Clarification and apology for my remarks about Shellie Zimmerman discussion

Monday, September 30, 2013

Good afternoon:

Tzar said something in a comment that inspired me to write this post.

He said,

Hi I am Tzar and I carry hate and contempt in my heart.

I do so because there are -and more importantly, there probably always will be- people and notions in this world that are the reason of why we can’t have nice things. I do so because because there people and notions in this world that we ought to fear and people and notions that we are to hold in disrespect. I do so because it defines the limits of what I find beautiful, what I love, what I find tolerable and insignificant.

I respect my hate and I delight in my contempt because they are very small and sharply defined and because they make me me. Woe unto one who finds themselves in that little box, because it is hard to get in and equally hard to get out (bullies, child abusers and spreaders of hate and disorder are lifetime members).

If I am at risk to be consumed, it is by my love and awe. If I am at risk to be obsessed it is through the task of diminishing yet always maintaining my hate.

I think of hatred as an intense and compulsive form of anger that overwhelms my circuits compromising my ability to perceive what is happening in my environment and to interpret the sensory information in an objective manner. We have learned from observing Trayvon’s case, for example, that bias and prejudice compromise perception. People tend to see what they expect to see or want to see. For this reason, we must be ever aware of the danger of failing to see something in plain view and misinterpreting our environment.

When I hate, I am not living in the moment. I am more likely to make decisions based on assumptions rather than evidence. Hatred impairs judgment, in other words.

I realized long ago that I had to figure out how to manage my emotions, if I was going to be an effective trial lawyer. By managing emotions I do not mean suppressing them. Suppressing emotions is unhealthy because it requires considerable energy and it deadens us to experiencing life.

Emotions come and go relatively quickly and an effective way to manage them is to develop the ability to change mental focus.

Baba Ram Dass emphasized the importance of being in the moment when he advised people to “be here now.” I agree.

If we are focused in the moment, we are plugged-in to our senses and less likely to miss something important like an approaching train.

Tzar believes some things like racism deserve to be hated. I agree in the sense that some beliefs and actions merit universal condemnation. Racism is one of those things.

I choose not to hate racism or a racist because I already condemn them. Hating them does not make them go away. Hating only hurts me by dissipating my energy and clouding my focus.

Hating is what racists do and I condemn them because they do that.

I do not want to be like them.

I believe some people misunderstood what I meant regarding Shellie Zimmerman. I did not intend to minimize what she said or did. I agree that her behavior protecting her husband, lying to the court about his assets at the bond hearing, and her participation in the devious scheme to falsely claim that Tracy Martin threatened someone in the Zimmerman family in order to persuade Judge Nelson to exclude Tracy Martin from the courtroom was wrong and reprehensible. I also suspect that she is racist and her chuckle regarding her husband’s comment about wearing a hoodie when he was released from jail was particularly insensitive and offensive.

No one should assume that I have approved of anything she said or did before she decided to divorce her husband. I have stated that her public statements and conduct in the case are consistent with the behavior of an abused and battered spouse. I also said that actions speak louder than words, so I am reserving judgment about her until we see what she does.

After reviewing my statements this weekend about Shellie, I realize that I did not clearly express myself. Therefore, I apologize for the confusion that I caused.

Finally, I still believe that she is a minor character in this tragedy. I said and still believe that the tone of many comments rejecting the possibility that she was a battered spouse was insensitive and disrespectful of the comments and feelings of many of our readers who have recently admitted that they were abused. I wanted that to stop.

Again, I thank Tzar for his thoughtful comment that inspired me to write this article.

______________________________________________________________________________________________________

Hello, everyone.

Producing articles and maintaining this blog requires substantial time and effort. Please take a moment and consider making a donation.

As you depend on us, we depend on you.

We need your help!

Namaste,

Fred and Crane

The Importance of Laughter

Sunday, September 29, 2013

Good afternoon:

With so little good news lately and our government poised to lay off 800,000 employees, one could be forgiven for reaching for the razorblades. So, I decided to to post something lighter.

This is Chapter 22 of my non-fiction book, Namaste: If Not Now, When?

The Importance Of Laughter

Just as perfection never is attainable, becoming a warrior is a never-ending developmental process. A key part of that process is laughter, particularly the ability to pop your bubble of self-importance by laughing at your own know-it-all self. Since I am married to Crane-Station, I do not have to worry about deflating my sense of self-importance, as she manages that chore rather well, ahem! And I do laugh, although not always at first.

