Most of you likely think this substance has been banned by now. Many of us recall the scandal of so many military personnel exposed to it at naval bases, on ships etc. Flame resistant, we chose it as a form of insulation for hot water pipes. School teachers recall ceiling tiles composed of the stuff. No, it has not been banned. Its use in this country has been greatly reduced but is still likely to be found in the brakes of your car or some other product you’ve not suspected. In fact, you may have it in your home but not realize it because many real estate deals included indemnification clauses (“I don’t know if it’s there and you can’t sue me later on if it turns up or you get cancer. So there!”).

Perhaps you know its encasing your older pipes but don’t realize it’s reached the friable stage requiring removal. I once rented a house on Long Island, only to find it all over the basement on my first day there. I camped out in the yard that month until I got a new place. Conditions were such that the home couldn’t be rented again until professional remediation was performed and the owner was very regretful. Probably more for her expense than my enforced period of camping but that’s the real estate game for you. Luckily for me, it was high summer. And it was just a little hurricane. I’ve never looked at the phrase, “Shelter from the storm”, in quite the same way since then.

This isn’t in the least funny. Nothing is more vital to our well-being than our dwellings. The substances in our homes, offices, schools and libraries; our clothing, food, fuels and other accouterments to our lives can contain some appalling materials. When are we going to take it seriously enough to hear all of those voices calling to us that they are literally ‘sick to death’ of vendors being allowed to sell frankly lethal products? We pay the costs of the associated losses in health care expenses, lost work productivity and benefits to survivors of those who die in the cause of what is mistakenly referred to as a ‘free marketplace’. NOTHING comes free. Everything comes with some responsibility attached to it and freedom of choice isn’t one of them when you are forced to ingest, breathe and absorb toxic materials.

While this post interrupts the thread on litigation, just look at what Jim Morris has to say about the legal costs of asbestos related suits. Not quite so unrelated as it might seem.

My commentary on this pieces was as follows:

Thank you for this analysis which infers a great deal about what Americans are prepared to tolerate in this country at our own expense. First, why is any asbestos still being sold today when we’ve known of its lethal properties since the sixties? Few consumers even know this substance is in current use in their cars. Apart from risk to workers, are fibers entering cars through vents or being inhaled on the streets by pedestrians?

Many real estate rental/sale agreements include indemnities for asbestos and chlordane contamination in a property. Why wouldn’t an owner be required to know about these two, potentially lethal conditions in their homes? I’ve personally tested residences with high levels of chlordane shown to be present and asbestos has no safe level of exposure at all. If consumers shared responsibility for acquiring property contaminated with such substances, a ban would be in high demand. Mortgage companies should be asking for proofs of this type just as they do for termite inspections. Invisible property damage exists if building conditions will produce illness in some of its occupants.

We must also ask the identities of those companies still marketing asbestos ‘aggressively’ overseas so we can boycott them. Such willful imposition of harm upon their customers would seem to make any of their products suspect in terms of safety. Under capitalism, consumer dollars should only reward the makers of the best products which means we all have an obligation in such matters.

Another trail of money to follow is in legal costs. This article cites industry losses of 70 billion in total, with 49 billion to victims and lawyers. Why don’t we have a registry for claims requiring medical proof alone and a basic judicial review? This would end costly court battles as lawyers are currently occupied with re-try the same cases over and over again and take large percentages of awards from needy victims. Lawyers would then be available to take more complex claims for those who might be excluded from the expedited process as well as fight new battles on the consumer health front.

That would save billions of dollars and likely make bans on patently harmful products more desirable.

Barbara Rubin

(Part 1, ‘Forgetting the Principles’ is here)

By now, you’ve gotten your cup of hot, McDonald’s coffee as suggested at the end of my last post on litigation. Our court system was designed to compensate victims and rectify social injustices in America. These principles have been immortalized in songs like Neil Young’s “Southern Man”. However, the latest views of litigants has been concisely expressed in a country song written by West and Pahanish, (and sung by Toby Keith). This proclaims that America is so quirky, one can ‘Spill a cup of coffee and make a million dollars‘. Has litigation come to this? Instead of resolving society’s ills, it represents nothing more than greed? Since my specialized diet doesn’t permit me to eat in restaurants, I just made a call to a local branch of the McDonald’s restaurant chain. This company, sued when a woman suffered burns from spilling a cup of their coffee, does have warnings on their coffee cups. The employee answering the call humored me and read it out over the phone. It says, “Caution: Handle with Care – I’m Hot”. Here it is, captured in glorious technicolor.

Well, “D’uh”, as the kids say, appears to be the only appropriate response to that statement.

If you’re like millions of typical consumers, you’ve probably heard that a woman was burned when her coffee spilled and filed a law suit, an effort for which she was richly rewarded. That sparse, partial truth would tend to make us believe this was just another sign of greed on the part of litigants; slackers who search the globe for incidents they can take to court for personal gain. However, laughing at this suit before reviewing the actual facts is akin to drinking another beverage. That one is called ‘Kool Aid‘—a drink forever associated with people buying into harmful myths about their cultural groups.

Interestingly , the facts about this infamous suit against McDonald’s were presented for our consumption the Wall Street Journal (WSJ), well versed in the American corporate culture. Their account was written in defense of this litigant and against the company deemed by the court as having been reckless. Considering the WSJ to be a highly reputable source for these facts, their 1994 review of this matter was my primary source for this discussion and additional confirmations/details are offered by attorney Jon Mitchell Jackson, here.

To summarize: An elderly woman suffered extensive third degree burns within seconds of her coffee hitting her lap while seated behind the wheel of her car. Most adults would have a reasonable expectation of discomfort from the spillage of a hot beverage and accept mild to moderate burns as the natural consequence for such carelessness. However, such a spill should not cause the kind of damage seen in this case, requiring hospitalization and skin grafts. Patrons of this establishment have no idea that their brew is supposed to be maintained at or above 180 degrees, well above the temperature required to cause severe burns in very little time.

