Not a week goes by without a headline reporting on yet another settlement between a multi-national pharmaceutical company and state or federal prosecutors. Medical device manufacturers are often also frequently subject to similar prosecutions.  While it is laudable that governmental authorities are finally taking action against chronic wrongdoers, the frequency of these prosecutions and settlements, and the very high recidivism rate, leads one to wonder whether drug and medical device manufacturers see these payments for wrongdoing as merely yet another cost of doing business. And, perhaps, more troubling, a very small price to pay to have a chance at marketing the next multi-billion dollar blockbuster drug or must-have medical device.

The problem is that while our government is modestly increasing its coffers with these settlements and fines, little attention has been paid by regulators to the other victims of their misrepresentations and deceptive and unfair trade practices – patients who have, at best, been defrauded and, at worst, have been harmed by defective drugs and medical devices with which they never would have come in contact but for the improper marketing.

For many years, there have been dozens of announcements of investigations and settlements involving a number of transgressions of drug and medical device manufacturers:

• Fraudulent direct-to-consumer advertising
• Unfair trade practices, price-fixing, and collusion with pharmacy benefit managers and others that has contributed to escalating drug costs
• Kickbacks and improper payments to doctors
• Pollution of scientific articles and medical literature (through “ghostwriting” and other efforts) which have the effect of preventing doctors and patients from making important decisions regarding the risks versus the benefits of drugs
• Knowingly manufacturing adulterated or contaminated products
• Promotion of drugs and devices for indications and “off-label” uses that have not been approved by the FDA because they are unsafe or have insufficient proof of safety
• Manipulation of clinical trials to under-report or mask safety issues

Just this week, yet another study was published (this time in the online medical journal of PLOS – Public Library of Science, a non-profit organization devoted to making the world’s scientific and medical literature more accessible) which found that less than 20% of the advertisements that are placed in journals by drug and medical device companies who are marketing their wares to physicians are fully compliant with FDA guidelines.  Nearly 60% of the marketing pieces minimized risks associated with the product, and almost 30% failed to provide complete information on the medical product’s efficacy, which essentially means that physicians who are charged with assisting patients in balancing risks vs. benefits of a particular drug are unable to do so because so many of the advertisements and other materials that have informed the physician were false.

If your banker failed to comply with banking laws 80% of the time, federal regulators would move swiftly to close them down.  If your car only operated as represented 30% of the time, there would no doubt be an outcry for a recall and the broadcast of TV reports from consumer fraud investigators.  If only 20% of the facts taught to our children were accurate, would we continue to permit those educators to continue to teach?  Of course, not.

So, why do drug and medical device manufacturers get a pass?

Although Big Pharma might disagree, our laws still apply to them (despite their best efforts to carve out numerous exceptions).   We still expect big corporations to follow the same lessons that we teach our children – be honest, tell the truth, admit mistakes when you make them, be cautious and safe, and protect others from harm.  Is it too much to ask that the FDA and governmental regulators get tough with drug and medical device manufacturers in hopes that they might learn their lessons this time?

Perhaps, a three-strike rule might deter the repeat offenders?

Or withholding Medicare payments and reimbursements for the drugs and medical devices that are subject to fraudulent marketing practices (which might make more of an impact on the bottom line than the fractions of pennies that are currently being paid to resolve attorney general investigations)?

Better yet, how about criminal prosecutions of corporate executives who have authorized illegal activities under the guise of marketing?

The fraud that has been perpetrated by some in the drug and medical device industry certainly is every bit as offensive as the crimes of Bernie Madoff, but far worse, in that patients have been harmed or died as a result.  One can always hope . .  .

Please just take a moment to concentrate.

Close your eyes and try to imagine that you are lying back in a bed. This bed has not had the bed clothes changed for a while and you are currently laying in feces and urine because you are not able to get out of bed by yourself. You have not seen anyone come by or into the room for several hours. You have open bedsores that, although bandaged, are infected and now soaked with urine and feces. You are 85 years old and during your life you helped a great many people and contributed to many people’s lives. You want to cry, but the tears will not come.

