Fw: TOXIC NEWS & VIEWS KIDS AND CHEMICALS

December 24, 2002

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Subject: TOXIC " NEWS & VIEWS " KIDS AND CHEMICALS

> TOXIC " NEWS & VIEWS "

>

> ______________

>

> Toxic Discovery offices will be closed December 24-Jan.5th and reopen on

> Jan.6th @ 0900 Central Time.

>

> Happy Holidays from the staff of Toxic Discovery Network!

>

> -------------------

> This week on NOW:

> Friday, December 27, 2002 at 9pm on PBS

>

> * Are we poisoning our children? An updated encore presentation of KIDS

> AND CHEMICALS, the NOW report that investigates alarming new research on

> links between

> childhood illness and environmental contamination.

>

> =============================================================

>

> KIDS AND CHEMICALS

>

> It is a medical mystery marked " urgent. " Across America growing numbers

> of children are suffering from asthma, childhood cancers like leukemia,

> as well as learning and

> behavioral disabilities. NOW reports on new developments in a story so

> important that NOW devoted an entire broadcast to it earlier this year.

>

> Are chemicals harming our kids? In the last 70 years, more than 75,000

> synthetic chemicals and metals have been put to use in America. While

> in many cases they have made

> our lives better, most of them, believe it or not, have never been

> tested for their toxic effects on children. Equipped with new technology

> and more sophisticated analysis,

> scientists are asking disturbing questions about the health risks to

> children growing up exposed to an ever-increasing number of untested

> chemicals in our environment. KIDS

> AND CHEMICALS features medical investigators and health officials

> engaged in the latest research on links between childhood illness and

> environmental contamination, and

> looks at families around the country who are coping with the

> consequences to their children of potentially toxic exposures.

>

> After this encore presentation, Bill Moyers reports on what has happened

> since the original broadcast of KIDS AND CHEMICALS.

>

> Preview an exerpt from KIDS AND CHEMICALS:

>

> http://www.kellysalerno.com/kids/videos/kids1_lo.ram

> <http://www.kellysalerno.com/kids/videos/kids1_lo.ram>

>

> (Requires RealPlayer, available at www.real.com)

>

> http://www.reason.com/0301/fe.wo.courting.shtml

> ------------------------------

>

> Courting Stupidity

> Why smart lawyers pick dumb jurors.

> By Walter K. Olson

>

> If a drunk driver plows into you from behind at 70 miles an hour while

> you are stopped at a red light, you are not likely to live long enough

> to talk to a lawyer about it.

> However, and her passengers were lucky enough to be

> riding in a 1979 Chevy Malibu, a car much more solidly built than most

> of its competition. Six victims

> survived but suffered severe burns because the immense force of the

> crash had burst the Malibu's gas tank and ignited a fire.

>

> Although the National Highway Traffic Safety Administration did not (and

> does not) deem the Malibu's gas tank to be defective in placement,

> design, construction, or any

> other way, lawyers for disagreed and proceeded to sue General

> Motors, saying the fire might have been averted had the company located

> the tank somewhere other

> than toward the rear of the Malibu. (They also disagreed on the crash

> speed, estimating it at 50 mph.) A Los Angeles jury agreed and in 1999

> awarded the plaintiffs $4.9

> billion -- a figure that exceeded the combined gross domestic product of

> 11 U.N. member states.

>

> The award in v. G.M., later reduced to $1.2 billion, caused

> something of an outcry. The Washington Post said in an editorial that it

> " makes the tort system into a kind

> of lottery in which clever trial lawyers and a few victims get very rich

> at the cost of society's confidence in the justice system. " The conduct

> of the trial had been open to

> question as well. It turned out that, at the plaintiffs' request, L.A.

> County Superior Judge Ernest had agreed to exclude from

> evidence various matters that G.M.

> wanted to introduce.

>

> Among them were federal government statistics from 20 years of

> real-world highway experience showing the Malibu to be among the safest

> cars of its time, with an unusually

> low crash fatality rate. Nor was the company permitted to introduce

> crash test data raising safety concerns about the alternative placement

> of the gas tank that the plaintiffs

> maintained would be better. Most remarkable of all, had

> excluded from evidence the fact that the driver of the other car had

> been drunk (having a blood alcohol

> concentration of 0.20 percent " several hours later " ) and had been sent

> to prison.

