# Bush Administration Makes An End Run Around Congress

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The long promised tort reform is being slipped in quietly and not in a manner anyone had imagined.

Faced with an unfriendly Congress, the Bush administration has found another, quieter way to make it more difficult for consumers to sue businesses over faulty products. It's rewriting the bureaucratic rulebook.

Lawsuit limits have been included in 51 rules proposed or adopted since 2005 by agency bureaucrats governing just about everything Americans use: drugs, cars, railroads, medical devices and food.

It beats me exactly how this is supposed to work.

Rooted in the Supremacy Clause of the Constitution, federal preemption refers to circumstances in which federal law and regulation trump state law, in this instance state laws that govern when one person may be held liable for another's injury.

In some instances, judges seem as exercised as consumer advocates about the FDA's undermining of lawsuits under state tort law.

In a recent decision, a federal appeals court judge wrote that the FDA has for over three-quarters of a century viewed state tort law as complementary to the agency's safety warnings on prescription drug packages and ''only for the last two years has it claimed otherwise.''

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lisab
Staff Emeritus
Gold Member
So much for balance of powers between the three branches of government.

I don't think I've ever looked forward to a January the way I'm looking forward to January 2009.

russ_watters
Mentor
I must admit I'm not real clear on the exact issue there, but I was recently thinking about why I dislike the legal profession so much and it's kinda related: It struck me that the law/legal profession is based on the presumption of dishonesty and stupidity. Frivoless product lawsuits are the perfect example of this. How is it reasonable for a company to have to put a warning label on a product or pay up in a lawsuit based on the presumption that they should anticipate any idiotic thing a customer may do? Why is it reasonable for contracts to be 50 pages long because they must close every potential loophole rather than consider those loopholes closed by good faith?

I didn't realize where Dennis Quaid was going with his lawsuit, but the angle his lawers are taking is rediculous. Medical professionals are professionals and that comes with a certain amount of responsibility. Having similar packaging does not absolve the doctors/nurses who administered the drugs from that responsibility and should not open up the drug company to a lawsuit. And we wonder why our medical costs are so high?

Three infants had died at another location from the same mistake before the much publicised Quaid incident.

http://abcnews.go.com/GMA/story?id=3956580&page=1

The bottles have been recalled because they were too similar. Pharmacy technicians put the wrong bottles on the shelves before nurses mistakenly used it. The ironic thing is the FDA also approves labeling. The bottles were not side by side as in the picture.

http://images.hollywoodgrind.com:9000/images/2007/12/heparin-bottles.jpg

Back to the topic. Where is this going? Even Judges are taking issue with it.

State tort law was not an issue until 2 years ago.

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Astronuc
Staff Emeritus
Frivoless product lawsuits certainly are a problem which does drive up cost. But if someone acts in a reckless or negligent manner, which results in injury to another party, how does the injured party recover? How does society penalize those who chose to act in a negligent manner, e.g. cutting corners for profit or administering improper medication or performing an incorrect surgery or . . . . ? What cap would be reasonable on attorneys' fees or awards?

I also disapprove of class action suits and the way they are handled, especially when lawyers get huge fees and the majority of alleged victims get pocket change or coupons.

chemisttree
Homework Helper
Gold Member
Three infants had died at another location from the same mistake before the much publicised Quaid incident.

http://abcnews.go.com/GMA/story?id=3956580&page=1

The bottles have been recalled because they were too similar. Pharmacy technicians put the wrong bottles on the shelves before nurses mistakenly used it. The ironic thing is the FDA also approves labeling. The bottles were not side by side as in the picture.

http://images.hollywoodgrind.com:9000/images/2007/12/heparin-bottles.jpg

Back to the topic. Where is this going? Even Judges are taking issue with it.

State tort law was not an issue until 2 years ago.

Have you heard of the Class Action Fairness Act of 2005? In that law federal jurisdiction was declared in suits brought against out of state parties. This was done to counteract the effect of forum shopping to obtain favorable findings against large companies.

Obama voted for it.... Hillary voted against it.

Muuwaaaahhhhhhaahha!

