Sustained Outrage

Time for another batch of stories that caught our attention this week:

Obesity now causes more deaths than smoking in Australia, The Sydney Morning Herald recently reported. New data from Western Australia show that the number of times excessive weight has been linked to ill health more than doubled in six years. In 2006, excessive weight accounted for 8.7 percent of disease. Tobacco had fallen to 6.5 percent.

Police in Louisville will soon receive subpoenas to appear in court electronically, according to the Louisville Courier-Journal. An estimated 10 percent of the 100,000 paper subpoenas issued annually never reach the officers, which is one reason they fail to show up for court. Officials hope that the electronic upgrade will cut down on time-consuming paperwork and increase the officers’ accountability.

Facing a potential shortage of primary care doctors nationwide, nurse practitioners may take a larger role in seeing and caring for patients, The Associated Press reported. Studies suggest that the quality of care is very comparable between doctors and nurse practitioners, according to the article. However, the American Medical Association remains concerned about patient safety if nurse practitioners are given more authority over patients.

Another Thursday means another dose of things that caught our eye this week:

1aharkinminesafety_I100320161520Given the deadly explosion at Massey Energy’s Upper Big Branch Mine near Montcoal on Monday, a story of a few weeks ago remains painfully timely. At a mine safety conference at Wheeling Jesuit University, the U.S. Mine Safety and Health Administration reported that fewer than one in 10 mines across the country had installed communications and tracking equipment required by the 2006 MINER Act. The requirement was intended to help miners escape in case of fire or explosion. At Upper Big Branch, the equipment had been partly installed. Who knows if fully installed equipment would have helped rescuers locate the missing miners in this case, but what about hundreds of other mines across the country?

Too many papers to grade? A biz prof at the University of Houston upped the amount of writing required of students, but found that she and her teaching assistants were too pressed for time to give valuable detailed feedback to students, so she outsourced the grading to a Virginia-based company. Much of the actual grading and critiquing is done in places such as Bangalore, reports the Chronicle of Higher Education.

Compounds in food cans, but also in nail polish and shampoo have been linked to early puberty in girls, setting them up for diabetes and other health problems, reports the Telegraph in London. The stuff is even found in coatings on medicines and vitamins.

Here’s our weekly look at stories and developments that attracted our attention this week:

Daniel Gilbert of the Bristol Herald Courier produced a lengthy series about a myriad of problems with Virginia’s system for handling royalties from natural gas drilling operations in the state’s southwestern counties. The series, Underfoot, Out of Reach, was among the winners announced this week of the annual Investigative Reporter and Editors journalism contest. Among the other winners and finalists was the Gazette’s Eric Eyre, a finalist for his series of articles about fraud in the Workforce West Virginia agency.

In the wake of two recent fatal shootings by police officers, Portland’s City Council voted unanimously to adopt changes to the city’s independent police oversight division, the Oregonian reported. The reforms included authorizing the city auditor, rather than the chief of police, to nominate citizens to the police review board. The oversight division’s director now has to sign off on all internal affairs investigations, and the division has the authority to initiate investigations of police misconduct of its own accord.

The Securities and Exchange Commission is considering changing its policy and disclosing details of its investigations into alleged wrongdoing by individuals and firms even when cases settle before trial, according to this story in the Washington Post. Traditionally, when individuals and companies settle SEC lawsuits, few details become public. The prosposed changes might discourage wrongdoers from settling, warn critics, but supporters maintain that more transparency will help restore public confidence in the regulatory agency and its enforcement.

Race to the Top feedback comes back

The state Department of Education received feedback on its unsuccessful bid to become a finalist for Race to the Top, the Obama administration’s $4.35 billion competition for federal education dollars.

State Superintendent of Schools Steve Paine issued a statement Monday, which included:

“According to the U.S. Department of Education, the areas in need of improvement in West Virginia’s educational system are personnel laws related to teachers and principals, charter school legislation, and student test scores on the National Assessment of Educational Progress (NAEP). The West Virginia Board of Education and I will carefully scrutinize the evaluation and make recommendations to the Governor so that our state is better positioned for phase two of the competitive grant process.”

Earlier this month, Gov. Joe Manchin said education is falling behind in West Virginia and he strongly urged state Board of Education members to step up and take a lead on issues like charter schools, further changes to the school calendar and other matters. West Virginia does not have a charter school law, but the legislation could come up in a special session this spring.

The feedback can be found near the bottom of this page.






