P.L.A. - A Journal of Politics, Law and Autism
PLA is a fair and balanced Journal published by Dwight Meredith with a Focus on Politics, Law and Autism
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Saturday, April 12, 2003
A Budget Balanced (Maybe, Sort of, Someday)
The New York Times reports that a budget proposal passed the Senate with Vice President Dick Cheney passing the tie breaking vote.
The $2.2 trillion dollar budget would authorize tax cuts this year totaling less than one half of the amount sought by the administration.
President Bush came into office preaching fiscal responsibility. He promised to cut taxes, increase military spending, increase social spending, pay down all publicly held debt and balance the budget.
Under the budget plan passed by the Senate, the federal budget might return to balance… in Fiscal Year 2012, long after Mr. Bush has left office regardless of whether or not he wins reelection.
We say “might” because in order to achieve a balanced budget nine years from now, we have to assume each and every one of the following:
1) Mr. Bush’s proposed tax cut will be halved in accordance with the Senate Bill;
If each of those eleven items has a 75% chance of occurring (and many of those items have far less than a 50% chance in our estimation) the chance of them all occurring is less than one-half of one percent.
In the event that we win the lottery and the one-half of one percent chance comes through, we will reach a balanced budget just in time for the demographic bomb of the retirement of the baby boomers to once again explode the deficit.
Perhaps it would be prudent for the administration to be more concerned about the finances of the nation and less concerned with rewarding Mr. Bush’s political backers and promoting Mr. Bush’s political prospects.
Providing a sound fiscal condition for our nation is a matter of moral clarity. Spending the money of the next generation while forcing the government to break its Social Security and Medicare promises is not moral.
Friday, April 11, 2003
Conan vs. Meathead Offers a Poor Choice
Via TalkLeft, we learn that body builder/movie actor Arnold Swarzenegger recently met with White House political swengali Karl Rove. It has been reported that Swarzenegger is eyeing a run for Governor of California in 2006 when current Governor Gray Davis will be term limited.
Mr. Swarzenegger won numerous Word Titles in the field of body building. He parlayed that success into a film career. We cannot comment on his acting ability as we studiously avoid watching his movies.
We are hard pressed, however, to discover what in Mr. Swazenegger’s background would qualify him to serve as the governor of the largest and most important state in the Union. He served a stint as head of the President’s Counsel on Physical Fitness under George H.W. Bush. That position, however, is largely ceremonial. He has been active in the Special Olympics, an interest we applaud. He organized a campaign for a referendum on after school programs.
We find no evidence that Mr. Swarzenegger has any formal education relevant to occupying the Governor’s office. We find no evidence of any executive experience of any note.
Other than name recognition, it is difficult to see what would qualify Mr. Swarzenegger for the highest position in the largest state in the Country.
We have written about the phenomena of “excellence transference” before. As Lamar! Alexander told Steve Forbes, perhaps Swarzenegger should run for the school board before trying for higher office.
If Swarzeneger does mount a bid to become Governor of California, we will be interested in his views on tort reform. In particular, we will be interested in learning whether he thinks that there should be penalties for plaintiffs who bring massive lawsuits over slight injuries.
We learned from The Lighter Side of The Rittenhouse Review that Mr. Swarzenegger is very protective of his image.
As this story reports (scroll down), when a car dealership in Ohio used Mr. Swarzenegger’s picture in an advertisement without permission, the actor was quick to react with a law suit.
Now we do not think that people should use pictures of celebrities for commercial purposes without permission. We think that Mr. Swarzenegger would be perfectly justified in bringing a suit seeking to prevent such use. When the improper use of the photo is a “thumbprint sized” picture in a local newspaper advertising a "33-House Month-End Countdown" sale at a car dealership, we do not think that a suit seeking $20,000,000.00 in damages is appropriate. Does the Republican Party think it appropriate to seek twenty million for what is at most a minor injury?
We also hear that on the Democratic side, moviemaker Rob Reiner may make a run for Governor. While we like his movies and we prefer his (liberal) politics, we also doubt his qualifications.
The people of California deserve better than a choice between Meathead and Conan the Barbarian for Governor.
Thursday, April 10, 2003
Like a Good Neighbor
The Supreme Court this week reversed a decision of the Utah Supreme Court. The Utah court had affirmed an award of $145 million in punitive damages against State Farm for fraud and bad faith in handling a personal injury claim. The opinions of the United States Supreme Court may be read here. The opinion of the Utah Supreme Court may be found here.