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Frivoless product lawsuits certainly are a problem which does drive up cost. But if someone acts in a reckless or negligent manner, which results in injury to another party, how does the injured party recover? How does society penalize those who chose to act in a negligent manner, e.g. cutting corners for profit or administering improper medication or performing an incorrect surgery or . . . . ? What cap would be reasonable on attorneys' fees or awards?

I also disapprove of class action suits and the way they are handled, especially when lawyers get huge fees and the majority of alleged victims get pocket change or coupons.

yeah, but how else can ONE individual (maybe with little, or no, resources) go up against a corporate giant ?

yeah, but how else can ONE individual (maybe with little, or no, resources) go up against a corporate giant ?

I agree with Astronuc on the class action law suits. Most resemble a scam more than anything.

In a recent settlement on the Ford Explorer debacle the consumers got a $500 coupon good on the purchase of a new Explorer. They had lost 5 to 6 thousand dollars in resale value 7 years earlier. The attorneys walked away with a cool$25 million.

http://www.thesop.org/index.php?id=10739

One of my concerns with the new method of handling tort law is that manufacturers will not have an incentive to correct possibly fatal flaws in products.

A good example of this is with roll over incidents especially with trucks and SUVs. The roof of the vehicles crush like an aluminum can.

With the auto industry and the NHTSA holding hands, under the new and improved system there will be no chance for family to sue when the vehicle roof crushes a persons head.

The family of a local border patrol agent is trying to deal with a situation like this currently.
The roof of the Chevy Tahoe the agent was driving caved in horribly in what should have been a survivable accident. The accident was caused by a tire tread separation btw.

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chemisttree
Homework Helper
Gold Member
Here is an example you might not know about. http://www.perryhaas.com/durrill_vs_ford_overview.html After reading this write up you might think that the case was an excellent example of the proper application of Tort case law. Two young girls are horribly burned and die of their injuries. Ford Motor Company testifies that it has done a cost-benefit analysis for upgrading the safety of the fuel tank and the numbers say that it would cost more to fix than potential lawsuit costs. That analysis did it for Ford. The punitive damages were truly immense and the case was appealed and eventually scheduled to be presented before the Texas Supreme Court. Before the Supreme Court could hear the case, Ford settled out of court with the Durrill's for an undisclosed amount.

What you don't know about this case is that the car was parked on the side of the road at dusk with a flat tire and a drunk ran into it at full highway speed. It caught fire and burned as a result of that terrific impact.

Plaintiff Durrill owned the Budweiser Beer distributorship in Corpus Christi and... yes, the drunk driver's car had numerous empty Bud's on the floorboard.

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On the other hand Ford had a big problem with that vehicle platform even in lower speed rear end collisions.

The collision occurred in October, 1978, a few months following the famous Pinto recall. The Mustang II was built from the same vehicle platform as the Pinto and contained the same defects - the fuel tank was mounted rear of the axle;

http://www.perryhaas.com/durrill_vs_ford_overview.html

Ford currently is settling cases involving the Crown Victoria and the fuel tank. A local police officer was burned to death when he was struck in the rear by a Honda Accord. The officer might have been saved but the doors also jammed and couldn't be opened in time. edit: BTW the driver of the Honda survived.

Another similar accident happened in Phoenix.

Will the auto manufacturers have any incentive to build safer cars knowing that they will not be held responsible.

How about the manufacturers of products such as defective baby cribs?

Should they be given a free ride from responsibility??

We needed tort reform, but has been happening since 05 is more like tort elimination.

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reminds of the some highway patrol in some state that wanted 'safer' vehicles when their cars crashed at 90 mph

russ_watters
Mentor
What cap would be reasonable on attorneys' fees or awards?
I don't think I would propose a cap on the awards. The restrictions I would like to see are with regard to personal responsibility only. Today it is possible for a person to do something stupid and then sue someone else for not forseeing that and protecting them against it.

One easy way to decrease the number of frivoless lawsuits is to automatically charge the court costs/legal fees to the loser of the case.

russ_watters
Mentor
Will the auto manufacturers have any incentive to build safer cars knowing that they will not be held responsible.

