February 2012 Archives

There is ONE bill in the House that take's Iran's funds stored in a U.S. account and reserves them to compensate Iran's American terrorism victims. H.R. 4070 is sponsored by Rep. Bob Turner (R-NY) and supported by Members of both parties. Iranian terrorists killed 241 of our servicemen, and injured hundreds more, in the 1983 bombing of the Marine Corps barracks in Beirut, Lebanon. For years, the 1300 survivors and families of those killed have sought justice in American courts for that attack, and were awarded a judgment in federal court of over $2.6 billion against Iran. Their attorneys then identified and attached an account of $1.8 billion in Iranian central bank funds in a bank in NYC to satisfy that judgment. Then the families of the servicemen killed in the 1996 Iranian bombing of the Khobar Towers in Saudi Arabia won a judgment and now stand to share in that account. But without special legislation, the order freezing the funds could be lifted, possibly enabling Iran to recover the money. This morning, the Beirut Marine families issued a press release urging House Members to co-sponsor and pass H.R. 4070. Lynn Smith Derbyshire, whose brother was killed in the barracks bombing and is now national spokesperson for the Beirut Marine families, says, "The Government of Iran will continue to do everything it can to hurt Americans. We see no reason to enable Tehran's campaign of terror. Allowing the Iranian Government to get this frozen money back would do just that." The bill is similar to language inserted into the Senate version of the Iran sanctions bill, now numbered S. 2101, which was approved by the Senate Banking Committee on February 2 and awaits Senate floor action.

No other bill before the House actually takes Iran's money and reserves it for Iran's American victims. The Beirut Marine families are urging House Members to co-sponsor H.R. 4070 and bring it to the floor quickly.

Last week, I traveled to Nashville, TN, to try to advise Tennessee state legislators to stick to 200 years of state jurisprudence and the American rule in civil lawsuits, and not institute a "Loser Pays" system in courtrooms. As I've explained here before, "Loser Pays" means that middle- and lower-income individuals, and small businesses with low long-term capital reserves, would have to risk their meager savings when filing a civil suit. One attorney there analogized such bills to the New England Patriots' being forced to pay the New York Giants' expenses for the Super Bowl after losing the game!

I'm also concerned that social conservative litigators, such as the ACLJ, Becket Fund for Religious Liberty, Liberty Counsel, Thomas More Law Center and the Alliance Defense Fund, could be severely impacted by state "Loser Pays" statutes. One proposed bill in Tennessee would institute a rule under which the side that loses three straight rulings in a given case automatically pays the other sides' expenses. Does that mean, for instance, that the Alliance Defense Fund has to pay the attorneys' fees if the Tennessee state judiciary rules against it all the way through the state Supreme Court in a religious liberty case? I know that the senator proposing the bill hasn't contacted any of the groups named above. That bill could be extremely costly, and many social conservative litigators could face severe disincentives to filing a suit to protect our basic freedoms.

"Loser Pays" is a big trend sweeping through statehouses across America. Attorney Brett Emison wrote recently of his effort to persuade the Missouri state legislature to not institute "Loser Pays" there. I urge my readers to read his post about the dangers of "Loser Pays" and the long history of the American rule. The Founders had good reasons to insist otherwise.

I discuss this issue on today's What's Up radio program, hosted by Terry Lowry and broadcast nationally on Sirius Channel 131 and also on 12 radio stations from Texas to Pennsylvania. You can download and listen to Segment 1 here and to Segment 2 here.

Tomorrow I will be in Nashville, TN, to promote the universal right to civil jury trials, standing alongside the Tennessee Association for Justice and Susan Saladoff, producer of the documentary movie, Hot Coffee, which tells the truth about the famous McDonald's "hot coffee" case. As I mentioned in an interview with the Tennessee Public News Service, the "tort reform" side has mythologized that case, completely distorting the facts. Judson Phillips, founder of Tea Party Nation, rebutted those myths with actual facts in a December WorldNetDaily piece on the unconsitutionality of federal tort reform. I'm very pleased that Judson will join us tomorrow in Nashville.