>

> As late as the 1980s, jury verdicts higher than, say, $50 million still

> counted as sensational, but by the end of the century only a

> billion-dollar verdict could be counted on to

> merit front-page treatment. Within days of the Los Angeles jury's

> decision in v. G.M., a rural California jury voted $290 million

> over a Ford Bronco rollover

> accident; like the Chevy Malibu, the Bronco exceeded the federal safety

> standards of its day. Later, another L.A. jury voted $3 billion in

> punitive damages in a tobacco case

> filed by an individual smoker who testified that he'd had no idea the

> habit was dangerous until congressional hearings in 1994.

>

> Even that paled alongside what happened in a Miami courtroom in July

> 1999. Following a trial that took two years, a jury deliberated for a

> mere five hours before deciding

> that the tobacco industry should pay $145 billion in punitive damages --

> a sum more than twice the gross domestic product of New Zealand -- for

> having behaved badly

> toward Florida smokers.

>

> One of the plaintiffs, a 44-year-old nurse, said she " had no idea there

> was anything wrong with cigarettes at all. " The verdict, in a class

> action styled Engle v. R.J. Reynolds

> Tobacco Company, followed a series of rulings by Miami-Dade Circuit

> Judge Kaye that were highly favorable to the plaintiffs. The

> Engle verdict was greeted with a

> less than respectful reception in much of the press. The Cincinnati

> Enquirer called it " ridiculous " and " outrageous, " adding, " A ruling that

> completely ignores personal

> responsibility is a joke. " The San Diego Union-Tribune deemed the jury's

> decision " monstrous " and " outlandish. " The Washington Post declared,

> " The biggest damages here

> may be to the reputation of the legal system. " The Indianapolis Star

> said the award " falls somewhere between confiscation and robbery. " In

> November 2000, Judge Kaye

> upheld the verdict, and the tobacco companies announced their intent to

> appeal.

>

> Defenders of the legal system typically dismiss cases like and

> Engle as atypical. And it is true that only a tiny number of juries

> return from deliberations having

> approved the kind of numbers too large to fit on a calculator display.

> Moreover, in many of these cases judges subsequently cut the size of the

> damage award, though usually

> to a level that is still stratospheric.

>

> But the mere possibility that an extreme outcome will emerge from the

> process, and perhaps survive review and appeal, gets factored into

> negotiations in the majority of cases

> that are settled before a final verdict. With breast implants, asbestos,

> and many other mass tort episodes, a rash of arrestingly high verdicts

> helped educate recalcitrant

> defendants about the need to pony up substantial settlements.

>

> While the press sometimes refers to these eye-popping awards as

> " runaway " verdicts, the term is more often than not misleading, since it

> suggests that juries are racing off

> madly on a tear of their own. Quite the contrary is usually true: Most

> " runaway " juries are behaving precisely as one set of lawyers has been

> carefully coaching and skillfully

> inciting them to do. They are, for the most part, not running away from

> anything but running toward a resolution of the case that trial

> advocates have portrayed to them as

> reasonable. In seeking to account for exorbitant or unjust verdicts, the

> most relevant question to ask is usually not, " Why did these jurors

> behave so irrationally? " but rather,

> " How did the lawyers manage to portray this outcome as rational? "

>

> Jurymandering

>

> Among the most powerful ways in which American lawyers can shape the

> outcome of trials is by exercising their rights of juror selection.

> Typically, they can launch an

> unlimited number of " for cause " challenges to oust prospective jurors

> who supposedly cannot approach the case objectively, to which they can

> add an often substantial

> number of " peremptory " challenges, which let them dismiss prospective

> jurors without offering any reasons at all.

>

> The upshot is that jury selection in high-stakes cases has emerged as a

> protracted and expensive stage of trial in itself, its results often

> seen by both sides as vital to the

> outcome. In the O.J. Simpson case, selection alone lasted 10 weeks,

> which in most countries would be a remarkably long time for an entire

> murder trial. The Engle tobacco

> class action in Florida went it one better, with the tweezing and

> fluffing of the jury pool going on for three months; in the end 800

> prospects were sent home in the search

> for the perfect 18, after having been quizzed on such matters as their

> reading habits and their views on seemingly unrelated issues such as gun

> control.

>

> A busy industry of consultants, how-to seminars, and jury selection

> handbooks offers advice to lawyers on whether or not to boot jurors

> based on such characteristics as hair

> style, hobbies, brand of car, and favored kind of reading. The

> " impartial juror " is just a fiction, declares an ad for a primer that

> promises to show " how to assemble your

> winning jury, step-by-step. " By the mid-1990s, the jury consulting

> business was estimated to have passed $200 million in annual revenues,

> mostly catering to lawyers handling

> civil cases (that being where the money is).

