... and Justice for All

Qualified immunity and the Sad Case of DeShaney v Winnebago County Department of Social Services

Linda Greenhouse relates the sad denouement of DeShaney v. Winnebago County Department of Social Services on nytimes.com, The Supreme Court and a Life Barely Lived. DeShaney is a Supreme Court decision from 1989 granting complete immunity from damages to a county agency which had, beyond all reasonable explanation, placed a small child in a dangerous and abusive environment in which he sustained very debilitating injuries, injuries that prevented a decent chance at life.

Here is Ms. Greenhouse's fair description of the case:

Chief Justice Rehnquist’s opinion for the 6-3 majority took the narrowest possible view of the facts in holding that the county agency, despite its employees’ absolute knowledge of the threat that Randy DeShaney posed to his son’s welfare, breached no constitutional duty to Joshua. More than a year before the final beating, the boy was hospitalized with suspicious injuries, but a “child protection team” assigned to look into the situation quickly returned him to his father. Other emergency room visits followed. County social workers visited the home 20 times, taking notes but no action on occasions when the father said the boy was too sick to see them.

It is a decision that immunizes and insulates government from the type of accountability which does not seem at all unreasonable.  The decision in DeShaney is somewhat defensible, because the liability claim is premised on a notion, at least to some degree, that government has a duty to provide minimal security and safety to its citizens including even to a small child. That can be an elastic standard, because the questions could be endless as to win such a duty commences and how far it extends.

Sharing with DeShaney the effect of immunizing government and government actors from the type of accountability that is not at all unreasonable are court decisions such as the Supreme Court's own decision two years ago in Lane v. Franks, which I discussed here, Lane v. Franks: Even Though It Would be A Crime, Supreme Court Rules that Public Employer Is Entitled to Qualified Immunity From Any Damages, and several by our own Sixth Circuit, which I have likewise discussed: Qualified Immunity and "Clearly Established" Constitutional Rights and "Happily" The Sixth Circuit Rules That American Citizens Have No Constitutional Protection Against Arbitrary Arrest and Jailing.

And so it goes. 

Robert L. Abell
www.RobertAbellLaw.com

 

 

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the Arbitration Scam Puts Families, Consumers and Employees at the Mercy of Corporate Minions

The New York Times publishes today a lengthy analysis of the arbitration scam concocted by corporate interests to facilitate and enable them to rip off and harm American families, consumers and employees: Arbitration Everywhere: Stacking the Deck of Justice.  

There are two main, basic problems with the arbitration clauses that corporate America relies on:

• First and with all due respect to the arbitrators, the system is structured to favor the repeat players, which is the corporations.  Arbitrators get paid when they preside over an arbitration, so they want to be selected to arbitrate a matter.  If they don't get picked, they don't get paid. So this leads them inevitably to tilt in the favor of the corporations who will again have an arbitration. It's like buying the jury, and it is not fair.
  
  
• Cost. Most arbitration clauses require the consumer and the corporation to share the arbitrator's charges and fees, which are likely to run into quite a hefty sum, perhaps tens of thousands of dollars. Individuals and families rarely have the money to pay for this.  You could say that lawyers could represent them on a contingent fee basis; well, in reality, taking a case on a contingent fee basis where the arbitrator is likely to naturally and inherently favor the opposition adds a level of risk that sometimes is too much to bear.
  
  Robert L. Abell
  www.RobertAbellLaw.com

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Lobbying & Loopholes; Why There May Be No Criminal Liability for Individual GM Employees

The New York Times writes on the apparently-successful lobbying efforts that will likely preclude any criminal liability for individual GM employees responsible for the ignition defect and efforts to cover it up. See Laws Hinder Prosecutors In Charging GM Employees In Ignition Defect.  

Here's the gist:

For nearly 50 years, legislative attempts to provide prosecutors additional leeway to criminally charge automakers and their employees have been quashed.

                    and

The pattern of loopholes and legislative victories illustrates the lobbying might and political clout of the auto industry, even as it careens from one safety crisis to another.

As has been said, "money doesn't talk it swears."

Robert L. Abell
www.RobertAbellLaw.com

 

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What Happens When USDA Gives Up on Food Safety Inspections?

The United States Department of Agriculture (USDA) is responsible for inspections at meat-packing plants intended to protect the public and consumers from contamination in the nation's food supply.  The New Republic reports: Whistleblower USDA Food Inspectors on Hormel's Pork Plants: It's "Just Nuts."  A highlight:

The companies are now calling the shots.  Pretty soon the agency will have no authority.

Join the Food Integrity Campaign.