The article revealed that McDonald’s acknowledged this fact but considered the number of people who would be injured as insignificant. In keeping with this casual view of their casualties, they doled out more than a half million dollars in settlements to those customers deemed ‘deserving’ among the 700-plus complaints received about their coffee temperatures. In one startling bit of insight into this kind of corporate stance, the defense felt the woman’s advanced age made her skin more likely to sustain severe damage, thereby mitigating their responsibility. Isn’t the whole, ‘blame the victim’ thing going too far when you consign genetic diversity, age, and sex to the status of faulty human engineering (how dare that woman grow old!)? Perhaps the warning on the cup should read, “Caution: Contents potentially damaging to people over 70. Drink it while young and in full possession of your recuperative powers.”

Are you still waiting in line to purchase this particular brand of corporate Kool Aid?

Myths cannot support a population yet they are created because someone profits from them. Sustainable social and economic development requires an acceptance of reality. We prefer our myths even though their origins don’t rest in divinely inspired prose. Madison Avenue appears to have inspired most of this rhetoric. The myth of the free marketplace is just that, because markets were meant to serve humans in all our glorious strengths and weaknesses. Instead, human characteristics are ignored by corporations engaging in bad behavior for reasons of frank greed. Wasn’t McDonald’s able to generate healthy profits from a more temperate brew? Profits made from companies imposing heavy risks to their consumers can inflate those profits and yield a form of corporate obesity. Boards of directors may find it satisfying but the general population sustains inordinate levels of damage from hazardous goods and services when corporations choose to grow fat instead of strong. The culture of ‘never enough’, affects us all.

Risk taking behavior by our human citizenry should certainly be acknowledged. Perhaps we ought to consider whether it is careless to drink hot beverages in one’s car where movement and divided attention increases the probability of a spill. The jury reduced this woman’s award by twenty percent in recognition of individual responsibility. However, when you purchase a cup of coffee via the ‘drive-through’ window of a restaurant, one assumes the safety concerns to be no different than prior experience would indicate. The company could discourage such activity by informing customers of the unusually high beverage temperature or simply by requiring consumers to buy their coffee indoors.

The current warning on their cups insultingly maintains the joke that consumers are too dumb to apprise their own risks. It takes some degree of self-confidence and educational background to register a complaint when everyone around you is saying, “Of COURSE it’s hot, Stupid!” So this warning doesn’t educate but rather humiliates genuine victims and prevents us from demanding the information being intentionally withheld from us in commerce. We deserve to know what it is we are paying for in any transaction. Otherwise the commercial contract should be considered invalid because the terms aren’t clearly delineated. Cite the temperature on the cup or menu listing and then we’ll take it from there in terms of choosing safety or opting for optimal aromatic value. Frankly, I’d want also want to hear from a specialist in gastrointestinal medicine about the wisdom of ingesting foods above certain temperatures. However, that is for me to research once I’ve been ‘warned’ of unexpectedly high cooking temperatures.

Consumers are fortunate this woman didn’t suffer in silence. That is the custom of many stoic Americans, accustomed to being dismissed as whining wimps for needing access to medical care or objecting to the inclusion of carcinogens in our soaps. This is particularly true of women and members of minority groups. Complaining is yet another invitation to the dismissal of our competency to participate fully in American culture. Nor did this woman settle for the dismissal of her most reasonable request for compensation by the company before filing her law suit. That modest eight hundred dollars requested to cover medical bills and some of her suffering would also have left us in ignorance of how corporations have become the model of American citizenship. It is a testament to the fact that reasonable adults are willing to negotiate their problems outside of a court room. However, in this case, the other ‘party’ was made of paper, lacking the same anatomical vulnerabilities as the plaintiff, couldn’t ‘empathize’.

Thank goodness an experienced lawyer was willing to conduct a competent investigation into the problem. Professional competence overtook the overconfidence of privilege in the matter lacking any rational foundation for it’s policy and for failing to recognize the harm they brought to this particular person. This lawyer’s careful scrutiny of the circumstances enlightens all of us about our need to scrutinize companies for their role in providing us with needed goods and services in good faith that the benefits and risks are clearly understood by their customers. Since we can’t trust our institutions to be honest with us, having public records of legal settlements would certainly reduce the number of people who are injured through hazardous products or non-disclosure of avoidable risks when enjoying one’s purchase. It would also benefit industry by allowing them to discount frivolous suits. If their policies are within the bounds of acceptable practice, good companies need not be pushed into making ‘pay-offs’ from baseless legal actions just to avoid adverse publicity.

The WSJ article has a wonderful discussion of jaded jurors who were prepared to laugh at this case themselves – before seeing the evidence. Jury duty is quite a wake-up call to our collective consciences. McDonald’s apparently refused a reasonable offer of settlement by the plaintiff’s attorney and then a proposed resolution in a court-ordered mediation. Their faith in the willingness of jurors to drink this brand of verbal Kool Aid was boundless, yet misplaced. We must again be grateful for that hubris because any sealed settlement would have resulted in further injuries. There is much to be learned from this case about corporations following such a path versus the respect that the owners, managers and employees of well-run, sustainable corporate entities are due for making the world turn.

A wake up call is required to counteract those ‘fast food’ misrepresentations of reality just as many municipalities are now requiring disclosure of fat and salt content for fast food to show how it differs from real or ‘slow’ food. We see many inexplicable positions dispensed in tweets, sound bytes, slogans on placards and on coffee cups, appealing to a fast food form of philosophy. Corporate deceptions about life-style choices being the cause of all ills is belied by their misbranding of many medications and foods as reasonable selections. The NY Times pointed out the “Smart Choice” label appearing on boxes of Fruit Loops cereal, despite sugar being the largest percentage of ingredients in that ‘food’. That certainly makes me wonder why it isn’t stocked on the shelves of the candy aisle of grocery stores instead of taking up space in the cereal aisle. Women are learning that statins don’t work well for them, despite the huge number of prescriptions given to both sexes for their ‘health’. Yet all we hear is how cholesterol is the enemy rather than the drugs used to fight it which may not be compatible with every patient’s physiology.