There is much to criticize in the Court’s opinion. Sam Heldman is struck by the juxtaposition of the Court reversal of the punitive damage award with the recent decision to uphold the three strikes law in California. Sam finds the decision:
a true outrage when compared to the Court's decisions a few weeks ago on the California three strikes cases. We know now that, according to this Court, putting someone in jail for 25-to-life for stealing a few golf clubs is JUST PEACHY, but that punishing a company with a $145 million penalty for a $ 1 million tort is WAY TOO DRACONIAN AND THEREFORE UNCONSTITUTIONAL!!!
Nathan Newman agrees:
So it's unreasonable to significantly decrease shareholder profits for an insurance company that commits fraud, but it's "reasonable and proportionate" to essentially obliterate a life of someone stealing $153 worth of goods?
From the right, Justices Scalia and Thomas dissented finding it difficult to understand how Utah’s management of his tort laws rises to the level of a constitutional issue.
We were struck not only by the ruling but also by the window the decision opens on the way that insurance companies handle liability claims. The view from that window is is not pretty.
Curtis Campbell was driving on a two-lane road in Utah behind a group of six vans. Campbell decided to pass. As he started to pass, another car driven by Tom Ospital approached from the opposite direction. Ospital was forced off the road to avoid a head on collision with Campbell who was in Ospital’s lane. Ospital lost control of his car and collided with another vehicle driven by Robert Slusher. As a result of that collision Ospital died and Slusher suffered permanent disabling injuries. Mr. and Mrs. Campbell were unhurt.
The Campbell’s had liability insurance through State Farm. The coverage under the policy was limited to $25,000 per injured person and a total of $50,000 per accident.
State Farm investigated the accident. Its investigator determined that Campbell was at fault and that the case had had a settlement value in excess of the policy limits. Despite that finding, State Farm refused to pay the policy limits.
The Utah Supreme Court noted:
In choosing not to settle, State Farm superintendent Bob Noxon and divisional superintendent Bill Brown rejected a report of State Farm investigator Ray Summers that stated there was evidence of fault on Mr. Campbell's part. In particular, Brown ordered Summers to change the portion of his report describing the facts of the accident and his analysis of liability "wherein [he] had indicated an exposure [for Mr. Campbell], and that there could be a high settlement value on it."
The next time you hear that an insurance company pays millions of dollars and frivolous claims, remember this case. State Farm refused to pay $50,000 to settle both a wrongful death case and a permanent disability case when its own investigators determined its insured to be at fault.
After State Farm refused to settle, suit was brought against Campbell for the wrongful death of Ospital and the permanent injuries of Slusher. State Farm hired attorney Bennett to represent Campbell. Bennett had an ethical obligation to promote the interests of Campbell. Campbell, however, was unlikely to have any other cases for Bennett to handle. State Farm, on the other hand, provided Bennett with “considerable work.”
Bennett assured Mr. and Mrs. Campbell that “that their assets were safe, that they had no liability for the accident, that he would represent their interests, and that they did not need to procure separate counsel.”
Consistent with the wishes of State Farm, Bennett refused renewed offers from the plaintiffs to settle for a total of $50,000 and took the case to trial. The jury found Campbell 100% responsible and awarded more than $185,000 in damages against Campbell.
Bennett, who had previously told the Campbell’s that they would win and that their assets were not at risk, told the Campbell’s "[y]ou may want to put for sale signs" on their house "to get things moving” and informed them that State Farm would not pay for an appeal and would not pay any part of the judgment above the $50,000 policy limits.
The Campbells, being sadder but wiser, refused to listen to Bennett and hired their own counsel. They brought suit against State Farm for a bad faith refusal to settle for the policy limits.
The bad faith suit shined a light on State Farm’s practices. The evidence submitted showed that State Farm, as a matter of corporate policy, made a conscious effort to cheat its customers.
The Utah Supreme Court found that:
First, State Farm repeatedly and deliberately deceived and cheated its customers via the PP&R scheme.
The PP&R scheme was State Farm’s Performance, Planning and Review program. According to Justice Ginsberg, the PP&R program had “the explicit objective of using the claims-adjustment process as a profit center.”
The Utah Supreme Court wrote (internal citations omitted):
For over two decades, State Farm set monthly payment caps and individually rewarded those insurance adjusters who paid less than the market value for claims. Agents changed the contents of files, lied to customers, and committed other dishonest and fraudulent acts in order to meet financial goals.