Robert L. Abell
www.RobertAbellLaw.com

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Are FDA Experts Compromised? Money Doesn't Talk It Swears

The Wall Street Journal blog Pharmalot reports that 1/3 of the physicians and other experts sitting on FDA advisory panels reviewing medical devices from 2012 to 2014 have financial ties to the companies whose devices they are reviewing, see What Money? Financial Ties of FDA Device Advisers are Often Undisclosed. Nearly 10% of these experts were directly compensated by the specific companies whose products they were directly reviewing. Interestingly, the FDA disclosed only 1% of these financial ties.

One of the hardest things in the world is getting someone to understand whose paycheck is dependent upon them not understanding.  

Here's the game: medical device companies capture the FDA by buying influence with these experts and secure FDA approval for their devices, which in turn serves as a defense to defective product lawsuits, often a complete defense.  So at the front end it is possible for medical device manufacturers to buy their way out of any accountability or liability to individuals and families hurt be defective medical devices.

And so it goes. Remember money doesn't talk it swears.

Robert L. Abell
www.RobertAbellLaw.com

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Expert Testimony of Accident Reconstructionist Wrongly Excluded, Sixth Circuit Rules

Two ironworkers, Richie Dilts and Matthew Collins, were killed when a steel panel there were standing on fell about 80 feet. Their estates sued and offered expert testimony from an accident reconstructionists, Stuart Nightenhelser, regarding why and how the panel fell. But the district court excluded the expert's testimony, a ruling the Sixth Circuit reversed in Dilts v. United Group Services, Nos. 10-5271, 10-5540 (September 17, 2012).

First, the court ruled that Nightenhelser possessed the necessary qualifications noting that he had a Bachelor of Science in physics and mathematics from Butler University, had worked in accident reconstruction for over a decade, regularly applied, as part of his job duties, laws of physics and mathematics to support his analysis and conclusions for the reconstruction of accidents and estimated that he had worked in over 1000 cases involving construction equipment, vehicles and the construction of buildings and other structures. That Nightenhelser may not have been familiar with all aspects of individual accidents was no grounds to exclude his testimony because "such lack of familiarity affects the witness's credibility, not his qualifications to testify." Davis v. Combustion Engineering, Inc., 742 F.2d 916, 919 (6th Cir. 1984).

Second, Nightenehlser's opinion was sufficiently reliable because he conducted an on-site inspection, photogrammetric analysis, performed calculations and algebraic equations along with other analytical steps. That Nightenhelser was not perfect and did not know everything did not disqualify him: "An expert's lack of experience in a particular subject matter does not render him unqualified so long as his general knowledge in the field can assist the trier of fact." See Sarkas ex rel Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 293-94 (6th Cir. 2007). Accordingly, the Sixth Circuit ruled that the district court had erroneously excluded Nightenhelser's expert opinion and testimony.

The opinion for the Sixth Circuit was written by Circuit Judge Eric Clay and joined by Circuit Judges Julia Gibbons and Helene White.

Robert L. Abell
www.RobertAbellLaw.com 

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

Tainted Toys To Remain For Sale, Consumer Product Safety Commission Says

Children's toys, including teethers and pacifiers, tainted by the presence of the controversial chemical phthalate will remain for sale for now and even after a ban takes effect on February 10, 2009, provided they were manufactured before that date, according to a decision by the Consumer Product Safety Commission, the Washington Post reports, "Some Toys With Banned Plastics Will Stay On Market." 

Phthalates are a chemical used in soft plastics and are linked to reproductive problems.  Their use was banned by a law passed in August.  However, the Commission's ruling will allow products made before that date which use the banned substance to be sold, even after February 10, 2009. 

The Commission proposes a remedy that is unworkable; it says that concerned parents can call a product's manufacturer and find out when the item was made.  This is a proposal untethered from reality.  One can first question the reliability of any information a parent would receive.  Do you call before the item is purchased?  Do you identify the item on the store shelf, call and return later hoping to find the same item on the shelf?  Ignoring these realities the Commission caved into industry's complaints about complying with this law protecting families and their children.

Robert L. Abell
www.RobertAbellLaw.com

Mislabeled Insulin Syringes Recalled

Mislabeled insulin syringes manufactured by Covidien. Ltd. and sold by Wal-Mart and Sam's Club stores have been recalled, according to a report in the New York Times, "Insulin Syringes Are Recalled."  The recall was announced by the Food and Drug Administration.  The mislabeling could cause patients to receive 2.5 times the normal dose; approximately 471,000 syringes, which go by the brand name ReliOn, are said to affected.

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