The recent FDA announcement of the tomato salmonella outbreak leads me to wonder about how we got here. Announcements like this give the media great material to play with the fear process. I call it the “don’t eat that,” or scare-of-the-moment journalism. The danger is real, of course, as salmonella can pose a serious health hazard for children, elderly, and people with compromised immune systems.

The real problem is a lax food safety system. This is not something that’s simply limited to tomatoes.  The reality is that deregulation–the heralded salvation and light of the American economy–has a very nasty underside.

Food safety is one of those classic government functions. If we want a safe food system, we have to pay for it and know that sometimes regulations are a pain in the neck. Oh, and it costs money, as in higher taxes.  Of course, that pain in the neck is part of how we protect our toddlers and aging parents who can be felled by a manufacturer’s failure to maintain food safety standards.

The alternatives give us two things. One is this scare-of-the-moment journalism. Annoying. But here’s the bigger one. The other consequence of deregulation is that people like me–trial lawyers–have more and more work.  My job starts when injured people call about calamities that have befallen them.  I am like “All the Kings’ horses and all the Kings men” as I go about trying to re-assemble lives and families broken by unsafe practices.

Our food supply system needs to be regulated properly, and we need to dedicate the resources to it so that regular inspections and enforcement processes prevent these outbreaks.

David Sugerman

Word today is that the U.S. Supreme Court has agreed to hear for the third time the appeal of Philip Morris in Williams v. Philip Morris. By way of full disclosure, I have represented on a pro bono basis (lawyer talk meaning, without pay; for the good of the public)  various public interest groups who have urged the Court to affirm to the $79 million judgment against Philip Morris.  Interestingly, this result pales against the recent Adidas verdict, that included a punitive damage award of $137 million, without a single consumer death.  Oh, but I’m digressing.

They can’t seem to let this one go. Is it because an Oregon jury concluded that Philip Morris should answer for its misconduct? Or is that the Oregon Supreme Court, which finds in favor of Philip Morris sometimes and against sometimes, failed to reach the U.S. Supreme Court’s desired result?

My thoughts are with the Williams family and my brave friends who have carried the burden of representing them. They’ve been through a long fight for justice.  I suppose they’re wise and philosophical, knowing that they will see this through to the end.

David Sugerman

This is a post about what is not there. Right here in River City, a federal court jury found in favor of Adidas Corp. on its trade infringement claim against Payless Shoes, finding damages in excess of $300 million.  The Chamber of Commerce and its allies have long shouted out major screeds about the civil justice system, claiming that it is horribly unfair because juries award too much money.

But when a business got a huge award, the Chamber sat silently. I suppose this should come as no surprise, but the Chamber and its friends have nothing on their websites about the Adidas verdict.  Neither does the American Tort Reform Association.

Nope, their attacks on the civil justice system focus on cases brought by injured consumers.  And some–like the magic pants guy–are grounded in half truths. In the assinine case of the judge who sued the drycleaner for his lost pants–the magic pants guy–anyone who follows the whole story learns that the system works just fine.  But that won’t stop the Chamber from parading it as a horrible or the American Tort Reform Association’s ridicule.

So one thing that this deafening silence suggests is that the Chamber and the American Tort Reformers only complain about lawsuits brought by individuals. Another is that their complaints–too much money awarded in civil lawsuits–are really not complaints about the amount of money so much as they are about who gets the money.

I’ve got nothing in the Adidas case. They have a right to enforce the value that they’ve poured into their brands. But let’s be fair. When the Chamber wants the rest of the world to believe that its war on the civil justice system is honest and open, it will call foul when a corporation gets the outsized verdict. Anything else just smells really, really bad.

David Sugerman

I’m totally transfixed by news reports on the Craig Berkman trial. According to this report, Mr. Berkman admitted that he falsified his personal financial statement. It wasn’t one of those tiny little white lies, either. Apparently, he circulated financial statements showing his net worth to be $25 million when he was actually $5 million in debt.

Short version backstory: Craig Berkman is a former Oregon guberntorial candidate who lived the good life as a way wealth investment hotshot. Apparently, that living came either from self-lending made without investors’ knowledge or from outright theft. (Or maybe it’s somewhere in between?)

There are a number of other misstatements set forth in the article, too. But let’s not rush to judgment. Mr. Berkman apparently still denies that he stole money, claiming, instead, that the borrowed it and paid it back with interest.

One of the striking things about the news report is that it shows that it took a lawsuit to get to the bottom of his dealings. Until lawyers at Bullivant Houser filed a lawsuit, the investors couldn’t get the records that sheds the light that forced Mr. Berkman’s admissions.  I wonder what the story would be today if the lawyers for the investors hadn’t dug deep to get the records?

