Institute of Medicine Report Sketches Basic Insurance Package: Can Americans Afford $458/Month in Individual Premiums?

Media reports, like the article published today by the Associated Press entitled "Feds to design health insurance for the masses," are giving various takes on the new 300-page report released by the Institute of Medicine.

You can read the full report online, for free, at the Institute of Medicine's website (or buy a copy for yourself).  The report, Essential Health Benefits" Balancing Coverage and Costs (2011), has been compiled by independent experts with the goal of providing a framework for the Obama Administration on how to create a basic benefits package that covers "essentials" and yet remains affordable.

The cost?  At the low end, they are talking $5500 (high end is $7000) in annual premiums for individual coverage.  Take the lowest figure, $5500, divide it by 12, and you've got a monthly premium (for an individual, not a family) of $458.00.

This week, there was another big news story:  48.5% of the American population received some type of help from the federal government in the months of January through March 2010 according to the latest Census.  That's right at HALF of the American households, a year and a half ago. 

CNN points out that 46,000,000 Americans live below the poverty line and that employment is right around 9% right now.  CNN's Jack Cafferty writes, "Here’s my question to you: How long can we go on with almost half of Americans living in households that get government assistance?"

So here's what I'm wondering:  Can Americans afford $458/individual premium added to their monthly budgets each month?  (No, according to these other numbers, Americans cannot make this payment.) 

Before we even get to the constitutional issues or the political finger-pointing, shouldn't this be the first question?  

Circumstantial Evidence vs Direct Evidence

Can we trust circumstantial evidence?  Sure we can.  And we do.  Rather than use my own words to explain why, I'll leave it to the United States Supreme Court in the landmark case, Holland v. U.S., 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127 (1954):

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

For Those That Distrust Circumstantial Evidence, Direct Evidence Isn't That Reliable

There are those that may argue that direct evidence, especially in a murder case, should be the only evidence used to convict.  However, in our imperfect world there usually isn't much direct evidence in most crimes -- and the direct evidence that may be had might not be the most reliable.

Eyewitness testimony is notoriously unreliable, for example - and you can't get more direct that a witness glaring at a defense table, pointing his finger and crying out, "he did it!" 

Meanwhile, the slow and tedious introduction of pieces of circumstantial evidence, as time consuming as it might be, can provide a clear picture of the truth - I like to think of it as a "Lite-Brite" of sorts.  Remember Lite-Brites?  They were toys were white lights were hidden by thick black paper on a screen, and you had oodles of plastic buttons, or pegs, that you pushed one at a time into that black nothingness until an image emerged. 

Perhaps those that distrust circumstantial evidence are more concerned, really, with the burden of proof that the State in a criminal case must meet in order to prove their case.  Twelve jurors must use what they have (from Holland, their "experience with people and events") and determine if there is any reasonable doubt left that the defendant did the crime alleged.

Doubt can remain.  It just cannot be a reasonable doubt. And logical reasoning can occur in that jury room.  If it walks like a duck, and it talks like a duck, you can infer it's a duck.  

Some Believe That Circumstantial Evidence is More Reliable That Direct Evidence

Note:  In fact, there are those in the criminal arena that find circumstantial evidence to be more reliable than direct evidence (especially when we're talking eyewitnesses).   If you are interested in learning more on that issue, I've downloaded Professor Heller's excellent article on this subject, "The Cognitive Psychology of Circumstantial Evidence," 105 Michigan Law Review (2006) at Google Docs.

The University of Michigan Law School is one of the most prestigious law schools in the country, and coming from UT Law, another top tier law school, maybe I should have found a UT Law Review article -- but I like Heller's article here and I think you will, too.

The Expansion of States' Rights and Federal Preemption Arguments at the U.S. Supreme Court

Admittedly, when I first hear the phrase "states' rights" I immediately think of Gone With the Wind.  Maybe you'll remember that scene early in the film, where in the smokey front parlor of Twelve Oaks,  Charles Hamilton challenges Rhett Butler to a duel after a heated debate amidst the gentlemen over whether or not the South can win a war against the Northern States. 