It's critical that Americans learn of the importance that the Founding Fathers gave to the right to civil jury trials for all causes and in all courts, state and federal. Historian Pauline Maier's book, Ratification: The People Debate the Constitution, 1787-1788, has drawn rave reviews from a number of conservative legal scholars. Randy Barnett called it "marvelous" and described it as "the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments." So I downloaded it on Kindle and searched for references to the right to a civil jury trial. And the book refers to a number of instances in which the states discussed and debated the need to protect that right in explicitly in the Bill of Rights after the delegates to the Constitutional Convention rejected motions to do so in the Constitution.

The benefit of the right to civil jury trials and the need to protect that right was a part of numerous state ratification conventions. For instance, the delegates to the Pennsylvania ratification delegation entered into a heated argument over whether Sweden had utilized, and then eliminated, civil jury trials and the impact on civil justice, which was resolved only when a commentary by the English jurist William Blackstone proved that civil jury trials had been commonplace thoughout Europe. The book documents similar debates in Connecticut and Virginia, the latter resolved by reference to the same Blackstone commentary that determined the debate in Pennsylvania. No less a patriot than Patrick Henry argued that the lack of explicit protection of jury trials for civil and criminal cases would lead to the loss of all rights. It was these debates that eventually led James Madison to propose the inclusion of what became the Seventh Amendment in the package of constitutional amendments proposed during the first Congress. And as I've documented in posts here, most state constitutions explicitly protect the right to civil jury trials.

I hope tomorrow's events in Nashville will be a springboard to a nationwide discussion on the meaning of the Seventh Amendment and the need to protect the God-given right to civil jury trials in state and federal courts. It's clear from the documentation of the state ratification conventions that the Founders did not intend to see this precious right limited or eliminated in state courts.

The Founding Fathers built a civil justice system designed to protect the God-given, unalienable right of all Americans to present their claims before a local jury. That right was enunciated centuries ago by Moses, when he decreed that a man whose property is damaged by a neighbor's actions is entitled to punitive damages. That right to civil justice was protected by Article 39 of the Magna Carta, sealed in 1215, when English peasants forced King john to recognize God-given rights to self-government. That right was protected by our Founders in the 7th Amendment to the Constitution, introduced by James Madison during the first Congress, along with the other amendments in the Bill of Rights.

The Founders didn't limit the exercise of that God-given right to certain causes or to one group of citizens over another group of citizens. As the shackles of racism and sexism were removed, all Americans were eventually afforded that right to seek justice before a jury for their claims. So trespass cases, medical malpractice claims, property rights claims, and lawsuits to protect religious liberty under the First Amendment are equal under the Constitution and Bill of Rights, just as each so if is equal in the eyes of God.

Today on the nationally syndicated What's Up broadcast on Sirius Channel 131 and 12 radio stations, I discussed the fight for religious liberty brewing over the Obama Administration's "compromise" on the mandate for insurers to provide contraceptives, some of which act as abortifacients. Those of us who own a business and are faithful to the teachings of the Catholic Church, and non-Catholic business owners whose religious convictions oppose abortion, will find it impossible to reconcile that mandate with our religious convictions. Eventually, we might have to seek justice, and prevent the imposition of that mandate, by filing suit in federal court. In so doing, we would follow in the footsteps of our forefathers who sought protection from excessive power wielded by the sovereign, through an appeal in the halls of civil justice. Regardless of anyone's views on the underlying issues, all Americans should respect the conscientious objections to certain types of medical services, and all Americans should respect the constitutionally protected right to defend such objections in a court of law.

You can download my audio interview from the What's Up program:
Segment 1
Segment 2

I've written often about the interviews conducted by Terry Lowry on his radio show, the What's Up show, broadcast on 12 radio stations from Houston to Chattanooga to Pittsburgh. I'm pleased to announce that this pro-7th Amendment broadcast, by a noted social conservative and Christian broadcaster, is now also heard on Sirius satellite radio on Channel 131, Family Talk Radio. Now the entire nation can hear periodic reports on civil justice issues and a defense of the Founding Fathers' plan for open courtrooms for all types of cases, from medical malpractice and defective products to religious liberty, property rights and other personal rights. The interviews are also available for downloading from the What's Up home page.