This NY Times article explains the use of settlements to induce makers of generic drugs to refrain from producing competing products with holders of expiring patents. The price of the original drug remains high while profits are shared among those whose very existence is based on the concept of competition in the marketplace. Consumers are damaged in multiple ways through this misuse of the legal process. If precedents in patent law for drugs were set through trials on these admittedly complex matters, this repetitive process harming the public would end. Leaving the question of patent expirations unanswered means consumer dollars pay for a ‘win’ negotiated by both sides. Under what system of government does a court decision harm individuals who aren’t even part of the process? The law genie has escaped from it’s constitutional wrappings and become another tool for earning money instead of setting guidelines for civilized behavior between ‘individuals’ if one wishes to refer to corporations as such.

Our justice system requires our full participation. Settlements are certainly preferable to prolonged and expensive trial ventures but not when they extend or institutionalize bad practices. Secrecy allows companies to pass these costs onto all their consumers. The McDonald’s trial might not have been necessary if any of their multiple settlements with other burn victims had become a part of the public record. Just a few of those made public might have been enough to prompt consumer watch-dog groups to warn citizens of that hazard. Perhaps multiple settlements might have led to an investigation into this industry practice. Of course, publicly recorded settlements might just have led this company to solicit professional advice and go on a moral diet, trimming some of the fatty profits derived from superheated beverages sold without disclosure of risk.

Having settlements entered into the public record would result in a change in our culture which has come to believe that anything, eaten in secret, has no calories. Corporate citizens suffer from obesity just as our human citizens but that can only happen in the ‘dark’.

Part III (Enforcing the Principles) will highlight my personal interest in these matters. I am not just an ‘Acceptable Risk‘, but also a litigant. I am the plaintiff in the following action:

Queens Civil Supreme
Index Number:  014425/2002
Case Name: RUBIN, BARBARA 3/P vs. MARATHON JEWISH COMMUNITY CENTER/PRO-TECH PEST CONTROL
Case Type:Negligence
Track: Complex

Yes, complex indeed but the principle at the heart of the suit – full disclosure—is far from complex. TBC

Postscript: Interesting article here at the NY Times describing new commitment to justice on the part of lawyers. An encouraging read.

The United States of America is not a democracy. Hopefully, this statement won’t shock the average reader in this age of information. Our country operates as a ‘Republic’, meaning that we elect people to make decisions for us instead of voting directly to create the laws by which we live. We use an electoral college and complex legislative procedures instead of a ‘one man, one vote and majority rules’ methodology. Our elected representatives don’t have free reign however; insofar as we hold them to that major outline of American legal principles referred to as the Constitution. This was written by the founding fathers to ensure we wouldn’t move too far from their original vision during the centuries of legal evolution expected to follow their initiatives. This made the courts an invaluable part of our system of government. Leaders might come and go but the principles of government to which they must adhere would endure.

Unfortunately, the founding fathers didn’t quite foresee the extent to which money would be used to overturn the basic principles of our constitutional republic.

At some point, primarily through a chance remark made in 1866 regarding the rights of railroads to enjoy the due process of law, corporations obtained official status as ‘citizens’. Once imbued with their own set of constitutional rights those newly created citizens, whose corporeal bodies are really made of paper, began to alter the nature and future of this Republic. The privileges accorded to our ‘Paper Citizens’ are eroding the foundation upon which American society is uniquely based and explains why we have lost the ability to get ‘back on track’. Our courts have become inaccessible to the average individual, whose life experiences would promote legal evolution in the direction most related to the daily lives of our diverse population, including business owners. Instead, the courts have become the playthings of conglomerates with interests far beyond our borders.

The NAFTA trade agreement permits corporations to sue governments, if they suffer a loss of profits through any restraint upon trade, even if their products are being regulated by communities due to health concerns (e.g. pesticides banned in Canadian provinces provoked a suit). One might presume that such bans safeguard citizens’ rights to life, liberty and the pursuit of happiness, but the apparent form of happiness protected by this treaty appears limited to profits for paper citizens. Interestingly, these ‘citizens’ aren’t necessarily ‘American’. The transnational corporations in particular, would appear to have no particular allegiance to any government. This outside form of interference in our domestic court system can even bypass those venues and be done by tribunals. This avoidance of public hearings would indicate that corporations are disposed to view human citizens as capable of realizing they have a stake in such matters which might enlighten us as to the conflict of interest that exists with paper citizens who appear entitled to multiple justice systems. The question must then be asked, why such an agreement was made which undermines our system of jurisprudence. We send our youth abroad to fight perceived threats to our constitutionally prescribed way of life. Perhaps it’s time to face the internal forces which threaten that very system of governance we are brought up to believe is “American”.

Lawyers exist in abundance yet few see the inside of a courtroom. The litigation process is the way in which we bring meaningful issues to judicial attention. Public access is granted by means of the right to attend hearings and trials as well as obtain access to record of those proceedings. Such records set precedents for future generations and prevents injustices from repeating themselves unnecessarily under a veil of secrecy. Professor of law, Marc Galanter describes this in his brilliant essay, “The Vanishing Trial”, illustrating how the business of law has been transformed into the law business. Lawyers make more money by settling all their cases instead of trying them, even those which might appear to garner easy, profitable victories. After all, why should a fledgling attorney openly display their still-developing skills? Why would a veteran at the craft risk public defeat in an open courtroom and jeopardize their reputations and fund of future clients? Transcripts of these processes live on forever. Juries are not always predictable. Judges have been known to vacate or reduce awards from time to time.

Still, individuals filing law suits are under the impression that they will have their day in court to air their grievances and obtain compensation for damage to their persons or property. This isn’t about huge wins in the millions of dollars but far smaller amounts made large by the costs involved. The costs of conducting depositions, hiring expert witnesses, devoting many hours to legal research and eventually, the court costs are not to be lightly undertaken. However, it is well worth the price of admission if–as intended– it provides us with a blue-print of the circumstances and prevents the need for future litigation on similar principals through precedents.

