Preemption: The Theft Of Your Civil Liberties

Help for workers and consumers is on the way. "Complete Immunity" is out; fairness is in.

Pres. Obama is poised to reverse the Bush administration's “COMPLETE IMMUNITY DOCTRINE,” a radically conservative doctrine that uses PREEMPTION to give complete immunity to negligent corporations. Preemption deprives workers and consumers of the right to hold wrongdoers accountable through the civil justice system. The Bush administration has used preemption to deprive Americans of several fundamental, traditionally American civil liberties, most notably the right to trial by jury and the right of access to the courts.

To reverse the injustice, the Obama administration needs to immediately implement the following:

(1) Issue an immediate stay order of all "non-final or recently completed rules" that PREEMPT state law protecting workers and consumers. At this time, there are 23 preemptive regulations, including several dealing with auto safety and products requiring FDA approval.

(2) Revise Executive Order 13132 on Federalism, instructing agencies and the courts regarding the Obama administration’s policy of "NO PREEMPTION TO DENY CIVIL LIBERTIES." The Obama administration should make it clear: PREEMPTION is THEFT of CIVIL LIBERTIES!

(3) Establish a White House office to coordinate and implement a "NO PREEMPTION TO DENY CIVIL LIBERTIES" policy, carefully overseeing the preemption language included in all federal rules.

(4) Utilize the rule making process to reinstate Congressional intent regarding the ability of injured consumers to hold medical device manufacturers accountable for injuries to consumers. In Riegel v. Medtronic, Sup. Ct. Justice Antonin Scalia "misconstrued the Medical Device Amendments of 1976," and gave all irresponsible medical device manufacturers "complete immunity" from claims regarding their Class III pre-market approved devices. The FDA needs to withdraw its August 2008 final rule regarding labeling. The rule discourages medical device manufactures and pharmaceutical companies from updating warning labels with hazard information without prior FDA approval, a blatant attempt to influence the Supreme Court’s decision in Wyeth v. Levine (argued November 3, 2008).

(5) Issue new rule making guidelines for rules containing PREEMPTION language. Agencies like the FDA and NHTSA have become SUPER-LEGISLATORS, implementing agency policies contrary to the Constitution’s separation of powers and explicit Congressional intent. Here are some examples:

70 Fed. Reg. 36094 (2005) and 73 Fed. Reg. 58887 (2008) give automobile manufacturers BLANKET IMMUNITY from lawsuits, literally a "get-out-of-jail-free" card, for making vehicles with an insufficient number of seat belts. Yet, many states have laws that make illegal for driver and passengers not to "buckle-up."

71 Fed. Reg. 76852 (2006) and 73 Fed. Reg. 72130 (2008) "establishes minimum security requirements for railroads to transport hazardous materials." This rule gives railroads COMPLETE IMMUNITY if they injure local residents, directly contradicting recent legislation.

Remember, PREEMPTION is THEFT of YOUR CIVIL LIBERTIES!

Texas Lawmakers Challenging Expanded Industrial Liability Shield

Texas lawmakers, plaintiff attorneys and union groups are challenging a controversial Texas Supreme Court ruling that wrongly shields industrial plants from liability claims filed by contract workers.

Continuing the draconian tradition of protecting corporate greed, the conservative Texas Supreme Court ruled unanimously that a contract employee at an Entergy Gulf States plant could not recover damages for negligence, because workers’ compensation laws protected the company.

A bipartisan group a legislators has filed briefs with the court asking it to rehear the case. Clay Robinson, Houston Chronicle 12/10/2007 Read Article: Houston Chronicle

Medical Omerta: Healthcare Study Proves The Conspiracy Of Silence Among Doctors Is Real

The tacit "communal" unspoken consensus is that "certain things" are NEVER discussed. Heck, we learned that as kids; no one wanted to "snitch" on a friend. The mafia called it “omerta,” the categorical prohibition of cooperation, even when one has been a victim. The "cover-up" exists in all walks of life except medicine, right?

"I swear by ...all the gods and goddesses," the Hippocratic Oath declares,"that I will fulfill according to my ability and judgment this oath and this covenant....Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves." For decades doctors assured us that their profession was different. Doctors denied the existence of a conspiracy of silence to "cover-up" medical errors.

