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Leading the NewsFallon awards $2.6M in bellwether drywall suits.The AP (4/8) reported, "A New Orleans federal judge on Thursday awarded seven Virginia families $2.6 million in damages for homes ruined by sulfur-emitting drywall made in China, a decision that could affect how lawsuits by thousands of other homeowners are settled. It remains to be seen how the plaintiffs can collect from Chinese companies that do not have to respond to U.S courts, although some have talked about getting orders to seize US-bound ships and cargoes from the drywall companies." US District Judge Eldon Fallon "ruled Thursday that the drywall needs to be removed," as well as "all electrical wiring, the heating and air conditioning system, appliances, carpet, cabinetry, trim work and flooring damaged by corrosion." The Palm Beach (FL) Post (4/9, Ross) reports, "Fallon estimated the remediation will cost an average of $86 per square foot. He also decided that the homeowners were entitled to receive money for relocation costs, reimbursement for personal property damaged by the drywall's sulfuric off-gassing, and compensation for loss of use and enjoyment of a home." Fallon "wrote that his court's protocol is largely consistent with what the CPSC advised, although it disputed the CPSC's note that drywall that can be identified as unaffected should be left in place, saying the removal of all drywall 'is necessary in order to remove and replace wires, pipes, and insulation, and to adequately clean the home.'" Sen. Bill Nelson (D-FL) "said the ruling gives homeowners 'somebody to put in their sights' to blame for the drywall problem," adding, "Meantime, I'm going to keep pushing our government hard to step up the pressure on the Chinese to get the companies over there to pay up." The Fort Myers News-Press (4/9, Wozniak) reports, "Arnold Levin, lead attorney for the plaintiffs, was pleased with the ruling. 'It is a major step in getting our people's homes taken down to the studs and refurbishing their homes so they can get back in,' he said." Levin "said the judge's fix-it protocol is not inconsistent with interim guidelines issued last Friday by the Consumer Product Safety Commission." CPSC spokesman Scott Wolfson said, "We have decided to refrain from commenting directly on the judge's ruling today and want to let our announcement from last week speak for itself." The Wall Street Journal (4/9, Mcqueen) reports that Richard Serpe, an attorney for the homeowners, said that the ruling "gives tremendous guidance and...goes well beyond the seven families that were involved." Bloomberg News (4/8, Van Voris, Johnson) reported, "At a status conference today, Fallon said the lawyers in the cases are still trying to determine the total number of people claiming harm from defective drywall. The possible number of claims ranges from fewer than 3,000 to more than 40,000, he said. 'The challenge of this case is to get our arms around it and see how many parties are out there,' Fallon said," adding, "The parties ought to know what the universe is. The truth of the matter is we just don't know at this point." Gannett (4/9, Crisp) and the Hampton Roads (VA) Daily Press (4/9, Chufo) also covered the story. LRA questions legality of using Road Home funds for drywall remediation. The Baton Rouge Advocate (4/8, 6B, Griggs) reports, "State home builders want to use $100 million or more held by the Louisiana Recovery Authority to repair houses containing tainted Chinese drywall, but the hurricane recovery agency believes the proposal would violate federal law." Under "the home builders' proposal, the LRA would handle and review homeowners' applications for help with China-made drywall and use whatever Road Home funds remain to make repairs." LRA spokeswoman Christina Stephens "said there are a number of problems with the home builders' proposal, starting with whether the proposed use of federal grant money would be legal."
