October 2011 Archives

In a Washington Post op-ed posted October 28, Virginia Attorney General Ken Cuccinelli promised to file suit in federal court against a federal tort reform bill should it become law. "And if it were ever signed into law -- by a Republican or Democratic president -- I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later)."

Attorney General Cuccinelli strongly objected to S. 197, a bill sponsored in the U.S. Senate by eight Republicans, which would impose caps on awards in health care-related lawsuits and install a federal wage scale for contingent fee attorneys involved in such suits. The bill was slipped into a Senate Republican "jobs bill" in October by Republican leadership without the knowledge or approval of numerous Republican Senators, just to appease the AMA and other medical groups clamoring for special federal protection from civil liability. Attorney General Cuccinelli, a rising star in the conservative community for his lawsuit against ObamaCare and assertive defense of conservative legal positions, emphasized the constitutional right of each state to protect and run its local civil justice system:

"With Senate Bill 197 -- legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award -- several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. As a state attorney general struggling to hold back a flood of impositions by the Obama administration that violate federal law, the Constitution or both, it is disappointing to see so many Republicans making the same types of mistakes that President Obama and his allies have made...

Senate Bill 197 takes an approach that implies "Washington knows best" while trampling states' authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia's) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?"

Attorney General Cuccinelli's promise to sue is the most forceful of a series of conservative and Tea Party-side condemnations of the Senate bill and of federal tort reform legislation in general. The libertarian Cato Institute recently announced that caps on medical malpractice lawsuit awards would endanger patients and wouldn't reduce health care costs. The attorney who wrote the Senate Republicans' court brief against ObamaCare, Carrie Severino, publicly urged Republicans to remove S. 197 from the jobs bill before introduction, but they ignored her. Professor Randy Barnett, one of the counsels arguing the key anti-ObamaCare lawsuit in federal court, accused S. 197 backers of being "FINOs" ("Federalists in Name Only"). In May, Professor Barnett accused House Republicans who backed a bill similar to S. 197 of being "fair-weather federalists." Six conservative legal experts, including two who regularly criticize trial lawyers, joined Professor Barnett at that time in characterizing bills to federalize medical malpractice lawsuits as an unconstitutional violation of states' rights. The non-partisan National Conference of State Legislators joined them in a letter to House Republicans against the House bill.

The AMA and its allies in the medical profession have pushed the federal tort reform bills, just as they have backed ObamaCare with its equally unconstitutional individual mandate. For 30 years, they've used their political muscle inside the Beltway, and millions of dollars in political contributions across America, as the way to persuade Congress, especially Republicans, to enact special immunity from civil liability, regardless of the constitutional implications. Republicans will have to ignore the medical profession's misshapen view of Washington as the center of political power in order to protect our constitutional rights. Attorney General Cuccinelli's forceful warning might be the nail in the coffin of the AMA's dreams.

I've written often about the scores of American victims of Libyan-sponsored terrorism who have not received the compensation promised them by the United States government in law. The Libyan Claims Resolution Act of 2008 promised compensation from Libyan funds for those injured or killed in terrorist attacks sponsored in some way under the Qaddafi regime. Up to 200 of the victims' claims have been unpaid, over three years after the law was signed, even though the claims have been certified by the Justice Department. The claimants have received an insulting letter from the Treasury Department, informing them that they will receive 20 percent of the amount due to them, but with no mention of a timetable for the payment of the remaining 80 percent.

CNN ran a story this week, which you can see on CNN's YouTube channel, with interviews of several of the victims, including Jonathan Pollack, with whom I've communicated this year. A State Department spokesperson told CNN that "It is premature to determine that there will be a shortage of settlement funds," but the group of attorneys working on these cases, including my clients at Motley Rice LLC and the Perles Law Firm, know full well that the LCRA fund is short several hundred million dollars. Jonathan and the victims are seeking Congressional intervention, and I am finally beginning to see some movement in Congress towards a legislative solution if the State Department can't or won't fix it administratively. I cannot believe that the Obama Administration would callously ignore the property rights established in favor of the American claimants in law and administrative procedure, but so far it has refused all entreaties by the victims and Congress to ensure full payment of the claims. With Qaddafi dead and the new government apparently unwilling to volunteer any of Qaddafi's stolen funds now frozen around the world, it may take an act of Congress to ensure that the promises made in 2008 to Americans are actually kept.

This afternoon, the House Judiciary Committee is holding a hearing on ''The State of Religious Liberty in America.'' Among the witnesses will be Colby May, Director and Senior Counsel of the Washington office of the American Center for Law and Justice (ACLJ), one of the premier pro-religious liberty groups in America. Colby May goes to court all the time to protect religious liberty, taking advantage of the 7th Amendment rights protected by the Founding Fathers to enable Americans to exercise our faith without infringement by the federal or state governments. His testimony recognizes that, ''The courts and the judges that preside over them will largely determine the strength of America's religious liberties.'' And he is testifying about the recent instances in which courts have failed to protect our rights against a college administrator, such as has happened at the University of California in the Christian Legal Society v. Martinez case.

