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Why the Courts Are Scaring Me . . .

(This article first appeared in the May/June 2008 issue of The American Postal Worker magazine.)

When it comes to the U.S. Constitution, there is usually a lot of talk about the First, Second, and Fourth Amendments. I am also concerned with the Seventh Amendment: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”

“Corporate America will spend whatever it has to in order to make sure that it never has to accept liability for the products and services it provides.”

These amendments were written a long time ago, of course, and, as time has passed, the dollar-figure for the “value in controversy” has become more or less symbolic. But the cases that go to trial are real, and the defendants with real money fight every step of the way to overturn any court rulings they find disagreeable.

It’s almost as if there were a constitutional amendment saying that “the wealthy will have the right to endless re-examination of their grievances.” It’s all about the money, of course.

A look at a few court cases suggests that corporate America will spend whatever it has to in order to make sure that it never has to accept liability for the products and services it provides.

Who’s to Blame?

A New York man, Charles Riegel, was undergoing an angioplasty in 1996 when a balloon catheter manufactured by Medtronic burst after it was inserted in his chest. In the subsequent lawsuit filed by Riegel and his family, the court sided with the company, saying that if medical devices have been approved by the Food and Drug Administration, states do not have the right to impose liability on the manufacturers.

The case was heard by the Supreme Court in December, and in its ruling in February, the nation’s highest court upheld Medtronic’s argument that it was immune from liability because its medical device, according to the process governing the FDA, was ready for market.

Forget about whether the device was produced with inferior material or made available for sale despite inadequate quality control. It was pre-approved by the understaffed and underfunded FDA. Therefore, the corporation cannot be held liable.

The decision could have huge ramifications in the elimination of liability for the prescription-drug and medical-device industries. And what about other products and services regulated by the government?

The Supreme Court is reviewing the Exxon Valdez case, concerning the tanker ship that ran aground along the Alaskan coast in 1989 and spilled nearly 11 million gallons of oil into the water. One of the nation’s most horrific environmental disasters, the accident in the vast habitat for salmon, seals, and a variety of seabirds, destroyed the livelihood of dozens of fishing villages along the coast. Exxon is trying to reduce the amount of punitive damages awarded to some 32,000 Alaskan plaintiffs.

Exxon has been arguing for years that it should not be held accountable for a misdeed committed by a subordinate — Valdez Captain Joseph Hazelwood. At the hearing before the Supreme Court in February, Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy indicated that they “were sympathetic to that argument,” and questioned whether Hazelwood ranked high enough in the corporate structure for his actions to open the company to liability.

With the exception of Ruth Bader Ginsburg, the justices found the size of the punitive award — about $75,000 per plaintiff — to be too generous. Justice Antonin Scalia said the court might look to the amount of civil penalties available under the Clean Water Act. Justice Stephen G. Breyer wondered about principles for “creating a fair system that isn’t just arbitrary.”

Justice David Souter wondered whether a fair formula might be to double compensatory damages, which the U.S. Court of Appeals for the Ninth Circuit set at about $500 million, or one-fifth of the $2.5 billion punitive-damages award. As Souter noted, for decades the court has struggled with determining whether punitive damages awarded by state courts were excessive. Now, he suggested, it is the highest court’s turn to “come up with a number.”

It sure sounds to me like the court is trying to write and re-write the laws to help Big Business at the expense of working men and women of Alaska.

Employee Rights

Speaking of strict constructionism, Attorney General Michael Mukasey recently refused to declare that he thought waterboarding is torture. Here’s what Justice Scalia said in response:

“The Constitution’s ban on cruel and unusual punishment … is referring to punishment for crime.” It does not refer, the justice said, to actions over the course of interrogations, and it makes him wonder how severe the infliction of pain must be before it qualifies as torture.

If the Supreme Court thinks it is okay to beat a confession out of an individual, do you think the justices would continue to support the right of a lawyer or union rep to be present during each stage of a grievance?

Colorful Toys

Millions of toys sold in the U.S. have been recalled from store shelves because of the use of lead-based ingredients during the manufacturing process in China.

The presence of lead in consumer products, such as household paint, has long been known to be dangerous. Ingestion — either through eating, as children are apt to try — or through inhaling vapors — has been proven to negatively affect mental ability.

In an age when autism and attention-deficit disorders seem to be on the increase, I have to wonder: Where does the U.S. Attorney General’s office stand on the mater of prosecuting corporations that permit the use of hazardous materials in the creation of products that they import for domestic sales?

In the case of the toys that have been recalled, the presence of lead was not a “design flaw,” such as something that might be demonstrated in an automobile years after its release to market. These toys were purposely painted to make them brighter and more attractive. The fact that the Chinese manufacturers used lead-based paint to make the toys was no concern to the U.S. companies that imported them.

Tragically, the more attractive the article, the more likely it is that a child will put it in his or her mouth.

Children and adults have been impacted by products manufactured closer to home. The temporary trailers provided to thousands of victims of Hurricane Katrina gave off toxic levels of formaldehyde fumes.

Do you remember that the Federal Emergency Management Agency (FEMA) bypassed opportunities to purchase trailers locally, and instead paid four times as much to purchase these homes from alleged political cronies of higher-ups in the Bush Administration? Whole families were victimized twice by Katrina, once by the waters, then again by the government-approved fumes.

Where are the U.S. attorneys and the Department of Justice? Are they prosecuting the corporations who manufactured the trailers or the toys? No, but their cohorts in Washington are busy.

For example, they’re trying to stop the implementation of a national arbitration award that would place 1,300 daytime jobs in the APWU bargaining unit. In 2003, Arbitrator Carlton P. Snow sustained our grievance that challenged the exclusion of Address Management Specialist work from the bargaining unit. Although the arbitration award protected the jobs by putting the AMS work under our jurisdiction, the Postal Service continued to let non-bargaining-unit employees do the AMS work, and the U.S. attorneys appointed by the Bush administration continue to pursue attempts to prevent implementation of the five-year-old ruling.

These are not the kinds of protections — or justice — I want from my government.

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