick -  the “hired gun” doctor.  These doctors work for insurance companies.  For about a hundred years, they’ve been called “company doctors.” These are the doctors that used to work for the Anaconda Company.  They would say things like “Joe’s not hurt,” or “Joe doesn’t need surgery.”  The insurance companies fly these doctors all over the state, and they pay some of them hundreds of thousands of dollars each year.  That’s how valuable the company doctors are to the insurance companies.
 

During the 2011 legislature, insurers proposed the law that allows them to pick the doctor. The insurance companies said the law could save $54 million dollars each year.  I call this the “$54 million dollar lie.”  The insurers say the company doctor will be able to reduce medical costs by 54 million.  That either means that the doctors before were lying about the worker’s need for medical care,  or  it means the company doctor will lie about how much medical attention is required now.


Workers’ compensation cases are physician driven.  That means the doctor makes the ultimate decision about benefits and medical treatment.  Does Montana really want the insurance companies to pick the doctor?


In addition to picking doctors, the insurer is now allowed to close medical treatment at five years.  Where do the severely injured go for medical treatment after five years?  Many injured workers end up on government programs like Medicaid or Medicare.  In that equation, the worker’s compensation insurer shifted its financial obligation to the public.  According to this law, the public must pay for the cost of medical treatment.

Is it fair that the insurer was paid to take the risk, but after it got paid, now asks the public to front the bill?
 

Most of us think that there’s a government agency that cares for injured workers, but that is not true.  Too often, injured workers lose everything after their injury. They lose their houses, their credit, and many are severely depressed.  
 

We don’t like to think about people getting injured, but please try to support the worker who was hurt while trying to make a living for his family.
 

Please do not allow the insurers to foster the judgmental belief that injured workers are frauds, fakes, and money grubbers.  Montana should be concerned about such judgment, because this could happen to you, to your son, or to your daughter.


In October, I’ve been asked to speak at a national conference of worker’s compensation attorneys.  I’m supposed to explain why Montana allows insurance companies to close medical coverage.  My answer is greed, but the question should cause concern.  The whole country is asking why Montana allows insurance companies to close medical care for injured workers, so with your help I hope Montana asks that question too.


This is Tom Murphy.  I’m an attorney from Great Falls, and I represent injured workers.  Thank you for listening.

 


Corporate Religion
July 1, 2014

 

The U.S. Supreme Court ended it's term yesterday with a bang, again. We've just seen the Hobby Lobby case that grants some corporate entities the right to religious freedom under the First Amendment. I'm not sure the many people who decried the Court's granting personhood rights to corporate entities for political campaign spending in Citizens United saw this one coming – you could kind of understand a corporation speaking through its wallet, but a corporation gaining personhood to express a religious tenet based on the beliefs of its majority owners? That one is much harder to fathom, even given its supposed restriction to so-called closely held corporations.


I know there are lots of folks out there pooh-poohing any concern that this is a slippery slope to ever more corporate protections as they gain more and more rights as persons. But, we've gone from a railroad corporation surreptitiously being granted personhood status in the 1870's; to a corporation speaking with wads of cash in political campaigns in 2010; to now, a corporation being granted, under the statute enacted by Congress to give life to the free exercise clause of the First Amendment, the same rights as individual humans to exercise the firmly held religious beliefs of their majority owners. Now Congress could go in and change the statute to reflect what most who voted for it thought – that it applied only to individuals or religious institutions, not to for profit corporations, but it seems that the “corporation is a person” genie is already out of the bottle.

What's that old saying - “you're not paranoid if someone really is out to get you.” With an ever increasing body of law granting corporations ever more rights that we once thought were given only to real flesh and blood humans, why shouldn't corporations keep testing the lengths the Court will go in protecting them? What's next, corporate taxpayers being granted the right to vote in local elections, the number of votes they get commensurate with their monetary position in the community? Why shouldn't corporations get to vote in elections where issues like zoning affect their bottom line more than it does homeowners?


With the current Supreme Court session done, it's helpful to remember that Friday 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 Company 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.

After securing independence, our founders set out to form a governing structure. They tried governing our new country under the Articles of Confederation, but found that a system of strong state powers and relatively weaker federal powers didn't work well. Present Tea Party rhetoric ignores the founders' recognition of this failure, just as it ignores the failure of the states' rights mantra of the Confederacy. In 1787 our Constitution was adopted, to be ratified by the states in 1789 with the assurance that a Bill of Rights would be proposed and ratified, and those first ten amendments were ratified in 1791.