I hope Members and witnesses remember that to survive, religious liberty needs open courtrooms. Any measure to restrict the ability of Americans to file a lawsuit in court compromises our ability to defend our religious liberty. So, for instance, the Judiciary Committee's original bill to toughen sanctions against attorneys under the Federal Rules of Civil Procedure could have resulted in a nonprofit's or small-sized law firm's refusal to take on a religious liberty lawsuit because of potential attorney sanctions. That's why the committee added a rule of construction to exempt lawsuits over constitutional issues from application of the proposed sanctions. Similarly, the application of the Supreme Court's decisions in the Iqbal and Twombly cases could result in the dismissal of a religious liberty case that would otherwise proceed to the discovery, if the attorney can't provide the threshhold level of documentation needed to meet the stricter pleading standards enunciated by the Court in those cases. A plaintiff seeking to protect religious liberty rights against an overbearing college or business might find it difficult to meet the standards if witnesses to the behavior at issue are afraid to come forward without a subpoena.

The Founding Fathers didn't differentiate between lawsuits to protect constitutional rights and lawsuits for negligence; they designed the civil justice system for all causes. The "tort rerform" movement could continue to spark conflict with social conservatives over the access to civil justice, unless Americans tell Congress and state legislatures to keep courtroom doors opened.

I've discussed the inherent conflict between Islamic Shariah law and our Constitutional rights numerous times here. Last year, I assembled a panel on Capitol Hill of experts and a Congressman to address the threat of encroaching Shariah law in the U.S. Under strict Shariah, there are NO juries for civil or criminal law, and NO rules of criminal or civil procedure protecting the rights of the accused and allowing for pre-trial discovery. Women are relegated to an inferior status in a courtroom, as well as in all other aspects of a society governed by Shariah.

On October 17, the "What's Up" syndicated radio program, hosted by Terry Lowry and heard on 12 stations in 10 states, interviewed Karen Lugo, a nationally recognized expert on Shariah. I met Karen earlier this year and introduced her to Terry Lowry so he could better educate his audience on Shariah. In her professional career, she's Assistant Director of the Claremont Institute Center for Constitutional Jurisprudence, where she works on constitutional litigation, including eminent domain and city planning disputes, and the preparation of amicus briefs. She is also President of the Orange County, California, Lawyer Chapter of the Federalist Society.

Karen discussed the rapidly expanding number of Shariah enclaves in Europe, in which the Muslim residents don't want to be governed by the law of the country. This institutionalizes complete inferiority for women. and enables the growth of "shadow justice" communities, with 700 enclaves in France alone.

Under Shariah, divorce can be unilaterally pronounced by the husband, with the husband controlling asset distribution. Women cannot easily pursue marital rape or assault claims in a Shariah courtroom, which is run by an Imam under rules favoring the husband. Karen discussed the most serious dangers of Shariah: an arbitrary set of laws and regulations governing every aspect of society from domestic relations to international relations. Civil and criminal cases are decided by mullahs or clerics, not through the application of a "rule of law."

As I discussed on June 3, local judges in U.S. are accepting Shariah law in domestic relations and estate settlement cases in the name of judicial comity. Karen has participated in the effort to enact legislation in states to ensure that American law is applied in American courts, and a model act has been signed into law in four states.

You can download and listen to Terry Lowry's interview with Karen below, conducted in three segments:

Segment One
Segment Two
Segment Three

"Reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off. Legislators who see mandatory liability caps as a cost-containment tool should look elsewhere."

That's the conclusion of a new study released by the most respected libertarian think tank in Washington, declaring that capping medical malpractice damages is a very bad idea for consumers, and further declaring that awards in medmal lawsuits aren't excessive compared to actual damages. This study will rock the AMA's world, even as it continues to press Congress for special protection through an unconstitutional limit on awards in all health care-related cases. The study wasn't conducted by trial lawyers or a bunch of liberals, but by an academic for the Cato Institute, which has lots of fans among the new House Republican majority and among the GOP Senate minority.

Read it yourself and send it to your favorite tort reform proponents. Here are selections from the Executive Summary:

Supporters of capping court awards for medical malpractice argue that caps will make health care more affordable. It may not be that simple. First, caps on awards may result in some patients not receiving adequate compensation for injuries they suffer as a result of physician negligence. Second, because caps limit physician liability, they can also mute incentives for physicians to reduce the risk of negligent injuries...

This paper reviews an existing body of work that shows that medical malpractice awards do track actual damages. Furthermore, this paper provides evidence that medical malpractice insurance carriers use various tools to reduce the risk of patient injury, including experience rating of physicians' malpractice premiums. High-risk physicians face higher malpractice insurance premiums than their less-risky peers...

In particular, caps on damages would reduce physicians' and carriers' incentives to keep track of and reduce practice risk. Laws that shield government-employed physicians from malpractice liability eliminate insurance company oversight of physicians working for government agencies...

There's even more in the body of the study, such as:

Some observers are skeptical that medical malpractice awards are the driving force behind excessive tests and procedures, claiming that physicians deliver these services because they are risk-averse, to please patients, or to generate additional income rather than to avoid liability.