Civil Justice SystemJudge grants third settlement deadline extension in Indian trust case.The AP (4/8) reported, "A judge has granted more time for Congress to approve a $3.4 billion settlement against the government for swindling Indian tribes out of royalties for oil, gas and grazing leases. But US District Judge James Robertson warned that" this third delay- "which moves the deadline for congressional action from April 16 to May 28-is the last he will approve." If Congress "does not confirm the settlement by mid-May, Robertson said, he will order Interior Secretary Ken Salazar and other top officials to appear before him to explain why." The National Law Journal (4/9, Scarcella) reports that Robertson said, "Until or unless Congress acts the lawyers on both sides who have devoted themselves to this case for 15 years are on hold. More importantly, all of Indian Country is on hold." Kilpatrick Stockton partner Keith Harper, "a lead attorney for the plaintiffs, said Thursday he is disappointed Congress hasn't passed legislation approving the settlement." 9/11 debris removal contractors urge approval of settlement.The New York Law Journal (4/9, Hamblett) reports, "Lawyers for New York City, its contractors and plaintiffs huddled Thursday with special masters in an attempt to reframe a settlement that will satisfy Southern District Judge Alvin K. Hellerstein in the litigation involving respiratory illnesses allegedly caused by toxic dust at the World Trade Center site. The meeting among the lawyers and special masters Aaron D. Twerski and James A. Henderson came before what had been scheduled to be a full fairness hearing Monday on a proposed $657 million settlement that could cover up to and beyond 10,000 plaintiffs." On Wednesday, "Twerski and Henderson received a special plea" in support of the settlement "from lawyers for the main contractors who responded to the site on and after the Sept. 11, 2001, terror attacks." Judge Hellerstein has said that the settlement is insufficient.
Second Circuit rules veteran's qui tam suit may proceed despite use of FOIA documents.The New York Law Journal (4/9, Hamblett) reports, "A Vietnam veteran can sue under the False Claims Act for his employer's failure to file or the filing of false claims under a statute geared to help veterans win jobs with government contractors, the 2nd US Circuit Court of Appeals ruled Wednesday. Addressing a case of first impression, the circuit said Daniel Kirk was not blocked by the act's jurisdictional bar on suits using documents assembled during the preparation of government reports, hearings, audits or investigations." In Kirk v. Schindler Elevator Corp, "the court found that Kirk could sue as a qui tam relator based on his employer's noncompliance with reporting requirements on veteran hiring, and that documents he obtained through the Freedom of Information Act did not trigger the jurisdictional bar." NAACP drops predatory lending suit against Wells Fargo.The AP (4/8) reported, "The NAACP is ending its lawsuit against Wells Fargo that alleged the bank was forcing blacks into subprime mortgages while whites with identical qualifications got lower rates." As "part of an agreement, San Francisco-based Wells Fargo will allow the NAACP to review its lending practices. The NAACP did not seek monetary damages in its suit, but said it sought to change behavior in the mortgage-lending industry." Rhode Island Superior Court seeks to improve med-mal case scheduling.The Providence Journal (4/9, Mulvaney) reports that Rhode Island "Presiding Superior Court Justice Alice B. Gibney, who took the helm last fall, is trying to take control of the court's handling of medical malpractice lawsuits. At the start of the year, Gibney assigned Judge Netti C. Vogel to oversee the calendar, with the aim of moving along the 450 cases in the pipeline statewide." The previous system "left lawyers sometimes frustrated with each other due to delays, and left judges with blocks of free time when scheduled trials weren't ready to go."