The Mullah Nasruddin was invited to deliver a sermon. When he reached the pulpit, he asked the people,
Do you know what I am going to say?

They replied “no.”

“I have no desire to speak to people who don’t even know what I will be talking about!” the Mullah said, and he turned his back to the people and left the building.

Feeling extremely embarrassed, the people invited him back the next day. This time, when he asked the same question, they replied, “yes.”

Nasruddin said, “Well, since you already know what I am going to say, I won’t waste any more of your time!”
As he had done the previous day, he turned and left the building.

Now the people were really perplexed. They decided to try one more time and once again invited the Mullah to speak the following week.

As expected, he asked the same question, “Do you know what I am going to say?”

The people were prepared, so half of them answered “yes” while the other half replied “no.”

Without missing a beat, Nasruddin said, “Let the half who know what I am going to say, tell it to the half who don’t.”

Then he turned and left the building.

A warrior does not know when Death is going to reach out and claim his physical form. Therefore, he assumes that it can happen anytime. With that in mind, he decides what to do and when to do it focusing all of his attention, energy, and will on acting impeccably while he is doing it.

There is no time for remorse or second thoughts. A warrior accepts full responsibility for all of his decisions because he is literally ready to die for them.

He never sees himself as a victim and never wallows in self-pity.

He is never bored, resentful, helpless, bewildered or frightened.

Instead, his acts are focused and powerful because he never wastes energy or time reacting to what others say or do.

He never makes excuses because he understands that excuses are irrelevant and unnecessary when he does his best.

For a warrior there is time only for his impeccability.

Everything else drains his power; impeccability replenishes it.

He controls his destiny and he is happy and free because he is in charge of his life.

Because of the relationship he chooses to have with his death, he knows that no decision he makes is more or less important than any other. They are all important because each one might be his last.

Because of his focus and detachment, however, he also understands that they are all equally unimportant.

He sees his own imperfections and self-importance and he acquires power by laughing at himself. As he does, he sees imperfections and self-importance in others and their clueless pretensions, disorder, and confusion until one day when he realizes he has forever transformed and can never go back.

A renowned philosopher and moralist, who was traveling through the Mullah Nasruddin’s village one day, stopped and asked him where there was a good place to eat. Nasruddin suggested a place and the scholar, hungry for conversation, invited Nasruddin to join him. Much obliged, Nasruddin accompanied the scholar to a nearby restaurant, where they asked the waiter about the special of the day.

“ Fish! Fresh Fish!” said the waiter.

“Bring us two,” they answered.

A few minutes later, the waiter brought out a large platter with two cooked fish on it. One fish was quite a bit smaller than the other.

Without hesitating, Nasruddin speared the larger of the fish and placed it in on his own plate.

The scholar, giving Nasruddin a look of intense disbelief, proceeded to tell him that what he did was not only blatantly selfish, but that it violated the principles of almost every known moral, religious, and ethical system.

Nasruddin calmly listened to the philosopher’s extemporaneous lecture patiently, and when he had finally lapsed into a ruddy silence, Nasruddin said,

“Well, Sir, what would you have done?”

“I, being a conscientious human, would have taken the smaller fish for myself.”

“And here you are,” Mullah Nasruddin said, and placed the smaller fish on the gentleman’s plate.

______________________________________________________________________________________________________

Hello, everyone.

Producing articles and maintaining this blog requires substantial time and effort. Please take a moment and consider making a donation.

As you depend on us, we depend on you.

We need your help!

Namaste,

Fred and Crane

Open Thread about anything except Shellie Zimmerman

Saturday, September 28, 2013

This is our 692nd post.

Namaste to all who enter here.

We Can Do This

by Crane-Station for Frog Gravy

Ducks, jail art by Crane-Station on flickr. Colored pencil and magazine ink.

Jail art by Crane-Station on flickr with comment:

For Dad. Wild Turkey. We have these beautiful birds here. I was not really able to finish, because they turned the lights out, and because I do not have the correct colors (such as rust). Turkeys have been nearly wiped out by unrestricted hunting and land development. Some programs are bringing them back. They roost in trees, but like to run on the ground.

note: Frog Gravy is a nonfiction incarceration account.

