... and Justice for All

Peanut Butter Maker Knowingly Shipped Tainted Product

The Georgia peanut butter maker identified as the source of the salmonella outbreak that has killed eight people and sickened over 500 knowingly shipped salmonella-tainted peanut butter 12 times in 2007 and 2008, the Washington Post reports, "Peanut Processor Knowingly Sold Tainted Products." The Post reports:

Officials at the Food and Drug Administration and the Centers for Disease Control and Prevention, which have been investigating the outbreak of salmonella illness, said yesterday that Peanut Corporation of America found salmonella in internal tests a dozen times in 2007 and 2008 but sold the products anyway, sometimes after getting a negative finding from a different laboratory.

The company was not required to disclose its tainted products to federal or state officials.

In addition to killing eight people and harming more than 500, the salmonella outbreak has caused recall of more than 100 products. To review the list click here.

Robert L. Abell
www.RobertAbellLaw.com

"Get Out of Jail" Free Cards For Corporations -- American Association for Justice Details Undermining of Family and Consumer Protections

The American Association for Justice has released a report, Get Out of Jail Free: How the Bush Administration Helps Corporations Escape Accountability, detailing the systematic and widespread undermining of family and consumer protections by Bush Administration agencies and political appointees.  Through documents and emails obtained via the Freedom Of Information Act the AAJ report traces the evolution and development of a federal preemption strategy, a legal doctrine by which state law protections for families and consumers are eliminated or "preempted" by federal regulations that insulate corporations from liability, accountability and responsibility for their defective products.

Robert L. Abell
www.RobertAbellLaw.com

Increased Efforts To Prevent Injured Families From Holding Corporations Accountable

The Wall Street Journal reports that the Bush Administration, as it winds down amidst the meltdown of our national economy causing the loss of some $2 trillion of Americans' retirement savings and the faltering wars in both Afghanistan and Iraq, is moving aggressively to erect further bars preventing injured families from holding accountable the corporations responsible.  See "Bush Rule Changes Could Block Product-Safety Suits."  The latest instance of lawsuit-protection language for corporations that have harmed and injured American families is a rule announced Oct. 8 that establishes a limit on the number of seat belts car manufacturers can be required to install and prevents lawsuits by injured persons who were unable to be protected by a seat belt.  This is the latest installment of the Bush Administration's efforts to insulate corporations from responsibility, accountability and liability for their wrongful actions through the legal doctrine of "preemption."  The Bush Administration has wholly abandoned long-standing rules and practices to aid and protect American families in favor of rewarding the corporate interests that it serves.  Unlike the $750 billion bailout for the financial services industry that American families were recently touched upon to fund, the preemption bailout goes on by stealth and largely unnoticed.  Both achieve the same result: shifting to American families the burdens created by irresponsible and wrongful corporate actions.  

Robert L. Abell
www.RobertAbellLaw.com 

Drug Makers Should Be Liable For Defects Under State Law, New England Journal of Medicine Editors Argue To Supreme Court

Approval of drugs by the Food and Drug Administration (FDA) should not preempt any liability under state tort laws for pharmaceutical manufacturers, editors of the New England Journal of Medicine argue in a brief to the United States Supreme Court.  One of the most closely watched cases of the Supreme Court's upcoming term is Wyeth v. Levine.  Levine, a musician, lost an arm after an injection of the nausea drug, Phenergan.  She sued Wyeth, claiming that it failed to adequately warn of the drug's risks and she won a $8.6 million judgment in a Vermont trial court.

Wyeth argues that it is insulated from any liability for Levine's injuries because the FDA approved Phenergan.   This is the legal doctrine of "preemption." 