How about the manufacturers of products such as defective baby cribs?

Should they be given a free ride from responsibility??
The answer is simply that the government needs to set the safety standards. The government needs to decide, what reasonable collision speed a fuel tank needs to be designed to survive. And that, btw, is what the article in the OP says is being done.

lisab
Staff Emeritus
Gold Member
One easy way to decrease the number of frivoless lawsuits is to automatically charge the court costs/legal fees to the loser of the case.

I've thought that for years! I think that's how it's done in the UK (if it isn't, a helpful PF-Brit will straighten me out!).

mgb_phys
Homework Helper
I've thought that for years! I think that's how it's done in the UK (if it isn't, a helpful PF-Brit will straighten me out!).

The problem is that it helps large corportations. Sue us and we will engage 100 QCs at £10,000 a day and if we win you pay them, if we lose we only have to pay for your cheap £50/hour laywer. It becomes a game of poker where the one with the deepest pockets can just wrack up the possible bill until the poor guy blinks.

It happened recently in the UK when a couple campaigning against McDs lost a libel case.

The real limit in the UK is that the judge not the jury sets the payout for damages and have to be based on measurable things like future loss of earnings. This tends to lead to unpopularly large payouts to actors/actresses and Wall St types.

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drankin
There isn't a straight solution. On the one hand you have the idiot who tried to gulp his coffee down in one second, burning his mouth and throat, suing McD's for making his coffee hot. Among other successful but stupid lawsuits.

And then there are the legitimate suits against corporations that compromise product safety against profit and loss liability. Literally putting a dollar value to a human life against the profit gained by not including a safety feature.

The line is grey, and it moves.

And then there are the legitimate suits against corporations that compromise product safety against profit and loss liability. Literally putting a dollar value to a human life against the profit gained by not including a safety feature.

I would disagree with this. Provided the corporation has not been deceitful about what safety features are on a vehicle/product, it is up to the consumer to make the choice. If a person knowingly buys a product lacking a particular safety feature, then receives an injury that could have been prevented by such a feature, it's their own darn fault.

Should vehicles have breathalyzers in them, and not start until after the driver blows? The technology is available. Maybe the vehicle should not be able to run unless everyone inside wears a seat belt? As long as the company hasn't lied about the features, and their product meets regulations, then it is up to the consumer to ensure their own safety.

What's next? A knife company gets sued because they didn't include a sheath in which to keep the knife? I sliced my finger last week cutting onions, maybe I should sue the knife company for not including a retractable safety guard, of the type used on table saws?

Such lawsuits are simply people abdicating personal responsibility for personal safety. If you buy a car on which the roof can collapse, then you've no right to complain that the roof collapses. Next someone will sue Harley Davidson because they didn't even include a roof on their bike!!!

lisab
Staff Emeritus
Gold Member
Provided the corporation has not been deceitful...

What if they're negligent?

A consumer can't be expected to know everything. A few years back, a tire company sold defective tires that caused tall vehicles to flip over at high speeds. It turned out the tires weren't made properly (I think the temperature was too low during a critical part of the maufacturing process, IIRC). Several people died as a result of the company's negligence.

A consumer could not possibly have known the tires on his car were defective.

drankin
I would disagree with this. Provided the corporation has not been deceitful about what safety features are on a vehicle/product, it is up to the consumer to make the choice. If a person knowingly buys a product lacking a particular safety feature, then receives an injury that could have been prevented by such a feature, it's their own darn fault.

Should vehicles have breathalyzers in them, and not start until after the driver blows? The technology is available. Maybe the vehicle should not be able to run unless everyone inside wears a seat belt? As long as the company hasn't lied about the features, and their product meets regulations, then it is up to the consumer to ensure their own safety.

What's next? A knife company gets sued because they didn't include a sheath in which to keep the knife? I sliced my finger last week cutting onions, maybe I should sue the knife company for not including a retractable safety guard, of the type used on table saws?