In other words, State Farm just made up the “fact” of Ospital’s speeding and made up a pregnant girlfriend in the hopes that a conservative Utah jury would be offended by fathering a child out of wedlock and would award his estate less money for his death as a result. The fact that the allegation had no basis in fact was less important to State Farm than the opportunity to smear a dead victim in hope of paying less and the value of the claim.
State Farm knew that its practices were wrong. It used a number of tactics to try to make sure that it was not caught. The Utah Supreme Court noted that:
State Farm's fraudulent practices were consistently directed to persons--poor racial or ethnic minorities, women, and elderly individuals--who State Farm believed would be less likely to object or take legal action.
As a statistical matter, the Utah Court found that State Farm would be caught in only 1 of every 50,000 instances of its fraud.
State Farm also sought to intimidate claimants. Justice Ginsberg noted that:
A common tactic, Summers recounted, was to “unjustly attac[k] the character, reputation and credibility of a claimant and mak[e] notations to that effect in the claim file to create prejudice in the event the claim ever came before a jury.”
The Utah Supreme Court agreed, writing:
For example, State Farm published an instruction manual for its attorneys mandating them to "ask personal questions" as part of the investigation and examination of claimant in order to deter litigation.
In addition to targeting the weak and seeking to intimidate, State Farm also tried to cover its tracks by destroying the paper trail. The Utah Supreme Court:
State Farm engaged in deliberate concealment and destruction of all documents related to this profit scheme. State Farm's own witnesses testified that documents were routinely destroyed so as to avoid their potential disclosure through discovery requests.
Justice Ginsberg also noted the policy of destroying documents:
To further insulate itself from liability, trial evidence indicated, State Farm made “systematic” efforts to destroy internal company documents that might reveal its scheme efforts that directly affected the Campbells…
Tort reformers tell us that insurance companies routinely pay millions of dollars on frivolous claims. That contention is hard to square with the actions of insurers like State Farm.
State Farm was willing to lie, cheat, defraud, harm its customer, create false documents, destroy evidence, intimidate the weak and slander the dead in order to avoid paying a total of $50,000 on a wrongful death claim and a permanent disability claim when State Farm knew that liability was clear.
Does that sound like a company that would pay millions of dollars on a frivolous claim?
State Farm ordered its attorneys to use “mad dog litigation tactics” including “using the company's large resources to "wear out" opposing attorneys by prolonging litigation, making meritless objections, claiming false privileges, destroying documents, and abusing the law and motion process.” Tort reformers would have more credibility if they proposed any reform to address those sort of abuses.
If you believe that insurance companies pay out millions of dollars for frivolous cases and that litigation abuse occurs only on the plaintiff’s side, we expect that you would also believe that State Farm acts “like a good neighbor.”
Wednesday, April 09, 2003
A Correlation Between Thimerosal and Autism
We have written on a number of occasions about whether or not the preservative thimerosal, which was included in childhood vaccines, caused autism.
We have tried to be careful in our writing not to get ahead of the science and claim a correlation between the exposure of infants to the mercury (thimerosal is 50% mercury by weight) and the large increase in the incidence of autism of recent years.
We have cautioned that we should all wait for the science to determine if a link between thimerosal and autism existed. One part of that wait is now over.
An epidemiological study of the relationship between thimerosal and autism was recently published in the Journal of American Physicians and Surgeons. As usual, our thanks go out to Wampum, the best source for autism related information available on the web, for providing the link.
The study, by Dr. Mark Geier and David Geier first looked to determine whether the inclusion of thimerosal as a preservative in childhood vaccines exposed children to levels of ethylmercury (the type of mercury in thimerosal) greater than the US Food and Drug Administration and EPA safety guidelines for oral injection of methylmercury (which is the form of mercury found in such things as fish).
The study concluded that:
It is clear from our analysis … that US infants are exposed to mercury levels from their childhood immunization schedules that far exceed the EPA and FDA-established maximum permissible levels for the daily oral ingestion of methylmercury. The fact that mercury in the vaccines is given by injection rather than by oral ingestion makes the exposure levels worse…
According to the study the:
Instantaneous relative excess mercury that US children received from their childhood immunizations ranged from 11 to 150-fold at a given age in comparison to US EPA safety guidelines for the daily maximum oral ingestion of methylmercury.
Next, the study used the CDC Vaccine Adverse Events Reporting System (VAERS) database to determine if a correlation existed between the use of thimerosal containing vaccines (as compared with vaccines that did not contain thimerosal) and autism and other disorders.