Unfortunately, settlements are usually ‘sealed’ and the presented circumstances and arguments unavailable for public review. Severe penalties can be meted out should a participant decide to open that knowledge to benefit others. That renders these private battles useless to society. Even if a particular malefactor paying out large sums in settlements chooses to learn from their errors and change their practices, there is still no precedent leading others employing similar policies to make the same changes. Even worse is the opportunity to reach a settlement in which significant concessions are made without any acknowledgment of fault by the payee. Our legal system has turned into just another day at the office for huge numbers of people, both real and those made of paper. We can all participate in the justice system without actually advancing the cause of justice.

We ought to be viewing the practitioners of law as we do those practicing medicine or entering into the clergy. These are career choices requiring a ‘higher calling’ than, say, a person drawn to work at the local bar and grill. The future of a constitutional government depends upon it and the oaths taken by those entering into the Bar Associations of their states all affirm a commitment to defend the Constitution. In stark contrast, the settlement process may lead innocent people (or their insurance companies), to pay out penalty assessments simply because they have lawyers advising them it will avoid the more costly processes of proving their innocence. Most Americans are familiar with the saying, “Quit while you’re ahead.”. In these situations, it’s more closely resembles a case of “Quit while you’re behind.”.

How can we return the courts to the people they are supposed to serve? Bringing a case to trial is a Herculean task requiring resources most injured parties no longer possess. One needs a reasonable degree of health and energy to look after such matters. Monetary support during the years of delays in prosecuting a suit is crucial, assuming you have an attorney able to take the case on contingency and bear the costs of litigation for the plaintiff. Last, but not least, one needs to be able to judge the competency of their own counsel’s performance. Are their efforts are being expended in good faith for the benefit of the client and not just their own coffers? Are special interests delaying or preventing your case from proceeding? Few people are in a position to press legitimate and important suits because the most harmed have the least power.

When did Americans lose this power to use our own system of justice? An examination of a country’s economics is usually a good predictor of how readily citizens will relinquish their rights in return for the illusion of economic stability, if not prosperity. Preoccupation with keeping a roof over one’s head is a big part of the problem. We appear to be in a period of civil war between classes largely established by businesses. In this reprise of the feudal system, citizens compete for their spot inside the castle perimeter because there are no paychecks, (with or without benefits), to be found outside of the moat. Even the invention of part time employment as a means of avoiding benefits packages didn’t cause unions to launch a large-scale assault upon the castle walls. As living costs rose and wages fell, thoughts of advancement in the workplace was replaced by hopes for retaining one’s current job or similar position. We ceased to be an upwardly mobile society or even a mobile society for that matter, with fewer jobs to spur movement around the country.

The myth of secure employment remains prevalent among hopeful citizens. The Bureau of Labor tells us workers now change jobs about ten or eleven times in their working careers – a practice which used to bring suspicion upon workers for failing to keep a ‘steady; job. There is a widespread illusion that corporate ‘emergency measures’ to promote survival in a rough economy, will change when times improve. The assumption of a return to older standards of loyalty to a long-term, devoted workforce appears to be unfounded optimism. The NAFTA agreement may be philosophically valid in its pursuit of global cooperation in business but the reality of this particular agreement subverts that endpoint. Instead of increasing respect and remuneration for workers globally, it appears to prescribe a challenge to corporations to enrich their Boards of Directors through excessive cutting of costs for labor and quality materials.

Classic capitalism envisioned a world in a firm collaboration between workers and employers, essential to efficiency in production and beneficial to both sides. However, Peter Drucker corrected that pipe-dream when he redefined the status of workers to that of a commodity. Training enables productivity to increase even where wages remained at low levels in modern society. This was adequately demonstrated in developing countries and the recent suicide of a Chinese worker tells the tale in this article by the NY Times detailing enormous profits generated through the regimentation of labor in a life maximizing hours devoted to repetitive tasks through provision of living quarters and mandatory overtime, among other methods of concentrating the working experience. The ‘sweat shop’ mentality is not unknown in the US – ask the child of any immigrant about their parent’s and grandparents experiences. Any degradation of the individual via labor abuses is itself a mirror of the degradation of judicial systems. Business has become ‘transnational’, without loyalty to any particular government and largely immune from traditional legal remedies for injuries or injustices. Governments are placed under the regime of businesses outside of their borders.

The general public is comprised of workers. Workers, reduced to commodity status, cannot attain the goals set for sustainable business practices. Our citizens are becoming a subsidiary of the corporation I refer to as America Ltd. The ‘unlimited’ promise of a constitutional government became lost when law ceased to be an instrument for justice. Now, it is a quick buck for a few lawyers and is held in contempt by the general public without an actual understanding of why the legal process has become so reviled by the very people it is supposed to serve. Until, that is, someone realizes they’ve been harmed. Let’s look at that next over a hot cup of McDonald’s coffee in Part II here.

(revised, 8/7/10)
Interesting link here to the Trial Warrior Blog by a Canadian lawyer for an international perspective on law practice.

These days, the litmus test appears to be more along the lines of whether a justice will abide by existing constitutional law or be willing to dispense with it altogether. That isn’t limited to their views of Roe V Wade, which made abortion legal, but now involves decisions about whether businesses–already considered to be citizens–can be considered beyond the realm of US law-makers. This was the subject of this New York Times editorial, “The Republicans and the Constitution”. The clause referred to is the one granting Congress the right to make laws affecting commerce. The concepts of ‘capitalism’ and the ‘free-market economy’ may infer a hands-off approach to business, but Congress does retain legislative powers over commercial enterprise. Before you take umbrage with such interference, consider your teen-aged sons and daughters who are looking for summer jobs. Now how do you feel about child labor laws and minimum wage guarantees? It isn’t just about the privilege to tax businesses but also safeguarding consumers through passage of product safety laws which is at stake in this debate.

Here was my posted commentary:

25.
HIGHLIGHT (what’s this?)
Barbara Rubin
Ca.
July 20th, 2010
10:44 am

This brilliant editorial returns us to a more sane view of government for, and by, the people. The states fought for a Bill of Rights to restrain lawmakers from overly restricting the life options of citizens, including their ability to climb the ladder of success in any way they chose to define it. Republicans (and many Democrats) continue to regard the citizens of the United States as threats from which the more important paper citizens, (corporations), must be defended. The commerce clause is the only defense left for citizens who have become used to being defined as consumers and laborers. Laborers are mere assets belonging to businesses now rather than an integral part of their operations. Consumers are restrained from putting too many businesses out of business through restrictions upon information about product ingredients and any potential health hazards they pose.