Furthermore, defensive medicine is not necessarily undesirable. A well-functioning malpractice system would not eliminate defensive medicine. Rather, it would discourage the use of inefficient defensive medicine, where the expected costs of a test or treatment exceed the expected benefits, and promote efficient defensive medicine, where expected benefits exceed expected costs.

Opponents of damage caps rightly point out that caps shift the costs of malpractice injuries from negligent providers to their victims.

The study recounts the moving story of a tort reform lobbyist who became the victim of his success in capping damages after he had suffered from medical negligence, and later wrote, "Make no mistake, damage caps... remove the only effective deterrent to negligent medical care."

It also slams state medical boards for letting bad doctors continue to practice. "State medical boards do a poor job of informing the public about high-risk physicians, often to the point of protecting those physicians from public scrutiny. Another mark against the state system is that the regulatory apparatus can be manipulated by special interest groups to limit competition through scope-of-practice restrictions."

Every Member of Congress, especially those on the deficit reduction "Supercommittee," should be forced to read this study.

Professor Randy Barnett, co-counsel in the leading lawsuit case against ObamaCare and likely to argue the case before the Supreme Court, takes aim again at federal tort reform proposals in a post on "The Volokh Conspiracy," this time at the inclusion of S. 197 the "MCAP Act' tort reform bill, in the Senate GOP jobs plan released last Thursday. "Over the summer I criticized a House Republican medical malpractice reform as "fair-weather federalism" in this op-ed in the Washington Examiner: Tort reform and the GOP's fair-weather federalism. Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new "jobs" bill. " I've quoted from that piece often here, most recently in my letter to the deficit reduction "supercommittee" considering cuts to future federal spending.

Professor Barnett approvingly quotes from Carrie Severino's post critical of S. 197 on NRO's "Bench Memos" today, and personally criticizes the Senate Republicans: "Yes, you read that right. Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that "affect[s] commerce."

He then adds, "With friends like these, constitutional federalism does not need enemies. Can we coin a new pejorative FINO: "Federalists in Name Only"? Oh well, I guess not. But the best thing that can be said about this proposal is that it won't become law."

Let's hope not. I am actually most concerned that pro-tort reformers among the House Republican leadership will ignore the Constitution, transform the Senate GOP plan into a House bill, and force their members into an up-or-down vote as a test of allegiance. Seventh and Tenth Amendment Advocates need to contact the Senate and House and tell them to drop this idea.

Writing in National Review Online's "Bench Memos" today, conservative activist Carrie Severino criticized the Senate GOP leadership for including S. 197, the "MCAP Act," in the Senate GOP jobs plan, and urged them to drop it. "The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power... As Georgetown law professor Randy Barnett explains here, in a piece criticizing Republicans for their fair-weather federalism, 'tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the 'police power' of states.'.. I hope Senate Republicans will consider replacing or removing S.197 from their jobs bill."

Severino's conservative credentials are impeccable; she's a former clerk for Supreme Court Justice Clarence Thomas and appellate Judge David B. Sentelle, another conservative jurist. Her piece will have clout on Capitol Hill and reflects growing unease among Republican activists and legal experts over that section in the Senate GOP jobs plan. Hopefully the leaders will listen to her advice.

Sen. Chuck Grassley, ranking Republican of the Senate Judiciary Committee, wrote to the deficit reduction "Supercommittee" last week to recommend a number of measures for inclusion in its recommendations to Congress. On page 15 of his letter, he recommended inclusion of S. 197, which would mandate caps on certain health care-related damages awarded in any court in American, and create the first federal wage scale for attorneys in the history of the U.S. That bill was included in the Senate GOP jobs plan and inexplicably endorsed by self-proclaimed "states' rights advocates," even though it would wipe out all state-based civil litigation over health care disputes. As I wrote when analyzing the jobs plan and in my letter to the Supercommittee, such a bill is inconsistent with Republican opposition to ObamaCare and violates constitutional protections for states' and individual rights.

Sen. Grassley's support for S. 197 is also hopelessly inconsistent with his previously stated support for Americans to "have their day in court" when their rights are threatened. He challenged Supreme Court Justice Sonya Sotomayor on this point during her confirmation hearing over an eminent domain case, as follows:

Let me move on to the Didden case v. the Village of Port Chester. It raised serious concerns about whether you understand the protection provided by the Constitution for individual property rights. In this case, Mr. Didden alleged that his local village government violated his Fifth Amendment rights when it took his property to build a national chain drugstore.

At the meeting with the government agency, another developer, Mr. Didden was told that he could give the developer $800,000 or a 50 percent interest in his pharmacy project. And if Mr. Didden did not accept either condition, the government would simply take his property.

Two days after Mr. Didden refused to comply with these demands, the government began proceeding to take his land. The district court denied Mr. Didden his day in court, and your panel affirmed that decision in a five-paragraph opinion. Why did you deny Mr. Didden his day in court? How can these facts, in essence, allegations of extortion at least not warrant the opportunity to call witnesses to see if Mr. Didden was telling an accurate story?

Sen. Grassley also championed the rights of African American farmers who were discriminated against to have their claims heard. When a major farm bill was enacted in 2008, Sen. Grassley issued the following statement:

Senator Chuck Grassley, the original author of the Pigford Claims Remedy Act, today praised passage of the farm bill which includes funding to help African American farmers who were denied entry into the Pigford v. Glickman settlement. The farm bill will now be sent to the President.