Frog Gravy contains graphic language.

McCracken County Jail, Cell 107, early 2008

The social worker tells me that I am angry, and that I need to not be angry, and that I need to accept my situation like everyone else does, and I need to stop writing, because no one reads anything that I write anyway, because no one cares. She is referring, I assume, to the many letters that I write regarding jail conditions. I listen to her for a bit, and then decide that I would rather be back in the cell. I end the meeting. I continue to write.

I keep my writing to myself and I quit talking about the letters.

In the cell I wear a towel on my head and babble to myself endlessly, in my mind. Maybe the towel keeps others from hearing these conversations. The other me, the one I babble to, is elegant and strong and graceful, and says all of the right things to all of the wrong people. Things such as ‘I respectfully disagree,’ and ‘No, thank you,’ and ‘I am sorry but I cannot support you and your commissary habit in here,’ and ‘I will continue to write because it gives me meaning and purpose at the moment,’ and ‘Excuse me, do you think you could quit screaming for just a few moments, because I am finding it difficult to concentrate.’

However, it is not the other me that is in jail. It is me.

Sirkka is the new arrival. After introductions, she says to me, “Never take anything to trial in McCracken County. Everyone knows that.”

Sirkka is tiny, just 4’8,” and she drives me nuts in an endearing, pathetic sort of way. I want to hug her. I want to kill her.

She does not want to put clothes on and strolls about the cell half-naked, in bra and panties, talking at an indecipherable speed. Sirkka has an eating disorder. It reminds me of what I used to be and so, maybe this is why she annoys me. Her behavior is actually good for me because it reminds me of the horror of food binges and scamming for food at every opportunity. For a while, she convinced the staff she was pregnant because pregnant women get extra trays, but when the staff figured out that she was not pregnant, they placed her in the hole for a bit, and then back in the cell.

Today at breakfast, before I even sit down, she says, “Are you gonna eat that?”

“Here. Take the whole thing,” I say.

Down the hall, Harry screams from his isolation cell, “Somebody help me! Pleeeease! Let Me out! HELLLP! HELPmehelpmehelpmehelpme, PLEASE!”

Sirkka collects six sausages, five pieces of toast, two milks, and three servings of Fruit Loops. At lunch, four corn dogs, two helpings of corn, and three pieces of cake. The only thing I asked her for was one serving of applesauce but she would not give it up. She weighs 105 pounds, and has gained 30 pounds to get there; that is a 30 pound weight gain in a month. At this rate, she will be obese by May. That can happen in here. I met an inmate who gained 150 pounds in a year in jail. She had given up.

On one of the rare occasions that we do get to visit the outside cage for recreation, I cannot believe this, but Ruthie and I are the only ones who want to go outside.

Christie and Sally both claim that going outside briefly is actually more depressing than staying in the cell. I am worried about Christie. She stays on her bunk and cries all the time now. She says, “I just can’t help it, I just feel so bad inside.”

“Come on Christie, let’s just get out for a minute,” I say. “You’ll feel better. Tina, you too. Come on you guys. We’re going out. It’ll be all right. You’ll see. When we get back we’ll watch ‘Lost.’ I’ll even comb your hair Christie. Come on, we can do this.”

We go. In the outside cage Sirkka strips down to her bra and stands at the door, hoping a Class D male will walk by. Christie sits in a chair, silent. Tina takes a book and seats herself next to Christie. I stand in a corner and look up. The sun is shining. I shield my eyes.

I listen for a bird.

Freaks Share Thanksgiving Dinner

by Crane-Station for Frog Gravy

Umbrella Cockatoo pair by Crane-Station on flickr. Jail art from Ricky’s World. Colored pencil, magazine ink and ink.

Frog Gravy is a nonfiction account of women’s incarceration in Kentucky jails and prison, in 2008 and 2009, and is reconstructed from my notes.

Inmate names are changed, except for my own, and for nicknames that do not reveal identity. My prison nickname was Bird Lady.

Frog Gravy contains graphic language.

Pe Wee Valley Women’s Penitentiary (KCIW) near Louisville, KY, Thanksgiving, 2008.