One of the rights insisted upon in order to assure passage of our constitution was the right to trial by jury in civil matters – the Seventh Amendment. It is the means by which we hold our government accountable. It also ensures that all men and women are entitled to a redress for wrongs done by others, including corporations. As John Adams once said about jury trials, "We have not envisioned a better fortification from being ridden like horses, fleeced like sheep, worked like cattle and fed like hounds."

One of the Court's end of session decisions, the Illinois home healthcare workers union case, Harris, reminded me of the above Adams' quote. While there was not a corporation involved in the case, it was brought with the help of corporate backed right to work groups. While the decision was narrowly drawn, it is an assault on unions – those entities that prevent workers from being “ridden like horses” and “worked like cattle.”

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."

The moneyed interests of corporate power have been chafing at the reigns of government, the the civil justice system and the right to trial by jury since our country's inception.

It's going to be 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 Association.



 



June 3, 2014
Court Secrecy Kills, Again

In April I spoke about GM, its problem ignition switches and the lax federal regulatory system. GM hid dangerous defects from the public and federal regulators, and as a result Americans have needlessly died. Last month, federal regulators fined GM and further investigations are underway.

I also noted that GM's latest problems followed a familiar pattern. GM knew of the defect and kept it secret, they made a financial decision to not correct the defect, they got sued by the families of victims killed by the defect, they settled cases in secret to further hide the problem.

I have spoken many times over the years about how dangerous and defective products injure and kill unsuspecting Americans. Our lives, or those of our families or friends can be quickly and severely altered, or taken away, by a defective product. It's a dirty little secret that corporations hide dangerous product defects that injure or kill Americans - and they do it using our court system.

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

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

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

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

So how does this apply to GM? Some of its cars had faulty switches, and those faulty switches made cars accelerate suddenly. The faulty switches had one more problem – they also deactivated the safety airbags in these runaway cars. As the New York Times reported last month, the company kept the danger hidden from regulators, and from the public, by entering secrecy agreements with the victims or their families. GM would pay over large amounts of cash for the harm their defective switches caused, but victims and their families had to shut up – no talking or writing about the defect and anything GM knew about it.

This isn't the first time GM has used secrecy agreements to hide deadly product defects. For years GM secretly settled cases involving exploding side-mounted gas tanks, all the while denying any safety concerns with the gas tanks. Even with its history, it's not fair to pick on just GM. Many other corporations have used secrecy agreements to hide dangerous defects that kill. I've spoken before of Firestone's use of secrecy agreements to hide information about defective tires, and of Remington's use of such agreements to hide defects with their rifles.

The GM debacle has prompted a long overdue federal response. Senators Lindsey Graham and Richard Blumenthal, a Republican and Democrat respectively, have introduced a bill that would make it harder for companies to hide dangerous product defects behind secrecy orders in federal courts. The Sunshine in Litigation Act of 2014, would require federal judges to consider the public's interest in transparency before sealing court records in civil actions, or approving secret settlement agreements in cases affecting public health and safety. The act prohibits a federal court from entering a secrecy order unless the court has made independent findings of fact that the order would not restrict the disclosure of information which is relevant to the protection of public health or safety. A secrecy order could also be issued if the court finds the public interest in disclosure of potential health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information.

Why is federal legislation needed? Well, Montana has legislation from 2005, the Gus Barber Anti-Secrecy Act prompted by defective Remington rifles, that prevents Montana courts from using secrecy agreements to hide dangerous, defective products. Several other states have similar laws. Unfortunately, a lot, if not most, of the lawsuits involving defective products are heard in the federal courts and these state anti-secrecy laws do not apply in the federal courts. Graham has cosponsored similar legislation in the past, but corporate concerns have so far prevented passage of federal anti-secrecy legislation. It is past time for Congress to step up and protect people not corporations.

If you haven't voted yet today, there's still time to get out and vote – please do!


This is Al Smith for the Montana Trial Lawyers Association.
 



Pride In Our Legal System, May 6, 2014

 

May 1st was Law Day, America's yearly recognition of and reflection upon the unique role our legal system plays in our democracy. Law Day was first proposed by ABA president Charles S. Rhyne in 1957. It was envisioned as a day to honor our strong heritage of liberty, justice and equality under law. A heritage traced back to the English noblemen who met in May 1215 to prepare the Magna Carta, signed by King John in June 1215. President Eisenhower made the vision a reality, establishing "Law Day U.S.A." in 1958. 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. 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.

