The bill that passed in the House amended the decades-old Death on the High Seas Act to allow families of the deceased oil workers to recover non-economic damages, such as pain and suffering, loss of care, comfort and companionship. The bill, known as the Securing Protections for the Injured from Limitations on Liability (SPILL) Act, passed the House by a voice vote. The U.S. Chamber of Commerce oppose the change, arguing that it would expose maritime industries to new costs and legal burdens. The SPILL Act also updated another maritime liability law by repealing the Limitation of Liability Act, the 1851 law that allows Transocean to limit its liability to the worth of its now-destroyed rig. The bill now moves to the Senate.

Congressional investigators have found that the BOP suffered from leaking hydraulic fluid, a dead battery and an inadequate design. “The answer is no,” Salazar said in response to a pointed question from about the government standards on the device. “I think there is additional work that should have been done on blowout preventers.”

Blowout preventers are massive devices that sit at the top of a well and are designed to slam pipes shut in the event of an emergency. However, they cannot shear thick sections of pipe.

A House investigation found last week that the device on the Deepwater Horizon suffered from multiple problems that may have prevented it from working correctly a mile beneath the Gulf. The U.S. Government is now a defendant in the oil spill litigation. The National Law Journal reports, “As lawsuits over the BP oil spill mount, a group of conservationists and fishermen have a new target: the US Department of Interior’s Minerals Management Service. A lawsuit has been filed in federal court against the federal agency.

The suit — Gulf Restoration Network and Sierra Club v. Salazar — charges that the agency violated federal law by exempting oil companies that drill in the Gulf of Mexico from disclosing blowout and worst-case spill scenarios as well as plans for dealing with them before approving the companies’ offshore drilling plans.

Rep. Bart Stupak, D-Mich., said that a 2001 report by Transocean, which made the device, indicated there can be as many as 260 failure possibilities in the equipment. “How can a device that has 260 failure modes be considered fail-safe?” asked Stupak. Stupak said BP confirmed in documents that a leak had been found in the hydraulic system that provides emergency power to a part of the blowout preventer. When a remote underwater vehicle tried to activate the safety device a loss of hydraulic pressure was detected, said Stupak. When dye was injected “it showed a large leak coming from a loose fitting,” said Stupak, citing BP documents. Also reported, BP confirmed that the blowout preventer had been modified so that one of its ram drivers could be used for routine testing and was no longer designed to activate in an emergency. He said after the spill BP “spent a day trying to use this … useless test ram.

Rep. Waxman said in a hearing that the investigation also discovered that the well had failed a negative pressure test just hours before the April 20 explosion. He cited BP documents received by the Energy and Commerce Committee that showed there was a breach in the well integrity that allowed methane gas and possibly other hydrocarbons to enter the well.

The biggest business lobbying group in the nation is the U.S. Chamber of Commerce which spent $47 million on advertising in 2009 to defeat health care reform in addition to $144 million for lobbying. The Chamber plans to spend $50 million in this mid-term election year on candidate-focused ads alone. The proposed legislation forces disclosure of who is funding the ads which will allow voters to better understand who may benefit from the issue. The Court’s decision also invalidated the 2002 campaign finance laws which had the support of only four Republicans. Any new legislation would need the support of 60 Senators to shut off an expected Republican filibuster.

Why should we care? Because the ordinary citizen’s rights may be eroded or eliminated through heavily-funded, corporate-influenced political advertising who can now hide behind their veil of secrecy to promote legislation to their advantage. Pharmaceutical and medical device manufacturers will be able to fund legislation to shield themselves from liability for their defective products. Liability insurance companies can support candidates who will push so-called “tort reform” to limit damages in everything from medical malpractice to punitive damages. Political campaign funding should be transparent so the American public knows who is contributing to a particular campaign and the reasons why they are doing so.

Reid’s wife was a passenger in her daughter’s van and suffered a broken neck, back and nose requiring surgical intervention. The crash occurred on a heavily traveled section of Interstate 95 in Fairfax County, VA, just South of Washington, D.C. According to a statement by the Virginia State Police, as Sen. Reid’s daughter was driving a 2005 Honda Odyssey, she began breaking for traffic, and the 18-wheeler struck the rear of her van and forced her into the rear of the car in front pushing the vehicle into the next lane, where it struck another vehicle.