Labels matter if we are to restore our government to its constitutional origins. Language shapes thought and citizens have to reclaim their identities again if we are to reclaim our eligibility for life, liberty and the pursuit of happiness. Are we citizens or not? Do corporate claims to citizenship automatically put human citizens on a less equal footing with them?

Regulation of commerce is the only thing permitting many Americans to access the essentials of life. The minimum wage offers access to food and shelter although some businesses believe they can limit the hours of employees so that taxpayers cover traditional benefits which used to accompany full time employment. Now a benefits package is eligibility for Medicaid, housing vouchers and food stamps. Caps have even been suggested on labor’s potential to increase income beyond a particular level through exemptions from minimum wage mandates- if there were outside sources of income like tips based in the largess of restaurant patrons. Apparently corporate citizens must benefit from any expenditure of effort on the part of a laborer lest they earn a place above their assigned ‘stations’ or class membership.

Life and liberty are surely threatened by leaving allowable pollution levels to the discretion of producers while tax payers cover the costs of its morbidity/mortality. Should that cost become excessive, it is always possible to reduce it by having tax payers pay for the clean-up, and cover charges for catastrophic illnesses like cancer, as the lesser of evils.

What if we experimented by defining corporations as something other than citizens with the right to sue the government for any loss of profits (under NAFTA, chapter 11) should restrictions be imposed? You know, the rules which might benefit those ‘other citizens’; the ones with beating hearts.

Barbara Rubin
www.armchairactivist.us
Recommended by 207 Readers

Far from the image of an objective reporter, Nicholas Kristoff is a journalist immersed in documenting the moral failures of men which drive them to unspeakably destructive acts. He doesn’t only report but also intervenes, comprehending that some things cannot be encountered with the professional passivity of a paid observer. The violence he describes around the globe is directed both externally and inwardly, as is the usual case with aggression. External battles between nations are most easily documented, such as that between Israel and it’s neighbors. Much of Kristoff’s reporting is devoted to civil divisions in which men seek to subjugate or exterminate portions of their own societies, as seen in his visits to African nations. Unlike most reporters, his attention is draw to the inevitable targeting of women who constitute the lowest rung of all societies. He chronicles these atrocities, and the occasional modest victory, very well.

Kristoff continued his series on the Palestinian-Israeli conflict in a piece called, “Waiting for Ghandi”.
While a previous column discussed below advised men to forget the past and begin anew in an area where history–and mythology– reign supreme, this column expresses the hope that males immersed in violence might be shamed into negotiations. That shame would be instigated by the sight of women engaged in passive resistance and filmed for posterity as they are met with violence. Yes, it would put a powerful image before many cameras.

But what of the women?

Kristoff, like Ghandi, appears to regard women as if we hold the answer to all of societies ills. As a matter of fact, we do. But, we aren’t going to share these most ‘un-secret’ of all strategies because we’re exhausted. Not only is the demand for these ‘secrets’ unceasing, but we are also expected to be impervious to the retribution exacted by men who fail to meet their own expectations of evolving to that sought-after, higher level of being. There is always a ‘reason’ for continuing their violent games.

And what of the women?

Women are indeed practiced at this because passive resistance (there is nothing ‘civil’ about flagrant disobedience) is a major strategy by which women stay alive in their own homes or retain their places in the work-force. However, passive resistance is not really a model of revolution. It is a protective shield to guard the spark of repressed humanity within oppressed humanity. It impresses others for only a very short time. Then the women will be left to pay the price of their demonstration.

Kristoff demonstrates the usual struggle of all men with the ‘Madonna/Whore’ division in which women are idealized. Nonetheless, that idealization of women still results in punishment for the assigned role of receptacles for male expression of sex and seed; of power and need. And sometimes of love, which is never returned as powerfully as required by the ‘thwarted’. Still, I had to question the very nature of the suggestion and read a bit about Ghandi’s view of women. It was very much the same. Women are necessary to save men from themselves.

Ghandi put women on pedestals to induce men to control themselves by example. By opening the door to females as voters, he assumed they would elect more reasonable individuals among the male half of the population. Females elected to any position of power would be expected to minimize the degree to which they visibly exercised it. Ghandi didn’t actually endorse social equality for women, fearing they would become equally violent and immoral with such freedom. This circular reasoning merely places men at the mercy of their atavistic impulses and makes women responsible for altering men’s goals. None of this requires the necessary and radical shifts in the gender hierarchy within society.

Hopefully, women will be permitted the garb required for their appointed task as peacemaker. A cape and tights, as provocative as the latter might appear, would seem necessary.

Wistful notions by men of peace making and describing huMan history. This reply was posted to Mr. Kristoff’s blog:

254.

July 11th, 2010
3:54 pm
Mr. Kristoff,

You disappoint today with this easy discharge of responsibility from warring, patriarchal factions to solutions which will result in some transient shame to men through the public abuse of women. Women are at the lowest rung of the ladder of oppression in that even an oppressed male can own one. Female lives should not be risked for lack of clear written agreements by men to end their armed conflicts and respect the rights of other men to exist.

You have seen how women are weapons of war in Africa through rape; how women become human shields in Middle Eastern villages occupied by terrorists needing bases for their guns and rockets. Yet now you propose women risk their lives in an effort to shame men whose customs preclude women from appearing in such a public manner for subversive purposes. How should they dress and comport themselves to avoid condemnation and punishment by their own leaders? Their own husbands?

Women can’t solve the problem, when we are even denied equal rights under the constitution – any constitution. Equal rights of citizenship in this country are even granted to paper entities – corporations – as for its human, male residents. Those corporate, paper citizens reap profits from war and provide its weapons – propaganda, money and instruments of violence. Remove those weapons of war instead of placing women between those weapons and their primary targets. Make war unprofitable and refuse recognition to terrorist-led governments.