>

> The whole point of the process, of course, is to engage in

> discrimination. What makes the hypocrisy complete is that trial lawyers

> themselves make a very handy living suing

> when unwary people in other walks of life -- employers, landlords,

> private clubs -- engage in the same kinds of discrimination. For most of

> us, explicitly considering the

> religion, age, or disability status of a job applicant or prospective

> tenant is strictly against the law, and even inadvertent acts of bias --

> resulting from unconscious

> stereotyping, for instance -- can cost us everything we own in a private

> lawsuit. But if we ever have to face such a discrimination suit, it will

> practically count as malpractice

> when it reaches trial for both sides' lawyers not to engage in age,

> religion, or disability discrimination during the jury selection phase.

>

> The group stereotyping in the literature advising lawyers on jury

> selection is anything but unconscious or inadvertent. Women " are often

> prejudiced against other women they

> envy, for example, those who are more attractive, " is one groaner from

> The Art of Selecting a Jury, published as recently as 1988.

> Mexican-American jurors are " passive, "

> and " Orientals...tend to go along with the majority, " we learn from a

> manual in recent use by Texas prosecutors.

>

> Although the U.S. Supreme Court lately has instructed lawyers not to

> employ race (and even more recently sex) as a factor in jury picking,

> lawyers continue more or less

> blatantly to engage in " jurymandering " of both sorts. The edicts are

> difficult to enforce given that lawyers need offer, in the words of

> Brandeis University politics professor

> Abramson, " no justification, no spoken word of explanation, no

> reason at all beyond a hunch, an intuition " for their peremptory

> challenges. One can imagine what

> would happen to the employers or landlords who claimed such a right to

> base their selection decisions on subjective hunches.

>

> Demography aside, a major goal of the selection process is the removal

> of any jurors with too strong a base of experience, knowledge, or

> opinion about the case's subject

> matter. If a case presents important medical or accounting issues, for

> example, lawyers on one or both sides probably will want to get rid of

> jurors with expertise in those

> areas. Manuals emphasize the importance of excluding potential " opinion

> leaders " for the other side. " You don't want smart people, " says a

> Philadelphia prosecutor in an old

> training tape. " [They'll] analyze the hell out of your case. " Even

> before selection begins, busy people often have dodged service, leaving

> a pool comprised disproportionately

> of retirees, the unemployed, and workers who can be spared from their

> jobs.

>

> To make matters worse, a judge in a high-profile case may bounce juror

> prospects for cause simply because they have followed press reports

> about the events at issue. In the

> 1989 trial of Oliver North, for example, the judge flushed out more than

> 200 potential jurors for knowing too much about the case, which had been

> on the front pages for

> months. ( " I don't like the news, " said the eventual forewoman. " I don't

> like to watch it. It's depressing. " ) One panelist, according to

>

> The New York Times, said of North that " she had seen him on television, "

> but added, " It was just like I was focusing on the Three Stooges or

> something. " Another woman,

> asked what she knew about the Iran-Contra scandal figure, replied, " I

> don't know, something about overseas. " In the 1990 obscenity trial over

> a Cincinnati museum's

> exhibition of Mapplethorpe's work, the only prospective juror who

> regularly visited museums was dismissed for cause, it being felt that

> actual familiarity with those

> institutions put an " unnecessary burden " on her objectivity.

>

> Citizens with the " wrong " views can simply be prevented from serving on

> juries. According to coverage of the Engle trial in the local press, the

> most frequent reason for

> dismissing jurors was that they were considered to harbor unacceptable

> prejudices on the subject of tobacco company liability -- apparently

> typified by a former smoker of

> three decades who said, " I just think people are and have been well

> aware of the detriments of smoking....To come back after the fact, I

> find that somewhat ridiculous. "

>

> Lawyers' Full-Court Press

>

> It is all a strange inversion of the once widely held premise that the

> courts should draw on jurors who are civically engaged and aware of the

> events of the day. Juror

> prospects have historically been drawn from rolls of such groups as

> registered voters, owners of real property, and literate persons -- all

> likely, on average, to display a

> degree of civic awareness exceeding room temperature. (In the really old

> days, it was considered an advantage in local jurors that they were

> personally acquainted with the

> parties or witnesses in the dispute; that way they could take their

> reputations into account in assigning proper weight to their stories.)