"This is a tremendous step forward in our efforts to give black farmers and ranchers, who were unjustly discriminated against while trying to secure farm loans, an opportunity to have their claims heard," Grassley said. "We're putting in place a process where tens of thousands of African American farmers will be able to plea their case based on the merits. Not based on bureaucratic procedure and mumbo-jumbo."

What happened to that guy? Where is he now?

I agree with Sen. Grassley that every American should have his day in court to protect private property rights. One of the points of my work is to emphasize that the Founding Fathers created our civil litigation system to protect victims of infringement upon private property rights, gun owners' rights, and free speech rights - AND - medical malpractice victims and defective product victims. The Founders loved civil suits and never limited our access to civil justice - and I'll bet anyone the best dinner in DC on that point.

So why has Sen. Grassley flip-flopped on our rights and abandoned victims of health care negligence? No part of the Constitution, Bill of Rights, or the Founders' writings justify his turning his back on a medmal victim's day in court. What part of the founding documents of our democracy does Sen. Grassley not understand?

The new Senate GOP jobs plan released yesterday by Senators John McCain and Rand Paul might spur economic growth if enacted, but it has one enormous and extremely serious flaw. It explicitly includes a section titled, "Medical Malpractice Reform (S. 197 - The Medical Care Access Protection Act)," abbreviated as the "MCAP Act." That bill, introduced in January by Republican Senators, is very similar to H.R. 5, the House Republicans' bill to impose federal limits on health care-related lawsuits, about which I've written often here. That bill has been frozen in the House, thanks to the Constitutional and political objections of many House Republicans. By referring to S. 197, the Senate GOP jobs plan would enact many of the goals set forth in H.R. 5.

For starters, the introduction in the MCAP Act states that "health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce." So the Senate GOP would continue to accept the expansion of the reach of the Commerce Clause begun under Wickard v Filburn, the Supreme Court decision condemned by conservative legal experts such as Randy Barnett and Rob Natelson and by Tea Party-side politicians such as Sen. Paul. That expanded scope reached its most extreme in the enactment of ObamaCare. Professors Barnett, Natelson, and other conservative experts point out that neither "health care" nor "tort law" are among the enumerated powers delegated to the federal government in the Constitution, and that expansion of federal law into those areas violates the Ninth and Tenth Amendments to the Constitution.

The MCAP Act crushes each state's right to manage its own civil justice system with respect to any lawsuit related to health care (i.e., providers and insurance companies). It imposes, for the first time in American history, federal limits on certain damages to be awarded in a health care-related lawsuit filed in either federal or state court. It mandates a standard for the award of punitive damages in any health care-related lawsuit filed in any court in America. It establishes, in federal law, a rule to determine the proportionate fault of each party in any federal and state court hearing a health care-related lawsuit. In doing all this, the act, included in the Senate GOP jobs plan, forces a one-size fits-all legal system for these lawsuits on the states. It also abridges our right to a civil jury trial, protected in the Seventh Amendment to the Constitution and beloved by our Founding Fathers.

The MCAP Act explicitly limits an attorney's fees to a decreasing percentage, based on the increasing value of the amount awarded. Here's the scale set in the bill:

(1) 40% of the first $50,000 recovered in the lawsuit;

(2) 1/3 of the next $50,000 recovered;

(3) 25% of the next $500,000 recovered; and

(4) 15% of the amount of the recovery in excess of $600,000.

So the bill imposes federal wage controls on just one industry, lawyers who charge contingent fees, regardless of the amounts normally charged by an attorney in the normal course of his business. And the bill lets federal judges cut the contingent fees to be paid for any reason, with no real limit on a judge's authority. No other profession in America - certainly not the medical profession - face a federal law mandating a specific wage scale. That is outright communism. And the bill changes other legal standards and mandates them across every courtroom hearing any health care-related lawsuit in America.

The House equivalent of the MCAP Act was roundly condemned by Professors Barnett, Natelson, and other conservative legal experts, including two who are highly critical of trial lawyers. All stated that a federal law limiting health care-related lawsuits violates the Constitution and subsumes states' rights. Professor Barnett, one of the co-counsels in the anti-ObamaCare lawsuit which will probably be heard by the Supreme Court, called Republican backers of H.R. 5 "fair-weather federalists." The Senate GOP intentionally ignored their warnings and endorsed a sweeping takeover of state health care and tort law and state courtrooms, relying on the same excessive interpretation of the Commerce Clause relied upon by Democrats in enacting ObamaCare.

But it gets worse. This portion of the Senate GOP jobs plan not only grants special legal protection to one industry above all others, but it benefits those medical associations which have endorsed and heavily lobbied for the enactment and implementation of ObamaCare.

That's right: the Senate GOP caucus, including Rand Paul, is explicitly rewarding the AMA and those medical associations which were the co-conspirators in the enactment of ObamaCare, with its communist individual mandate to buy health insurance. Our Republican Senators are abandoning states' rights and our right to seek a civil jury trial to protect the doctors, hospitals, and insurance companies who pushed for ObamaCare with the promise of millions of forced patients. They get special legal protection that they don't deserve and benefiting no other industry or group in America.