Freaks Share Thanksgiving Dinner

After my release, I continued my compulsive note-taking, but since I was unemployable I could not afford to buy paper, so I dove a dumpster and retrieved a spiral notebook with blank paper it it. The notebook belonged to a local college student. In the side pocket was a beautiful restaurant menu composed by the student, for a culinary class. I enjoy the imaginary dinner from time to time in my mind.

The menu says:

First Course

Lobster and Maryland Crab Timbals
Fresh Maine Lobster and Jumbo Lump Crabmeat
Presented in a tower with mango pearl couscous,
strands of orange zest, sprigs of fresh dill and infused lemon oil,
presented with cucumber and radish pearls, blood orange slices and fresh lobster claw

At approximately the same time the student was composing his culinary opera, I was having Thanksgiving dinner with Lexie, Olivia and Sarah, in the penitentiary, compliments of the State of Kentucky and Aramark. I have no idea what a timbal is, but let’s say for fun that we had timbals of turkey, with unsalted mashed potatoes resurrected from a storage unit in a foreign country most likely and congealed, pearled gravy that reminded me, oddly, of either ZZ Top or my high school days in the backseat (or was it the front?) of a car. They serve gravy on everything in the penitentiary.

For the strands of orange zest, I went ahead and ate the entire orange, including the peel, because I had not had a fresh piece of fruit in nearly a year.

It took us quite a while to get to the penitentiary restaurant, where we did not have reservations, because I had to push Olivia in her wheelchair, and Olivia is surprisingly heavy. Olivia is diabetic, and had a stroke while she was in jail. The jail staff claimed she was faking it, and so she laid on the cement in her own drool and urine for like, three days, before she made it to prison. But first, they shackled her and prodded her to an awaiting van, just as they did me for my Hannibal Mammogram, only Olivia, who is eighty years old, is not quite as spry as I am, and so she fell getting into the van and permanently injured her knee.

Olivia has little use of her right side, so she cannot push her chair or bus her tray. She relies on inmates to get to and from appointments and meals, and since she is housed in the same dormitory as I am, which is Ridgeview Dormitory (the farthest dormitory from the dining hall, I might add), I will push her to this wonderful meal of thanks that we share.

Over the river and through the woods to grandmother’s house we go. Past all the inmate chit chat such as, “Oh yeah. She done got sent to cell block for mailing pussy hairs to her boyfriend,” and “…bitch just starts hittin’ me for no reason.”

La-la la laaa. Over the river and through…

Olivia has no teeth. Her face droops from the stroke, so it’s a little hard to understand her. She is in prison for forging a prescription for a dying friend, and I ask her what medication it was, and she says, “I think it might have been some red pills.”

I help to push and serve Olivia, and make sure she gets her evening diabetic snack to take back to Ridgeview Dormitory. She is indigent and cannot afford hard candy, so low blood sugar is just a risk she lives with, in prison.

Back to our culinary student:

Second course

Herb and spice roasted tenderloin
Tenderloin of beef rubbed with a blend of fresh rosemary, thyme, garlic, bay leaves, shallots, orange zest, sea salt, black pepper, nutmeg and cloves, slow marinated, roasted, sliced and served over pearl onions and button mushrooms with a pan reduction sauce finished with red wine, brandy and butter. Green and white asparagus and oven roasted tomatoes; small potato ramekin with yukon potato, sweet potato and sweet onin with parmesan cheese.

Good grief. It’s Whole Foods on steroids. Here in prison we are on our second course: stuffing. Stuffing and cranberry sauce are the best part of Thanksgiving, and I am truly thankful because we have both. Plus, the stuffing even has flecks. If you mix the cranberry sauce with the orange peel in your mouth, you are as good as in your childhood home, with your mother’s unrivaled cornbread stuffing, made in an iron skillet with bacon grease. And oysters. I could eat a whole skillet of that, and then retire to an afternoon of walking in the woods, followed by watching college football.

Lexie is about my age, and she is mostly deaf, so you have to face her directly to speak with her, so she can read your lips. She seems to have a thyroid disorder that makes the eyes protrude a bit, the name escapes me, but it adds to her overall anxious appearance. Lexie got kicked out of drug court and is serving out a ten year sentence. Her addiction of choice was gambling and not drugs, and her original charge may have been for petty theft, but I am not sure. At any rate, during her drug court days, someone spotted her on the boat. I had no idea why it would matter that she was on a boat to start with, but apparently, in this area, they have river boats that people gamble on, and so someone called in their observation to the police, and her drug court was revoked, and now she is serving more time than she could have ever imagined, and that is, I think, ten years.