Photo by Tom Hindman, Charleston Daily Mail, via the AP

The August 2008 explosion that killed two workers at the Bayer CropScience plant in Institute, W.Va., was cited earlier this week as an example of why penalties issued by federal safety inspectors are not deterring violations of important workplace protection standards.

In testimony submitted to the House Education and Labor Committee’s Workplace Protections Subcommittee, national AFL-CIO safety director Peg Seminario told lawmakers:

In another case that involved a planned inspection at the Bayer Cropscience chemical plant in Institute, West Virginia, in 2005 OSHA originally cited the company for 2 willful violations and 8 serious violations of the process safety management (PSM) standard and related requirements and proposed $135,000 in penalties. In a formal settlement the serious violations were deleted, and the 2 willful violations were changed to “unclassified” with a $110,000 final penalty assessed.

In August 2008, there was a powerful explosion and fire at the Bayer facility that killed two plant operators and threatened the community. The explosion occurred when there was a runaway reaction during the restart of a methomyl unit.  Methomyl is a highly toxic substance that is sold as a pesticide.  In the preliminary report on its investigation of the explosion, the Chemical Safety Board found significant deficiencies in process safety management that according to the Board likely contributed to the accident. The CSB also found that the explosion could have been catastrophic.  Within 80 feet of the site of the explosion, there is a 37,000 pound capacity tank of methyl isocyanate (MIC), the same chemical that caused the deaths of thousands in the toxic gas release in Bhopal, India in 1994.  The CSB found explosion debris near the MIC unit, which if compromised could have led to a catastrophic outcome.

The OSHA investigation of the 2008 Bayer explosion found extensive violations of the process safety management standard.  OSHA issued 11 serious and 2 repeat violations, but no willful violations, and proposed $143,000 in penalties.  The company  contested all of the citations.

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That’s the time frame that Senate Republicans are using, according to Sen. Mark Begich, D-Alaska, one of several Democratic senators who took to the Senate floor on Tuesday to decry the pace of judicial confirmations. Here’s what Begich said:

The problem and the cynicism of Republican obstructionism is seen nowhere as obviously as in the judiciary. There are currently 103 federal judge vacancies. Several nominees reported out of the Judiciary Committee have been denied votes in the Senate by Republican obstructionism for almost 200 days. In some cases the judicial seat to be filled has been vacant for years. It is clear that—even if they are in denial about who was elected in 2008—our Republican colleagues have their sights set on 2012 and beyond, when they hope to have a huge number of federal court vacancies to be filled by a President more to their liking.

Apparently, being forced to invoke cloture over Virginia Supreme Court Justice Barbara Milano Keenan, who was then confirmed for a seat on the U.S. Court of Appeals for the 4th Circuit by a vote of 99-0, has rubbed a few senators the wrong way. More from Tuesday, from Virginia Sen. Mark Warner:

Justice Keenan was filibustered, in effect, because one Senator placed a hold on her. Consequently, cloture had to be filed. That was despite the strong endorsement Justice Keenan had received from our new Republican governor, Governor McDonnell. I appreciate his support of Justice Keenan. A funny thing happened when we forced the vote both on cloture and the nomination: She was confirmed unanimously. Filibustering a nominee who gets a unanimous vote, something is not right with that. That is not the way this body is supposed to work.

And North Carolina Sen. Kay Hagan:

In fact, there are two judicial nominees on the calendar from North Carolina who would be easily confirmed should they come up with for a vote, Jim Wynn and Al Diaz, nominees for the Fourth Circuit Court of Appeals. They were both approved by the Senate Judiciary Committee in January. But truth be told, we have not just been waiting since January, we have been waiting since 1994. There has been an opening for a North Carolina judge on the Fourth Circuit since 1994. Partisan politics has gotten in the way of filling that vacancy time and again. Finally, we have not one but two qualified judges, supported by both myself and Senator Burr. Let’s bring them up for a vote

And Minnesota Sen. Al Franken:

[Keenan] was then confirmed unanimously, 99 to 0. Yet we are forced to vote for a filibuster. That is nuts. This is a perversion of the filibuster and a perversion of the role of the Senate. It used to be the filibuster was reserved for matters of great principle. Today it has become a way to play out the clock. Some of my colleagues seem more interested in using every procedural method possible to keep the Senate from doing anything then they are in creating jobs or helping Americans struggling in a difficult economy. They seem to actually want the government to fail. Why else delay things you actually agree with?… Let’s give the executive branch and the judicial branch the people they need so we can help government function in the way it is supposed to and reassure Americans that government does work for them.

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When veterans become criminal defendants

gavelflagA case from West Virginia is the starting off point for this article in the New York Times about how judges are considering military service when sentencing veterans who become criminal defendants.