Terry interviewed me for today's broadcast, and we discussed recent congressional action to assist property rights owners, victims of forced abortions, and American victims of Iranian terrorism by enabling their lawsuits. I noted the inconsistency between the protection by many Congressmen of those groups' 7th Amendment rights and the attacks by some of the same Congressmen on medical malpractice lawsuits. As I noted, the Founders built a civil justice system to enable Americans to have their civil suits heard before juries in all types of cases. The Founders didn't differentiate between lawsuits to protect property rights and medmal claims, and neither should Congress. See my post of January 25 on the reasons for Republicans and Tea Partiers to support open courtrooms for all.

You can download listen to the first interview segment here and to the second interview segment here.

This week, the House Judiciary Committee approved H.R. 3541, the "Prenatal Nondiscrimination Act," which prohibits an abortion based on the sex, gender, color or race of the child, or the race of a parent of the child, as well as certain acts which facilitate the performance of a sex-selection or race-selection based abortion.

Articles from the pro- and anti-abortion commentators have focused on the criminal side of the bill and its potential impact on abortion rights. But I want to focus on another section of the bill, one which enables civil suits by the woman whose baby could be forcibly aborted, or by certain family members. That's a remarkable development for the Republicans serving on the Judiciary Committee, considering where they stand on other types of lawsuits.

Most of the House Republicans on that committee have been openly hostile to victims of medical malpractice, and last year approved H.R. 5, a bill designed to impose national limits on awards in medmal suits and impose wage limits on the attorneys who try such cases in court. So House Republican Judiciary Committee members are simultaneously opposing lawsuits filed in cases of personal injury or death, but creating a private right of action when race or sex is used as an excuse for abortion. Moreover, the committee Republicans backing H.R. 3541 have also backed H.R. 1433, titled "The Private Property Rights Protection Act," which enables civil suits by property owners against abusive eminent domain actions by local governments. There's no logical basis for the inconsistent treatment between medmal lawsuits on one hand, and certain abortion or property rights cases on the other.

I'm not against either of the two bills creating new private rights of action. As a pro-life conservative, I'm all for new legal tools to limit abortion on demand. But let's be consistent, just as the Founding Fathers were, when it comes to the civil justice system. They protected open courtrooms for all causes and cases, and so should Congress. Medical malpractice victims, victims of forced abortions, and property owners are equal under the law and have an equally unalienable right to bring their cases before a local jury.

The history of the soft alliance between trial lawyers and pro-lifers has never been given the attention it deserves by pro-life Republicans. The Founding Fathers warned repeatedly against entrusting bureaucrats with decisions that belong in the hands of a local jury. Trial lawyers serve the pro-life cause by challenging FDA decisions to approve dangerous medical devices and drugs taken as birth control by women. History has shown the FDA is too often influenced by political forces and by the industry it seeks to regulate, and the FDA cannot always be trusted to keep unsafe drugs and medical devices off the market. When the FDA approves unsafe products, or allows dangerous products to stay on the market, lawsuits by injured patients are often the last line of defense to provide protection to innocent victims. Civil suits forced many of these dangerous drugs and devices off the market, while the FDA did nothing. Here are some examples.

The Dalkon Shield IUD was implanted in an estimated 2.5 million women from January 1971 through June 1974 before it was taken off the market, thanks to civil litigation brought by injured women. At the time, medical devices were not required to receive pre-market approval from the Food and Drug Administration. Approximately 200,000 women claimed they were injured by the device and filed lawsuits against the company. The Dalkon Shield IUD often became imbedded in the uterus, and the multifilament tail string on the device became a vehicle for bacteria. As a result, women wearing the shield were seven times more likely to develop pelvic infections than women using no contraceptives. There were over 200 documented cases of a rare, potentially lethal type of infected miscarriage called spontaneous septic abortion. Twenty women died of complications associated with the Dalkon Shield. The dangers of the Dalkon Shield were not revealed until the first device lawsuit went to trial in 1974, where the public found out that the IUD's manufacturer knew about the life-threatening risks of the device but withheld this information.

Meanwhile, thanks to aggressive marketing efforts, about 10 million women in the U.S. used the Copper-7 IUD between 1974 and 1986. By 1986, hundreds of lawsuits were filed claiming that the Copper-7 caused pelvic inflammatory diseases, ectopic pregnancies, perforated uteruses and sterility. As a result, the Copper-7 was taken off the market, solely because of the lawsuits brought against the manufacturers. But the FDA never withdrew its approval of the Copper-7.