P.A.M. is short for the company founder’s initials, but has also been reported to stand for “Pretty Awesome Mileage.” It has a fleet of about 1769 tractors and 4,500 trailers.

The FMCSA is currently holding public sessions regarding the hours of duty and drive time of an 18-wheeler driver on our highways. The result of these 80,000 pound big rig collisions, in the greater percentage of time, the people in the car are going to be seriously injured or killed.

Here the 18-wheeler took out 3 vehicles. The number of 18-wheelers on our highways seems to be increasing. Every time you are on the highway you find yourself next to an 18-wheeler. Safety of the motoring public require limitations on the duty and drive time hours of these big rig drivers to prevent fatigue, falling asleep at the wheel, and traveling to close between the car in front to stop and prevent a rear-end catastrophe.

We wish the Senator’s wife a speedy recovery.

In addition to their president Tauzin, PHRMA boasts 55 other former members of Congress on their payroll. In fact, 52% of PHRMA’s army of lobbyists hired to promote the interests of drug companies, health insurers, hospitals, health professionals and industry groups were former employees of Congress, the White House or federal agencies. So far over 3,300 have registered to lobby on health care issues… that amounts to six lobbyists for every congressman.

In the current health care reform debate, Pharma has spent $18 million on lobbyists and anti-reform advertising. Thus far, they have been successful in defeating legislation that would have allowed cheaper prescription drug imports from Canada and legislation that would have lowered drug reimbursement prices for Medicare. With billions in potential profits at stake, if Pharma is successful in defeating any further health care reform, their money will have been well spent, but at a tragic cost to consumers’ rights and their pocketbooks.

Public Citizen criticizes this too-cozy relationship as providing exceptional inside access to special interest groups. However, since the revolving door is one of the most effective ways of influence-peddling on Capitol Hill, it’s not likely to stop anytime soon. And a duck is still a duck.

Why should we be concerned? Because when the FDA fails to act promptly, convicted researchers are allowed to continue work on important testing of drugs that eventually become available to the average consumer. The FDA must be held to the highest standards in the development of drugs and medical devices that can be a threat to patient safety.

Even the senior Republican on the House Commerce Committee, Rep. Joe Barton, criticized the ineptness of the Bush administration FDA. The current administration says it has improved the process of vetting researchers with increased staffing and centralized coordination. As Rep. Barton said, “The problems at FDA are daunting but with a little common sense and modest legislation the American public can be ensured of their safety when consuming FDA-approved drugs and devices.

A separate report by Car and Driver magazine found that texting and driving is more dangerous than drunken driving. Texting has grown from nearly 10 billion messages a month in December, 2005 to more than 110 billion in December 2008, according to CTIA, the cellular phone industries’ trade group.

Legislation has been introduced in Washington to ban texting while driving. Although enforcement may be difficult, the education and advertisement of enforcement should tune in drivers that text. 14 states and the District of Columbia have passed laws making texting while driving illegal. The federal government is in a transportation spending mode from billions of dollars to bale out the car manufacturers to the Cash for Clunkers program. Sufficient funding to eliminate and enforce distractions of the 18 wheeler truck driver, the tour bus driver, and those of passenger vehicles is warranted to make the road way free from accidents caused by distracted drivers.

In order to get states to comply, the Federal Government is flexing its “money muscle”. States that do not enact text banning laws within 2 years of the Federal law could lose 25% of their federal highway funds. 14 states already have laws banning texting while driving. One of the senators who introduced the legislation stated that the law will send an important message to drivers across the country: Get your hands off the cell phone and back on the wheel. Drivers will also get their eyes back on the roadway.

The report outlined numerous completed highway investigations including a school bus collision involving an 18-wheeler in Florida.  A truck driver, operating a 75,360 pound Freightliner truck tractor pulling a box trailer caused a rear-end collision to a school bus. The bus was occupied by passengers ages 20 months to 15 years.  The school bus was stopped to discharge two students.  A Pontiac occupied by a driver and six passengers was stopped behind the school bus.  The 18-wheeler collided with the rear of the Pontiac and the bus.  All seven occupants of the Pontiac were killed.  Three of the nine students on the school bus were ejected landing on the highway pavement and were seriously injured.   It was determined that the probable cause of this accident was the failure of the truck driver to maintain alertness due to fatigue from obtaining inadequate rest.  Contributing to the accident was the failure of the motor carrier to exercise proper over-sight of the driver’s hours of service.