Having women lie at the feet of armed men with the responsibility of disarming them is simply unfair. The State Department should instead grant women political asylum to leave their men to enjoy their battles and flee to safer environs. Deprivation of the sex class might serve to end war since shame is nonexistent. And, if wars are to be won by media influenced opinion, have journalists travel en mass to these battlefields.

You get paid for it and have medical insurance.

Barbara Rubin

Post Script: A post regarding the column by David Brooks written about Mel Gibson’s case has been postponed pending verification of the content of the tapes by law enforcement.

Many Americans learn their history through movies and animated Disney films about our pasts. It has led us to celebrate victories. Violent acts become crime dramas and ‘movies-of-the-week’, to be replayed over and over again. People enjoyed the sight of (attractive) heroes and heroines triumphing over evil. They were often vanquished by evil warlords but animated people could be shot, stabbed and fall off cliffs and still be reconstituted with a dash of water. Those who weren’t animated, all had medical insurance and would eventually recover from their comas.

Unfortunately, humans are not that resilient and survivors of violence (or merely violent times) often pass on little more than their traumas to future generations. Triumphant and tragic events are both remembered and oral knowledge eventually becomes archived as history. However the repetitive facts and themes contained in the history of men are transformed into mythology. Belief replaces facts and cannot easily be fought with reason. As women have only been rarely accounted for in recorded history, at least outside of mythology, I refer to the subject as huMan history – which tells a story all its own.

Most of the triumphs in historical records of one group are actually tragedies in the records of another. For some reason, success is equated with victory, meaning one can only advance at some cost to another with violence usually in evidence somewhere along the way. The error is actually one of reasoning. We regard each circle of aggression and defense as a closed chapter in group or individual histories. The allies won a war in 1942. A man was executed for killing another man. A wife left an abusive husband . None of these circles have been completed because history has been mistaken as something which is part of the past. The allies have since met the same evil occur within and between countries and executions, oddly, did not appear to deter other murders. Women return to abusive men when they realize they have no other way to raise their children without neglecting vital aspects of their health and safety regarding food, housing, supervision and medical care. Sometimes it is the mythology about two parents always being preferable to one.

HuMan history doesn’t repeat itself but merely continues. How we view history is key in many conflicts where mythology has replaced reason and is used to justify any amount of brutality. “Who did what to whom first?”, is a never ending question huMans ask one another. This first column by Kristoff, “Burrowing Through A Blockade”, attempts to remove huMan history from the equation entirely. He optimistically called for an end to memories of injustices on all sides, yet never addresses the nature of the participants involved. Change requires an alteration of more than circumstances. It calls for a huMan revolution of beliefs about the past and new ways of viewing progress as something other than winning which ensures a loser. Seeking a victory instead of a draw in which all coexist to the detriment of none is the temporary fix we are all condemned to replay. As long as only victories count, huMan history will continue as it is at present.

My posted comment was as follows:

144.

July 4th, 2010

Dear Mr. Kristoff,

Having just read your latest piece about the Middle East, I take issue with your recommendation to “… start over again.”. This is a form of wishful thinking that perpetuates violence around the globe. People tire of repetitive cycles of egregious harm done to various groups, be it to women or entire cultures in genocidal acts. Rather than persevere through the complexities of ending such evil, everyone wants to first wipe these dirtiest of slates ‘clean’.

The problem with recognizing an entity like Hamas must begin with their own stated goals. Have you looked at their charter? I recommend you seek out a person fluent and literate in Arabic to objectively review it. You should also review the failure of the former ruling party, the PLO, to make changes to their charter stating their intentions to destroy Israel until the late 1990s. Such provisions in their charter existed even after the Oslo Accords (I and II) in the early portions of that decade.

How do you ask any nation to negotiate with others whose stated intention is your eradication? The assumption of ‘good faith’ in such negotiations is not just ‘silly’ but ‘suicidal’. The Palestinians will always be deprived of political legitimacy until a governing body dedicates itself to the transformation of that territory into a nation able to respect the standing of other, non-Islamic nations in the world community. We must not mistake the offering of relief to a beleaguered populace as offering legitimacy to its rulers.

Humans suffer under governmental mandates to pursue bad policies. The US went bankrupt pursuing war in Iraq on pretenses of weapons of mass destruction being stockpiled there. Military and civilian casualties in that effort will remain a permanent blot on our record forever, which could not be halted for many years despite protests by citizens free to speak out about the issue. Who can speak in repressive environments by voice or vote? Our July 4th celebration of our Constitution is useless if we allow any of our temporary elected leaders to violate its written provisions.

Slates, like memories, cannot be wiped clean. Slates must boast written proof of current beliefs and future intentions regarding their principles and methods for governing. Aspiring governments must acknowledge that they will be taking their place among a community of nations with diverse beliefs.

Barbara Rubin

Note: A tag of feminism was added to this post since the eradication of women from much of history is symptomatic of the denial which is the basis for so much huMan misery as we see in the next two posts.

Certain cultural premises cannot be hidden although they may be dressed in the finest of linen. Certain terrifying realities about how women in society are viewed have come shining through the writings of two nationally prominent columnists in the NY Times – Nicholas Kristoff and David Brooks. While this blog concentrates on issues affecting health, the fact remains that women are disproportionately harmed by the corporate domination of research which develops and promotes the sale of environmentally and biologically harmful products. The decline in women’s health is considered more of an inconvenience and expense than a national indicator of misogyny. It is all disguised as being a necessary evil if you wish to reap the rewards of a of free-market economy. However, it is hard to call such an economy ‘free’, when it takes so many prisoners among the most vulnerable of consumers. These next three posts discuss columns written about violence involving women. I was shocked at what these columnists said–and failed to say– about my culture.

I came late to feminism due to a combination of inherited and earned privilege, which can sharply skew perception (and acceptance) of reality. A happy, lower middle class childhood meant luxuries were limited, but life was sweet, as loving parents sheltered me from their day to day struggles. There was sufficient food, a roof over my head and an education sharply monitored and reinforced by them. A second generation American, I grew up among those who escaped terrible persecution to come to the US. The worked in factories and even sweat shops, while going to night school, so their children would have better lives. Next to my chair in synagogues would sit elderly women with tattooed wrists. They were treated well in their families so my realization of how women are actually regarded in society was delayed.