The study concluded that:
Our previous studies comparing … (vaccines) with and without thimerosal have shown a statistically and clinically significant increase in neurodevelopmental disorders in those vaccinated with thimerosal-containing vaccines. Our current study not only shows that those vaccinated with thimerosal containing … (vaccines) have higher rates of speech disorders, autism and heart arrest overall, but also that the relative risk of each of these disorders correlated with increased doses of mercury contained in childhood vaccines…
The study sums up its findings in the Abstract which says:
In this study, we evaluated doses of mercury from thimerosal-containing childhood immunizations in comparison to US Federal Safety Guidelines and the effects of increasing doses of mercury on the incidence of neurodevelopment disorders and heart disease. This study showed that children received mercury from this source in excess of the Federal Safety Guidelines for the oral ingestion of methylmercury. Our analyses showed increasing relative risks for neurodevelopment disorders and heart disease with increasing doses of mercury. This study provides strong epidemiological evidence for a link between mercury exposure from thimerosal-containing childhood vaccines and neurodevelopment disorders.
The Geier study may not be the last word on the subject. Proof of correlation is not proof of causation. Animal studies, clinical studies and other epidemiological studies may be needed to confirm Geier’s findings.
Nonetheless, the evidence is growing that our public health system, in conjunction with Eli Lilly and others, allowed millions of American children to be exposed to mercury at levels that are not safe. A statistical correlation has now been shown between that exposure and autism and other disorders.
In our first post on this subject we asked:
HOW IN GOD’S NAME DID THE MEDICAL ESTABLISHMENT COME TO GIVE MERCURY IN LEVELS THAT EXCEED EPA SAFETY GUIDELINES TO THIRTY MILLION CHILDREN?
Senator Frist and the administration are hard at work trying to make sure that Eli Lilly and the drug companies do not suffer financially from including poison in childhood vaccines.
Why so they seem to spend absolutely no time trying to answer the question of how the public health system allowed our kids to be exposed to unsafe levels of mercury?
Monday, April 07, 2003
Looking for The Sideshow?
If any of you are looking for Avedon Carol’s The Sideshow, it is temporarily located here while she recuperates from eye surgery. Go by and wish her well.
Proliferation of Iraqi WMD
Over the weekend, many pundits were in a snit over the failure of our forces to yet locate evidence of Iraqi weapons of mass destruction.
The Hartford Courant ran a piece by Howard Witt that was typical:
A war President Bush launched expressly to rid Iraq of its weapons of mass destruction has yet to uncover any, and with each passing day the question grows more acute: Where are the huge caches of chemical, biological and nuclear materials Saddam Hussein is supposed to possess?
The Weekly Standard, in an article by Stephen Hays, argues that it is too early to know whether we will find such weapons and also notes the following:
In an interesting side note, an under-discussed article posted April 4, on MSNBC.com reports that "terror toxins" were found at the Ansar al-Islam camp in northern Iraq:
We have no idea whether or not we will eventually find stockpiles of WMD in Iraq. We think that the failure to locate such weapons will have bad consequences but not necessarily the ones being discussed by the pundits.
For the record, prior to the war, George W. Bush claimed:
[T]he regime was forced to admit that it had produced more than 30,000 liters of anthrax and other deadly biological agents. The inspectors, however, concluded that Iraq had likely produced two to four times that amount. This is a massive stockpile of biological weapons that has never been accounted for, and capable of killing millions.
The argument making the punditry circuit is that locating stockpiles of WMD in Iraq is important because the failure to do so will cause the perception that the U.S. used the alleged existence of WMD as a pretext for war.
Our concern is different. We are concerned that Iraq in fact had the weapons alleged by Mr. Bush but that the war has resulted in the proliferation of those weapons to other people and other places.
One justification for the war was that we needed to prevent Iraq from providing chemical and biological weapons to Al Qaeda and other terrorists groups.
If no WMD are found it Iraq, or if the quantity located is far less than the amount claimed by the administration, one could conclude that the administration exaggerated its claims in order to build support for the war. We are not very concerned about the world reaching that conclusion. We think that much of the world will have the perception of the war's illegitimacy regardless of whether stockpiles of WMD are located or not. That ship has already sailed.
An alternative conclusion is that the administration’s estimates of Iraqi stockpiles were accurate, but that such weapons have proliferated to other terrorists groups either before or during the war.
If Iraq moved chemical or biological weapons to Syria or provided them to Hamas, Al Qaeda or other terrorists, then the war will have brought about the very proliferation of WMD that we were seeking to avoid.