Lexie cries all the time, and she becomes so upset that she cannot complete Thanksgiving dinner with us, and so Robin, the inmate who swallowed razor blades upon admission to the prison, accompanies Lexie back to her dorm.

Sticky toffee pudding with caramel sauce
An individual moist dense dried fruit pudding with a
crunchy toffee crust served with caramel sauce, macadamia
nut toffee brittle shards,
spun sugar, served with dolce de leche ice cream.

You know what. This guy deserves an A, don’t you think?

Pass passion fruit, white pepper and tarragon dark chocolate truffles.

Sarah and I enjoy our desert of pumpkin squares, and I am planning Thanksgiving dinner for my birds as well, so I hide some crumbs for my beautiful little bird troupes, and this will be the highlight of my Thanksgiving. Had I not come here, I would not have these birds to share thanks with.

Sarah killed her brother-in-law in a car accident where she was driving. Her blood analysis showed just about everything but the kitchen sink. Sarah and I will become close friends in prison. She is the one whose father will commit suicide the day after Christmas, but I will not get to spend much time with her because her sentence, three years, is so brief compared to mine.

The last item on this menu is curious.

It says:

“To-go outside later at the buses.”

Hate and rage have no place in our hearts or in our blog

Friday, September 27, 2013

Good morning:

Hate and rage have no place in our hearts or in our blog.

No one is perfect and everyone makes mistakes.

Some of our mistakes are intentional and some are not.

Maybe Shellie Zimmerman is a sympathetic human being slowly emerging from a fog of abuse or maybe she is a grifter attempting to even up the score with a grifter husband who dumped her. Maybe she is a mixture of both. Regardless what we believe, the truth will be revealed as we watch from afar.

Shellie is at a crossroad in her life and we can only watch as she chooses what to do.

She is what she is and she will be whatever she decides to be.

Whatever choice she makes for whatever reason should have little or no impact on our lives.

Instead of shrieking at her, why not thank her for exposing something in us that we may need to own and decide to change?

Have we not been taught to believe in redemption, rebirth, tolerance, love and forgiveness?

Why not light a candle in your heart for her and offer a prayer that she makes the right choice?

Are there not far more important matters than Shellie Zimmerman’s life decisions going on in the world that have real life consequences to each of us?

For example, the United Nations Climate Change Report will be released today.

Think on this:

The Lord is spirit: and where the Lord’s spirit is, freedom is. The veils no longer cover our faces — we all behold the glory of the Lord and are transformed into his image from one level of glory to another; and this comes from the Lord, who is the Spirit.

2 Corinthians 3 :17-18

Peace be with you.

Namaste

Is Shellie Zimmerman wavering

Thursday, September 26, 2013

Good afternoon:

This just in:

Crane and I have errands to run this afternoon.

(H/T to Two sides to a Story for the link)

______________________________________________________________________________________________________

Hello, everyone.

Producing articles and maintaining this blog requires substantial time and effort. Please take a moment and consider making a donation.

As you depend on us, we depend on you.

Namaste,

Fred and Crane

SCOTUS disingenuously denies a remedy to a woman horrifically disfigured by Sulindac

Thursday, September 26, 2013

Good morning:

I write today to supplement Crane-Station’s excellent article yesterday, SCOTUS Shields Generic Drug Manufacturers From Liability.

The conservative majority of the Supreme Court of the United States (SCOTUS) recently denied a remedy to Karen Bartlett, a woman horrifically disfigured by the generic drug Sulindac by using a hackneyed interpretation of the Supremacy Clause, the doctrine of preemption from which it flows, and the Food and Drug Administration Act that was passed by Congress to provide protection to consumers, in addition to common law remedies, from injuries caused by drug manufacturers.

Time to take a quick tour of the legal doctrine of strict liability, which was the basis for liability imposed on Mutual Pharmaceutical Co., the manufacturer of Sulindac, the generic drug for Clinoril, in the Karen Bartlett case that Crane wrote about yesterday.

The origin of the idea for imposing strict liability (i.e., without the necessity of proving fault) on the manufacturer of a defective product that causes injury to a person can be traced back to Justice Roger Traynor’s concurring opinion in Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 (1944). He said,

Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.