Closing arguments heard in Boy Scouts abuse suit.The AP (4/8) reported, "The lawyer for a Portland man who filed a $29 million sex abuse lawsuit against the Boy Scouts of America told a jury Thursday the Scouts knew they had a serious problem but failed to act. During closing arguments, Kelly Clark said the organization had been keeping a list of Scout leaders suspected of abuse since the 1920s but never came up with any system to improve screening, reporting or prevention." But "a lawyer for the Scouts, Chuck Smith, told the jury the organization relied on local volunteers to take action because they were supervising the boys -- not the national organization." Texas teenager sues over alleged abuse by priest in diocese of incoming Los Angeles Archbishop.In the "L.A. Now" blog at the Los Angeles Times (4/8), Carol Williams wrote, "A teenage boy from west Texas filed a lawsuit Thursday alleging that a priest in the diocese under incoming Los Angeles Archbishop Jose Gomez sexually assaulted him repeatedly and that Gomez should have known the priest was an abuser. The complaint filed in the small town of Rocksprings is the first allegation of clergy abuse of a minor to have occurred during Gomez's tenure and made known to the San Antonio Archdiocese leader, who was just named by the Vatican to succeed Cardinal Roger M. Mahony as Los Angeles prelate." A spokesman "for the San Antonio Archdiocese, Deacon Pat Rodgers, said in a statement that the Sheriff's Department had advised church leadership of an investigation into" Father John M. Fiala "but on grounds of 'interference in the custody of a minor,' not sexual abuse." UBS whistleblower regrets approaching DOJ, but not exposing fraud.The Wall Street Journal (4/9, Dale) reports that UBS whistleblower Bradley Birkenfeld, who is currently serving time for fraud, says that he doesn't regret exposing tax evasion at the Swiss bank, but given another chance would have approached the IRS rather than the DOJ. Stephen M. Kohn, executive director of the National Whistleblowers Center in Washington, and one of the attorneys currently representing Kohn, says that the DOJ's failure to consider recent whistleblower protections did a "gross injustice to whistle-blowers, and setting back the process of whistle-blowing for a generation." Employment/Workplace SafetyGender discrimination trial against Novartis begins.In continuing coverage, the New York Law Journal (4/9, Mitev) reports, "The trial of a $200 million gender discrimination class action suit against Swiss-owned drug maker Novartis Pharmaceuticals began Thursday with the defense saying the company 'makes no claim that we are perfect' but denying that it underpaid women or intentionally promoted them less frequently than men. 'This isn't a company with a glass ceiling,' defense attorney Richard Schnadig told the jury of six women and four men in the closely watched case. The 5,600-plaintiff class in Velez v. Novartis, 04-cv-9194, claims that Novartis actively discriminated against women by discouraging pregnancies and ignoring complaints of sexual harassment, in violation of Title VII of the Civil Rights Act." ConAgra workers sue over North Carolina explosion.The AP (4/9) reports, "About two dozen factory workers are accusing more than a dozen design, manufacturing and installation firms of negligence in a deadly explosion that ripped through a Slim Jim production plant in North Carolina last year. Their lawsuit also accuses inspectors for the town of Garner of failing to properly oversee the installation of a commercial water heater." Neither "this lawsuit, which was filed Tuesday, nor one filed last summer targets plant owner ConAgra Foods Inc."
Medical Errors/HealthcareFDA announces steps to reduce errors in radiation therapy.The New York Times (4/9, A12, Bogdanich) reports that "the Food and Drug Administration said Thursday that it was taking steps to reduce overdoses, underdoses and other errors in radiation therapy by strengthening the agency's approval process for new radiotherapy equipment." The agency, "in a letter to manufacturers...said its action was based on a recent analysis of more than 1,000 reports of errors involving these devices that were filed over the last 10 years." The majority "of the reported problems -- 74 percent -- involved linear accelerators, computer-controlled machines that generate high-powered beams of radiation that target and destroy cancer cells." Reuters (4/9, Steenhuysen) also covers the story. California's medical board is less likely to revoke doctors' licenses.The Los Angeles Times (4/8, Hennessy-Fiske) reported that "California's medical board is less likely than those in other states to revoke doctors' licenses or take other serious disciplinary action, according to a consumer advocate's report released this week." The state "ranked 41st among boards in all 50 states and the District of Columbia in taking serious disciplinary action against doctors last year, according to the report released Monday by Public Citizen, a Washington-based consumer