Such lawsuits are simply people abdicating personal responsibility for personal safety. If you buy a car on which the roof can collapse, then you've no right to complain that the roof collapses. Next someone will sue Harley Davidson because they didn't even include a roof on their bike!!!

You say you disagree with my statement but this is actually true. These are decisions that are made. In fact it influences a lot of the design work that I do to some extent.

Insurance companies in particular dictate a lot of safety requirements by adjusting rates or simply not insuring based on the inclusion or exclusion of features.

I completely agree with everything else you are saying.

If a person knowingly buys a product lacking a particular safety feature, then receives an injury that could have been prevented by such a feature, it's their own darn fault.

Sure, but the qualifier "knowingly" excludes most of the interesting cases. Many of the safety/cost/quality tradeoffs done in, for example, automotive design are subtle engineering issues comprehensible only to experts (and often not even disclosed publicly in the first place). The cases that people sue over tend very heavily to be issues that, had they been known at the time, would have precluded the purchase of the item in question. It's not people who are unhappy with the outcomes of their own informed decisions looking for a scapegoat. That kind of thing represents only a small fraction of such lawsuits, and very few of those would have a chance of actually winning in court. The incentive for them is that they are invariably settled out of court, as it is cheaper to pay the complainant off than to pay for a lengthy legal defense. This is the case with all of the McDonald's lawsuits about hot coffee and so on: every single one of them was settled out of court, as McDonald's judged the cost of (successful) defense to be too high, not just in legal fees, but in bad P.R.

In a perfect world, we'd all have perfect information about every decision we make, and we'd all be experts in everything, able to correctly interpret said data. Only in such a perfect world is the easy mantra about self-reliance and responsibility appropriate.

As long as the company hasn't lied about the features, and their product meets regulations, then it is up to the consumer to ensure their own safety.

But then why do we even need regulations? If it's simply up to the individual to be responsible for their own safety, what business is it of the government to mandate seat belts or airbags or other safety requirements? The answer, of course, is that real people in the real world do not have the time or expertise necessary to make these judgements, and need a system maintained by credible, impartial experts to enable them to drive safely.

Also, many of the issues that get litigated are not about the presence or absence of distinct "features" as in the examples you made up (BTW, making up examples is really, really bad rhetorical practice. If these problems are real, you should be able to find real examples). A properly designed gas tank that cooperates safely with the rest of the car's structure is not what one would think of as a "feature" as much as a basic engineering requirement, but that's what ended up killing the Ford Pinto.

We should also mention the practical issue that, if such lawsuits are disallowed, then the costs of not fixing known (but undisclosed) safety problems is, effectively, zero. It's always cheaper to just "pay for the ensuing lawsuits," because there won't be any. Instead, you depend on enough people being killed or maimed that it becomes widely known that the car is unsafe, and people stop buying it (and, probably, all of the other cars made by that manufacturer). Which doesn't sound like a particularly attractive system for automotive safety control to me, for either consumers or producers.

The answer is simply that the government needs to set the safety standards. The government needs to decide, what reasonable collision speed a fuel tank needs to be designed to survive. And that, btw, is what the article in the OP says is being done.

That would be ideal except the NHTSA is continuously lobbied by the auto industry to set lower standards. At one point the auto industry said it would be too expensive for the average vehicle to have air-bags.

Automakers Lobby to Weaken Roof Strength Proposal

Automakers in Washington are working feverishly to convince the National Highway Traffic Safety Administration to scale back proposed regulations calling for stronger vehicle roofs.

http://www.consumeraffairs.com/news04/2006/10/automakers_roof_strength.html

mgb_phys
Homework Helper
Ford Motor Company testifies that it has done a cost-benefit analysis for upgrading the safety of the fuel tank and the numbers say that it would cost more to fix than potential lawsuit costs.

Ultimately that is what engineering is all about !

They saved money on the Space shuttle by only fitting 5 separate independant control computers, surely they should have fitted 17 or 99 or 123456789.... anything less is just profiteering.

All engineering comes down to a cost-benefit analysis.
Fitting a smoke detector = worth the cost, fitting a sprinkler system in a house = marginal, having a fire engine on standby outside each house = no.