Such proliferation would increase the potency of potential terrorist attacks here, in Israel and around the world. We think that such proliferation could have far greater consequence than a heightened perception on the part of some that the administration created a pretext for war.
Via The Agonist, we find the following reports.
Reuters reports as follows:
U.S. biological and chemical weapons experts believe they may have found an Iraqi storage site for chemical weapons, a U.S. officer told Reuters on Monday.
ABC (Australia) reports that the chemicals were pesticides not sarin:
A facility near Baghdad that a US officer had said might finally be "smoking gun" evidence of Iraqi chemical weapons production turned out to contain pesticide, not sarin gas as feared.
Reuters on an NPR report of medium range missiles equipped with chemical warheads:
U.S. forces near Baghdad found a weapons cache of around 20 medium-range missiles equipped with potent chemical weapons, the U.S. news station National Public Radio reported on Monday.
Our concern remains the proliferation of such WMD regardless of whether some stockpiles are located in Iraq.
Contempt For Congress
In the W.C. Fields movie My Little Chickadee, a judge asks Mae West whether she “is showing contempt for this court?’ “No, I’m doing my best to hide it, ” West replies.
Having crossed swords with a few judges in our time, we strongly recommend not using the Mae West line unless you remembered to bring a toothbrush to court.
George W. Bush, however, does not appear to be trying to hide his contempt for Congress. Even members of his own party are shown contempt by the administration. A few examples are in order.
The Senate Finance Committee, chaired by Republican Charles Grassley requested testimony from Treasury Undersecretary Peter Fisher about the deficit and budget. According to Knight Ridder, Fisher “abruptly canceled his scheduled appearance.”
"If I weren't a Republican, it wouldn't be so embarrassing," committee Chairman Charles Grassley said.
USA Today reports as follows:
On March 17, before he delivered a 48-hour ultimatum to Saddam, Bush summoned congressional leaders to the White House. They expected a detailed briefing, but the president told them he was notifying them only because he was legally required to do so and then left the room.
Knight Ridder reports that a week before the war, the Senate Armed Services Committee, controlled by Republicans, requested that top Pentagon officials brief the committee about the reconstruction of Iraq after the war. The administration declined the request but granted interviews to journalists to discuss the reconstruction on the same day.
The administration refused to provide Congress with estimates of the cost of the war before the bombing began. When asked at a press conference about funding the war, Bush replied:
We’ll present it in the form of a supplemental to the spenders.
When it came time to submit the supplemental appropriation request, the Bush administration asked that Congress simply appropriate the amount requested without any restrictions on the money. As Knight Ridder wrote:
Now President Bush wants to sidestep congressional oversight of how he spends nearly $75 billion that he is seeking for the war and homeland security.
Mr. Bush did not say he would present the supplemental request it to the "Congress" or the "appropriators." Instead, he dsparagingly referred to the Congress as "the spenders." Given that Mr. Bush decided to spend the money, decided when to spend the money, decided how much money to spend, and asked for no restrictions on the way he spent the money, Mr. Bush's reference to the Congress as "the spenders" is particularly ironic. His contempt for the Congress could not be more palpable.
There are a myriad of other ways in which the administration has demonstrated its contempt for individual members of Congress as well as for the Congress as a whole.
We are not surprised that Mr. Bush holds some members of Congress in contempt. We have been known to do so ourselves. We are also not surprised that the executive branch would develop is distain for the legislative branch. Many administrations have clashed with Congress.
The question is why does Mr. Bush, unlike Mae West, not even attempt to hide is contempt for Congress?
There are a number of possible answers.
Perhaps Mr. Bush sees that the budget deficit is going to rise dramatically and he is preparing to shift the blame to the Republican Congress. That would be a sort of triangulation strategy.
Perhaps Mr. Bush believes that by openly showing distain for Congress, he will force the Congress to be more compliant. His recent losses on ANWAR, the proposed tax cut, faith-based initiatives, and other issues suggest that if Mr. Bush’s plan is embarrass the Congress into compliance, it is not working.
Perhaps Mr. Bush feels that his status as a wartime President should allow him to run roughshod over a co-equal branch of government.
Finally, perhaps Mr. Bush is so imbued with hubris that he simply resents the fact that the Constitution vests power in the Congress as well as the President.
Regardless of the reason, we expect that Mr. Bush’s open contempt for the Congress will cause him trouble with regard to his domestic agenda.