The NEJM editors argue that "the FDA the FDA is in no position to ensure the safety of prescription drugs.  Not only is the FDA seriously hampered in its ability to determine the risks of drugs before they are approved for sale, but it has proven inadequate to the task of addressing hazards that only become apparent after a drug has been widely marketed to an unsuspecting public. Post-approval dangers posed by drugs placed into the market are unfortunately quite common. However, the FDA’s ability to either anticipate these risks or react expeditiously once they have been revealed has been limited by serious information-gathering constraints in both pre- and postapproval settings." The brief can be read by clicking here.

Two former FDA Commissioners, Donald Kennedy and David Kessler, have also submitted a brief supporting Levine.  They argue that the pro-preemption position advanced by the drug companies and the Bush Administration "threatens to undermine, not advance, the underlying goal of our nation’s drug safety laws, which is 'to protect consumers from dangerous products.'”  A copy of their brief may be read by clicking here.

Robert L. Abell www.RobertAbellLaw.com

Beef Recalled By Whole Foods

Beef processed at Nebraska Beef, one of the country's biggest meat processors, was recalled by the Whole Foods Market on Friday.  According to a story in the Washington Post, it is the second time in two months that beef processed by Nebraska Beef had to be recalled owing to e coli outbreak concerns, "Whole Foods Recalls Beef Processed At Plant Long at Odds With USDA."  Last month more than 5 million pounds of beef processed by Nebraska Beef was recalled following an e coli outbreak in seven states.

Over the course of the last six years the USDA and Nebraska Beef have been on a merry-go-round of citations issued by the agency and lawsuits.  The citations have been for feces on carcasses, clogged meat wash sinks, and violation of regulations aimed at preventing spread of mad-cow disease,  The company has responded with lawsuits accusing the agency with bias. 

Nebraska Beef was awarded $7.5 million in tax subsidies by the Nebraska state government.  This while battling the USDA along with neighbors of the plant who have complained about manure from the plant being strewn in the streets.  In 2002, the National Labor Relations Board ruled that Nebraska Beef had violated federal law by its actions to prevent unionization of the plant's workforce. 

Robert L. Abell
www.RobertAbellLaw.com

Consumer Product Safety Whistleblower Protection Passed by Congress

Whistleblower protection for employees reporting consumer product safety issues was passed today by Congress as part of the Consumer Product Safety Reform Act.  This law, which now awaits President Bush's signature, includes the following provisions:

• employees of product manufacturers, distributors and retailers are covered
• protection for employees who report product safety issues to their employer, to the federal government or to their state attorney general
• employees who refuse to participate in violations of consumer safety laws are protected
• a limitation period of 180 days, complaints may be filed with the federal Secretary of Labor but may be moved to federal court after 210 days if no resolution
• remedies including reinstatement to employment, back pay, compensatory damages, attorneys fees and costs

This law represents an important step in improving the safety of consumer products.  President Bush should sign the bill.

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

FDA Report Acknowledges Agency Cannot Protect American Public

    The Supreme Court seems certain to rule within the next year that FDA approval of a drug bars any type of lawsuit that the drug is dangerous and caused injury or death.   This seemingly inevitable ruling makes all the more important the FDA for the protection of the American public. 
    The FDA, as its own Commissioner has acknowledged and as a report presented by the FDA Science Board -- an advisory panel of scientists and industry experts -- chillingly warned, is not up to the task.  In a speech in March, FDA Commissioner Dr. Andrew C. von Eschenbach admitted that the agency "may fail in its mission to protect and promote the health of every American" and that "peril exists."  The commissioner merely echoed the findings of the FDA Science Board reporting, among other things, 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," cannot fulfill its mission because its scientific base has eroded, its scientific workforce lacks sufficient capability and capacity and its information technology system is inadequate including internal e-mail systems prone to frequently breaking down.  To report is titled "FDA Science and Mission at Risk." 
    In view of the indisputable inability of the FDA to adequately protect the American public, it would seem that insulating from any possibility of liability and hence from responsibility those corporations subject to FDA regulation can serve only to undermine the public interest.  But sometimes that's just what the Supreme Court calls justice. 

Robert L. Abell
www.RobertAbellLaw.com