The plaintiff in Escola was employed as a waitress in a restaurant when she was injured by an exploding bottle of Coca Cola that she was putting away. The exploding glass bottle severed the blood vessels, nerves, and muscles of the thumb and palm of her hand.

In an opinion written by Justice Traynor, a majority of the California Supreme Court formally adopted the doctrine of strict liability in tort in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (1963). In this case,

Plaintiff brought this action for damages against the retailer and the manufacturer of a Shopsmith, a combination power tool that could be used as a saw, drill, and wood lathe. He saw a Shopsmith demonstrated by the retailer and studied a brochure prepared by the manufacturer. He decided he wanted a Shopsmith for his home workshop, and his wife bought and gave him one for Christmas in 1955. In 1957 he bought the necessary attachments to use the Shopsmith as a lathe for turning a large piece of wood he wished to make into a chalice. After he had worked on the piece of wood several times without difficulty, it suddenly flew out of the machine and struck him on the forehead, inflicting serious injuries.

Explaining the rationale for imposing liability on the manufacturer of Shopsmith, Justice Traynor reached back to his concurring opinion in Escola and said at page 64,

The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Sales warranties serve this purpose fitfully at best. (See Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099, 1124-1134.) In the present case, for example, plaintiff was able to plead and prove an express warranty only because he read and relied on the representations of the Shopsmith’s ruggedness contained in the manufacturer’s brochure. Implicit in the machine’s presence on the market, however, was a representation that it would safely do the jobs for which it was built. Under these circumstances, it should not be controlling whether plaintiff selected the machine because of the statements in the brochure, or because of the machine’s own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the jobs it was built to do. It should not be controlling whether the details of the sales from manufacturer to retailer and from retailer to plaintiff’s wife were such that one or more of the implied warranties of the sales act arose. (Civ. Code, 1735.) “The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.” (Ketterer v. Armour & Co., 200 F. 322, 323; Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 282 [93 P.2d 799].) To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.

Ironically relying on a hackneyed interpretation of the Supremacy Clause of the U.S. Constitution and the doctrine of preemption that activists for state’s rights fiercely decry, Justice Alito and the four concurring conservative justices (Roberts, Scalia, Thomas and Kennedy) of the United States Supreme Court in Mutual Pharmaceutical v. Bartlett, basically ignored the merits of Justice Traynor’s sound reasoning and told Karen Bartlett to go pound sand despite her devastating injuries and a $21 million verdict against Mutual Pharmaceutical.

Despite congressional intent to provide protection to consumers, in addition to common law remedies, when Congress passed the Food and Drug Administration Act, the SCOTUS held that common law remedies were preempted by the Act thereby denying injured consumers like Karen Bartlett a remedy.

In a word, the decision is shameful.

Congress can fix the problem by amending the statute, but there is little chance that will happen with this deadlocked and useless Congress.

______________________________________________________________________________________________________

Hello, everyone.

Producing articles and maintaining this blog requires substantial time and effort. Please take a moment and consider making a donation.

As you depend on us, we depend on you.

Namaste,

Fred and Crane

SCOTUS Shields Generic Drug Manufacturers From Liability

by Crane-Station
cross posted at Firedoglake/MyFDL

In July of this year, The Supreme Court of the United States (SCOTUS) issued an Orwellian 5-4 opinion that shields generic drug manufacturers from liability for harm caused by generic ‘equivalent’ drugs. Karen Bartlett, a New Hampshire resident, sued a generic drug manufacturer after the drug caused permanent disability and disfigurement. After Ms. Bartlett emerged from a coma, she endured thirteen surgeries, and remains legally blind. Justice Alito, who authored the majority opinion, called her situation “tragic,” but then essentially told her and all others in her life-altering situation to go pound sand.

To put it mildly, this SCOTUS decision is horrendous, because it leaves people like Karen Bartlett and others, who are harmed by generic drugs no recourse whatsoever. As Justice Sotomayor states in her dissent:

If manufacturers of products that require preapproval are given de facto immunity from design-defect liability, then the public will have to rely exclusively on imperfect federal agencies with limited resources and sometimes limited legal authority to recall approved products. And consumers injured by those products will have no recourse.