 

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

- 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 - it 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, governments and corporations responsible for their behavior, and forces them to change their conduct for the better.

 

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 use of punitive damages. And, Japan has adopted tougher, American-style liability laws in order to keep dangerously defective products out of its market.


Just as civil juries can hold corporate powers accountable, they can also hold governments accountable. Our founding fathers recognized the importance of a jury in civil matters, enshrining that right in the Seventh Amendment to the U.S. Constitution. Thomas Jefferson considered trial by jury “as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” John Adams wrote that: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds."

May 4th marked the anniversary of the shooting deaths and woundings of demonstrators at Kent State in 1970 by National Guard troops. In most nations, citizens would have no recourse. The victims and family members of Kent State were able to exercise their Seventh Amendment rights and obtain a monetary settlement, an apology and a commitment to change procedures so that there would not be a repeat of the mistakes made at Kent State.

 

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 governments; to injured workers and their families, not corporate CEOs.

This is Al Smith for the Montana Trial Lawyers Association.

 



 

April 8, 2014
Federal Regulators – Whose Interests Do They Serve?

GM, oh GM, what to do about you? You hid dangerous defects from the public and federal regulators, you determined 57 cents was too high a cost, to you, to fix the problem, and as a result Americans have needlessly died. If it weren't for those pesky family members who lost a loved one seeking accountability from you, and the trial lawyers that represent them, you wouldn't be the butt of late night comedy sketches. But, you have somewhat of an explanation, it wasn't all your fault.

I've spoken in the past about federal regulatory agencies being used in the Bush era to further corporate interests. I have explained how the Consumer Product Safety Commission, the National Highway Traffic Safety Administration (NHTSA) and the Food and Drug Administration, had all used rule changes to preempt citizen lawsuits against manufacturers of defective products, by preempting state negligence standards and replacing them with corporate approved agency standards.

Manufacturers of harmful products have been very good in convincing federal agencies of their point of view. However, they have been less successful 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 citizen lawsuits in state courts have been an 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.

To Obama's credit, his administration has not followed that corporate strategy, and it has reversed many of the preemptions granted manufacturers under Bush. But, one area where the Obama administration is the same as the Bush years, actually is the same as under every administration since the 1960s, is that of corporate influence over the regulatory process. Every administration operates under laws imposed by Congress, and with few exceptions Congress has assured that federal regulators' hands are tied when it comes to effectively protecting citizens from harmful products.

For a little background on GM's current predicament, we need to go back to 1965, the year Ralph Nader's book,
Unsafe At Any Speed, was published. Nader argued that corporations ignored safety in favor of larger profits, and that the only way to hold auto manufacturers accountable to the public was federal regulation.

Rather than rebutting Nader's charges about GM's unsafe products, or better yet making it's products safer, GM hired a private detective to shadow Nader and probe into his personal life to try to find something to “kill the messenger.” When the unsuccessful detecting by GM was revealed, Congress actually enacted the first auto safety laws.

Now, Congress didn't want to get too carried away with protecting the public from dangerous autos. Since it's creation in 1970, NHTSA has always operated under Congressional laws and restrictions that has kept it from being “too protective” of the public. One of the ways Congress has protected corporations is true of NHTSA and all other federal agencies - by limiting the money provided to an agency to do its job. Agencies can't do their jobs effectively with inadequate funds for research and enforcement. And, even if adequately funded, agencies are further hamstrung by limitations on their enforcement powers.

Corporate auto makers have been very successful at convincing NHTSA of their point of view. Tight purse strings have led to standards written by the auto industry and their agents in NHTSA. Never mind whether the standards do little to actually protect citizens from known safety hazards that account for thousands of deaths each year. Never mind whether the industry has known about a clear link between design defects and severe injury for decades. Never mind that corporations can keep dangerous defects secret from NHTSA. Never mind that NHTSA can't force corporations to recall dangerous vehicles until well after lives are needlessly lost.

Congress has assured that corporations get standards that fall well short of truly protecting consumers. And, it could be possible that the revolving door of working at NHSTA, then working for the corporate auto makers, then working for NHSTA again, and so on, also has something to do with that.