We should be stunned, disappointed and angry that Senate Republicans, especially those Members supposedly pledging allegiance to the Tenth Amendment, trashed our rights and the Constitution to help ObamaCare's backers. We should demand that they abandon that section of the jobs plan and pledge that it will never become law.

I've delivered a nine-page letter to the office of each of the 12 members of Congress who sit on the Joint Select Committee on Deficit Reduction, known as the "Super Committee" or "supercommittee." The Super Committee was formed through the debt ceiling deal reached in early August as the vehicle to identify at least $1.5 trillion in deficit reduction measures over the next ten years. The Super Committee is supposed to propose recommendations by November 23, and Congress will have a month to hold a straight up-or-down vote on its recommendations. If the Super Committee fails to reach an agreement, then under the debt ceiling deal, we'll see $1.2 trillion in automatic, across-the-board cuts.

I wrote my letter in response to a proposal submitted to the Super Committee by the AMA and other medical groups. They've urged the Super Committee to include a federal tort reform law similar to H.R. 5, the "HEALTH Act" introduced to sharply limit lawsuits against doctors, hospitals, drug and device manufacturers, health insurance companies, and nursing homes. "Big Medicine" continues to seek partial immunity from negligence and deadly errors through federal law, just as they sought to expand their patient base by pushing for ObamaCare. As I've written here many times, ObamaCare and federal tort reform laws suffer from the same deficiency: both are an unconstitutional abridgment of states' and individual rights, based on an dangerous interpretation of the Commerce Clause that would enable Uncle Sam to run our lives. Additionally, imposing federal limits on health care-related lawsuits won't make a dent in the federal budget deficit. Here are selections from the opening paragraphs in the letter:

I want to express strong objections to any proposal to include severe limits on health care-related lawsuits in your deficit reduction recommendations. First, such a proposal is unconstitutional as an abuse of the limited powers enumerated for the federal government in the Constitution. Federally imposed lawsuit limits would violate the right of each state to run its civil litigation system. Second, estimates by the Congressional Budget Office of "savings" as a result of the imposition of such limits are highly suspect and therefore should be ignored.

This year, a clear consensus has developed against federally imposed limits on health care-related lawsuits on constitutional grounds, as expressed by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Tom Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. A lengthy discussion of the development of this consensus is instructive.

I then discussed the writings of all of those individuals and groups, all of which I have already posted here in my posts, Conservative Legal Experts Oppose 'Federal Tort Reform' and Even Tort Reform Proponents Oppose National Texas-Style Law.

I also discussed four deficiencies in the Congressional Budget Office's estimate of the budget savings that would result from federal limits on medical malpractice and other health care-related lawsuits. I posted about those deficiencies here in my post, Debt Reduction 'Supercommittee' Should Ignore CBO's Guesswork on 'Tort Reform'. CBO estimated savings of about $60 billion over ten years, which is less than 1/2 of 1 percent of the $1.5 trillion in the intended deficit reduction. In conclusion, I wrote, "Anyone betting on federal lawsuit limits to help us to balance the budget is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems."

You can download my letter to the Super Committee here.

Nina Shea, longtime advocate for religious freedom worldwide, has an important revelation today about the nature of the new Libyan government: it's biased against Jews. That's not a surprise to anyone who's watched Libyan politics over decades and witnessed the anti-Semitism of the Qaddafi regime. But this group of Libyan "rebels" was supposed to be "different," maybe even "democratic." Uh, NOT:

"Yesterday, Libya failed a critical litmus test on freedom when it blocked exiled Libyan Jew David Gerbi in his attempt to reopen Tripoli's synagogue and forced him to flee the country... Libya's quest for freedom this Arab Spring does not apparently extend to religious freedom or even mere tolerance of Jews. The reason lies in the state-supported anti-Semitism that became a dominant national ideology in post-independence Libya and was institutionalized under Qaddafi... Virulent anti-Semitism may be the one constant in revolutionary Libya. It remains deeply entrenched even within the rebel forces."

So much for Springtime in Tripoli. Nevertheless, the Obama Administration is still apparently hellbent to turn over all $30+ billion in frozen Libyan assets to the Libyan Jew-hating terrorists, while upwards of 200 American victims of Qaddafi's decades of terrorism - people with serious, lifetime injuries - get the shaft from their own government. They were promised in law that they would receive a certain amount of compensation from Libyan assets, their claims have been officially adjudicated as valid by the Justice Department, and now they're getting letters from the Treasury Department - OUR Treasury Department - saying that they'll receive 20% and leaving the remaining 80% out there somewhere in space. Wonderful. Numerous Congressmen and Senators have written letter after letter urging the President and Secretary of State Clinton to "fix this," but no one in Foggy Bottom wants to upset the asset freeze deal with our beloved European allies, let alone open their eyes to the reality of the Libyan rebel-terrorists, over the valid claims of a few dozen of our own citizens screwed by the same people who insisted that the victims' compensation fund would solve everyone's problems.