Sound severe? Sound like it is exaggerated?

I have been involved reviewing and evaluating a number of claims for nursing home negligence and abuse over the years for both the defense and the plaintiff. This story is not an exaggeration and it is not too severe.

There are many good nursing home facilities and, although some are better than others, most make an honest effort at reasonable care for those to whom we owe good care – our elderly citizens. For those who have contributed to our society over the years and for those who often can not care for themselves.

Sadly, there are those nursing homes that are not good and who do not staff sufficiently to properly take care of the people they have promised they would. There are facilities in which the interests of the owners are to make as much money as possible and to do so with as low an overhead as they can possibly have. There are nursing homes in which the staff is so low that needy patients go hours and sometimes days without any meaningful care.

The Florida legislature currently has proposed to pass Senate Bill 1396, relating to the liability of nursing homes for negligence and gross negligence. The bill has nothing to do with improving nursing home care or helping to ease the burdens of the elderly.

What the legislature has done with this bill is go out of the way to protect the best interests of nursing home owners; there boards of directors and virtually all the management level people. The legislators have engineered a procedure requiring a hearing in order to substantiate claims against these officers and the bill seems a little unclear to me whether they are going to permit the hearing to occur after the injured nursing home resident is permitted to conduct discovery of facts and documents or before.

The proposed bill also has legislators fixing the value of elderly people at $300,000. The facts do not matter; it does not matter how much you loved mom; it does not matter that, but for the abuse, mom would have lived another 20 years; mom is not worth more than $300,000 according to Florida legislators. In addition to this, legislators also employ some legal maneuverings to limit damages even more if the injured elderly person dies.

The legislators have also crafted some language to protect the corporate officers and the corporation owning the nursing home. The corporation and its officers can only be held liable for punitive damages if the intentional misconduct or the gross negligence was “condoned, ratified, or consented” to by the “officers, directors, or managers of the actual employer corporation”. So, if the corporation is not spending the money to provide supervision of their nursing aides and they allow grandma to be ignored to the point she dies, the corporation can not be held liable for the damages unless specific knowledge can be proved.

Should this bill pass, the only objective thing, which can be said about it is that running a nursing home in Florida just got a great deal more profitable and being elderly in Florida just got a great deal more scary.

Imagine you own a home – free and clear—no mortgage, no liens, it is all yours. Imagine you are advised that a bank has shown up at your property to foreclose on “their” mortgage and take possession of your property. Just a mistake, right? You talk to the company, they back off and you go on about your business.

Imagine that several months later you learn that the “free and clear” home has been foreclosed on; the bank has broken in, changed the locks and thrown away all the contents of the home.

Could not happen? Think again, because it did.

It has required the home owners to sue the bank with whom they apparently had no mortgage relationship and are now in the process of being required to litigate the matter. (Cardoso v. Bank of Am., No. 1:10 CV 10075, D. Mass.).

What about home owners who have worked out loan modification agreements with lenders who come home to find locks changed and homes seized.

Or, homeowners who have no relationship with “Bank A” coming home to find that “Bank A” has broken in, changed the locks and taken possession of…, oh, sorry the wrong home.

These are just a few actual examples of the problems being experienced by homeowners across America in the midst of robo-signing of foreclosure court filings and the apparent complete breakdown of communication between banks and their “servicers”

In the real estate boon, more than ever before, banks and mortgage institutions engaged in the securing of mortgages only to bundle large numbers of individual mortgages together and sell them off to other institutions. The other institutions, in some cases, sold all or part of those bundles to other institutions, who bundled various of the mortgages and sold to other institutions and so on.

Before the big boon, the mortgage company “servicers” were largely restricted to sending out statements and collecting payments. With the filing of over 2.9 million foreclosures (2010) came an expanded role for servicers. They began dealing with servicing securitized loans, dealing with delinquent loans, performing property preservation and changing locks to keep out homeowners. Often servicers are not paid until they accomplish their job– taking possession of the home.