GM's latest problems have followed a familiar pattern. GM knew of the defect and kept it secret, they made a financial decision to not correct the defect, they got sued by the families of victims killed by the defect, they settled cases in secret to further hide the problem, and finally, a family's lawyer found the smoking gun documentation of the problem, and the coverup.


Corporate America too often acts like a spoiled child. Their reaction to questioning of why they don't reveal safety problems sooner is too often like a poorly parented child's - “I only hid that from you because if I told you what I'd done, you would have punished me.” As any good parent knows, telling the truth is a positive, but it does not mean that punishment through accountability and responsibility is ignored.

So what can be done? Let's give regulators the money and tools they need to truly protect the public. And, let's prevent secret settlements that hide dangerous risks from the public.

This is Al Smith for the Montana Trial Lawyers Association.

CNN Video
"We know what we know today only because of the Melton's pursuit of justice, their willingness to file a lawsuit. Our civil justice system, it's often maligned. But, you know, it remains a great check on our free enterprise system. Often, it serves as a more vigilant force than the government itself."


 

March 11, 2014

Civil Justice System - Protecting All Citizens, Even Hypocrites

Recent divergent news stories have prompted me to think about government regulations and our civil justice system. There was the leakage and chemical pollution of water supplies in West Virginia, the Exxon CEO complaining about fracking in his own back yard, seemingly all the speakers at the recent C-PAC event railing against government regulations, a federal report on the prevalence of harm to residents in nursing homes, and the government asking why auto manufacturers fail to fix problems that they know are leading to injuries and deaths.


We have regulations at the federal and state level that are railed against by politicians and corporate entities as being nothing more than job killers. Proponents argue that regulations are in place so that corporate activities don't become people and environment killers. We've had a thirty plus year attack on, and rollback of, government regulations. Accompanying that regulatory rollback has been another attack – on the ability of citizens to access the civil justice system to try to prevent harm by seeking injunctive relief or to be compensated for harms suffered.


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 civil justice system also provides citizen access to the courts to try to prevent harms from occurring in the first place.


The jury was an important aspect of English law that was a hot topic at the time of our nation’s birth. Juries in England and in the colonies at that time were restricting the power of government and powerful commercial interests to run roughshod over ordinary citizens. Jefferson wrote to Tom Paine: "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."


Regulations and the civil justice system work together. Regulations help to prevent harm. If regulations fail, the civil justice system can hold the wrong doer accountable and responsible for the harms caused. The threat of being held legally accountable in the civil justice system sometimes acts as a deterrent when regulations are absent or ineffectual. And, some regulations provide a mechanism for compensating for some harms.


Over the past several decades the public has been deluged with misleading rhetoric that portrays regulations, trial lawyers, juries and the civil justice system as the scourge of the land. A scourge that, if unchecked, will lead to the destruction of business and even 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.

And, these are often the same corporations that complain about regulations. They want little or no regulation, and they want little or no exposure to accountability and responsibility in the civil justice system. They view regulations as unnecessary burdens, and also seek to shield themselves from legal accountability for the harms they cause.


Now, I've talked before about one of those twists that has elements of both irony and hypocrisy. Denny Rehberg, while a state legislator and in Congress, was one of those voices singing the corporate siren song for tort reform and deregulation. Ironic in that Rehberg sought the benefit of a civil justice system that he had previously sought to deny to citizens - his day in court before a jury to seek compensation for an injury he had suffered to his property. Hypocritical in that he could lambast citizens who have the audacity to go to court against public officials to protect our public lands from harm, yet go to court himself against public officials to seek damages for harm to his private lands.


You can put the Exxon CEO in this hypocrisy gang. Exxon has fought regulations and citizen access to the courts for decades, but when infrastructure development related to fracking threatened his property, he went to court, along with former Congressman Dick Armey, another avid deregulator and tort reformer.


Chemical companies like those in West Virginia, anti-regulation zealots like those at C-PAC, nursing home corporations, and auto manufacturers are at least consistent – they don't want to be held accountable or responsible, either by regulation or by the civil justice system. I wonder if they would support a hypocrisy clause - any industry, politician, corporation or CEO that advocates for limiting or denying citizen access to the civil justice system forfeits their right to access the courts should they or their property be harmed or at risk of being harmed.


Our Constitutional rights are fundamental to our country’s success. While all may not agree with someone’s decision to sue, we should all defend his constitutional right under the Seventh Amendment to take his case before a jury – even if he is a hypocrite.


This is Al Smith for the Montana Trial Lawyers Association.
 