That's the reason for legislation, to set minimal standards people so that people can make these trade offs.

Ultimately that is what engineering is all about !

That's the reason for legislation, to set minimal standards people so that people can make these trade offs.

Are the people making that tradeoff the engineers or the consumers.? What value do engineers put on a human life? OK hopefully they don't, but management apparently does.

drankin
Are the people making that tradeoff the engineers or the consumers.? What value do engineers put on a human life? OK hopefully they don't, but management apparently does.

Engineers are consumers too. :)

mgb_phys
Homework Helper
Are the people making that tradeoff the engineers or the consumers.? What value do engineers put on a human life? OK hopefully they don't, but management apparently does.
Generally consumer's are the worst at valueing life - look at the poor take-up of smoke alarms and the number of people who smoke.

The only people worse are politicians! Quick quiz, which killed twice as many people ?
The height of terrorism in Northern Ireland .vs. Traffic accidents in the same time.

As an example a broken rail in the UK in 2000 killed 4 people - the first serious rail accident in 10 years. The public inquiry cost more than fitting smoke detectors to every house in the country. Repairs to rails in the rest of the country to meet new sandards cost over $1Bn and closing rail lines for months while the repairs were done led to an estimated 10% rise in road deaths! We are drifting too far from the OP. Our tort system is being changed in a manner that bypasses those elected to do it. The Bush administration hijacked the judicial branch and now it appears the legislative branch is sitting on its thumbs will drastic changes that will affect many Americans are being made in an almost subversive manner. We do/did need tort reform, but as I stated earlier this is more like tort elimination in favor of big business. They will have no longer have an incentive to produce reliable safe products. Engineers always have to make a trade-off between cost and safety. When designing a sky-scraper, it's designed to withstand some windspeed. Surely they could spend more, and build it able to withstand higher windspeed. But at some point the chance of those winds occuring is not worth the extra cost in building the structure. It's up to the government to regulate minimum safety standards, anything beyond that should be left as a cost benefit analysis to corporations. As long as a product meets the minimum standards set by the government, and the company hasn't attempted to deceive anyone about additional safety features, there should be no lawsuit. I would suggest that the minimum standards should be raised significantly, and that the current process for setting them is severely flawed, but that is an entirely different discussion. chemisttree Science Advisor Homework Helper Gold Member We are drifting too far from the OP. Our tort system is being changed in a manner that bypasses those elected to do it. The Bush administration hijacked the judicial branch and now it appears the legislative branch is sitting on its thumbs will drastic changes that will affect many Americans are being made in an almost subversive manner. We do/did need tort reform, but as I stated earlier this is more like tort elimination in favor of big business. They will have no longer have an incentive to produce reliable safe products. You obviously haven't read the text of the CAFA 2005 legislation. Here is the part that the Attorney's find so despicable. (a review of the Act by the CBO) S. 5 would impose a private-sector mandate by possibly limiting the size of awards that attorneys could receive in certain class-action settlements. If a proposed class-action settlement provides coupons to a class member, the bill would require the attorneys' fees to be based on the value of the coupons that are redeemed or on the amount of time reasonably expended working on the case by class counsel. In current practice, the attorney's fee is sometimes based on the total value of the settlement. According to information from industry representatives and academic studies, settlements with coupons account only for about 10 percent of all class-action settlements. Moreover, according to those sources, attorneys' fees correlate very closely with the amount of time spent on such cases by class counsel. Therefore, because attorneys' fees would still be negotiated as part of any settlement, CBO estimates that the direct cost of the mandate, as measured by loss of income for attorneys in class-action settlements, would be small, if any. Oh woe! The Attorneys will have to live with a small (potential) loss of income. The authors of the Sun article have interpreted the Administration policy as meaning that litigants would potentially receive less in Federal Court than in State Court. The Administration's intent is: The Administration strongly supports the bill's proposal to establish a consumer class action bill of rights that would require heightened judicial review of settlements that either result in a net loss to the class members or give class members only coupons. The Administration also supports the provision prohibiting a court from approving a settlement that discriminates among plaintiffs on account of their geographical location. The bill also would make long-needed changes to the requirements for Federal diversity jurisdiction over class action cases. The Administration strongly supports the proposal to permit, in certain cases, removal of a class action to Federal court if the aggregate amount in controversy exceeds$5 million and there is minimal diversity (at least one claimant and one defendant are from different States). The Administration also strongly supports the bill's coverage of "mass actions" in its diversity jurisdiction and removal reform sections. Like class actions, mass actions can be used to adjudicate substantial numbers of claims simultaneously in a single trial. Failure to include mass actions would create a significant loophole and would undermine the purpose of this legislation. Combined with existing Federal rules for consolidation of related Federal cases, this proposal would help avoid the inefficiency, waste, and unfairness that have too often resulted from multiple overlapping class action suits.
http://www.govtrack.us/congress/bill.xpd?bill=s109-5