In some cases, servicers have been involved in negotiating loan modifications under the government legislation called the Home Affordable Modification Program (HAMP). Often, the people handling the loan modification work-outs are simply not communicating with the people handling the foreclosure process. This results in people who, in good faith, believed they had reached agreements to satisfy their mortgage holders coming home to homes with changed locks and furniture piled up out front or gone altogether.

In many foreclosure cases the institution trying to foreclose can not or does not properly produce any reliable documents to prove they actually hold an interest in the property upon which they are trying to foreclose because the mortgage has been sold so many times to so many banks. If fact it may be fair to wonder whether homeowners really have any idea who their mortgage companies really are and mortgage holders are apparently having the same problem.

What can homeowners do?

• Know who your actual mortgage holder really is and the legal connection with any other entities, such as service providers.
• If something has happened in your life and it is causing a financial crisis requiring you to temporarily become delinquent in your mortgage, contact your mortgage holder.
• Do not ignore your mortgage company. If they are contacting you and you are behind in mortgage payments, they are not going away and ignoring them is the fastest way to compel them to action.
• Document, again, document all your contacts with anyone connected with your mortgage. Confirm with written follow ups of agreements and conversations.
• Do not fly blindly. If your mortgage company tells you something you do not understand ask them to explain it to you until you do and, then, document the explanation.
• If you think you are over your head in the process, consult with an attorney. Consulting an attorney for advice or to better explain a particular point does not require that you hire that attorney permanently.
• Be honest and realistic with yourself and with your mortgage company.
• If you believe your loan is heading for foreclosure despite your best efforts, consult an attorney for advice.

And, by all means, if you come home to a locked house, furniture in the front yard and a foreclosure notice on the door, but you are not behind in your mortgage, contact an attorney and the police immediately.

Imagine you are in an automobile accident that was not your fault. Tragically, you are severely injured.

Imagine you will require at least 6 to 8 months of surgeries and intensive rehabilitation before you have any hope of returning to work. Imagine that your injuries are permanent; the doctors can improve them, but you will have to live with some level of pain and discomfort for the rest of your life. You will have to spend at least an additional 6 to 8 months in job retraining, since you can no longer work in your job as a carpenter. Your spouse will need to find a job and you will now incur child care expenses at least until you can return to a full time work schedule.

You will lose approximately $50,000 in wages and incur roughly $150,000 in medical expenses. You have personal injury protection insurance in the standard amount of $10,000, but no health insurance.

What can you do to stem your losses – even putting aside the lifetime of pain?

You decide that hiring an attorney is a good idea. A lawyer can handle the sometimes complex legal and processing issues involved in insurance claims and dealing with creditors; while trying to pursue legal remedies against the person who injured you.

What if you had to pay all the expenses of the attorney on a monthly basis? What if you had to pay the lawyer’s fees each month? From where is that money coming? How will you pay $200, $300, $600 per hour for a lawyer and pay all those expenses involved in pursuing your claims?

Most companies or workers get paid whether they are successful or unsuccessful. Let’s face it, the CEO failure rate is pretty high and creative accounting is not always enough to carry the day for CEO’s and their Board of Directors. Although they may get fired, those people and companies get paid even when they fail.

Trial lawyers, however, usually get paid only if they ARE successful.

Enter the mantras: “No Fee Guarantee” – “You Owe Nothing Unless We Win Your Case” – “You Owe No Fee Unless We Get You Money” – and so on and so on.

What these sloganeers mean is they represent clients under contingent fee contracts. The attorney agrees that he or she will not receive a fee except as a percentage of the ultimate collection the client makes. In addition, the lawyer or law firm usually agrees to carry all the expenses associated with prosecuting the client’s claims.