Can Obama Protect Consumers?

We’ve written many previous blogs on the issue of federal preemption and its devastating effects on consumer protection from unsafe products. Entrusting the safety of medical products and our food system to an underfunded, overwhelmed, and industry-infiltrated regulatory agency is a foolish mistake that leaves us all open to injury and illness with no recourse for compensation or justice. While we’re appreciative of FDA efforts, placing the vast duty of consumer protection into the hands of this one federal agency is absurd.

Our previous presidential administration disagreed, favoring federal preemption of the state tort system for the safeguard of big business, and leaving  unsuspecting citizens to fend for themselves in the all-too-common event of foodborne illness or medical product injury. When preemption grants wayward food and drug companies’ immunity, while concurrently tying the hands of the tort system….guess who ends up on the short end of the stick?

Fortunately, times truly are changing, and the Obama administration is ushering in long overdue progress on the consumer protection front. President Obama recently issued a directive for the Heads of Executive Departments and Agencies calling for strict limitation of state law preemption. The memorandum begins by acknowledging the efficacy of state and local governmental control:

Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

…The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.

In addition to the suppression of unwarranted preemption statements in future regulatory preambles and codified regulations, the directive also calls for the review and possible amendment of regulations issued over the past ten years that may include unjustifiable claims for preemption.

Let’s hope that this is a firm first step in the direction of recognizing the necessity of the tort system’s regulatory function in consumer protection, an issue we recently addressed in a blog post you can access here: Forbes: Tort Attorneys Recognized as Leaders in the Fight for Food Safety. The risk of liability for the sale of unsafe products is a strong motivator for food and drug companies to maintain high standards. Consumer safety depends upon the tort system, and we’re glad to see the current administration take a stand on the side of consumers.

Congressmen – We have written extensively about the United State Supreme Court’s decision in Riegel. The Court ruled in that case that patients with faulty medical devices could not go to court and hold the negligent manufacturers responsible for their injuries. Instead, those claims were “preempted” since the medical devices had already been approved by the FDA. This decision directly impacts the victims of the Medtronic Sprint Fidelis Lead debacle — almost 300,000 Americans implanted with a device that was recalled for safety reasons. In fact, the court overseeing the Sprint Fidelis Lead litigation in federal court just formally dismissed hundreds of victims’ cases, based on Riegel, and ruled that those victims have no right to hold Medtronic responsible for their injuries.

Thankfully, some members of Congress are trying to do something about this problem. The Medical Device Safety Act has been introduced in Congress that would override Riegel and return the playing field to where it was before that decision. The principle is very simple. If medical device companies want to reap huge profits by manufacturing and selling their products, they are correspondingly responsible when they manufacture products that hurt people. Seems pretty fair to me.

If you have not done so already, call your U.S. Congressman and U.S. Senator and encourage them to co-sponsor and vote for the Medical Device Safety Act. Here is a link to find your Congressman and here is the link to find your Senator.

Doctors — The Heart Rhythm Society is a group of cardiac surgeons who prescribe and implant medical devices in patients’ hearts. According to an article on MSNBC, the Heart Rhythm Society believes there needs to be more doctors trained and experienced in the removal of leads. The article states that,

Heart Rhythm Society President Dr. Mark Estes said the increased focus on lead performance underscores the need for more reliable products and physicians who are comfortable removing them.

“The number of implantable heart devices continues to grow and as that happens the absolute number of leads that will need to be removed will grow,” Estes said in an interview with the Associated Press. “Lead removal is technically and clinically challenging and there are definite risks associated with it.”
The society warns there are not enough physicians trained in removing leads to keep up with demand. The group states that only medical centers that perform a large number of extractions each year should train physicians to perform the surgery.

The group recommends physicians perform at least 40 extractions under expert supervision before operating on their own. Supervising physicians should have performed at least 75 extractions with a high rate of success, the group states.

The Heart Rhythm Society does not believe that potentially defective leads should automatically be removed since the risk of surgery may outweigh the risk of a device malfunction. But the panel did provide examples of when leads should be removed prior to any malfunction. An example the panel gave was a situation where a patient with a dysfunctional lead was also at risk of irregular heart rhythms. Those patients with defective leads need to discuss all of these issues with their physicians. And if it is ever recommended that the lead be removed, the patient should ensure that the surgeon is experienced in that procedure.