Can’t wait to see how this one turns out, but if I had to bet money–and I don’t–I wouldn’t be betting on Mr. Berkman here. At least not from what I read in the press.

David Sugerman

There is nothing surprising about Friday’s ruling by the U.S. Court of Appeals ruling that Myspace is immune from a lawsuit brought by a parent of a sexually abused child. In Doe v. Myspace, Inc., the Fifth Circuit ruled that the Communications Deceny Act, 47 USC Sec 230 (”CDA”) bars claims against providers like Myspace for damages that arise out of publication by providers of content supplied to the provider. For law geeks keeping score at home, the Court relied on CDA Sec 230(e)(3).

This is the whole preemption thing again. At least this is true preemption that was clearly intended by Congress, rather than a political agenda being pushed by an out-of-control administration.

But that’s not as interesting to me as how this ruling shines a light on censorship by web 2.0 providers like Facebook and Myspace. The CDA protects publishers of content. So why would Facebook remove posts that were critical of Career Education Corp? Facebook couldn’t be required to answer to claims under the CDA. So what gives?

I can’t see any other explanation other than web 2.0 providers play a kind of 3-card Monte with censorship rules. When faced with a liability lawsuit, they rightfully raise the CDA as a complete defense. Fine. That’s how Congress wrote the law. While I have trouble with the result in Doe, it’s about personal beliefs and nothing relating to the correct interpretation of the CDA. But when other interests demand the removal of content–like unflattering posts–the provider should stick to the same position.

To be sure, I’m not a big fan of the CDA’s grant of wide immunity. In pre-web days, publishers like newspapers could be held to answer for harm caused by defamation if they recklessly published untrue information. Personally, I would prefer that model so that web providers take some responsibility for content. But maybe I’m misguided on this particular issue.

Interestingly, there may come a time down the road where web 2.0 providers’ inconsistent actions create a different set of problems. I can foresee that lawyers representing future Doe families will have new and interesting arguments to get around the CDA if Facebook censors for its friends but doesn’t take similar steps for trolling sexual predators. I realize this last thought might be a little obtuse. Apologies. Untangling it would only lead to a long and dense post that would surely bore you to tears. You can thank me for being a self-censoring law geek….

David Sugerman

The legal term “preemption” is one of those boring sounding words that makes eyes glaze over and starts the snoozefest. Seems like the Bush administration is counting on that reaction in its latest threat to consumer safety.

Preemption is a concept that provides that federal law can trump or overrule state standards when Congress passes a law and intends that its law displaces inconsistent state law. Like I said, it’s a yawner. But in this era of anything goes, hands-off deregulation, the ability to thwart state law claims means a lot to powerful corporate interests that don’t want to face juries.

And that’s how consumers get hurt.

The latest story is that now federal agencies are trying to grab power and extend preemption, claiming the right to do so. So when–for example–the FDA passes a rule that only federal standards regulate medical devices, the agency is grabbing power to claim preemption. Here is a more detailed account of how it’s being done.

What a sad and cynical world. At some point you have to conclude that this is just about greed. If you want to deregulate the world, then you have to have a means of giving injured consumers the ability to obtain compensation for their harms and losses. Or alternatively, you could create a truly effective safety scheme. But this current administration wants none of it. No regulations. No way for injured consumers to cover their harms and losses. No answering to a jury in court.

There’s that popular culture thingy–not really a saying, so much as a signifier, “Don’t worry; I’ve got your back.” It almost applies here, but you have to edit or tweak it just a tad to achieve accuracy. I worked on it some. Took some thought, actually. With a little re-working, it applies beautifully here. I’ve edited down to, “Worry.”

David Sugerman

Thanks to Jen for sending this powerful piece explaining the need for seat belts. It’s probably the best I’ve seen or heard.

Jen posted it as a comment on an old post, so I wanted to add it here for those who only look at our current entries. Kudos as well to the Montana Department of Transportation for an excellent video. And to Jeremy’sfamily: maybe your horrible tragedy takes on some meaning if this gets wide distribution. Our thoughts are with you on this.

So here’s our small part from Oregon.

David Sugerman

Boy, here’s some righteous indignation for you. I just saw the new attack ad in the Oregon Attorney General race. Greg MacPherson chose to run ads attacking John Kroger’s lack of qualifications. I previously explained that it was an interesting choice in this race, and that both were qualified for the position. I also made it clear that I wouldn’t take a position on the race.

I was wrong.