Many veterans like Mr. Oldani have returned from Afghanistan and Iraq burdened by post-traumatic stress, drug dependency and other problems. As veterans find themselves skirmishing with the law, judges are increasingly finding ways to provide them with a measure of leniency.

“More and more courts are noticing and asserting, in a variety of ways, that there seems to be some relevance to military service, or history of wartime service, to our country,” said Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing.

At the federal level, judges are bucking guidelines that focus more on the nature of the crime than on the qualities of the person who committed it. States, too, are forming special courts to ensure that veterans in court receive the treatment their service entitles them to.

Per capita, West Virginia has a disproportionately high number of veterans. According to these figures from the U.S. Department of Veterans Affairs, almost one in ten (or 9.6 percent) of the Mountain State’s population served in the military, compared with 7.7 percent nationally.

As the article notes, many veterans are coming home from the Middle East with Post-Traumatic Stress Disorder.

While veterans are not considered to be more likely to be arrested than the rest of the population, estimates released by the Bureau of Justice Statistics in 2008 found 229,000 veterans in local jails and state and federal prisons, with 400,000 on probation and 75,000 on parole.

There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, said Jim McGuire, a health care administrator at the agency. He cited statistics suggesting that 27 percent of active-duty veterans returning to civilian life “were at risk for mental health problems” including post-traumatic stress syndrome.

In February 2009, Timothy Oldani, of Scott Depot, pleaded guilty to selling night vision optics that his brother, Joseph Oldani, stole while serving at Camp LeJeune in North Carolina. U.S. District Judge Robert C. Chambers, who presides in Huntington, not Charleston, as the Times bylined its story, gave Joseph Oldani 21 months in prison, while Timothy Oldani received a five-month prison sentence.

According to a Gazette brief from June 2009, Chambers told Timothy Oldani during his sentencing hearing: “You were an excellent soldier. You served with honor and bravery, but that is not a free pass to probation.”

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Corporate personhood and judicial activism

Several legal experts discussed the U.S. Supreme Court’s recent interpretation of corporate personhood in its 5-4 Citizens United decision during a hearing before the Senate Judiciary Committee earlier today.

You can listen to the entire hearing here, and read prepared statements of Judiciary Chairman Patrick Leahy (D-Vt.) here and members Russ Feingold (D-Wis.) here and Benjamin Cardin (D-Md.) here. Previous Sustained Outrage coverage is here, here and here.

Ranking Member Jeff Sessions (R-Ala.) said that criticisms of the decision were “overwrought,” and he praised the decision as “a very important affirmation of a fundamental American liberty.”

“This is a legitimate interpretation of the words and the spirit of the First Amendment which favors the liberty of advocacy in a very clear way,” he said. “I am concerned, though, that there has been too much alarmist rhetoric that has been flying around since this decision.”

Two of the three panelists who testified disagreed.

Doug Kendall, president of the Constitutional Accountability Center, said the majority opinion was “completely divorced” from the text and the history of the Constitution. (Kendall and CAC colleague David H. Gans published A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law today. You can read it here.)

The debate about how to treat corporations – which are never mentioned in our Constitution, yet play an ever‐expanding role in American society – has raged since the founding era. The Supreme Court’s answer to this question has long been a nuanced one: corporations can sue and be sued in federal courts and they can assert certain constitutional rights, but they have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. Only once, during the darkest days of the now‐infamous Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by “We the People.” And even in the Lochner era, equal rights for corporations were limited to subjects such as contracts, property rights and taxation, and never extended to the political process.

Far from considering corporations associations of persons deserving equal treatment with living persons, corporations have been treated as uniquely powerful artificial entities – created and given special privileges to fuel economic growth – that necessarily must be subject to substantial government regulation in service of the public good. Fears that corporations would use their special privileges, including limited liability and perpetual life, to overwhelm and undercut the rights of living Americans are as old as the Republic itself, and have been voiced throughout American history by some of our greatest statesmen, including James Madison, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin Delano Roosevelt.

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Toyota to mount its own information campaign

Toyota is preparing to go on the offensive this week, several media outlets are reporting, particularly against those who have criticized the automaker’s response to allegations of problems with electronic throttle control systems in its cars.

From the Wall Street Journal:

With embarrassing vehicle recalls and testy congressional hearings behind it, Toyota Motor Corp. is planning an assault next week on its critics as the company digs in for a mammoth legal battle.

In a media event planned for Monday and a Tuesday address to 1,000 suppliers, the Japanese auto maker plans to defend its electronics systems.