Sooner or later Congress will have to do its normal job of putting Americans ahead of Europeans and Libyans, and enact a bill that transfers enough of the frozen Libyan assets to the fund to pay all valid claims. On July 19, I posted about the precedent for doing that in a bill enacted in 2000 , and I attached this legislative proposal for anyone in Congress who can take the ball and run with it. I hope it gets done sooner rather than later.

I have an update on two cases about which I posted on September 27.

I was interviewed on the nationally syndicated "What's Up" radio program by host Terry Lowry about the action brought by the City of San Juan Capistrano, California, against Chuck and Stephanie Fromm for hosting a small home Bible study group in their home. During the interview, Terry and I discussed the centuries-old right, recognized now in the 7th Amendment to the Constitution, to sue the sovereign or Executive Branch to protect all of the God-given rights now protected in the Bill of Rights. "Tort reform" proponents who think that it's worth abridging our 7th Amendment right to benefit the business community ignore the fact that the Founding Fathers honored that right for cases involving religious liberty, property rights, and free speech, as well as for medical malpractice and products liability cases. You can download and listen to my interview.

Sen. Rand Paul announced that he'll hold a roundtable on Wednesday, Oct. 12, with "victims of the U.S. government's multi-pronged assault on private property rights." The list of victims includes Mike and Chantell Sackett of Idaho, who bought a plot of residential land to build a new home, only to be told by the EPA that their land was federal "wetlands." EPA refused to hear the Sacketts' appeals on the order, then challenged their constitutional right to file a lawsuit against EPA for injunctive relief. The Sacketts and their attorneys, the Pacific Legal Foundation, are taking their case to the Supreme Court this winter. I look forward to the roundtable and hope to see Sen. Paul start some legislative action to rein in EPA from squashing Americans' property rights. Here is the PLF's page on their website about the case.

Conservative legal expert Rob Natelson of the Independence Institute in Colorado, author of the book, The Original Constitution: What It Actually Said and Meant, was interviewed on October 6 on the nationally syndicated "What's Up" radio program, hosted by Terry Lowry. Rob Natelson was the first conservative legal scholar to forcefully argue that federally imposed limits on medical malpractice and other health care-related lawsuits are unconstitutional, back in April and again in May. Terry Lowry interviewed him about (1) the status of the anti-ObamaCare cases and the prospects for the Supreme Court to rule against the individual mandate, and (2) the unconstitutionality of federal tort reform laws. Natelson said that he expects the Supreme Court to hear the 11th Circuit case, and he put forth various scenarios for the Court's ultimate ruling (with no prediction). He added that Congress unconstitutionally stretched the Commerce Clause beyond all previous precedent in mandating the individual purchase of health insurance.

Natelson reiterated his opposition to federal tort reform laws. He said that this is another area where "the federal government simply has no business trying to impose one-size-fits-all on the entire country," that federal tort reform proposals dictating to federal and state courts are "extremely intrusive" and "pretty clearly unconstitutional."

You can download and listen to the entire interview.

The AMA and other medical groups have advised the Joint Congressional Committee on Deficit Reduction (the "supercommittee") that federally imposed limits on lawsuits over medical malpractice could save as much as $62 billion over ten years, citing the estimate provided last year by the Congressional Budget Office. Besides the fact that such limits are unconstitutional, but there are multiple deficiencies in the CBO estimate and reasons for the supercommittee to ignore that estimate.

First, as I wrote here on January 6, "The Congressional Budget Office has a long, inglorious history of large-scale, massive errors in its scoring of budget proposals." As economist Alan Reynolds warned years ago, the CBO not only has a lousy record of estimating ten-year budget deficits and projections of policy impacts, but it's missed often on just year-to-year projections. It's no wonder that House Majority Leader Eric Cantor accused the CBO of outright "budget gimmickry" in its calculations last year on the supposed "savings" that would result from ObamaCare, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, as attorney Brett Emison points out, CBO admitted last year that it did not "consider the effect of tort reform on patient health and medical outcomes. Remarkably, the CBO determined that 'many studies of malpractice costs do not examine health outcomes.'" As I wrote on January 14, implementing CBO's projection of "savings" of $54 billion could actually result in more deaths and injuries. CBO admitted in its estimate that limits on medmal lawsuits could "an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines." And another 400,000 or more patients could be injured during the same 10 years.

Third, the CBO can't estimate the impact that sweeping limits on medmal lawsuits would have on federal health care costs paid for by Medicare, Medicaid, and the Veterans Administration. If someone is brain-damaged, mutilated or rendered paraplegic as a result of medical negligence, but cannot obtain compensation from the culpable party through the tort system, he or she may be forced to turn to those programs for compensation. None of these increased Medicaid or VA hospital costs are considered in the CBO estimate. Whenever there is a successful medical malpractice lawsuit involving an elderly or poor person, Medicare and Medicaid can claim either an interest in whatever the patient recovers, so the victim reimburses the government for some of the health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup. And none of these lost funds are considered by the CBO.

Fourth, CBO guesstimated that imposing federal lawsuit limits would result in a reduction in a drop in liability insurance premiums, but provided no raw data, explanations, or sources to back up its estimate. Numerous states have already imposed caps on medmal lawsuit damages, with no impact on personal health insurance premiums. CBO makes the same assumption that ObamaCare proponents made, that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How's that one working out for us?