Rep. MacPherson’s ad demonstrates a lack of judgment and candor that leads me to think he would be a poor choice for AG. His attack ad is misleading, in that it implies that John Kroger has no experience practicing law. The ad compares Kroger to a newly-licensed driver who wants to drive a bus and a newly-minted M.D. who wants to perform surgery. The reality is that Kroger has substantial trial experience as a criminal prosecutor. That includes taking on Enron.

I had a few rules going into this whole Davids’ Blog thing, and one of the main ones is that this blog wouldn’t become a platform for what Davids think about political issues. Most every rule comes with exceptions, and this one is, well, no exception.

I’m not reluctant to call out politicians who are out to stain or damage the justice system. I’ve done it with wanna-be presidents and sitting presidents and former Attorney Generals.

When I saw that commercial today, I spit out the gag. I think all of Oregon deserves an attorney general who won’t try to mislead the voters.

That would be John Kroger.

David Sugerman

So the mainstream press picked up on the fact that the Oregon Supreme Court has decided a major case against Philip Morris and one in its favor.  But the story that is republished on MSNBC includes a law professor’s odd view of irony.

Here’s the excerpt:

“Ben Zipursky, a Fordham University School of Law professor who specializes in product liability, said it was ironic the ruling [in favor of Philip Morris on the Lowe medical monitoring case] came from the same court that recently affirmed a nearly $80 million punitive damages award against tobacco giant Philip Morris after it was struck down by the U.S. Supreme Court.

“‘This is the very court that has most aggressively ruled against Philip Morris,’ Zipursky said.”

So what’s ironic?

I mean, as one of the trial lawyers on the losing side of Lowe v. Philip Morris, I can say that I disagree with the Court’s ruling. But irony? Nah, prof., you got the wrong. Taken together, the two cases demonstrate that Philip Morris–and everyone else–gets a fair shake in front of the Oregon Supreme Court.

When I’m In trial and my opponent objects to evidence, I thank the trial judge whether the judge rules in favor of me or my opponent.  I do the same thing when the trial judge rules on my objections.  An opponent once accused me of thanking the court when I lost so that I would confuse the jury about whether I was winning or losing. I was amused that anyone thought I was that clever. But the reality is that through the response, “Thank you, Your Honor,” we acknowledge–win or lose–that judges maintain authority.  In that spirit, I would say that the Court in Lowe ruled in favor of Philip Morris and the rest of the industry. Regardless of what any law professor thinks, there wasn’t a shred of irony involved.

David Sugerman

The news report appeared during the week. My friend and colleague, Ed Johnson, did a helluva job representing a homeless woman in her excessive force claims against members of the Gresham police force.  Here’s what seems to be a less-than-accurate account of what happened.

I rarely go out of my way to call into question news reports of trials, but the story left me with the impression that the police were the victims.  We know from the result that the story is wrong, as there are two independent checks the injured person must clear to win against the police.

In federal court, juries deciding civil lawsuits must be unanimous. The jury unanimously found in favor of Mary MacQuire, the woman tasered and beaten, and even found that her harms and losses required more money than she had requested.

But there is another check as well.  The federal judge who tried the case, Judge Michael Mosman, is not inexperienced in police cases. Before his appointment to the bench, Judge Mosman served as the U.S. Attorney, the person in charge of federal criminal prosecutions in Oregon.  So he came to the bench with a lot of experience with the police. As the judge presiding over the case, Judge Mosman only submits a case to the jury if there is sufficient evidence of wrongdoing. He listened to the evidence and submitted the case to the jury.

I had a chance to talk to Ed Johnson both before and after the trial. He’s a great guy who works for the Oregon Law Center, representing people of modest means. The case he described to me wasn’t the same one I read about in the paper. But regardless of the reporting problem, police cases are hard. Juries typically give police a lot of leeway because they recognize the difficulties of their jobs. In my experience, most Oregon juries believe the police. Of course, Oregonians tend to be pretty level headed, such that when they hear credible evidence of a problem they do what is right to assess fault and address harms and losses.

When I spoke to him before the trial, Ed was clear-eyed about the difficulties a homeless woman faces in claiming that the police used excessive force. He was quietly committed to his case. After the trial, he was spent, as most of us are after a hard-fought case. He was also pleased with the result.

Ed Johnson and Ms. MacQuire deserve our gratitude and praise. By taking the case to trial, Ed Johnson and Ms. MacQuire demonstrated that justice can be found in Oregon. The jury and judge deserve our praises as well, because a verdict in a case like this sends a message to those who fail to heed the rules that no one is above the law. Not even the police.

David Sugerman