Cross-posted from Tort Deform

by Brian Wolfman, Director of Public Citizen Litigation Group

The basic idea of the federal preemption doctrine is easily stated:  It is a constitutionally mandated choice-of-law principle that demands that federal law trumps state law when the two conflict or in the rare instance when the comprehensiveness of federal law on a topic demands no role for state law on that topic.  But application of that principle can be terribly difficult.  It requires that one master its basic tenets -  the Supreme Court's jurisprudence interpreting the constitution's Supremacy Clause from which the preemption requirement flows.  It requires an understanding of the fundamentals of statutory construction, because, generally, preemption turns on whether legislation enacted by Congress expressly or impliedly ousts state law.  And, because present-day preemption issues tend to involve policing the borderline between a federal regulatory scheme and state law-making authority, familiarity with administrative law is often a must.

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By Laurie Beacham, Communications Director, Center for Justice and Democracy

Here at the Center for Justice & Democracy, it seems the efforts to strip injured citizens of their legal rights is unending, and comes in all shapes and sizes.  But sometimes even we're shocked. This time it is courtesy of Halliburton.

Halliburton's subsidiary KBR (Kellogg Brown & Root) is reportedly the largest US military contractor in Iraq. Halliburton has been accused of overcharging the government for food, transportation, fuel and even recreational services. But it gets worse.

Former Halliburton employees told a Senate subcommittee hearing on September 18 that the company knowingly places unarmed civilian truck drivers into violent war zones in Iraq. The hearing addressed claims made in a lawsuit by families of Halliburton employees killed or injured in a 2004 ambush of its fuel convoy on a road near Abu Ghraib prison on April 9, 2004. The tragic event has come to be known as the "Good Friday Massacre." Six KBR drivers were killed, one is presumed dead, and 26 employees were injured.

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Yesterday, Republican Senators blocked Senator Clinton's proposal to fund almost 2 billion for medical treatment for sick 9/11 responders. As reported in NYC's Daily News:

Senate leaders invoked parliamentary rules, saying Sen. Hillary Clinton's (D-N.Y.) amendment to a measure funding port security was not "germane." - NY Daily News

As I have repeatedly explained this past week (1,2,3), the federal government's response to the environmental effect of the WTC Ground Zero site almost precisely follow the profits over safety business model sometimes adopted by corporations.

This recent denial of comprehensive funding by the Senate further supports this characterization of the governmental response. In the wake of 9/11, federal officials downplayed and affirmatively misrepresented the danger of exposure to the WTC Ground Zero site.

I have previously gone into detail about just how reckless federal officials' conduct appears to have been. Others have also provided additional details. Congressmembers are urging criminal that charges be brought against Christine Todd Whitman, the Bush appointed former EPA chief who made the most forceful public misrepresentations that the site was safe. Indeed, A NY federal court recently found that her conduct "shocked the contemporary conscience" and waived the usually granted governmental immunity.

In short, it is clear that federal officials misrepresented the danger at ground zero, and I and others have argued that they did so, at least in large part, to save money.

So, after it is clear beyond a doubt that government officials are responsible for knowingly endangering the public health, this same federal government refuses to pay for the effects of its error.

Why?

How can you not pay to undue a wrong that you committed? Clearly, the EPA can't blame anybody else. Christine Todd Whitman said, and I quote:

"As we continue to monitor air and drinking water in and around New York City, and as EPA gets more comprehensive analysis of this monitoring data, I am relieved to be able to reassure New York and New Jersey residents that a host of potential contaminants are either not detectable or are below the Agency's concern levels....Results we have just received on drinking water quality show that not only is asbestos not detectable, but also we cannot detect any bacterial contamination, PCBs or pesticides."Christine Todd Whitman Sept. 21, 2001.

Even while her agency's own testing directly contradicted that statement.

In her more than 80 page decision, Federal Judge Deborah Batts denied Whitman immunity against the class action lawsuit and said:

"No reasonable person would have thought that telling thousands of people that it was safe to return to lower Manhattan, while knowing that such return could pose long-term health risks and other dire consequences, was conduct sanctioned by our laws....The allegations in this case of Whitman's reassuring and misleading statements of safety after the Sept. 11, 2001 attacks are without question conscience-shocking."

What about the usual conservative mantra of personal responsibility?

What about governmental responsibility?

No, it's too expensive.

As I have said before, this approach to governance follows the profits over safety business model currently being advanced by the tort "reform" movement. An alternative description of this model can be "the political economy of the tort 'reform' movement."

This model is described in detail here, but a summarized version is below.

In short, an entity which makes a decision on account of profits or savings which it knows will likely endanger human life.

However, when human health and well being is negatively affected as the entity knew was likely to occur, this entity cries foul and says that righting this wrong (even if a worthy cause) would be "too expensive."

In denying this 1.9 billion in federal funding for treatment of 9/11 responders, the Republican controlled Congress did exactly that.

I'm tired of hearing about personal responsibility.

Let's talk about collective responsibility.

Let's talk about a responsibility to some of our nation's greatest heroes, as well as to all Americans who are put in harm's way by the reckless choices of government officials.

Let's talk about putting human safety..... over financial safety.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

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My August 11th "Tort Tragedies" piece is now buttressed by a recent ruling in the Vioxx trials. On August 17th:

The jury of eight men said Merck was negligent for failing to adequately warn doctors about the risks associated with the drug. The jury also found that Merck "knowingly misrepresented or failed to disclose" information about the drug to the plaintiff's doctors.

(more click here).....Of course, if you live in Michigan, the only state in which drug companies have successfully pushed through full immunity for all drugs at some point approved by the FDA (even if subsequently withdrawn), you are legally precluded from suing because the FDA previously approved the drug.

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My August 11th "Tort Tragedies" piece is now buttressed by a recent ruling in the Vioxx trials. On August 17th:

The jury of eight men said Merck was negligent for failing to adequately warn doctors about the risks associated with the drug. The jury also found that Merck "knowingly misrepresented or failed to disclose" information about the drug to the plaintiff's doctors.

(more click here).....Of course, if you live in Michigan, the only state in which drug companies have successfully pushed through full immunity for all drugs at some point approved by the FDA (even if subsequently withdrawn), you are legally precluded from suing because the FDA previously approved the drug.

There's more...