group." The Times points out that "the report, based on Federation of State Medical Boards figures, defined serious discipline as license revocations, surrenders, suspensions and probation or restrictions." Complete Immunity PreemptionRegulators say preemption not a primary cause of financial crisis.MarketWatch (4/9, Frumes) reports, "Pre-emption of state laws against predatory lending was not a major cause of the financial crisis, according to testimony" Thursday before the Financial Crisis Inquiry Commission by former Citigroup CEO Charles Prince, former Citigroup executive Robert Rubin and Comptroller of the Currency John Dugan. FCIC Chairman Phil Angelides said to Comptroller of the Currency John Dugan "You tied the hands of the states and then you sat on your hands." Dugan replied, "There is a great value in being able to have a common set of standards that apply regardless of the state in which you operate." He also said that "national banks and their subsidiaries originated just 12% to 14% of all subprime mortgages between 2005 and 2007," and "have also performed better, with a 22% delinquency rate, vs. 25% for non-banks." Dugan argued for "the government [to] establish minimum underwriting standards for mortgages that apply everywhere." Product SafetyToyota "timeline" shows company knew about sudden acceleration in early 2006.Bloomberg News (4/9, Keane) reports that according to "company timelines" submitted to NHTSA, Toyota "knew about flaws that could cause unintended acceleration more than 3 1/2 years before it recalled cars and trucks to fix the defects," learning that "floor mats could entrap accelerator pedals as early as Feb. 7, 2006, and that pedals could stick five months later. ... The timelines show what Toyota has said was a slow response that led to the recall of more than 8 million vehicles worldwide starting last year to repair the two types of acceleration- related defects." Kate Linebaugh writes at the Wall Street Journal (4/9) "Driver's Seat" blog about the timeline, noting that it indicates some of the processes that led to Toyota limiting its floor-mat recall in 2007. FDA to review Triclosan safety.The AP (4/9) reports that in an online statement posted April 8, the Food and Drug Administration announced that it is "reviewing the safety of a widely used chemical found in antibacterial soap, toothpaste, and other consumer goods." Specifically, the FDA "is looking into recent studies showing the chemical triclosan can alter hormone levels in animals. Other studies suggest the chemical increases bacterial resistance to antibiotics." The Wall Street Journal (4/9, Dooren) reports that the agency said it will conclude its review and present the results sometime during the spring of 2011. Analysis indicates "significant weaknesses" in FDA's domestic food inspection program.The Wall Street Journal /Dow Jones Newswires (4/9, Favole) reports that a new analysis requested by Sen. Tom Harkin (D-IA) shows that the FDA has "significant weaknesses" in its domestic food inspection program. HHS Inspector General Daniel R. Levinson says, "The findings demonstrate that more needs to be done to protect public health and to ensure that FDA has the necessary tools to prevent outbreaks of food-borne illness." The authors of the analysis say that the agency must increase the number of food inspections it conducts in the US in order to help reduce the number of people (300,000 annually) foodborne illnesses, or those who die from them (5,000 annually). According to CQ Today (4/9, Ferguson), "two congressional chairmen say a new federal report that found the Food and Drug Administration failed to inspect most domestic food facilities over a five-year period underscores the need for swift action on legislation designed to strengthen the agency's food safety oversight." Rep. Rosa DeLauro (D-CT), said, "The findings in this report are unacceptable and should serve as an urgent reminder of the glaring weaknesses in our food safety system." In addition, the piece quotes the HHS IG as saying that "without routine inspections, the agency 'is unable to guarantee that these facilities are complying with applicable laws and regulations, and that the food handled by these facilities is safe.'" EPA to implement rules to prevent lead poisoning.The New York Times (4/9, Navarro) reports, "After almost two decades of delays, the Environmental Protection Agency said Thursday that it was on track to implement a regulation requiring the construction industry to help prevent cases of lead poisoning among children." The EPA "said it expected more than 125,000 renovation and remodeling contractors to be trained and certified in lead-safe work practices by April 22, when the new regulation takes effect." Steve Owens, assistant administrator for the EPA's office of prevention, pesticides and toxic substances, said yesterday, "We think it will be very effective." Also in the NewsObama urges probe of mining disaster.ABC World News (4/8, lead story, 2:30, Sawyer) reported, "President Obama today demanded