Our firm mostly represents clients under a contingent fee type of contract; just as most lawyers in Florida do who handle personal injury types of cases. We also front the costs incurred on behalf of our clients and carry those costs, interest free, during the entire time it takes to pursue our client’s claims. It is only when we are ultimately successful in collecting monies for our client that we are paid our fees and reimbursed our costs.

Why do we represent clients under a contingency fee contract?

Our clients would never be able to get to the courthouse steps if they could not hire lawyers who would wait to be paid their fees and costs. Courts are clogged with corporate litigation, foreclosures and criminal cases. Insurance companies understand the value to their bottom lines for the slowest possible payment of money. Some cases can take years and hundreds of thousands of dollars in costs to ultimately win for our clients.

Imagine if our clients, already battling injury and financial crisis, had to receive a bill every month from their attorneys?

Imagine that a victim of someone else’s negligence was required to pay thousands of dollars in attorneys fees and costs each year simply to collect money for injuries caused by someone else or by a Super conglomerate?

That is the primary reason that contingency fee agreements were adopted by lawyers and embraced by people in tough spots who would otherwise be at the whim of insurance companies or corporate moguls.

So, any lawyer can handle a case under a contingency fee/cost agreement, right? Not necessarily.

Optimally, what a wronged person needs in a lawyer or law firm with the financial strength to be able to stand toe-to-toe with insurance companies and corporations who have big wallets and can out spend most plaintiffs. A client needs a lawyer who will not be motivated to settle their case for less than its fair value simply because the expenses are becoming significant.

In addition to financial strength, what should you look for in an attorney to represent you?

• A track history of success. Its no different than anything else, you want someone who has “been there and done it” – successfully.
• Experience handling cases in the courtroom. You want a trial lawyer for whom insurance companies and corporations have a healthy amount of respect for their ability.
• A team capable of supporting the lawyer in their handling of the type of case you have. The attorney is only a part of the equation for being able to efficiently handle complex cases.
• Board certifications, awards of recognition, and honors for superior accomplishments in the law. These demonstrate acknowledgment of the attorneys ability by groups who have no ulterior motive for giving the recognition.
• A lawyer with good educational background. Quality schools still mean something. Attorneys who were successful in making it through the law schools with reputations for being challenging are accustomed to the fight.

A client needs a lawyer or law firm with the strength to stand up for the client and level the playing field with the largest corporate behemoths.

Legislation to Permit Insurance Companies to Act in Bad Faith

What is “bad faith”? An insurance company has an obligation to deal fairly with their policyholders – they must deal in good faith. If an insurance company acts in its own best interests and not in its insured’s best interests, it is acting in bad faith under the insurance contract for which the insured paid for protection.

For example, you own a business and during the course of your business activities someone is injured. You are sued and the case involves unfortunate and very serious injuries. You, as the business owner, have policy limits of $100,000. It is very clear that the amount of coverage will not protect you for the total value of the injured person’s injuries. You are understandably concerned that your business assets and livelihood could be threatened.

You have paid a premium and, in exchange for that premium, the insurance company has promised to protect you and your business from claims up to the amount of coverage. Under current laws, your insurance company has a “good faith” obligation to try and settle the claim for up to the total amount of your coverage and to secure a release that would protect you from any further exposure.

It is in the best interests of the insurance company not to pay that $100,000 until it is absolutely necessary or, they hope, not at all. Paying the $100,000 means money out of the insurance company’s coffers and, as importantly, less money they can invest to produce more profit. The problem is the insurance company is risking an exposure to you, your business and your family that far exceeds the policy limits.

Currently, if the insurance company drags its feet and fails or refuses to timely settle the claim against your small business, they may be guilty of bad faith and could be obligated to pay ANY ultimate judgments rendered against you and your business.

A bill introduced in the Senate by Senator Jon Thrasher and in the House by Rep. Dennis Baxley would eliminate the penalty for your insurance company’s failure to fulfill their obligations to you under the insurance contract. The bills, SB 1592 and HB 1187, are virtually identical and provide a complete rewrite of “the grounds for bringing an action based on the insurer’s failure to accept an offer to settle within policy limits.”