That background prepared me to be more accepting of the observations and information that later came my way about hardship and its relationship to class and race. I learned about gender-privilege when faced with it again and again on the job. Reading the writings of anguished women thriving, or barely surviving, in the face of such obstacles led me to begin examining my own privilege. It became easier to recognize just how the inclusion of women within a culture is a gift bestowed upon us by men. It is just as swiftly withdrawn by men for any real or perceived infraction of their codes. As these columns reveal, women are actually held responsible for rectifying the failures of men which perpetuate the oppression of women.

Sisyphus , that mythological King who was condemned to spend all eternity pushing a boulder uphill, must have been a woman.

This is another case of drug makers enlarging the pool of patients to treat without thought to the consequences of such actions. According to reports by Alan Roses of GlaxSmithKline earlier in the decade (referenced above), Alzheimers drugs—like many others– are ineffective for half of patients due to genetic diversity within the population. On the other hand, earlier identification of cognitive decline and brain cell death is extremely valuable if findings are not dropped into an overly broad overly broad category of of ‘ Disease’. The bulk of it may well be due to injury. Exposures of citizens,(not patients), to neurotoxic substances occupationally and residentially, will have to be identified and ruled out as sources contributing to declining cognitive functions. Dr. Kaye Kilburn, former professor of medicine at the Keck School and VA epidemiologist, saw that occupational asthmatics frequently displayed such signs of central nervous system decline with changes in memory, learning and motor skills. Unfortunately, he also found the majority of ‘normal control’ subjects were also showing signs of CNS degradation far earlier than age-related decline should appear. His paperback , “Endangered Brains” and a medical text on chemically induced brain damage (no financial interest) indicates that neurologists begin to look for signs of preventable, and not just premature, losses in function.

The only interventions mentioned in this news article – unless that is the fault of the reporter but I doubt it—are drugs which can actually damage the central nervous system (CNS) through hyperactivating it with anti-cholinergic pharmaceuticals. Earlier in the decade,. the EPA banned the most commonly used pesticide–Dursban–from residential use because it acted in such a manner. It killed insects through destruction of nerve cells firing themselves to death through suppression of the enzyme, acetylcholinesterase. Not only are those pesticides still in use in proximity to people but their replacement chemicals known as pyrethroids and pyrethrins also hyperactivate the nervous system by damaging neurons directly and amplified their toxicity with synergists. Those prevent the body from clearing such toxic substances from the body before they can do their killing work.
Alzheimer’s drugs would further damage the body’s ability to counter those substances. The CDC tells us our exposure to pesticides, primarily a class of neurotoxic substances, is ubiquitous. California is even now applying them aerially in the northern part of the state while many building owners have exterminators applying them 12 to 24 times per year to their buildings. Landscaping relies on numerous pesticides and herbicides with their multiplicity of actions.

It is time to stop counteracting chemical damage with more and earlier administrations of yet more chemicals. Occupational therapy to stimulate skills in decline, healthier diets and safer environments are what will halt the huge incidence of damage and disease. Technology has advanced. Exterminators have a wealth of profitable options in safer pest control now and drug makers are well aware of the hazards and limitations of various classes of drugs.

I was prematurely disabled by such substances and the cost to society of preventable illness is unsupportable.

Barbara Rubin

Meanwhile, Glaxo-Smith-Klein, maintains their earlier studies were conclusive in ruling out such adverse impacts for their product. However, if this item in the Triangle Business Journal is correct, legal settlements have already been made in more than 700 cases concerning this drug.

Wouldn’t it be cheaper to go to court and prove the drug did not have these adverse effects if the evidence were compelling? Or, are the costs of legal settlements merely part of the cost of doing business today? After all, given the enormous amount of dollars flowing into the coffers of some multi/trans-national corporations, settlements may be easily absorbed compared with the costs of further research and possible removal or modification of a product already in the marketplace.

This brings up important questions about plaintiffs’ attorneys. How moral it is to press for settlement after settlement in repetitive claims of harm for a product, rather than conduct a court-room trial on the matter? Trials set precedents and serve to limit future harm to those likely to repeat the experience of prior litigants and become the next generation of plaintiffs. Is litigation taken to the floor of a courtroom instead of a ‘back-room”, actually the most moral course of action?

Regardless, this may be indicative of how to best resolve discrepancies between a marketing firm’s data and the actual experiences of patients using a given product. The pool of available data about the incidence and nature of illnesses and injuries increases exponentially, when patients are enrolled in a public option for health care insurance. The potential savings alone from analysis of this data ought to pay for much of the costs for such coverage. This would certainly assist the FDA greatly in making tough decisions about approving drugs for sale, when to withdraw them or require further testing. As the public option would also be funding drug purchases, a great deal of attention would be paid to drug efficacy and the potential for adverse effects.

Here is the letter which went to the Times:

Re: NY Times editorial, “More Questions about Avandia” (7/5/10)

To the Editor,

Your editorial illustrates extremely important economic benefits to having a ‘public option’ in the provision of universal health care. Data regarding possible adverse outcomes from use of the drug Avandia, was only accessible because the 227,000 patients studied had Medicare coverage. Insured patients have records permitting impartial review of large numbers of cases.

Tallying the enormous price tag accompanying tobacco-related illnesses (CDC estimates $193 billion dollars annually in productivity losses, mortality and morbidity) led to ground-breaking legislation restricting smoking in workplaces. Diminishing rates of cardio-vascular disease have already reduced costs and much human suffering.

Universal health insurance in Europe brought about REACH, the requirement that vendors prove the safety of chemicals in products before marketing. The value of the ‘public option’ in matters of public health research and policy is clear.

Barbara Rubin

Postscript:

http://www.nytimes.com/2010/07/13/health/policy/13avandia.html?nl=health&emc=healthupdateema2

More history about the research and development of Avandia.

This post began with an ad for perfume. For infants.