a report on his desk by next week about what went wrong in that West Virginia coal mine." The CBS Evening News (4/8, story 2, 2:10, Couric) similarly reported that the President "ordered Federal mine safety officials to give him a report by next week on what caused that explosion." NBC Nightly News (4/8, story 2, 2:20, Williams) reported, "NBC News has also learned new information about the mine operator and that inspectors ordered parts of the mine or all of it closed on 61 occasions over the last 15 months, more than 100 times since the year 2000, and five of those instances were because of what the inspectors called imminent danger issues." AFP (4/9, Guihaire) reports that the White House said Obama expects Labor Secretary Hilda Solis and Mine Safety and Health Administrator (MSHA) Joe Main "to report on their early assessment of the deadly explosion's cause, the safety record at the Upper Branch mine, and the steps that the federal government should take to improve safety enforcement and prevent future tragedies." The Washington Post (4/9, A18, O'Keefe) quotes Labor Secretary Hilda L. Solis as saying, "Every mine explosion is preventable, and it is the responsibility of the mine operator to ensure the health and safety of the miners at all times -- not just when MSHA inspectors are present." Meanwhile, lawmakers have "promised hearings to explore what actions the mine's owner and federal regulators took before the explosion." Sen. Johnny Isakson (R-GA), a co-sponsor of "a 2006 measure that instituted major mine safety reforms after a Sago, W.Va., mine blast that killed 12, said he hoped to learn more about how the MSHA assigns inspectors." He added "that after Sago, lawmakers waited until the completion of investigations before introducing legislation," and said, "I think the same should be called for now." Coal mine operators paid just 7% of fines over past three years. USA Today (4/9, Frank) reports, "Coal mine operators have paid just 7% of the fines they have received for major health and safety violations in the past three years," according to an analysis of federal records by the newspaper. "The low payment rate is eroding the government's ability to pressure mining companies to improve safety, particularly at coal mines with repeated serious violations, officials and advocates say." USA Today notes, "Nearly $90 million of major coal-mine fines is under appeal, buried in a backlog at the Mine Safety and Health Review Commission, records show." Congressional democrats seek crackdown on energy companies' use of appeals. The Hill (4/9, Bolton) reports, "Democrats in Congress are trying to crack down on litigation by mining companies that kept federal safety officials at arm's length from the Upper Big Branch mine." Massey Energy "was able to keep the Mine Safety and Health Administration at bay by regularly appealing safety violations." In fact, "since 2005, Massey has gone to the Federal Mine Safety and Health Review Commission 89 times to dispute safety violations that federal inspectors found at Upper Big Branch," a move that effectively "stalled many of the findings of safety violations and prevented the Mine Safety and Health Commission from finding a "pattern of violation" that would have enabled them to exercise more oversight." LATimes: Mine safety rules "don't go far enough." Noting a long series of citations "federal regulators have issued" on the Upper Big Branch mine "so far this year," The Los Angeles Times (4/9) editorializes, "What's clear from the Upper Big Branch disaster is that tough new rules put in place" in the wake of the 2006 Sago mine disaster "still don't go far enough, and penalties imposed on mining companies that break them are too easy to evade." The Times points at Massey Chief Executive Don Blankenship's "stance on labor and environmental issues," and says "perhaps there's no connection." However, the Times concludes, "disaster is the inevitable outcome when the pursuit of profits causes leaders to ignore overwhelming scientific evidence about the environmental damage of coal burning or the great, preventable dangers of coal mining. Upper Big Branch only serves as the latest reminder of that truism." Stanley: Punitive damages a possibility. The National Law Journal (4/9, Coyle) ran an interview on the disaster with Bruce Stanley, a partner in the Pittsburgh office of Reed Smith, who "himself has been down and dirty more than once with Don Blankenship, CEO of Massey Energy Co., which owns the Upper Big Branch Mine where at least 25 miners were killed in a blast this week." Said Stanley, "The most obvious assumption will be these really are all workers' compensation type of claims with statutory limits." But "if there was a knowing violation by the employer of safety rules that contributed to the injuries, these cases would be taken out from under the statutory caps - what is called a deliberate intent action in West Virginia. That would allow awards for pain and suffering." | ||||||||||
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