We filed a lawsuit against the school board of St. Lucie County this week on behalf of a family and their then 8-year-old son, who was physically and mentally abused by a behavioral analyst employed by the school. Their son is a special needs student, and his behavioral analyst roughly dragged him down a hallway and physically assaulted him, leaving him with bruises and other signs of abuse. Additionally, the defendant had a criminal record and was allowed by the school board to work with children.

The child was enrolled at Oak Hammock Elementary School in St. Lucie County. For more information, see the recent television coverage. You can also see additional details on our website.

Over-the-counter medications made specifically for children have been getting some attention lately, as a major pediatrician group advised that these medications be banned. However, the FDA has rejected the request for a lack of information. Additionally, it’s thought that if these medications are no longer available, parents will begin treating their children with adult-strength medication.

According to an article children’s cough and cold medications on MSNBC, the reason is this:

“With a new cold season coming, pediatricians are urging the government to demand a recall of over-the-counter cough and cold medicines for children younger than 6. The effectiveness of the medicines in children was never scientifically established, critics say, and problems with the drugs send thousands of kids to the emergency room every year.”

For years drug makers and medical device manufacturers have known of risks associated with their products.  It used to be that you could count on the FDA to weed out harmful products. On the heels of questionable products comes legislation from the Bush administration, which could prohibit product liability litigation on all sorts of consumer products. Essentially, these laws would protect large corporations – not the consumers. See this article in the Wall Street Journal for more information.

There has been a concerted governmental effort to protect these corporations and their profits at the expense of consumers.  The law firm of Balkan & Patterson, LLP is dedicated to helping consumers who have been injured by defective products, pharmaceuticals and devices and holding accountable the corporations who have known of the problems but put profits over people. Visit our firm’s website at www.balkanpatterson.com for more information.

OIAs Reveal How Bush Administration Made Complete Immunity for Negligent Corporations a Top Priority

Federal Agencies Changed Rules to Usurp States’ Rights, Help Corporations Escape Accountability for Dangerous Products

Washington—In a stealth effort coordinated at the highest levels of the Bush administration, multiple federal agencies were repeatedly ordered to usurp state law and undermine consumer protections, according to documents obtained through repeated FOIA requests by the American Association for Justice (AAJ). The documents released today detail how helping corporations escape accountability for dangerous products has been the administration’s top priority.

“This is the real Bush legacy,” said AAJ President Les Weisbrod. “In effect the Bush administration made the safety of Americans secondary to corporate profits.”

The FOIA documents detail a Bush regulatory strategy called preemption. In short, the Bush administration has decided that federal rules should usurp – or preempt – the rights of states to protect their citizens with stricter safety standards. In turn, consumers can no longer use the state protections when harmed by negligence or misconduct, giving total immunity to corporations instead.

AAJ has tracked how the administration’s first attempts to preempt states rights utilized friend-of-the-court briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting instead regulatory agencies in charge of product safety oversight. Beginning in 2005, carbon copy statements claiming that federal agency rules preempt state law began surfacing in the “preambles” of regulation issued by the federal government, and in some cases in the body of the final rules themselves. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations have a new legal theory on which they can argue in product liability cases.

“Unelected federal regulators are now claiming that states can’t protect their own citizens with stronger consumer protections,” Weisbrod added. In an upcoming Supreme Court case, 47 state attorneys general filed a brief arguing the FDA is breaking with historical precedent. In fact, in their brief they urge the U.S. Supreme Court to uphold a Vermont Supreme Court ruling that state law forces a drug manufacturer to pay $6.8 million to a Diana Levine, whose arm had to be amputated after she was injected with an improperly-labeled Wyeth drug.

Since 2005, seven federal agencies have issued over 60 proposed or final rules with preemption language in the preamble. During the past year, AAJ submitted numerous FOIA requests that prove the Office of Management and Budget (OMB) had direct involvement in the placement of the “complete immunity” preemption language. In an earlier request, OMB responded that there were no documents. However, emails recently obtained from the individual agencies prove that OMB did indeed discuss preemption with agencies, and in some instances OMB officials wrote the language.

Given this discrepancy, AAJ submitted an expanded request for OMB documents. On September 26, 2008, OMB responded it had identified 146 documents, but refused to release any of them, saying that “the disclosure of these documents would not be in the public interest.”

In piecing together the emails from the FOIAs, AAJ uncovered the cozy relationship between federal officials and the industries they regulate. For example, the pharmaceutical industry intensified its efforts to influence the FDA in the months leading up to the physician labeling rule’s release on January 24, 2006. Much of the lobbying efforts were aimed at Sheldon Bradshaw, who had succeeded Daniel Troy as FDA chief counsel in April 2005.

AAJ obtained emails that list attendees of a meeting between Bradshaw and the Pharmaceutical Research and Manufacturers of America (PhRMA) revealing the FDA chief counsel met with legal representatives from Pfizer, Wyeth, Eli Lilly, Berlex, Organon, Abbott Laboratories, Takeda, Sanofi-Aventis, Serono, AstraZeneca, Cephalon, Millenium, Eisai, Amgen, Astellas, GlaxoSmithKline, Bristol Myers Squibb, Johnson & Johnson, Novartis, Merck, and 3M.

Less than six months after this meeting, the agency would release its final physician labeling rule with complete immunity preemption language in the preamble, a complete about-face from the language in the proposed rule that specifically said the agency did not intend to preempt state law with the rule.

“Big business lobbyists have been on a crusade to destroy state consumer protection laws, and further stack the deck against American consumers,” said Weisbrod.

Obtain a full copy of “Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability.”

View the Wall Street Journal’s article “Bush Legacy Could Be Found In Tort Reform” online.

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As the world’s largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/.

Contact: Cecelia Prewett or Jen Fuson
202-965-3500 x369