>

> In much-publicized cases a vast army of recruit material -- 1,017

> prospects in the Los Angeles murder trial of the Menendez brothers --

> must now be screened in search of the

> few, the proud, the ill-informed. With hundreds of persons sitting for

> hours filling out lengthy questionnaires -- 79 pages in the Simpson

> case, 45 pages for the trial of

> Reginald Denny's attackers -- the process can take on the air of a giant

> college entrance exam on awareness of current events, albeit with

> reverse scoring.

>

> The more exhaustive the questionnaires, the more power the lawyers will

> have to shape the jury. If enough questions are put to a panel of

> prospects, most will give at least one

> answer that can be seized on as evidence of their bias -- despite the

> uncomfortable implication this might leave that most members of the

> public are not objective enough to

> serve on juries. Trial lawyers accuse their critics of not trusting

> juries, but their own practices could scarcely convey greater distrust

> of jurors as individuals.

>

> The Simpson trial's questionnaire contained 294 queries, including " What

> was your least favorite subject in school? " ; " How important would you

> say religion is in your life? " ;

> and " Have you ever belonged to Alcoholics Anonymous, the Sierra Club, or

> the National Rifle Association? " In some cases, lawyers have even been

> known to hire gumshoes to

> drive around prospective jurors' homes interviewing neighbors about

> their private lives -- this from the same profession whose avidity in

> filing invasion-of-privacy suits is

> almost as great as its avidity in filing discrimination suits.

>

> One reason pretrial questioning takes so long is that lawyers routinely

> use it as a way to begin arguing their cases, planting assumptions and

> factoids that might or might not

> be admissible at trial. One injury lawyer, quoted in Adler's

> 1994 book The Jury, said he planned to linger over the otherwise

> standard questions about whether

> prospects had ever been an employee of the defendant company by reciting

> its subsidiaries one after another: Had they ever worked for this one?

> That one? " That will make

> it clear that it's a big corporation, " he said. Jurors " must not be

> aware that an attempt is being made to persuade them " during selection,

> suggests another how-to book for

> lawyers. " They are convinced that they have changed their minds by

> themselves. "

>

> Worse, some courts permit lawyers to " get a promise " from jurors: If I

> show A, will you agree to conclude B? Adler quotes one trial lawyer who

> got jurors to assure him that

> they could return a " substantial verdict " if he showed thus-and-such;

> after getting general assent from the panel, he proceeded to call out

> individual jurors' names: Were you

> on board? And you? Each, in turn, meekly assented. " The psychological

> research is very convincing that getting a promise does, in fact, work, "

> an enthusiastic jury consultant

> told Adler. " If you give them positions, they adopt them. "

>

> Jury selection typically becomes a more unpleasant and intrusive process

> when lawyers succeed in wresting control of it from the judge. Many

> state courts allow lawyers to

> grill juror prospects directly, with judges assuming, at most, a referee

> role.

>

> Jury selection in state courts symbolizes one of the things foreign

> visitors tend to find so baffling about American trials, namely the

> extent to which we permit lawyers,

> rather than judges, to run them. Elsewhere, judges direct the inquiry,

> framing issues and ordering the assembling of witnesses and evidence; by

> contrast, the American judge

> Marvin el notes that in the U.S., " judges generally act as passive

> umpires....Lawyers produce, direct, and dominate the trial process. "

> Counsel for each side determines

> what evidence will be brought forward, by which witnesses, in what

> order, and which issues will emerge and with what kind of emphasis. If

> neither side's lawyers see fit to

> introduce a certain significant piece of evidence, then it stays out of

> consideration, no matter how much light the judge or jurors think it

> might shed on the case.

>

> A parade of evils that judges in other countries take pains to exclude

> can be seen almost routinely in many American courtrooms: inflammatory

> language and interruptions;

> " endorsement " by lawyers of their clients' cases; stagey eye rolling

> when their opponents make points; badgering of witnesses; appeals to

> sympathy or anger; blatantly

> rehearsed or coached testimony; comments that mislead, distract, or

> confuse; opening arguments asserting propositions there is no reasonable

> expectation of proving; closing

> arguments that endeavor to slip across propositions unsupported by what

> has come before -- all are tolerated in some, though far from all,

> American courtrooms. (Practices

> differ enormously from one locality to the next and even between

> different judges in the same locality.)

