... and Justice for All

Criminal Prosecution for Worker Safety Violations

    Enacting meaningful criminal penalties for worker safety violations is urged by former Justice Department prosecutor David M. Uhlmann in an op-ed column, "The Working Wounded," in the New York Times.  Mr. Uhlmann reports some disturbing statistics and information: an employer that violates a worker safety rule and kills an employee faces only 6 months in jail under the federal Occupational Safety and Health Act (OSHA); if the employee is maimed and disabled the maximum penalty is up to a $70,000 fine; and since 1970 only 68 cases have been prosecuted under OSHA, although approximately 341,000 people have died at work. 

Robert L. Abell
www.RobertAbellLaw.com

Preemption and the Decline of States' Rights

    In an astute editorial observer column in the May 23, 2008, edition of the New York Times, Adam Cohen describes the ascendancy of the doctrine of federal preemption under the Bush Administration that has crippled, in some cases prevented, states from being able to protect their citizens.  The Bush Administration has run rough shod over the traditional Republican assertion of "states' rights" to prevent, by the doctrine of federal preemption, states from protecting their citizens. 
    Consumers have been harmed by the Bush Administration's assertion of preemption in a number of areas.  As states mobilized in response to a spike in predatory lending, the Bush Administration's Office of the Comptroller of the Currency issued rules negating state predatory lending laws over the protests of all 5o state banking superintendents, Republican and Democrat.  The 2003 Medicare law prevents states from regulating abuses by private Medicare insurance plans.  The National Association of Insurance Commissioners, which represents the insurance regulators in all 50 states, protests that states no longer have the ability to protect sick, elderly customers.
    States' ability to conserve their resources has also been curtailed by the Bush Administration.  California's laws curbing greenhouse gases from new cars and trucks were blocked by the Environmental Protection Agency. 
    The Bush Administration has rewritten more than 50 federal regulations that will make it much more difficult and in many instances impossible for consumers to sue corporations responsible for unsafe food, drugs and other dangerous products.  An example is a suit brought by the actor Dennis Quaid and his wife, who claim that confusing packaging on a blood thinner caused large doses to be mistakenly given their newborns at the hospital.  Their suit was thrown out of court, because, under the doctrine of preemption, the manufacturer's compliance with Food and Drug Administration labeling requirements barred any lawsuit. 
    What's the upshot of all this?  Cohen describes it right on:  "Manufacturers are more likely to make unsafe products if they know a customer who is injured or killed cannot sue." 

Robert L. Abell
www.RobertAbellLaw.com

FDA Chief Bypasses Bush Administration To Beg Congress for More Money

    The New York Times reports that FDA Commissioner Andrew C. von Eschenbach has bypassed the Bush Administration to appeal directly for more money for the troubled agency, which is charged with protecting Americans' food, drugs and a myriad of everyday items.  Although the Commissioner acknowledged earlier in the year that the FDA was not able to meet its responsibilities and an FDA Science Panel reported last year on the agency's failings, the budget requested by the Bush Administration was insufficient to cover even payroll increases.  Protecting the American public was not considered a priority for the Bush Administration, which meanwhile has issued a series of regulatory rules to insulate corporate wrongdoing from accountability, responsibility and liability through the legal doctrine of preemption. 

Robert L. Abell
www.RobertAbellLaw.com

Bush Administration Rules Protect Corporate Wrongdoing

    As part of its ongoing and to date very successful effort to insulate corporate wrongdoing from accountability, responsibility and liability, the Bush Administration has adopted since 2005 a total of 51 regulatory rules that preclude lawsuits arising from all sorts of everyday items including drugs, cars, railroads, medical devices and food.

    The legal doctrine is known as "federal preemption."  Here's how it works: say for instance the Food and Drug Administration (FDA) adopts a regulation outlining drug labeling and packaging.  However, the labeling and packaging causes confusion and, as a result, children are badly injured.  That's what happened to actor Dennis Quaid's newborn twins who were given massive doses of blood thinner at a hospital.  The Quaids filed a lawsuit in Illinois state court claiming that the manufacturer -- Baxter Healthcare Corp. -- was negligent n packaging different doses of the product in similar vials with blue backgrounds.  Under the doctrine of "federal preemption," however, the Quaids' suit could be barred because the manufacturer's compliance with a deficient federal regulation preempts any liability it might have for causing harm. 

    Earlier this year FDA Commissioner Dr. Andrew C. von Eschenbach publicly acknowledged that the agency "may fail in its mission to protect and promote the health of every American" and that "peril exists."  That admission followed on the heels of a report late in 2007 from the FDA Science Board that the agency does not have the capacity to ensure the safety of the nation's food, cannot adequately regulate the development of medical products based on "new science" and had many other materials failings. 

    Historically, state tort and liability lawsuits have been viewed as complementary to federal agency regulations.  But the Bush Administration has hit upon a successful formula to ensure not consumer safety but corporate immunity from responsibility and accountability: render the regulatory agencies unable to function and preempt any attempt to protect consumers.  The American Association for Justice and other groups are opposing mightily these efforts and you can learn more here.

Robert L. Abell
www.RobertAbellLaw.com