RU-486 was never tested in uncontrolled trials or tested for use by women under 18, despite being approved for any age. By approving RU-486, the FDA also mandated a previously unapproved use of misprostol over the objections of its manufacturer Searle, who originally created misprostol to reduce the risk of ulcers. According to 9,300 pages of documents uncovered by Judicial Watch, standard procedural and scientific requirements were circumvented during the expedited FDA approval of RU-486 in 2000. A host of pro-life organizations, including the American Association of Pro-Life Obstetric Gynecologists and the Christian Medical Association, have opposed RU-486 from its testing period to today.

The Ortho Evra transdermal birth control patch was approved by the FDA in 2002 as a supposedly safe alternative to the birth control pill - this despite the FDA's own pre-approval findings that the patch led to three times as many non-fatal blood clots. This FDA finding was kept quiet as women switched over to the patch - by 2004, 800,000 women were on the patch. A 2005 FOIA request finally revealed that the FDA had received 16,000 different adverse reaction reports associated with the patch, including 17 deaths that appeared to be clot-related. The women who died included Kathleen Thoren, a 25-year-old mother of three; Sasha Webber, a 25-year-old mother of two; and Zakiya Kennedy, an 18-year-old Manhattan fashion student. Ortho Evra's manufacturer waited until 2006 to warn women that the patch would expose them to the possibility of blood clots. Worse still, FDA kept that information quiet in 2002 when it approved the patch. Lawsuits continue against the company.

Norplant was introduced in 1991, and women began noticing that Norplant's label inadequately warned about severe side effects like excessive menstrual bleeding, headaches, nausea, dizziness, and depression. In a complaint filed against Norplant's manufacturer Wyeth-Ayerst, women who used the system suffered significant weight gain, felt numbness and pain in their arms (where the silicone rods were implanted), and experienced excessive bleeding for two
weeks. Many of these women also experienced great difficulty exiting from the Norplant protocol - some women became scarred after having to undergo surgery under a general anesthetic to remove the implants. In 1999, Wyeth-Ayerst agreed to pay out at least $50 million to settle the claims of 36,000 women. The American Life League maintains a Norplant page on its website, explaining its qualities and the testing deficiencies.

Last year, the FDA approved the pill "Ella," a product of the French maker HRA Pharma, which reduces the chance of pregnancy up to five days after sex. The pro-life Family Research Council claims that Ella blocks progesterone receptor proteins, and thereby starves a developing baby of this needed protein, much like RU-486. FRC cites numerous studies in Europe that show "that Ella causes abortions in animals, including rats, rabbits, guinea pigs and macaques (similar to monkeys)."

And FRC says that "there is compelling reason to believe that it (Ella) will likely have similar side effects" as RU-486, such as "excessive bleeding and increase(d) vulnerability to infection." In other words, trial lawyers exercising the 7th Amendment right to a jury trial for civil suits may have to ride to the rescue of the women who will be harmed by Ella, just as they have with respect to other devices and drugs dangerous to women.

The Medicare Sustainable Growth Rate (SGR) is the method enacted in 1997 to control spending by Medicare on physician services, and ensure that the yearly increase in the expense per Medicare beneficiary does not exceed the growth in GDP. Every year, the Centers for Medicare & Medicaid Services and the Medicare Payment Advisory Commission advise Congress on the previous year's total expenditures and the needed adjustment in Medicare payments to doctors. For years, the calculation has resulted in a planned cut in payments, but Congress has repeatedly delayed the cuts. Congress and President Obama have delayed the implementation of the payment cuts several times, most recently until the end of February. On that date, it is estimated that the SGR will be a cut of at least 20% in payments. Physician groups, especially the American Medical Association, are lobbying for a permanent change to the SGR methodology, called the "doc fix" inside the Beltway, to prevent annual cuts.

I can understand the desire of the doctors' groups to rationalize the process and avoid painful SGR cuts, which could result in an actual reduction in medical services for those who most need them. But already we've seen political allies of the AMA recommend that Congress pay for the "doc fix" by crushing the constitutional rights of all Americans and instituting sweeping nationwide limits on medical malpractice and health care-related lawsuits. Numerous conservatives and Tea Party-side legal experts have condemned any such federal tort reform law as an unconstitutional infringement on states' and individual rights. That's reason alone to not pursue that option.