>

> The opening and closing arguments of a trial, in which lawyers speak

> directly to jurors, are particularly susceptible to demagoguery. One

> attorney laments that the final

> argument stage " has increasingly turned into a quagmire of personal

> character attacks, impermissible reference to non-record evidence, and

> blatant pleas to jurors'

> sympathies and prejudices. " Judges sometimes sit by while attorneys

> mischaracterize what has been said before, compare opponents to

> murderers or Nazis, insist on logical

> inferences that are not, in fact, logically obligatory ( " If the gloves

> don't fit, you must acquit " ), address jurors by name, and so forth. If

> a private lawyer pulls out a Bible

> and starts quoting from it in open court to explain why his opponent

> should lose, no one from the American Civil Liberties Union will let out

> a peep.

>

> Why do so many judges in America feel constrained not to take control of

> trials? One reason, notes Mason University law professor

> Bernstein, is that the

> remedies available to them may seem inadequate to the task. Declaring a

> mistrial will usually seem like too drastic a reaction when a lawyer

> steps over the rhetorical line, yet

> merely instructing jurors to disregard any inflammatory bits is

> notoriously feeble. And on many matters -- granting demands for sidebar

> conferences or more time to question

> witnesses, for instance -- judges may accurately calculate that they

> face possible scrutiny from appeals courts if they take a hard line, but

> relatively little chance of such

> trouble if they let the lawyer have his way.

>

> Getting the other side's evidence excluded can be as effective a path to

> victory as introducing prejudicial material of one's own. Such a pattern

> has turned up in quite a few

> " big " jury verdicts, starting with v. G.M., where neither the

> drunk driver's role in causing the crash nor the car's overall safety

> record made it into testimony. After

> managing to get the guilt and imprisonment of the drunk driver excluded,

> plaintiffs informed the jury that his fault consisted of " five seconds

> of bad judgment, " whereupon

> the jury allocated to him only 5 percent of the responsibility for the

> injuries.

>

> Chrysler lost a $262 million verdict, mostly overturned later, over a

> crash in which a little boy was thrown from a Dodge Caravan. The judge

> decided that jurors should not be

> told that the victim had not been wearing his seat belt or that his

> mother, driving the van, had run a red light. Suzuki lost a $90 million

> verdict after the trial judge barred

> evidence that the driver in the crash had attended a wine tasting just

> before the accident. (The suit was filed by a passenger in the driver's

> car.) The company got that

> verdict thrown out, but at the second trial the company was still barred

> from obtaining medical records on the driver's blood alcohol level.

>

> From much of the advice on jury handling found in the literature, one

> might conclude that practicing lawyers have a low regard for jurors'

> acumen. Consultants advise that

> " logic plays a minimal role " in the courtroom and that the real trick is

> to identify the jurors' " psychological anchors. " A brochure from the San

> Diego Trial Lawyers

> Association promotes a video entitled Trying a Case to the Two Minute

> Mind; aka Trial by Sound Bite. It promises to explain how " to streamline

> each element of a trial based

> on the fact that most jurors are used to getting a complete story within

> a two-minute maximum segment on the evening news. This video

> demonstrates the effectiveness of

> visual aids, impact words and even colors, to influence the juror's

> perception and thought process in the least amount of time. " A trial

> lawyer must -- as

> prosecutor-turned-author Bugliosi has written -- " put a bib on

> the jury and spoon-feed it. "

>

> Race in the Courts

>

> No modern story has done more to shake public confidence in trial

> outcomes than the ultrapublicized 1995 O.J. Simpson trial, in which,

> after a 133-day, $15 million trial, a

> Los Angeles jury took just three hours to acquit the former football

> star. Even within the American legal profession, so given to closing

> ranks against criticism, few cared to

> defend the Simpson trial's conduct or outcome. Instead, it was said to

> have been the fluke result of a never-to-be-repeated confluence of

> money, celebrity, bungling by the

> judge and prosecutors, and sheer luck. It was " aberrant, " " one of a

> kind, " " in no way typical, " and so forth. " The Simpson case is [such] an

> anomaly that we cannot generalize

> from it, " said a California jury consultant.