The bill, however, is weighted in favor of insurance companies and essentially eliminates any practical ability for an insured to prove an insurer acted in bad faith or that an insurance company has demonstrated a practice of denying payment on all claims by giving special protections to insurance companies:

With respect to “a first-party claim, the insurer does not owe a fiduciary duty to the insured and retains the right to protect materials covered by the work-product privilege found within the claim processing file.”

In other words, the insurance company owes their insured nothing and you, the insured, are not permitted to look in the insurance company file to determine whether they treated you fairly.

With respect to “a third-party claim, until a claim or action for payment on a policy of insurance is final, all files of an insurer, including papers, communications, investigatory reports, or other documents in the insurer’s files are the insurer’s work product and immune from production or discovery.”

In other words, if the insurance company acted in bad faith, no one is ever going to know that because the insurance company files are secret and protected from discovery.

If it is believed the insurance company has adopted a policy of denying claims the bill makes it nearly impossible for most small business owners or individuals to pursue damages for that wrongful conduct by providing that:

“Any person who pursues a claim under this subsection must post in advance the costs of discovery. Such costs shall be awarded to the authorized insurer if punitive damages are not awarded to the plaintiff.”

In other words, you can not sue your insurance company to punish them for wrongly denying your claim, even if you can prove they do it with everyone as a regular business practice unless you, the insured, can afford to post the costs covering discovery of these bad deeds by the insurance company – up front and before you can sue the insurance company.

The legislation also seeks to abolish long standing case law establishing damages for bad faith conduct by insurance companies:

“The civil remedies specified in this section are the sole remedies and causes of action for extracontractual (sic) damages for bad-faith failure to settle under an insurance contract. Any related common-law causes of action are replaced and superseded by this section. The provisions of this section apply to all cases brought pursuant to this section unless specifically controlled by s. 766.1185.” (emphasis added)

The net effect?

This is a bill to provide insurance companies safe harbor for bad conduct.

It is intended to protect insurance companies and not citizens, whether individuals or small business owners.

What could possibly motivate anyone to want to see this legislation passed, let alone proposed?

Hot coffee, McDonalds and tort reform have become strange bed-fellows since a verdict was delivered against the McDonalds Corporation by a jury; for severe injuries to 79 year old Stella Liebeck, caused by spilled coffee.

To people who believe Corporate America needs protecting, the McDonalds coffee case became a poster child for what they claimed was wrong with the civil justice system. Of course, the tort reformers version provides only pieces and parts of the real story – just enough for them to weave it into a new story that stands for what they need it to illustrate. But, do not be fooled; there are few real facts in the tort reformers’ version of the case.

At the recent Sundance Festival, a former lawyer, Susan Saladoff, has built a bonfire around a new film she produced called “Hot Coffee”. The film is a documentary that does not take pieces and parts of the McDonalds coffee case. Rather, this is honest and factual testimony of what really happened and the very understandable reason why a jury would deliver a verdict of $2.8 million against the McDonald’s Corporation for spilled coffee.

The real facts of what happened that day in 1992, are significantly different from those that tort reformers fabricate to fit their own needs:

• Ms. Liebeck was NOT driving; she was a passenger in a car driven by her grandson.
• Ms. Liebeck did NOT place the coffee on the dash and the spill was not caused by her driving off while the coffee sat on the dash.
• Ms. Liebeck was simply removing the plastic lid from the coffee cup when it spilled.
• The ultimate verdict entered by the court was NOT $2.8 million.
• Ms. Liebeck was found 20% comparatively negligent; a finding by the jury that, based on the facts, was probably not unreasonable.
• The court system worked properly. Ms. Liebeck’s award for physical injuries was reduced from $200,000 to $160,000 for her share of comparative negligence.
• The verdict of $2.6 million for punitive damages awarded by the jurors was ultimately reduced to $480,000.