Anyone betting on federal lawsuit limits to balance the budget is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems.

An article in today's "Roll Call" newspaper, which covers Congress, discusses the extensive influence that Sen. Tom Coburn has over members of the debt reduction "supercommittee" charged with finding over $1 trillion in federal budget cuts ovr a ten-year period. It appears that Sen. Coburn's own "Back to Black" deficit reduction plan, which he released in July, is the basis for many pollicy proposals under consideration by the supercommittee.

That could be a positive development in the fight to protect each state's right under the 10th Amendment to the Constitution to run their own civil justice systems and each American's right under the 7th Amendment to seek a jury trial for civil suits, including medical malpractice lawsuits. Sen. Coburn's "Back to Black" plan doesn't call for unconstitutional federal tort reform in any way. Instead it relies on the states to manage their own legal systems, and specifically enables any injured patient to take a medical malpractice case to state court. Sen. Coburn also recognizes the terrible toll on patients as a result of deadly medical errors.

Sen. Coburn recommends that the federal government fund expert panels and health courts to resolve medical disputes, ideas implemented in some states and which do not, in practice, always protect a patient's rights. But it preserves the patient's right to access the state court system at any point; the state panels and health courts aren't a mandatory step. The Senator disagreed with federal tort reform solutions on constitutional grounds in an interview posted on June 30, and this plan is consistent with his objection. I'm not endorsing the plan, but at least it protects our constitutional rights from federal "tort reform" efforts.

In contrast, the American Medical Association and numerous medical groups are asking the supercommittee to squash our constitutional rights and grant total immunity to medical professionals from their errors. They sent a letter to the supercommittee that ignores the clear consensus against federal tort reform by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. Rolling over the Constitution and Bill of Rights is nothing new for the AMA and most of their fellow medical lobbying groups, the co-conspirators in the enactment of ObamaCare, with its equally unconstitutional individual mandate to buy health insurance.

The Founding Fathers' insistence on individual liberty and state sovereignty over their legal systems means nothing to "Big Medicine." They're the walking definition of "Crony Capitalism" for continuously lobbying for national health care with total civil immunity. Limits in the Constitution on the enumerated powers for the federal government, and the 7th and 10th Amendments, are mere bumps in the road for the AMA and their cronies, which wants to interfere in local health care and tort law decisions so they can shape and manage our lives. There's nothing "constitutionally conservative" about federal "tort reform" laws which would ignore the Founding Fathers, shut down local juries, and deprive Americans of our unalienable rights. The supercommittee should reject these blatant attempts by Big Medicine, and instead seek real reductions in the federal deficit.

A federal judge has ordered the EPA to pay $1.7 million to Hubert P. Vidrine for malicious prosecution. The conservative trial lawyers at the Washington Legal Foundation represented Mr. Vidrine in the lawsuit. You won't believe what the EPA tried to do to him (quoting WLF):

"The just-resolved case started in 1996 when the Environmental Protection Agency (EPA) ordered its SWAT-like special operations team (equipped with M-16 rifles and police dogs) to raid the Canal Refinery, Mr. Vidrine's workplace. The raid led to a criminal investigation against Mr. Vidrine for allegedly unlawful storage and disposal of hazardous wastes under the Resource Conservation and Recovery Act (RCRA). When asked to prove its case, the EPA turned to its star witness, Mike Franklin, who claimed he had taken samples of the allegedly hazardous material and had conducted tests proving Mr. Vidrine's guilt. The only problem is that neither Mr. Franklin nor the EPA could produce these tests.

Whoops.

With the credibility of the case already crumbling, it then came to light that Mr. Franklin suffered an addiction to cocaine, an addiction that often results in psychosis: loss of contact with reality, including false beliefs. Determined to press on, the EPA tried to prove its case by extracting truthful information from Mr. Franklin through hypnosis. But this too failed.

Seemingly oblivious to the evidence against his case, government prosecutor Keith Phillips pressed forward with such zeal that some people began to ask questions. These questions produced interesting answers: First, it was discovered that Phillips sought to prolong the case against Vidrine so he could continue his affair with the FBI agent assigned to the case (Ekko Barnhill) instead of returning home to his wife in Dallas. Second, Philips harbored a personal vendetta against Vidrine and seemingly wanted to do everything possible to make his life miserable. These motives fall a bit short of the 'pursuit of justice' that is supposed to guide EPA cases."

There's as clear a case of government abuse of process and violation of civil rights as you can find. And it's a great example of one of the reasons the Founding Fathers designed the civil justice system: to protect US from a power-hungry Executive Branch. The next time someone asks you for one good reason why we need civil suits and trial lawyers, remind them of this case.

Two important Republican leaders sent signs in the past week that they finally recognize that federal tort reform laws are an unconstitutional abridgement of the right to a civil jury trial and each state's right to run their own civil justice systems.