>

> Actually, the Simpson acquittal stood in a long tradition: By the 19th

> century, prominent lawyers in the nation's turbulent cities were already

> making a name for themselves by

> winning acquittals for obviously guilty malefactors to the cheers of the

> mob. Such cases helped put the jury system itself under a cloud, despite

> its venerable pedigree in

> Anglo-American law and as a bulwark of liberty in colonial times. " The

> jury system puts a ban upon intelligence and honesty, and a premium upon

> ignorance, stupidity, and

> perjury, " Mark Twain famously complained. We " swear in juries composed

> of fools and rascals, because the system rigidly excludes honest men and

> men of brains. "

>

> By the turn of the 20th century, uneasiness over the competence and

> objectivity of juries was already something of a tradition in itself.

> Many reformers during the

> Progressive and New Deal eras distrusted juries for their lack of

> expertise, their unpredictability, their cumbersomeness (trials are

> significantly longer and more expensive

> when juries are part of them), the lack of a written record explaining

> their decisions, and, of course, their susceptibility to demagoguery and

> sectional feeling. What did the

> most to undermine support for the jury during the 20th century was the

> record of Southern all-white juries, notoriously lawless and hostile to

> blacks' interests. It took many

> years after the fall of Jim Crow for Southern juries to lose their

> reputation as instruments of white prejudice.

>

> Eventually, the expectation that jury outcomes would be racially tinged

> would subside -- for a while, at least. Yet neither race nor

> sectionalist sentiment ever actually went

> away as factors in lawyers' practical courtroom work. By the 1990s,

> concern about racially tinted verdicts was on the upswing again after a

> series of high-profile police

> brutality cases, where such factors had loomed large, as well as reports

> that prosecutors were finding it hard to obtain convictions on certain

> types of charges in heavily

> black cities such as Detroit. A law professor at Washington

> University provoked an outcry when he suggested that it might be

> appropriate for black juries to decline

> to enforce the law in some prosecutions for nonviolent crimes.

>

> With the Simpson case, the debate reached the front burner. Ironically,

> one of the most telling facts about the case was that neither the

> defendant nor anyone else had at

> first expected his race to play much of a role in what was to come. ( " I

> don't see race, " Simpson told a friend. " Race is not an issue. " " To put

> it bluntly, " Cochran later

> explained, " nobody thought of him as black. " ) But shrewdly perceiving

> their big chance for a diversionary issue, Simpson's lawyers eventually

> went to such unsubtle lengths as

> wearing garments of African kente cloth to court appearances.

>

> When the jury was set to make an on-site visit to the football player's

> home, Simpson's defense team went so far as to spend a day stripping the

> walls of their many pictures

> of white girlfriends, celebrities, and corporate sponsors and replacing

> them with pictures of Simpson's black relatives, hastily done up as

> color photocopies at a local Kinko's

> and framed. In a crowning touch, Simpson's lawyers framed and hung up,

> in a conspicuous location, one of the most famous images to come out of

> the civil rights era, Norman

> Rockwell's 1963 painting of a young black girl being escorted to school

> by federal marshals.

>

> Though it's a topic that defendants in lawsuits are extremely reluctant

> to discuss, racial sentiment is looming as a factor against them in more

> and more civil cases, with help

> from some in the plaintiffs' bar. Environmental lawsuits, such as those

> arising from low-exposure tanker spills or pollution in minority

> neighborhoods, have increasingly scored

> record-breaking verdicts as lawyers play the " environmental racism "

> card, arguing that the company would have taken better care of the

> neighborhood had it been white.

>

> It would be difficult to imagine a mass tort that had less of a

> connection to race than the Engle case in Florida, since smokers are

> drawn from all ethnic groups. Yet having

> obtained a heavily minority jury, plaintiffs' attorney Stanley

> Rosenblatt proceeded to try the case for a racial payoff, putting

> experts on the stand who depicted smoking as

> particularly lethal to blacks and hammering away at the tobacco

> companies for advertising in black magazines and consciously pursuing

> black customers. (That black

> publishers, radio stations, and event promoters had avidly pursued such

> " targeted marketing, " and even sometimes complained of racism when they

> weren't able to get enough

> of it, didn't enter the argument.)

>

> Jury Power

>

> Although the litigation lobby likes to carry on as if the jury is in

> imminent danger of abolition, there is virtually no organized or even

> disorganized sentiment in this country in

> favor of such a drastic step. The consensus that juries are here to

> stay, however, should not imply that it is impossible to hold a public

> debate about how best to structure

> their role.

