WEST VIRGINIA RECORD

By BERNIE LAYNE

CHARLESTON -- West Virginia-born author and Nobel Prize winner Pearl S. Buck wrote that “the test of a civilization is the way that it cares for its helpless members.”

I believe that is the most basic form of social justice and one of the most fundamental values West Virginians share. That is why I was horrified when I read recent comments made about the late Dorothy Douglas by the American Tort Reform Association’s Darren McKinney, the front group’s communications director.

In recent years, there has been a lot of debate about the jury verdict awarded to Douglas’ family when she died after being put under the care of HCR Manorcare (Heartland of Charleston).

The case is under review now by the West Virginia Supreme Court.

Attorneys on both sides argued their positions based on their interpretation of the case facts and West Virginia common and statutory law. That is how our court system works. Now we wait for the Court to decide.

Outside of the courthouse and the sphere of legal ethics, McKinney brought the debate to both an ethical and moral low. McKinney wrote that the verdict was “patently absurd” and that it was “against a nursing home operator, blaming the operator for the death of an 87-year-old woman with dementia and other serious health problems? How long did the plaintiff realistically believe his aging and ailing mother was going to live? (Most of us would be pretty happy to make it to 87.)”

His claim suggests that her death didn’t matter because of her age. He may as well have written, “She’s old. She’s sick. She’s out of her mind. She was going to die anyway. So what?” Does the man have no sense of decency?

What he didn’t say in that column, or any of ATRA’s other PR efforts against the case, was that she didn’t die because of her existing health problems. She didn’t die due to poor medical care. Dorothy Douglas died because the nursing home staff did not provide adequate food and water.

Does McKinney believe that the nursing home shouldn’t be held accountable for starving a woman to death? The verdict in the Douglas case included both compensatory and punitive damages. Compensatory damages were awarded to the family for their loss. Punitive damages are awarded rarely and in cases where the defendant’s actions are so outrageous that they are unacceptable in our society. That is certainly the situation in this case, where a helpless 87-year-old woman died because she didn’t have enough food and water. Even the convicted criminals in our jails get that much.

With the verdict, a West Virginia jury sent a clear message -- the nursing home’s behavior was despicable and will not be tolerated in this state. What if the verdict causes the nursing home to charge higher rates and lose potential patients? That’s the price it pays for its misconduct in our free market economy.

Even Tea Party founder Judson Phillips agrees on this point: “The free market is wonderful. It encourages good behavior and punishes bad behavior. The civil court system is part of that free market. It is the part that punishes bad behavior.”

As shocking as McKinney’s recent comments are, they are just the latest in a long history of corporate abuses and corporations putting their profits over people’s safety. Corporate billions are sacrosanct; our lives are negotiable.

Asbestos manufacturers knew for decades that the product was deadly and causing cancer, but didn’t tell anyone. Instead, it was kept it on the market and made those corporations billions. Indeed, manufacturers cared so little about the safety of workers that in 1966, a Bendix Corporation executive wrote, “If you have enjoyed a good life working with asbestos products why not die from it?”

Over the last few weeks there has been major news coverage around the faulty ignition switches in GM vehicles that have led to at least 13 deaths. GM first became aware of the problem more than a decade ago, but failed to recall the 2.6 million cars even though a replacement part cost less than $1 each. A GM engineer said that the old switch would be used on existing cars “until the piece cost can be eliminated or significantly reduced." Once again, corporate profits were put over the safety of the consumer.

This parallels the history of the Ford Pinto and its design flaw that allowed the fuel tank to be punctured in rear-end collisions, resulting in deadly fires and explosions. The Pinto was introduced in 1971; the first cases appeared in 1972. A reporter’s investigation led to the public release of a company cost-benefit analysis, the “Pinto Memo,” which revealed that corporate executives were aware of the problem. It would have cost approximately $11 per car per year to make the design change -- but Ford refused. It decided that it would be cheaper to pay verdicts or settlements to victims and their families than to recall the cars for repairs and make future models safer.

West Virginians know these stories too well. How many relatives and friends have we lost because corporations ignored industry and workplace safety standards so that workers were killed or catastrophically injured on the job? How many thousands of West Virginians have died or were injured due to lax industry regulation, which was deemed “too expensive,” and it resulted in poisoned air, poisoned soil and poisoned water? How many of our small businesses are struggling financially or have been bankrupted because corporations refused to meet contractual obligations -- including insurance companies refusing to pay valid claims?

If this is the behavior with the threat of both civil punitive damages and possible criminal charges, can you imagine the corporate abuses and lives lost should ATRA and McKinney get their way and corporations get immunity? We can’t let that happen. We must be vigilant and reject the Darren McKinneys of the world who believe the almighty dollar trumps human life.

Layne is the president of the West Virginia Association for Justice and a partner with the Charleston firm of Mani, Ellis and Layne.