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Michael Phelan
Michael Phelan
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Virginia Bus Crash and Coal Company Cases Show Why Tort Reform Would Make Us Less Safe

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Today’s Richmond Times-Dispatch contained a spot on editorial about how the horrible Upper Big Branch mine explosion that killed 29 miners might have been averted "had Massey Energy followed basic, well-tested and historically proven safety procedures." Here’s the entire editorial whidh is entitled, "Mine disaster-The UMW is right":

The more that is learned about the Upper Big Branch mine and the explosion that killed 29 workers there, the worse Richmond-based Massey Energy looks. An independent review concluded in May that the disaster might have been averted "had Massey Energy followed basic, well-tested and historically proven safety procedures." Now comes open word of what was only whispered before. The company kept two sets of safety logs: the real record, for itself, and a whitewashed version for government inspectors.

That, says the United Mine Workers, "demonstrates the utter contempt for mine safety and health laws. . . . It confirms that management knew there were serious problems at the mine, yet chose to hide them from safety officials and the miners themselves."

Just so. Keeping two sets of books was a contemptible, cowardly and vicious thing to do. It inhabits the same low moral plane as the Afghan and Palestinian militants who have tricked young girls into wearing suicide vests that the militants detonate by remote control. In both cases, the more powerful used deception to mislead the less powerful into putting themselves in mortal danger.

We should note here one crucial distinction. No causal link has yet been established showing that keeping two sets of safety logs directly contributed to last year’s disaster. The final report on the disaster at Upper Big Branch has yet to come. Massey has claimed the explosion resulted from a buildup of methane gas due to geologic activity. Earlier reports indicate methane meters had not been tampered with. It remains possible that Massey — which recently was bought out by a rival company — is not entirely responsible for the catastrophe.

"Not entirely responsible," let us note, is different from "innocent."

The problem is that the government does not effectively enforce these "well-tested and historically proven safety procedures." The reasons are many, but a main problem is too many politicians are beholden to business special interest groups. So, every time a government regulator tries to come down hard on a company like Massey Energy, you can bet there will be a host of politicians and pro-business groups with misleading consumer-based names complaining about unnecessary regulation, decrying the United Mine Workers, and using the opportunity to blame lawyers and our civil justice system.

The irony is that it is indeed our civil tort system that is the last line of defense against unscrupulous companies that refuse to obey safety procedures and cheat the system. Most companies do not do this, but some are serial offenders, and our government is paralyzed by chronyism to do much about them.

Another example of the civil tort system having to wield the heavy stick because existing government regulations failed to protect the public is the Sky Express bus crash in Caroline County, Virginia. The bus driver was indicted this week for manslaughter. His wife told reporters that her husband told his Sky Express supervisors before the trip that he was tired and shouldn’t make the bus trip, but the company pressured him to make the trip. He was forced to choose between his job and safety concerns. Sky Express was a serial violator of government regulations regarding fatigued drivers. Like Massey Energy, it too fudged its records to dupe the regulators. It is now sitting back and letting its poor bus driver take the rap.

If federal tort reform passes, it would protect companies like Massey Energy and Sky Express at the expense of the innocent victims who these companies are willing to treat like canaries in a coal mine. The canaries can’t afford lobbyists. So, the lawyers speak up on behalf of preserving the civil justice system. That’s why the proponents of tort reform spend so much time and money attacking lawyers. Their goal is to eliminate your Constitutional right to trial by jury (see the Seventh Amendment to the Constitution). The tort reformers believe the 7th Amendment should apply only to businesses suing each other, and that the regular folks should have an arbitrator appointed by big business who will secretly decide the case. If that’s how you want your rights protected, support tort reform. If you believe the federal government should stay out of our right to trial by jury, vote against tort reformers.

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  1. Mark Bello says:
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    Mike: Great post! The formula is simple: A free system of civil justice = increased safety. The threat of serious damages in serious injury/harm civil lawsuits is the greatest safety tool in America. If damages are sharply reduced in situations like this, corporate types will do a cost-benefit analysis, like Ford did in the 70’s, when Pinto’s started exploded. If the cost doesn’t exceed the benefit, safety will suffer.

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    Tea Party Nation founder Judson Phillips, an attorney and expert on the Constitutionally protected jury system, said it best and simply when commenting on the Casey Anthony verdict: “Trial by jury may be an imperfect system, but it is better than all of the alternatives.” Amen to that! Hopefully more Americans will come to understand and appreciate the wisdom of the jury system.