What Justice Sotomayor is saying in her dissent is that when Congress passed the Food and Drug Act, it meant to protect people; it did not pass a law that says one has no remedy when harmed, by removing any basis for a lawsuit in the state courts.

However, the majority disagreed, relying on the supremacy clause to flip the bird both to state courts and to victims of harm. SCOTUSblog explains ‘in plain English:’

In this case, the label in question did not mention the side effect that caused the injury (which took the form of third-degree burns on much of the plaintiff’s body). The answer is that the plaintiff cannot sue the manufacturer. Because the FDA has approved the product and the label, the state court cannot impose damages for harm from using the product.

Ironically, had Ms. Bartlett taken the brand version of the same drug (Clinoril, marketed by Merck), she could have sued Big Pharma, when she suffered from Stevens-Johnson Syndrome, the life-threatening skin condition that she contracted after taking sulindac, the generic version of Clinoril. In an article titled Supreme court rules it’s o.k. for drugs to hurt you, Eric L. Zielinski explains:

In March 2009, the Supreme Court ruled that consumers could sue Big Pharma companies for damages if they were harmed by brand-name drugs.

Directly going against this historical landmark decision, the Court’s decision against Bartlett surprisingly gives generic drug companies a new-found immunity. However, this is not the first time the Court has ruled against common sense and integrity.

According to L.A. Times, “The court has now handed down two rulings that have closed the door to lawsuits from people injured by a generic drug.” With 80 percent of FDA-approved drugs on the market being made by generic sources, this puts most Americans at an unreasonable risk of being harmed and having no retribution.

(my bold)

The Elephant in the Room: Brand versus Generic

What is not addressed in the SCOTUS ruling is this elephant in the room: While generic drugs may contain the same key ingredient (in some amount) as the brand drugs, nobody purchases a generic drug because it is more effective than the brand version. People purchase generics because they are cheaper. Often, these generics are less effective or even ineffective. As David DiSalvo of Forbes explained in October of 2012:

For years we’ve been told that generic drugs are equivalent to brand names in every way that matters. Well, guess what, that’s not necessarily so; the Food and Drug Administration (FDA) just pulled a generic for the antidepressant Wellbutrin off pharmacy shelves for not being as effective as the brand name.

Are you surprised? I am not. I suffer from debilitating migraine headaches, so when the drug I take to abort these headaches (Imitrex) came off patent, making the cheaper generic version available, I was elated. However, effectiveness of the generic version of Imitrex is not the same as brand. Just last month, I ended my relationship with CVS pharmacy, because they sold me sumatriptan (generic Imitrex) that not only was ineffective; it made the headache worse. When I reported my experience to the pharmacy, they refused to look into it.

Victoria L. Dunckley, M.D. reported for Psychology Today in 2012:

I recently met a rep from a well-known chemical company (whose name I won’t mention) who had traveled to India to visit their generic drugs plant. “Let me tell you something,” she said. “Anyone that says that generic drugs are the same as brand name is lying.” She went on to tell me how appalling the plant conditions were, and that there were major safety and contamination concerns.

With this SCOTUS ruling, generic drug manufacturers are off the hook. What is extra appalling is the transparent double standard that once again favors the rich. If you are wealthy enough to purchase brand-name drugs, remedy is available through state court, in case of a harmful drug-related event, but if you are not all that well-off (and that includes the 80 percent of America that consumes generics), and you experience a generic drug-related harm, there is no remedy.

note: The history, analysis, events, opinion and related opinions of this case (Mutual Pharmaceutical Co. v. Bartlett), including the Petition for Certiorari and briefs are available here. The “80 percent” number, and other statistics on pharmaceutical spending are in the report titled The Use of Medicines in the United States: Review of 2011, by IMS Institute for Healthcare Informatics.

Also, at the end of the video is a link, with more information.

Is White Supremacy the White Knight of Capitalism

Wednesday, September 25, 2013

Good evening:

Every once in awhile I come across an interesting article that I want to share with our readers. Here’s an article by Michael Ortiz that was published at Truthout, titled, The Age of Hyper-Racism: White Supremacy as the White Knight of Capitalism. He holds an advanced degree in sociology. He works on equitable diversity initiatives for college institutions and writes about issues that focus on consciousness raising and empowerment.

What do you think?

Fred