Did the jury get wildly out of control in awarding the original $200,000 for Ms. Liedeck’s physical injuries? Ms. Liedeck suffered 3^rd degree burns over 6% of her total body. Her physicians treated severe third degree burns to Ms. Liedeck’s inner thighs, perineum, buttocks, and genital and groin areas. This 79 year old lady was hospitalized for eight days and underwent numerous skin graftings and débridements (scraping of dead skin tissue away from undamaged tissue).

Before any lawsuits were filed, Ms. Liedeck asked McDonalds to compensate her for her injuries and made claim for $20,000. McDonalds offered to pay Ms. Liedeck $800.

What were some of the things that McDonalds alleged and evidence heard that could have made their callous conduct more unappealing to the jurors and to the court?

• McDonalds claimed that Ms. Liebeck was old and, so her injuries were worse, but they should not be liable for the severity of her injuries simply because she was old.
• Ms. Liebeck’s clothing may have held the hot coffee against her skin causing the burns and, presumably, that this 79 year old lady should have stripped quickly in her grandson’s car to avoid the severe injuries she suffered.
• McDonalds produced documents demonstrating more than 700 people who had been burned by their coffee, but their experts testified that the number was trivial.
• McDonalds quality assurance manager acknowledged that the temperature at which McDonalds maintained its coffee (180° F) would cause severe burns, but that McDonalds had absolutely no intention of reducing the temperature because they sold over $1.3 million PER DAY in coffee.
• McDonalds claimed that customers were generally buying coffee to drink after they reached their place of work or other destination and this required the coffee be delivered at temperatures of 180°. McDonalds research documented by their production was that the largest number of customers were buying coffee to drink immediately, while they were driving to work.

The tort reformers are fond of claiming that the civil justice system was designed to deter “wrongdoing” and not to compensate for injuries. The civil justice system was designed for the very goal of trying to compensate injured people or entities for damages caused by the wrongdoing of others. The civil justice system is laid upon the notion that negligence happens and that negligence by its very definition is unintended. It was only when court’s realized that something far beyond negligence could occur; that callous indifference and reckless disregard for safety began being practiced by Corporate America was the system adapted to permit punitive damages designed to deter outrageous conduct. It is the reckless conduct that can be deterred, but seems to continue.

In this case, the judge who presided over the trial reduced the $2.6 million in damages intended to deter McDonalds from their conduct to only $480,000, but in doing so, the judge characterized McDonald’s conduct as “reckless, callous and willful”.

In summary, tort reformers are fond of distorting the facts of the coffee case because, without distorting those facts, they are left with:

A corporation who admits their product is dangerous to consumers.

A corporation who admits their product as served causes severe 3^rd degree burns, but reducing the temperature from 180° to 155° would avoid , the severest of those injuries.

A corporation who made $1.3 million dollars per day selling its product “as is” and boldly refused to change anything about the product to make it safer.

A corporation who was asked and who refused to compensate a victim in a reasonable amount.

A jury who, faced by the corporation’s lack of remorse, awarded amounts intended to punish the corporation, which amounted to only around (2) day’s loss of sales for the corporation.

An ultimate punitive damage verdict (designed to deter corporations’ future reckless conduct) that amounted to little more than 1/3 of one day’s sales

In the “light of day” the tort reformer crowd is simply lying in an effort to move their own corporate agenda forward and to deny individuals the basic rights promised by the constitution. In the light of day, tort reformers would not need to fabricate their agendas by attempting to appear as champions for average citizens. In the light of day, tort reformers would appear to the public as the corporations, lobbyists and political cronies that they actually are.

$4 billion dollars lost (at least temporarily) to fraud.

That is both astounding and just a little scary.

First, how is $4 billion defrauded from the government? Secondly, who is in a position to defraud the government out of that amount of money?

The answer to the second question is both scary and enraging: fully 50% of the fraud is being committed by “some of the largest pharmaceutical companies in the nation”!