This is law passed by the Legislative Branch! There is no end around!

BARAK VOTED FOR IT!

Engineers always have to make a trade-off between cost and safety. When designing a sky-scraper, it's designed to withstand some windspeed. Surely they could spend more, and build it able to withstand higher windspeed. But at some point the chance of those winds occuring is not worth the extra cost in building the structure.

It's up to the government to regulate minimum safety standards, anything beyond that should be left as a cost benefit analysis to corporations. As long as a product meets the minimum standards set by the government, and the company hasn't attempted to deceive anyone about additional safety features, there should be no lawsuit.

I would suggest that the minimum standards should be raised significantly, and that the current process for setting them is severely flawed, but that is an entirely different discussion.

I agree to a great extent and it is not an entirely different discussion. Raising minimum standards would solve half of the problem. The other half would be in filtering out the shyster lawyers and their frivolous law suits.

I just believe that the legislative branch should be doing it and not the executive. Although I readily admit the congress has not done their job, we will now end up in a situation where many legitimate concerns can not be addressed in the courts.

chemisttree
Homework Helper
Gold Member
I just believe that the legislative branch should be doing it and not the executive. Although I readily admit the congress has not done their job, we will now end up in a situation where many legitimate concerns can not be addressed in the courts.

This is the craziest thing I've ever heard. Should the Legislative branch control the operation of the Justice Department? You don't see a problem with that? Have you read the Constitution?

This is the craziest thing I've ever heard. Should the Legislative branch control the operation of the Justice Department? You don't see a problem with that? Have you read the Constitution?

I didn't say that. You did. The legislative branch makes the laws that the Justice Department upholds. The Executive branch has bypassed that process.

Should the executive branch control the operation of the Justice Department? It certainly has been.

edit: From the OP

In some instances, judges seem as exercised as consumer advocates about the FDA's undermining of lawsuits under state tort law.

In a recent decision, a federal appeals court judge wrote that the FDA has for over three-quarters of a century viewed state tort law as complementary to the agency's safety warnings on prescription drug packages and ''only for the last two years has it claimed otherwise.''

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chemisttree
Homework Helper
Gold Member
I didn't say that. You did. The legislative branch makes the laws that the Justice Department upholds. The Executive branch has bypassed that process.

Should the executive branch control the operation of the Justice Department? It certainly has been.

You mean the FBI, federal prosecutors, FDA, etc?

Please tell me you aren't confusing the Justice Department with the Judicial Branch of the gov't........

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chemisttree
Homework Helper
Gold Member
In some instances, judges seem as exercised as consumer advocates about the FDA's undermining of lawsuits under state tort law.

In a recent decision, a federal appeals court judge wrote that the FDA has for over three-quarters of a century viewed state tort law as complementary to the agency's safety warnings on prescription drug packages and ''only for the last two years has it claimed otherwise.''

You mean since CAFA was enacted by the Legislative Branch? Should all of our laws remain unchanged when Congress has passed laws meant to change them?

You mean the FBI, federal prosecutors, FDA, etc?

Please tell me you aren't confusing the Justice Department with the Judicial Branch of the gov't........