But, a study conducted by researchers at the Massachusetts General Hospital reveals that doctors don’t practice what they preach when it comes to reporting mistakes or potentially negligent behavior among their colleagues.

The MGH study found that nearly half of the doctors who participated had failed to report incompetence, impairment or medical error by another doctor despite saying that such errors should be reported.

Alexandra Perloff-Giles, Harvard Crimson 12/06/2007 Read Article: Harvard Crimson

Trade Secrets Used To Block Disclosure Of Safety Concern

It’s hard to imagine anything standing in the way of the public’s right to know when a corporation endangers the health and safety of a community. Yet, it happens every day under the guise of protecting a corporation’s “trade secret.”

Here’s a case in point.

California officials refuse to disclose the ingredients of a chemical pesticide sprayed over fields, homes, businesses and schools in Northern California. California say it can’t identify the “inactive ingredients” of the pesticide without violating laws “governing corporate trade secrets.”

Spraying of the pesticide was suspended after residents complained that the initial application caused asthma-like symptoms, burning eyes, rashes and stomach pains. This problem raises a basic question: How can any corporation have a right keep a safety hazard a secret? Read -- Paul Pringle, LA Times 10/18/2007 Read Article: LA Times

The Star Chamber: Conservative La. Fed. Judge Dismisses Insurance Whistleblower Suit

Conservatives have purged the judicial system of judges who are willing to protect the rights of the middles class and working families. Corporate America owns the federal judiciary. Terrible judicial decisions are to be expected. But, this really hurt Louisiana!

Here’s what happened.

Recently, U.S. District Judge Peter Beer, an icon of Louisiana conservatism, dismissed a lawsuit filed by several former insurance adjusters who were prepared to testify that a number of major private insurance companies systematically over-billed the National Flood Insurance program by shifting their expenses over to the federal flood program.

Judge Beer said the suit could be continued under a “different whistleblower lawsuit in Mississippi” that deals with denial of hurricane wind claims and possible fraud against the federal flood program.

The problem is that the “cheating” occurred in Louisiana!

That didn’t deter Judge Beer. He reasoned that the rules of the False Claims Act provide that a whistleblower lawsuit can't proceed if another on the same subject has already been filed. The Mississippi lawsuit was unsealed and became public knowledge after the Louisiana lawsuit had been filed.

We need a congressional investigation into the over billing of the National Flood Insurance Program, with demands to know why the U.S. Department of Justice and Homeland Security are not pursuing the matter. Read: Rebecca Mowbray, New Orleans Times-Picayune La. whistleblower suit dismissed

National Arbitration Forum. Rent-A-Judge! How Arbitration Is Undermining Justice for Consumers

Troy Cornock is a regular guy, not unlike you and me. Like most us, Troy had never heard of the National Arbitration Forum (NAF). One day, Troy received a letter from NAF saying he owed money on a credit card.

Here's the problem: Troy never signed a credit card agreement, and Troy's ex-wife had made all of the charges. Ex-spouses are known to do that. Yet, the NAF ordered Troy to pay more than $9,000 anyway.

Troy’s story is just a small example of how “mandatory arbitration clauses” have pervaded the consumer landscape and prevented customers from getting their day in court. Rent-A-Judge and get the decision you want!

Gary Weiss, Forbes 10/11/2007 Read Article: Forbes

Jury Awards Punitive Damages Against Pharmaceutical Mfg. Wyeth

Have you used Prempro or Premarin?

A Nevada jury ordered Wyeth, formally known as American Home Products, a prescription drug maker, to pay $99 million in punitive damages to three women, because the company’s menopause drugs caused cancer. Jurors had originally awarded the women $135 million in compensatory damages but the amount was later reduced to $35 million. Three other juries have found that the hormone replacement therapies, Prempro and Premarin, contributed to breast cancer.

Wyeth also manufactures over-the-counter (OTC) drugs like Robitussin and the analgesic Advil (ibuprofen).

Jef Feeley, Bloomberg 10/16/2007 Read Article: Bloomberg