>

> A legal system needs multiple lines of defense against miscarriages of

> justice, and historically the jury has had few rivals as a way of

> protecting defendants from

> overweening official power. But like any other part of government, a

> jury can pose a danger to liberty when it begins wielding government

> power in an affirmative way, as

> when it extends legal liability into new areas or inflicts arbitrary

> damage awards. A mechanism that works extremely well as a brake may lead

> to disaster when pressed into

> service as an accelerator.

>

> One of the areas where juries are widely seen as having the worst

> difficulties is in the credible and consistent computation of damages.

> Given that, one reform worth

> considering would be to keep with the jury the decision of whether

> defendants are to be held liable but reserve to the judge the

> calculation of remedies -- just as in most

> criminal trials the jury resolves the defendant's guilt but the judge

> alone then decides on sentencing. Even better, perhaps, would be a rule

> by which judge and jury would

> separately arrive at damage numbers, and then the verdict would issue at

> whichever of the two numbers was lower, following the idea that a

> two-signature check should issue

> only in the amount for which both parties are willing to feel

> responsible.

>

> Another set of reforms worth careful consideration would endeavor to

> give juries more power, rather than less, by rousing them from their

> artificial passivity. At present

> juries are subject to numerous constraints that almost seem designed to

> leave them vulnerable to the forensic skills of those who practice

> before (and on) them. Usually, for

> example, they are forbidden to take notes, even while everyone else in

> the courtroom is scribbling away; nor are they usually supposed to ask

> or suggest questions, a method

> well calculated to stifle any intellectual initiative they might show.

>

> The legal instructions on how jurors are to resolve the case are

> commonly withheld until the last moment, a mode of proceeding one judge

> has compared with asking jurors to

> watch a ball game and decide who won without letting them know the rules

> till play is over. When the guidelines finally do arrive, the judge or

> his clerk has frequently cast

> them in legal jargon aimed at withstanding appellate review, which to

> lay listeners might as well be Serbo-Croatian.

>

> Courts in Arizona and elsewhere recently have experimented with relaxing

> some of these constraints by letting juries take notes and pose

> questions to the judge. Much of the

> legal establishment has greeted these experiments tepidly; many who

> style themselves as defenders of the jury system may in fact be most

> comfortable with the institution

> when it serves as a sort of queen bee, all-powerful in theory but

> immobilized and force-fed in practice.

>

> The Simpson aftermath led to renewed public calls for judges to take a

> firmer hand in managing trials, keep questioning on track, curb bullying

> of witnesses by lawyers, and

> so forth, which would be all to the good if it happened. It also led to

> long-overdue calls for reforming the jury selection system, including

> the abolition or curtailment of

> peremptory challenges and narrowing of for-cause challenges.

>

> Why does the litigation lobby fight such reforms? Why does it carry on

> at such length about the jury as a representative institution, then do

> its best during selection to make

> it as unrepresentative as it knows how? Why does it endlessly compare

> the jury box to the ballot box, then turn away from it people it

> suspects of planning to vote the

> " wrong " way? These varied positions are not united by the goal of

> maximizing the power juries get to exert. On closer inspection, they can

> be seen to share only one common

> theme: They all arrange matters so as to maximize the power trial

> lawyers themselves get to exert. Should we be surprised?

>

> Contributing Editor Walter K. Olson is a senior fellow at the Manhattan

> Institute. This article is excerpted from The Rule of Lawyers: How the

> New Litigation Elite Threatens

> America's Rule of Law (St. 's Press, January 2003). Portions of

> this article were adapted from the author's earlier writing for this

>

> -----------

>

> Implantable Devices May Monitor Organs

> Implantable Medical Devices Are Being Created to Monitor the Functions

> of Organs in Human Bodies

>

> The Associated Press

>

> ARDEN HILLS, Minn. Dec. 23 -

>

> Data recorders in airplanes, the so-called black

> boxes, describe what went wrong after a disaster.

> Now, medical devices are emerging to act like a

> black box in the human body, except they're being used to prevent

> disaster.

>

> Though still in an early stage, a market is growing for implantable

> monitors,

> tiny devices that track the function of a person's organs.

>

> Five years ago, Medtronic Inc. released its first implantable monitor

> for

> people with mysterious fainting spells. Though a niche product for the

> giant

> maker of pacemakers and defibrillators, it was a breakthrough, giving

> doctors

> far more data about effects on a fainting person's heart.