February 11, 2014
Work Comp – You Can Help


Workers' compensation, pretty boring stuff, until you need its benefits. So, this is for all you workers out there – from desk jockeys and burger flippers, to firefighters – and for you employers who want the best for your workers. What do you do if you are injured on the job and are unable to work for several weeks, months or years? How will you keep a roof over your head, make your car payments, buy clothes for your kids or put food on the table? If you are like most Montanans, you would have to rely upon the Workers' Compensation system.


The Work Comp system was developed to meet two needs: first, and foremost it seems, the need of employers to protect themselves from lawsuits brought by injured workers; and, second, the need of injured workers to obtain prompt, fair and full medical treatment, rehabilitation and compensation for work place injuries. The system, while not perfect, worked reasonably well for decades. Workers generally received what they bargained for.


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, employer insurance rates rose. Every legislative session since then we have seen efforts to lower employer rates, and the chief tool to do that has been to reduce benefits to injured workers.

The Governor’s Labor Management Advisory Council, LMAC, is composed of five employer and five worker representatives. In 2011, after several years of study, review and negotiation, LMAC proposed several changes that employers and insurers wanted to reduce costs. The main benefit for workers in the package was a slight increase in the number of weeks they can receive permanent partial disability benefits, and an increase in the cap on their weekly benefit as a percentage of the state’s average weekly wage.


In 2011, the legislature made additional significant changes to the system in the form of HB 334. That bill adopted all the LMAC negotiated concessions to reduce costs, plus more reductions in benefits, and, it left out virtually all the negotiated benefits for workers.

While HB 334 went into effect in 2011, we are just now beginning to see the impact of many of those changes. Cutting benefits to workers did lower employer insurance costs, but not as much as predicted. And, it has adversely affected those injured on the job.

One loss to injured workers was a change in permanent partial disability payments. Those payments go only to injured workers who suffer a whole person impairment rating greater than zero and have a wage loss, or to injured workers with a Class 2 or greater impairment rating and no wage loss. This was not in the consensus agreement that LMAC arrived at.


An impairment is a significant deviation, loss, or loss of use of any body structure or body function in an individual. This has been a major concern for injured workers with Class 1 impairments and no wage loss – they now receive NO compensation for the impairment. So, those low wage workers that have a finger or two sliced off receive no benefit for their life long impairment.

Substantial numbers of injured workers have been negatively impacted by this change. The supporters of HB 334 estimated this change would reduce benefits by $22 million. Some trial lawyers representing injured workers will be challenging this change in court, but for now, workers with no wage loss and a Class 1 impairment get nothing.


Initially, injured workers are allowed to choose their health care provider, and all providers are paid at the rate set by law. HB 334 allows the insurer to approve the workers’ choice as treating physician OR the insurer can designate a different treating physician. This was not in the consensus agreement that LMAC arrived at. This has been a major concern with workers' choice of physician being overridden by the insurer, reducing access to medical care, designation of treating physicians in distant towns and delays in receiving medical care for injured workers.


Substantial numbers of workers have been negatively impacted by this change – which was projected to save $38 million. Again, some trial lawyers representing injured workers will be challenging this change in court, but for now, insurers get to choose a worker's treating physician.


The LMAC was reconstituted last year. Once again it will be holding public meetings to review the work comp system. Injured workers and employers are encouraged to share with the LMAC their thoughts, comments and experiences with Montana's workers' compensation system. One of LMAC's concerns is assessing the effects of HB 334. LMAC's website [www.mtlmac.com] has a schedule of upcoming meetings and other useful materials. The next meeting is March 13th.


For the past two decades, the legislature has decreased benefits, and it has rarely responded to injured workers’ concerns with ever decreasing benefit levels. Yet, all those cuts in benefits never seem to lower employers’ insurance premiums enough. Hopefully, the legislature will take a close look at the balanced reforms that may be proposed by LMAC. You can be a part of the work LMAC does in the coming year – by attending LMAC meetings or by communicating your thoughts and stories to the LMAC or by sending me an email at mtla@mt.net.


This is Al Smith for the Montana Trial Lawyers Association.



January 14, 2014
Arbitration - Corporate Paid Umpires?