But there's another reason why Congress shouldn't try to pay for the "doc fix" with medmal limits: the CBO's estimates of revenues resulting from the institution of federal limits on medmal lawsuits are fatally flawed. The AMA and its allies continuously promote a CBO estimate, released during the ObamaCare debate, that medmal limits would save close to $60 billion over ten years. Here are the flaws in that estimate:

First, 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 enactment of the Affordable Care Act, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, CBO admitted in 2010 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." In fact, implementing CBO's projection of "savings" 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. That's not a cost that CBO can estimate, but it's one we don't want to bear.

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. In fact, Congressmen and Senators of both parties are sponsoring legislation to improve that process and return even more revenue to the Treasury, but CBO still can't count that money properly.

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. In fact, a study by the Commonwealth Fund shows health insurance premiums rising rapidly in California since 2003, despite the state's very tough limits on awards in health care-related lawsuits. CBO makes the assumption that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How's that one working out in California?

In conclusion: Anyone betting on federal lawsuit limits to pay for the "doc fix" is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems. Congress should reject any proposal to impose federal limits on health care-related lawsuits, and instead spend its valuable time designing a constitutional and mathematically reliable "doc fix" solution.

UPDATE: The committee approved the special language assisting the families by a unanimous voice vote on February 2. The language was changed last night to limit its application to Iran, and not to the other designated state sponsors, in order to more easily enact and implement the change in banking law.

In 1983, an Iranian suicide agent exploded a massive truck bomb, destroying a U.S military barracks in Beirut, Lebanon. The blast killed 241 American Marines, soldiers and sailors and injured hundreds more. The mass murder was a brutal, unprovoked attack on American servicemen. It also was a terrorist assault on the United States by the most active sponsor of State terrorism in the world, the Islamic Republic of Iran.

Over 1000 family members of the victims exercised their constitutional right to hold Iran accountable and sued in U.S. courts for that vicious attack. In 2007, the Chief Judge of the United States District Court for the District of Columbia found Iran liable for the Beirut bombing. He ordered it to pay $2.65 billion to the surviving victims and families. The families' attorneys identified an account of Iranian funds, laundered through Europe into the U.S. and stashed in an account at a bank in New York City, and the judge froze that account in order to satisfy the judgment.

But central banks of countries are granted immunity from attachment, even if the central bank is of a state sponsor of terrorism. The Iranian central bank has already notified a federal court in NYC of its intent to file a motion to lift the attachment. Absent special legislation, the order freezing the account could be lifted, and Iran could regain the funds in the account for use in its nuclear proliferation and terrorism activities.

So the families have turned to Congress to ask for legislation that would
clarify that state central banks of terrorist states (Iran, Cuba, Sudan and North Korea) forfeit the immunity when their assets are surreptitiously laundered into the United States through money laundering jurisdictions. The bill language would affect only the central banks of the four state sponsors of terrorism, when they are caught surreptitiously laundering assets through the U.S. financial system.

On Thursday, the Senate Banking Committee will act on S. 1048, the Senate version of a bill designed to impose new sanctions on Iran. The House approved their version of this bill in December. The families are asking the Banking Committee to add the special language described above to the bill prior to action by the full Senate. I have been working with the families as a paid consultant as they seek justice through the enactment of this special legislation.

Unfortunately, the Obama Administration is opposed to the families' effort, apparently concerned that other countries might refuse to invest their funds in the U.S. or treat the Federal Reserve similarly. The families responded in a press release on Monday. Spokesperson Lynn Derbyshire, whose brother was killed in the attacks, said, "Everyone agrees that the most effective way to hold Iran accountable, short of war, is to deliver a blow to its government finances. The Obama Administration has been encouraging other nations to impose economic sanctions on Iran. Incredibly, however, it is opposing a clear and effective way to take $2.65 billion out of the Iranian financial system and directly punish Iran for a specific act of terrorism Iran would like America to forget."

The families deserve some measure of justice and the Congress must act to prevent Iran from accessing the $2+ billion in frozen funds. Hopefully the Senate Banking Committee will ignore the Obama Administration and add the special language to the Iran sanctions bill.

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