It will roll out independent experts like the head of Stanford University’s auto-research center to discredit a study that suggests electronics are to blame for sudden acceleration in some Toyota vehicles.

The company is also challenging the credibility of a self-described whistleblower who has turned over internal company documents to congressional investigators. The company is providing reporters with court filings that it says show the former employee has a history of mental illness and poor performance reviews.

And the Financial Times:

Toyota will on Monday hit back at one of its most high-profile critics by staging a technical demonstration intended to rebut his claim to have uncovered a potentially dangerous flaw in the carmaker’s onboard electronic control systems.

Toyota’s rebuttal of tests carried out by David Gilbert, associate professor of auto technology at Southern Illinois University Carbondale, comes amid growing pressure on the Japanese company to back up its insistence that electronic defects had nothing to do with reported acceleration problems suffered by its cars.

There was also a very interesting article published Sunday by Frank Ahrens of the Washington Post (registration required) that explored why it is so difficult for Toyota — or any company that markets complex products full of electronics — to definitively get to the root of the problem.

After receiving complaints about unintended acceleration, the company has to try to reproduce the incident, and then try to determine what may have caused it, Ahrens noted.

Then follows a process of elimination. It’s not dissimilar to a doctor diagnosing an illness: Take a thorough reading of the symptoms, then begin eliminating causes. Treat what you think is the illness. If it doesn’t go away, treat your second guess at the illness.

Toyota appears from the start to have removed its electronic throttle control from the list of possible causes of the runaway acceleration and focused on two mechanical issues: floor mat entrapment and sticky gas pedals.

Ahrens draws a parallel between Toyota’s predicament and that of software developers, who test and test and test their product before releasing it, only to have glitches and errors they never envisioned pop up during public use.

If you put a lot of parts together to form a complex electromechanical machine and make it talk to itself via software, it can behave, sometimes, in ways you cannot anticipate. It can fail for reasons you cannot anticipate.

That’s the problem Toyota faces. And, after thorough testing by Toyota, NHTSA and garage mechanics trying to win the $1 million prize, no single answer may be found. Obviously, this will not stop juries from awarding damages in the liability lawsuits already filed.

toyota-logoIt’s been another very tough week for Toyota. Let’s review:

On Tuesday, during a full day of testimony in front of the Senate Committee on Commerce, Science and Transportation, Sen. Jay Rockefeller (D-W.Va.) told company representatives: “Safety took a second seat to profits . . . . [t]hings do not happen in Japanese corporations by chance. They happen by decision.”

Then on Thursday, there were reports that some of the cars that had been serviced as part of the recall were experiencing incidents of unintended acceleration after they had been fixed. You can read Toyota’s official response here.

Also on Thursday, the Associated Press released this in-depth review of Toyota’s efforts to keep others, including regulators and opposing attorneys in lawsuits, from getting information stored in on-vehicle event data recorders similar to black boxes on airplanes.

The AP investigation found that Toyota has been inconsistent — and sometimes even contradictory — in revealing exactly what the devices record and don’t record, including critical data about whether the brake or accelerator pedals were depressed at the time of a crash.

By contrast, most other automakers routinely allow much more open access to information from their event data recorders, commonly known as EDRs.

And today, Reps. Henry Waxman (D-Calif.) and Bart Stupak (D-Mich.) sent another strongly worded letter to James E. Lentz, president and COO of Toyota Motor Sales, U.S.A., who testified before the House Committee on Energy and Commerce on Feb. 23. The letter demands that the automaker be more forthcoming with Congress.

We do not understand the basis for Toyota’s repeated assertions that it is “confident” there are no electronic defects contributing to incidents of sudden unintended acceleration. We wrote you on February 2, 2010, to request “all analyses or documents that substantiate” Toyota’s claim that electronic malfunctions are not causing sudden unintended acceleration. The documents that Toyota provided in response to this request did not provide convincing substantiation. We explained our concerns about the failure of Toyota to substantiate its assertions in our letter to you on February 22, 2010.

It may be that Toyota has done “extensive” and “very rigorous” testing of its vehicles for electronic defects. But if so, the results of this testing should have been provided to the Committee. Despite our repeated requests, the record before the Committee is most notable for what is missing: the absence of documents showing that Toyota has systematically investigated the possibility of electronic defects that could cause sudden unintended acceleration.

To assist the Committee in its investigation of these matters, we ask that you identify the official or officials who have personal knowledge of Toyota’s efforts to test its vehicles for electronic defects that could cause sudden unintended acceleration and make them available to the Committee for transcribed interviews next week.