 
 
The L.A. Times has an editorial today on a subject I've spoken about before – arbitration. It opens with a “what if” - what if the L.A. Dodgers have “just won the pennant and are going to play the New York Yankees in the World Series. But the rules have changed: All games will be played in Yankee Stadium. And, there are new umpires, hired and paid for by the Yankees.” The opening concludes with the observation that 'with rules like that, the Dodgers wouldn't stand much of a chance.'

As I've explained before, arbitration is a legal process to resolve disputes between parties without using the court system. Provisions for arbitration are usually contained in a contract between two parties. Those contract provisions set out the rules for the arbitration, including how an arbitrator will be chosen, which of the parties will pay for the arbitration services, and where the arbitration proceeding will take place. Originally enacted in the 1920's, the Federal Arbitration Act was a means to enforce arbitration provisions in contracts between large corporations - parties roughly on equal footing, with the business and legal expertise to knowingly waive the right to take disputes to court.

Arbitration isn't just for corporate equals any more. Arbitration provisions are now so common in consumer contracts, you would be hard pressed to find a single consumer, whether they know it or not, who is not subject to a mandatory arbitration clause in a consumer contract. If you have ever purchased or rented a cell phone, a car, or a computer, or have a credit card or bank account, you likely have unknowingly waived your right to take to court a dispute about that product, a service or a fee, and agreed to mandatory binding arbitration.

The U.S. Supreme Court, over the last few years, has repeatedly declined to void consumer contract arbitration provisions and uphold an individual's right, under the 7th Amendment, to have civil disputes decided by a jury. Last year the Court again sided with corporations, leaving consumers with no recourse, prohibiting consumers from using class action arbitration, and thereby giving corporations an arbitration free pass – no accountability, unless someone is willing to spend more money than they could ever hope to recover. Denied the ability to join other consumers in a class action, what sane consumer would spend thousands of dollars to regain a bogus $30 fee? Able to collect a bogus $30 fee from tens of thousands of consumers who have no viable recourse, what corporation wouldn't put arbitration provisions in their contracts?

Montana's efforts to protect consumers from unknowingly waiving their constitutional rights to a civil jury trial through arbitration provisions have been among those rebuked by the U.S. Supreme Court. A Great Falls couple, the Casarottos, had a dispute with a national corporation regarding a franchise agreement. When they sought to have their dispute heard in court, the corporation invoked the arbitration clause in the agreement. The Casarottos argued that Montana's law required that in order to be valid, notice of arbitration clauses needed to be conspicuous, not merely buried in the fine print of the back pages of a contract. Montana's statutes required that notice of arbitration provisions had to be on the first page of a contract, in capital letters and underlined.

Because the required notice was not in the agreement, the Montana Supreme Court voided the arbitration provision and said the Casarottos could pursue their dispute in court. Writing for the Montana Court, Justice Trieweiler said “Presumably, therefore, the Supreme Court would not find it a threat to the policies of the Federal Arbitration Act for a state to require that before arbitration agreements are enforceable, they be entered knowingly. To hold otherwise would be to infer that arbitration is so onerous as a means of dispute resolution that it can only be foisted upon the uninformed. That would be inconsistent with the conclusion that the parties to the contract are free to decide how their disputes should be resolved.” Justice Trieweiler was wrong, the U.S. Supreme Court upheld the arbitration provision, twice, voiding Montana's protective law.

Now, onerous mandatory, pre-dispute arbitration clauses can be foisted upon the uninformed, and the informed. Consumers are not on equal footing with corporations, and even informed consumers are presented with “take it or leave it” contracts. Corporations get to choose who the arbitrator is and where the arbitration takes place, and the cost of arbitration is often oppressive.

I talked last month about the possibility for some relief from abusive arbitration provisions for consumer contracts. The Consumer Financial Protection Bureau is studying the use of pre-dispute arbitration contract provisions in consumer financial products or services.
But, for any real relief we have to look to Congress. U.S. Sen. Al Franken and U.S. Rep. Hank Johnson have introduced the Arbitration Fairness Act (AFA) [S.878 / H.R.1844] to restore Americans’ rights. The AFA would eliminate forced arbitration in employment, consumer, civil rights, and anti-trust cases. It would reopen the courthouse doors to millions of Americans, replacing umpires beholden to the corporations that feed them with the true umpires provided for by our constitutions – juries and judges.

This is Al Smith for the Montana Trial Lawyers

LA Times,
Leveling the legal playing field: Limit forced arbitration 
Consumer Financial Protection Bureau -
initial Arbitration Study
 
 
 
Take Justice Back - “The Fine Print” -