Who? According to Forbes they include:

• Allergan paid the government $600 milliion ot settle fraud charges against it. This involved their “forgetting” to obtain FDA approval before selling the Botox product to the public.
• Novartis got hit for $422.5 million for illegally marketing products.
• AstraZeneca was forced to throw $520 million back into the trough because they “forgot” they were not permitted to market an anti-psychotic drug for uses never approved by the FDA.

These violators have nothing on Pfizer, however, who was required to pay $1.2 billion back to the federal government for its improper promotion of drugs it “forgot” to get approved by the Food & Drug Administration.

What should be much more scary to we Americans is that the current legislators have been very vocal about the fact they believe that Corporate America has been unduly regulated and they are on a direct path to trying to remove those pesky regulations from the backs of corporations.

If Corporate America violates existing regulations designed to safeguard consumers, what will they do when there are no regulations?

Big Tobacco receives two pieces of news that, well, is going to really not make for a merry Christmas this year.

Clearly a classic of “beware what you wish for my friend, for surely you shall receive it!”

Every time a jury finds against Big Tobacco, their talking heads come out with the boiler plate speech that they can not wait to get their cases appealed because, according to Big Tobacco, the trial courts are doing it wrong.

Well, Big Tobacco finally received their first answer in the higher courts; from the 1^st District Court of Appeals in Florida; in the case of Martin v RJ Reynolds. Big Tobacco essentially argued that they were denied their day in court because the trial judge advised the jurors of a decision reached by the Florida Supreme Court in a decision called “Engle”.

The First District analyzed the Florida Supreme Court’s decision in the “Engle” cases and in their decision, they ratified certain conclusions reached by a jury who heard over a year of testimony and evidence relating to the conduct of the Tobacco Companies in selling cigarettes for the last century:

• That cigarettes cause a whole bunch of diseases, including: aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer).
• That cigarettes are addictive.
• That the Tobacco Companies knowingly marketed cigarettes that were defective and unreasonably dangerous.
• That the Tobacco Companies concealed or failed to disclose important information about cigarettes that was not able to be known by the public.
• That Tobacco Companies misled the public about the dangers of smoking cigarettes.
• That the Tobacco Companies, acting together, concealed information regarding the negative health effects of cigarettes.
• That the Tobacco Companies, acting together, concealed the addictive nature of nicotine in cigarettes.
• That the Cigarette Companies sold products that were defective.
• That all the Tobacco Companies were negligent.

So, just to put it into a nutshell:

The Tobacco Companies lied to the American public about how seriously addictive nicotine in cigarettes was and they withheld information about the dangerous health effects of cigarettes from the public. Further, that Big Tobacco aggressively marketed a product that they knew would cause serious diseases and that was unreasonably dangerous. The Tobacco Companies made billions of dollars making the American public sick.

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I happened over to the website of the American Tort Reform Association (ATRA) for some light reading. These folks have been busy. While trial attorneys have been representing their clients these energetic folks and the US Chamber of Commerce have been writing what can only be logged in the category of interesting fiction.

I pulled up their treatise on “Defrocking Tort Deform”. No objective, informed person could call this piece of rubbish anything, but a complete rewrite of actual history. There is little in this little paper that can stand any objective, fact conscious examination.

First ATRA redefines what trial attorneys have done in the civil justice system “for more than 30 years” and seek to label it presently with a fanciful name: “judicial nullification of tort reform”. I find that those who can not rest on the facts typically resort to fanciful names and titles. What trial attorneys have been doing for 30 years is to protect the rights of their clients; not to pass legislation that readjusted the plainly written law or the constitution. ATRA’s website describes them as just the sort of organization, which they seek to paint trial attorneys as:

• An unparalleled track record of legislative success.
• ATRA fights in Congress, in state legislatures…
• ATRA works to counter that influence by challenging this status quo and continually leading the fight for common-sense reforms in the states, the Congress…

ATRA’s agenda is to essentially attack every form of justice solution and almost exclusively in favor of corporations, as set forth on their website:

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What lawsuits consume the very most resources in our court system?