Lawyers – The recent dismissal of the Sprint Fidelis cases in federal court does not end the fight. Appeals will follow. In addition, there will be much litigation about the parameters of the Supreme Court’s decision in Riegel. Lawyers for consumers who have faulty medical devices have their work cut out for them. But the fight will go on.

“Lawyers, doctors and congressmen” won’t be a tune that you’ll hear anytime on the radio. But it is exactly what patients with Sprint Fidelis Leads need now.

How about a dishwasher not being paid overtime for 19 weeks?

Unfortunately, employees at the federal government’s Labor Department Wage and Hour Division failed to investigate these allegations and others that were raised by undercover investigators with the Government Accountability Office. In fact, the Wage and Hour Division mishandled 9 of the 10 cases brought by a team of undercover agents posing as aggrieved workers according to a report by the GAO.

It mishandled hundreds more that were filed by other workers. “This investigation clearly shows that Labor has left thousands of actual victims of wage theft who sought federal government assistance with nowhere to turn,” the report said. “Unfortunately, far too often the result is unscrupulous employers’ taking advantage of our country’s low-wage workers.”

This is pathetic. The government has to do its job to protect workers. And workers must be assured that they have an ally when unscrupulous employers cheat them out of hard-earned wages. This investigation shows – again – the importance of the tort system to protect victims of greed and injustice. Oftentimes, our court systems are the last resort for victims injured by others.

This Thursday, the House of Representatives Committee on Energy and Commerce Subcommittee on Oversight and Investigations has scheduled another hearing on “The Salmonella Outbreak: The Role of Industry in Protecting the Nation’s Food Supply.”

We’re anxious to see who will be testifying, but the list of witnesses is not yet available. Back in February, the Committee examined the recent salmonella outbreak associated with peanut products manufactured by the Peanut Corporation of America (PCA). After 3,400 tainted products, over 600 sickened consumers and nine deaths, what steps have been taken to satisfy the catastrophic losses? Well, none to write home about.

The PCA bankruptcy proceedings have now begun. And, as is often the case with bankruptcies, it appears there won’t be enough money to satisfy the incredible damage PCA caused. Secured creditors take priority, and experts estimate that there will not be much left for these relegated to the unsecured, non-priority claims.

Well then there’s insurance, right? Maybe.

The insurers have filed declaratory actions in court to determine what, if anything, they have to pay. They are questioning whether they have to provide coverage under these circumstances.

So, personal injury victims and those suffering huge business losses may have another troubling obstacle with this development. There’s also an ongoing criminal investigation, which while not designed to compensate the victims, hopefully will bring some justice to this tragic situation.

Not only did the president wipe out the former administration’s penchant for secrecy, he took the additional step of requiring federal agencies to furnish definite plans to implement a more open and transparent government within 120 days.
Sunshine Week is a national initiative to open dialogue about the importance of open government and freedom of information. FOIA became law in 1966 only after years of bitter fighting to make government more transparent.

Even with the existence of FOIA, the need for vigilance continues as the dark years of the Bush administration illustrate.

As far as openness in state government is concerned, the Sunshine Week Survey found good and bad news. Most of the important information is being left offline and unaccessible to the public. Some states are even charging taxpayers for access to records they have in essence already paid for.

In Louisiana for example, important information about inspection reports of our aging and deteriorating bridges is unavailable. When contacted about the issue, the LA DOTD advised they “had a problem with the legality of it”.

We should support efforts at all levels of government, federal, state and local to make public servants accountable to us, the taxpayers. FOIA and other mechanisms of bringing governmental, corporate and manufacturing secrets to the light of day should be championed.

The litany of corporate and governmental misdeeds made public by the scrutiny of taxpayers, ordinary citizens and concerned journalists could be listed infinitum. Defective medical devices and drugs approved for sale to the unsuspecting public, dangerous toys allowed to be sold to our children, insider deals costing taxpayers millions, corporate greed manipulating loopholes and tainted food on our grocery shelves are just a few examples of former secrets brought to public notice after it was too late for some unsuspecting victims.

If we don’t remain vigilant and resist all attempts by governments, corporations and manufacturers to retreat behind a veil of secrecy, we will only be victimized again and again.