The fragrance industry has been under scrutiny by various consumer watch-dog groups given the fact that they are not subject to FDA regulatory oversight for product safety. Nonetheless, some fragrance chemicals have been identified as reducing lung function, disrupting hormonal levels, affecting the function of various organs and central nervous system activity etc. A summary of adverse effects upon users and secondary ‘consumers’ passively inhaling these chemicals can be found here:

http://www.ieconnections.com/archive/feb_08/feb_08.htm#article3

It is to be assumed – as with smoking – that consumers would take care in selecting the safest among such products for personal use and to minimize imposing unwanted contact with them upon co-workers, family and friends. Many workplaces now request employees not use ‘plug-in’ air fresheners emitting these chemicals into the air on a constant basis. Some landlords request that scented candles and incense not be burned inside their rental units as chemical absorption into sheet rock and carpets might discourage future potential occupants from renting those units.

Until such time as the industry chooses to offer full disclosure of each product’s ingredients, the wisdom of the selections made by consumers remain unconfirmed in fact. Of course, advertising continues to bombard the public with urgent messages that our health is in danger if we don’t spray fragranced disinfectants all around us. Our social standing is dependent upon the scents and colorants added to our personal care products from hair dyes to moisturizing lotions. Our mental health cannot be optimized unless chemicals imitating the odors of flowers, spices or ‘fresh air’ are floating about our homes, schools and offices.

When this ad came to my attention recently, I was simply amazed to see even the suggestion that the smell of fruit – when paired with the activities of caring for an infant or child – will lead to increasingly loving memories of that time once it is past. The scent is to be applied to the child instead of the nursery or care-giver. Interestingly, directions are given to apply the perfume to the clothing because application to the skin might ‘importune’ the child, even though efforts were made to ‘minimize’ potentially allergenic content.

The company marketing this product is based in Canada but markets extensively throughout the USA. I sent the following letter to Health Canada and the FDA with copies to pediatric physicians and the American Lung Association. Turning infants into consumers of perfume for parental enjoyment and the imprinting of memories is simply something that does the entire system of marketing in these two countries a great disservice. To all of you ‘consumers’ reading this blog, I encourage you to assist our corporations in making their best choices among the products they sell by speaking to them directly with your comments and indirectly (but most powerfully) with your consumer dollars. Patronize companies offering full disclosure of ingredients, particularly when buying products which will directly or indirectly affect children. We shouldn’t be playing Russian Roulette with our children given recent statistics on the incredible rates of chronic illness and learning disabilities among these most precious of our natural resources. Patents protect businesses from having their formulas hijacked by competitors. Trade ‘secrets’ merely keep consumers in the dark while competitors ferret out the information through laboratory analysis.

We should just ask for the information or consider buying from those willing to share it openly on labels or MSDS sheets. It makes no sense to buy a product that is supposed to enhance our life-styles but which interferes with life processes – our bodies – instead. Further consumer dollars merely make their way into the coffers of physicians and pharmaceutical companies while we combat the side effects of our adopted ‘life-styles’. It is the work of a moment to look at a package and see if it offers full disclosure of ingredients.

Take that moment and transform our economy into one of true capitalism in which informed consumers dictate which products deserve to be sold in our marketplaces and those needing to be changed or removed from our store shelves. That is a truly ‘free market’ philosophy. This is about a lot more than just perfume. For infants. However, there is no reason why we shouldn’t begin there. Here’s the letter:

To Whom It May Concern,

An advertisement for perfumes to be used on babies as young as one month of age, touts the emotional benefits to be found by mothers. The ad speaks of mothers finding satisfaction in later years by memories evoked by this scent being associated with the early years of care-giving.

http://us.fruits-passion.com/order/item.aspx?idprod=584&idcat=0

The corporation is based in Quebec but markets throughout the United States as well:

http://corpo.fruits-passion.com/en/profile/index.asp

As a retired developmental disabilities specialist, I find this to be of some concern. The perfume industry is not regulated in North America to the point of having to disclose ingredients for their products. We know from many sources that fragrances are rife with thousands of possible ingredients, of which a significant number have never been tested for the full range of their possible health effects. We do know that some fragrance chemicals cause reductions in lung function even for healthy adults; some are associated with central nervous system depression, endocrine disruption or may have have sensitizing/allergenic properties.

http://www.ieconnections.com/archive/feb_08/feb_08.htm#article3

Instructions for using this product includes warnings not to ‘importune’ a baby by putting the solution directly onto skin but to apply it to baby’s clothing. Health statements appear saying that efforts were made to minimize allergenic ingredients but the only specific information offered is that the product contains no alcohol, parabens or colorants. Recent research from Germany cites measurements of emission from scented toys which exceed permitted concentrations for some ingredients by EU standards or have been banned.

http://www.ncbi.nlm.nih.gov/pubmed/20307885

I recommend that Health Canada and the USFDA review this advertisement and consider the manner in which it is advertised and health claims issued (does ‘importune’ mean ‘endanger’?). Since this fragrance is being advertised as beneficial to mothers, why apply it to a baby or their clothing where it will be inhaled by the infant even during periods of sleep when there is no contact with the parent? Do these chemicals come out in the wash so there are no cumulative effects increasing emissions over time and repeat applications?

We cannot know because the fragrance industry has no mandate to disclose ingredients to consumers or any government agency. This is problematic when very young children develop symptoms since they cannot act as informants to offer specific clues as to the nature of their ailments. If a registry of ingredients for all products directed for use on or around children exists, then pediatricians and parents could at least submit FOIA requests for information about possible sources of health problems arising around the same time as the use of a particular commenced in a household.

Given our current state of knowledge about known and potential toxicity/allergenicity effects of some fragrance constituents, it is only sensible to have such a registry. Fragrances are added to many products intended for use on children including skin lotions and medicants, toys, laundry products and room disinfectants etc. Improved access to possible sources of developing problems so common in childhood such as asthma and allergies, can only assist the fragrance industry in better designing its products for that targeted consumer groups. At the same time, it addresses issues pertaining to public health.

Thank you for your attention.

Barbara Rubin