>

> Two product generations later, Medtronic has sold more than 25,000 of

> the

> 2-inch-long monitors, which weigh just a few grams. They're placed in a

>

> person's pectoral muscle, sometimes for just a few days, and track

> heart

> activity in a 42-minute loop.

>

> When a person recovers from a fainting incident, he or she stops the

> monitor.

> A doctor or nurse can then retrieve the data with a special radio

> receiver, and

> restart the loop.

>

> Other implants are being readied to monitor blood pressure and heart

> rate

> even inside the heart itself.

>

> The Medtronic monitor, known as Reveal, has become useful beyond

> fainting

> spells.

>

> Willoughby, 71, who had one of the monitors implanted in his

> chest

> almost two years ago, suffers from myotonic dystrophy, a degenerative

> muscle condition often marked by an irregular heartbeat.

>

> Willoughby, of Lapel, Ind., tried wearing an external electrocardiogram

>

> monitor to watch for unusual heart events, but the bulky device was a

> nuisance.

>

> His implanted monitor, by contrast, is constantly alert to capture and

> store up

> to 13 unusual events that occur during its loop. Its information is

> downloaded

> in quarterly visits to his doctor.

>

> A year after receiving it, Willoughby's device detected atrial

> fibrillation, an

> irregular heartbeat that can increase the risk of stroke. His doctor

> prescribed

> blood thinners.

>

> " I don't mind dying suddenly from a heart attack, " the former General

> Motors

> tool-and-die worker said. " But I don't relish the idea of spending days

> in an

> infirm condition in a nursing home. "

>

> Immediately after Medtronic's device hit the market, the quality of

> diagnosis

> for people with infrequent fainting spells shot up.

>

> " A lot of the pull for the device came from patients, people who were

> frustrated, weren't able to drive, in disarray because fainting messed

> up their

> lives, " said Lee, the device's co-inventor.

>

> The Reveal is just the start for implanted monitors.

>

> The advance of wireless technology and the Internet allowed makers of

> other

> implants, such as pacemakers and defibrillators, to add monitoring

> features.

>

> Medtronic and rival Biotronik Inc. in the past year began selling such

> products.

>

> With the Baby Boomer generation hitting old age in the next two

> decades,

> doctors hope implantable monitors will help them treat patients for

> less cost

> with fewer hospital visits.

>

> Developers envision implantables that track pressure in the brains of

> spina

> bifida patients who require fluid-draining shunts. For paraplegics who

> have

> lost sensitivity in their bladder, an implant could signal when it's

> time to

> urinate.

>

> " Theoretically speaking, you can record many other things, such as

> blood

> pressure, blood sugar, " says Klein, a Canadian doctor who asked

> Medtronic to help develop the Reveal. " You've got a little device

> that's

> monitoring all kinds of biochemical and physiological information that

> can be

> transmitted to a medical center or to other devices in the body. "

>

> Data Sciences International Inc., a small company near Medtronic's

> headquarters in this Minneapolis suburb, will start clinical trials

> next year of

> monitors that can track blood pressure inside the heart itself.

>

> The company, which produced implantable monitors in lab animals, is

> racing

> with Medtronic to produce devices aimed at heart failure patients.

>

> Data Sciences also made progress with pressure-sensing and packaging

> technologies. Traditionally, implanted devices like pacemakers were

> packaged in titanium. Data Sciences will rely on new ceramic material.

>

> Its first product will have a home base station that reads the radio

> signal sent

> from the implanted blood pressure monitor. The device plugs into a

> phone

> jack and transmits data to the patient's doctor.

>

> Medtronic's competing product, called Chronicle, works in a similar

> fashion

> and is already in clinical trials.

>

> To many doctors, implanted devices represented a last resort. Few

> believed

> they should be used for diagnosis, preferring to implant only devices

> that

> correct problems, as pacemakers and defibrillators do.

>

> But the success of Medtronic's Reveal forced doctors to re-evaluate.

>

> " The tools are safer, smaller, better, all these features that make

> them not as

> intrusive, " said Foote, a University of Minnesota professor who

> studies

> medical technology policy.

>

> AP News Editor Doug Glass in Minneapolis contributed to this story.

>

> may not be published, broadcast, rewritten, or redistributed.

>

> --------

>

> Toxic Discovery

> Phone: (573) 445-0861

> Toll Free - 1-800-462-9106

> Fax: (573) 445-4700

> www.toxicdiscovery.com

> " Informed Consent Begins With Informed Individuals "

> _____________

>

December 27, 2002