Rep. Paul Ryan gave an important speech recently at the Hoover Institution on his suggestions for reforming health care. I was pleasantly surprised to see him step back from his previous proposals for federal tort reform. In his Hoover Institution speech, he didn't mention limits on medical malpractice lawsuits or tort reform at all. Contrast this to Ryan's "Path to Prosperity," the basis of the House Republican budget resolution, which included caps on noneconomic damages from health care-related incidents. That proposal, the long-time centerpiece of the federal tort reform agenda, was condemned as "fair-weather federalism" by conservative legal experts, such as top anti-ObamaCare counsel Randy Barnett, and opposed even by two proponents of lawsuit limits, Walter Olson and Ted Frank.

Then former House Speaker and Republican presidential candidate Newt Gingrich released his new "21st Century Contract With America," with pages of new ideas for consideration by Republican voters. Early in his discussion of his legislative proposals, he states that replacing ObamaCare requires "lawsuit reform to stop the frivolous lawsuits that drive up the cost of medicine," repeating the myths perpetrated by medical groups to hide the cost of their own deadly errors and wasteful practices. But beyond that, he has no specific proposal, such as the unconstitutional "caps on noneconomic damages" cited by so many politicians. For Gingrich, who has been a longtime advocate of federal interference in state tort law, this is progress; it reduces the mention of "lawsuit reform" to the status of a throwaway line.

Too many wise conservatives who say they value the Constitution and Bill of Rights remain ignorant of the facts that (a) neither health care nor tort law are among the enumerated powers in the Constitution and (b) the Founders added the 7th and 10th Amendments as reinforcements against unlimited federal power. Maybe the silence of Rep. Ryan and Speaker Gingrich in their recent pronouncements are evidence that the facts are finally sinking in among Republican leaders out there on the campaign trail.

Today I read an outstanding post on the Injury Board Blog Network by Brett Emison of the Langdon & Emison law firm in Missouri, about the numerous state Supreme Courts which have struck down attempts to restrict the right to trial by jury as infringements on fundamental constitutional rights. The Injury Board's Tom Young and Brett Emison gave me permission to re-post it here. Here are the highlights, and I urge you to read the entire post:

Wisconsin: In 2005, the Supreme Court of Wisconsin held the state's $350,000 non-economic damages cap was an unconstitutional violation of the equal protection clause of Wisconsin's constitution. Ferndon v. Wisconsin Patient's Compensation Fund, 701 N.W.2d 440 (Wisc. 2005)...

Ultimately the Court ruled Wisconsin's cap was "arbitrary and create[d] an undue hardship on a small unfortunate group of plaintiffs." Id. at 466. There was no rational basis for this brand of "tort reform". The non-economic damage cap was not rationally related to any of the following:

-- Non-economic cap not rationally related to compensating victims fairly

-- Non-economic cap not rationally related to lowering medical malpractice insurance premiums

-- Non-economic cap not rationally related to maintaining the Wisconsin Patient's Compensation Fund

--Non-economic cap not rationally related to lowering overall health care costs for consumers

-- Non-economic cap not rationally related to ensuring quality health care

Georgia: Georgia passed its own "tort reform" legislation in 2005, also enacting a $350,000 non-economic damage cap. In a unanimous decision the Supreme Court of Georgia ruled that the "tort reform" legislation violated the constitutional right to trial by jury...

The Georgia Court found that the non-economic cap unconstitutionally infringed on the right to trial by jury because the cap arbitrarily disregards the jury's findings and undermines the jury's basic function. Atlanta Oculoplastic Surgery v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010). Moreover, the fact that the cap permits full recovery up to $350,000 cannot save the "tort reform" from constitutional attack...

The Georgia decision confirms that you can't violate the constitution "just a little". You either violate the constitution or you do not. An arbitrary reduction of the jury's award, no matter how small or what the amount, is an unconstitutional encroachment on the right to trial by jury.

Illinois: In 2010, the Supreme Court of Illinois struck down the Illinois non-economic damage cap as an unconstitutional violation of separation of powers. Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)... The separation of powers clause prohibits one branch of government from exercising powers belonging to another. The Court found that the cap duly encroached on the judiciary's "sphere of authority" and "impede[d] the courts int he performance of their functions." Id. at 909, 912.

Washington: In 2006, the Washington legislature enacted "tort reform" which required plaintiffs in medical malpractice cases to provide 90 days' notice of the plaintiff's intention to file a lawsuit. The Washington Supreme Court found the "tort reform" law to be an unconstitutional violation of separation of powers. Waples v. Yi, 234 P.3d 187, 195 (Wash. 2010).

West Virginia: Though West Virginia's Supreme Court upheld a $500,000 non-economic damage cap earlier this year, a powerful dissent by Judge Wilson illustrates why the Court got it wrong.

"Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

The Court's degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase 'the right to trial by jury shall remain inviolate' in its constitution makes no sense.

This case is about what has already happened to the malpractice victims in the three West Virginia cases that challenged the constitutionality of the malpractice cap. These are real people who deserved more when they pursued justice in our West Virginia courts."

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial. The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it's not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

"Tort reform" protects and rewards negligent actors and makes us all less safe. It also undermines our most important constitutional safeguard. As the Georgia Supreme Court said, "tort reform" "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function."

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

Tort "reforms" also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff's actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.