Lawsuits filed by injured people? Nope.

Lawsuits filed by corporations suing corporations? Yep! By far, excluding divorce, we tax payers pay out more to support the court system’s time in handling one corporation suing another than any other type of case.

So, it was with some interest that I read about the latest lawsuit news involving SAP AG and Oracle. SAP is a German company; a global leader in technology systems and solutions; with income of over 13 billion dollars. Oracle is also a tech leader in software and hardware with an income of over 15 billion dollars.

The battle between the two giants arose from allegations that SAP had stolen billions in intellectual property from Oracle. Apparently not until years of litigation and only finally at trial, SAP confessed they were guilty of stealing some of Oracle’s intellectual property, but argued that:

“SAP posited that (SAP)…actually wasn’t that good at stealing customers from Oracle, and that SAP should not pay money it made from 358 customers it gained with the stolen data.”

The jury disagreed with SAP AG and awarded $1.3 billion in favor of Oracle. I guess the jury felt SAP was “good at stealing customers” from Oracle.

So, years of attorneys’ fees; countless court time; and (3) weeks of trial for two corporate giants to resolve a dispute in which apparently one was guilty all along. Not a battle by an injured person against a mega-corporation; in which the hurt person is simply trying to recover for pieces of their lost life, livelihood, and permanent physical injuries.

This is actually where our judicial resources are going: corporate super powers fighting amongst themselves. Bottom line: our constitution quite wisely provides for disputes to be settled in this way.

Many who have led blessed lives are quick to want to cap damages awarded to injured people, but should we cap damages which mega-corps can recover? Do these poor, victimized corporate behemoths deserve our attention and protection? Wouldn’t capping the damages corporations can recover from each other conserve resources of our court system? Not fair? You think that corporations should be allowed access to our court system in order to fight the “good fight”?

Can we really trust “average Joe or Jill” jurors to be able to listen to evidence in these corporate fights and be smart enough to reach the “right” decision? Should we jurors be told what to do in court cases? All we citizens exercise one of the most important responsibilities of running this country: the responsibility for voting. Whether I ultimately do or do not agree with what the majority of voters decide, this is a job we all take on without significant government regulation or intervention, right?

When voters overwhelmingly deliver a win to a particular candidate, we call it a landslide, a clear message from the electorate. We may quietly argue about the wisdom of the majority, but we do not legislate away part of the votes; we do not move numbers of votes amongst the candidates in order to “level the playing field”.

Trust me; neither jurors nor voters need crayons and “stay in the lines” instruction to accomplish their jobs.  A 1.3 billion dollar verdict will do more to curb overzealous corporations than any government board of ex-big business lackeys. Truth be told its good old fashion economics; when the cost of malfeasance is greater that the gain by wrongdoing then, and only then, will you have a chance to sustain the equilibrium for proper behavior and to curb abusive power. Civil litigators in the private sector are the most efficient means at targeting bad seeds and at the least expense to tax payers.

So, when you think about “runaway juries”, think about the possibility that it has nothing to do with jurors not being smart enough to see the truth. What if, jurors are smart people, just like voters. What if had you been in a courtroom and actually heard the evidence supporting egregious conduct, that you, too would award $1.3 billion against a corporation.

Imagine you are the one who has been wronged or injured in some way. Imagine you have lost everything important to you or have suffered a loss of a piece of your life that you will never be able to get back. Imagine jurors hear your evidence. Imagine those smart jurors want to award you the full measure of your damages. Imagine the legislature has passed laws that limit the amount of damages you can recover; regardless of what the jury has decided.

Imagine you are told that justice in your case is what the legislature decided and not what was decided by your peers? Not fair? Think about that the next time someone talks about a “runaway verdict”. Think about: what if? What if it is me who is harmed?