Yes, yes, it does apply:  today, we think of the Civil War as a fight over slavery but at the time, freedom of the individual wasn't the sole focus.  For many, the War Between the States was fought over states' rights and the South's stance that the federal government should not have the legal power to dictate whether or not an individual state had the right to condone ownership of slaves. 

We all know how that turned out.  However, states' rights survives today and I'm wondering how intense this round of states' rights assertions are going to get.  After all, Texas Governor Rick Perry's already written a best-selling book on it.  It's a hot topic. 

So, it's with some serious interest that I'm following the federal preemption decisions that are being made now by the United States Supreme Court in four (4) cases:  Bruesewitz v. Wyeth; Williamson v. Mazda Motors; U.S. Chamber of Commerce v. Whiting; and AT&T Mobility LLC v. Concepcion.

On their face, these cases don't seem to have much in common with each other - until you get the idea that ribboning through all of them is a fight over power to control something: state or federal.   In legal terms, they are federal preemption cases and the High Court will be opining on the Supremacy Clause of the U.S. Constitution as it applies in some very different scenarios. 

Isn't it interesting that writ was granted on these four matters? Is the U.S. Supreme Court about to tell all of us ordinary folk something about how big the Federal Government is, and will be?

1.  Wyeth: the Power of Pennsylvania Personal Injury Law

Bruesewitz v. Wyeth comes to the Supreme Court after the petitioners lost their fight at the U.S. Court of Appeals for the Third Circuit: the lower federal appellate court ruled that parents could not seek legal damages under state law for the damages allegedly sustained by their daughter from a vaccine manufactured by Wyeth because their claim was barred by federal statute.

2.  Williamson: the Power of Utah's Wrongful Death State Law

In Williamson, a wrongful death action was filed under Utah state law by the grieving husband of Thanh Williamson, who died from injuries sustained from the lap seat belt she was wearing when their Mazda minivan crashed back in 2002.  Mazda's successful defense thus far is that it followed the federal safety regulations in place at the time (enacted by the National Highway Traffic Safety Administration), therefore Mazda met the minimum safety standards.  Federal law therefore preempts the state wrongful death case based upon Mazda being negligent in placing a lap belt in the rear passenger seat. There's no causation.  (In 2007, NHTSA upped its requirements, and now shoulder-strapped belts are required for these passengers.) 

3.  U.S. Chamber of Commerce: Arizona's Ability to Regulate Hiring Illegal Immigrants 

In U.S. Chamber of Commerce, a specific state statute passed into law by the Arizona legislature is at issue: the Arizona state law imposes sanctions on companies that hire illegal immigrants and additionally requires the employer to undertake a federal employment verification program that is voluntary under federal law.  Is the regulation of any activity dealing with sanctioning illegal immigration going to held as exclusively the federal government's?

4.  AT&T Mobility: the Power of California's State Sales Tax Regulation

In AT&T Mobility, the issue is whether or not the Federal Arbitration Act takes precedence over a state law passed in California that prohibits a phone company from giving away free phones to those who contract for the company's phone service and still charging the customer a sales tax for the freebie.   The case arguably could result in dooming consumer class action lawsuits.

These Cases Will Be Supreme Court Expansion of States' Rights -- or Affirming Federal Power

Big deal?  Yes. These cases are big deals.  Lots of folk in lots of places are watching these preemption cases, and wondering what the impact of the High Court's decisions will be.  Each of them will be used to apply in all sorts of matters where states' rights are at issue -- arguably, none can be read to their four corners, at least lots of assumptions are already being made that these will be far-reaching precedents.

Oregon Supreme Court Reverses $100 Million Punitive Award Against Philip Morris Based on US Supreme Court Decision Re Punitive Limits

The $100 million punitive damage award against Philip Morris got reversed by the Oregon Supreme Court last week, with the state's high court returning the case back to the trial court for yet another consideration of how much the tobacco company should pay the family of Michelle Schwartz in punitives for her lung cancer death. (The opinion is available online in pdf format.)

The trial court judge already reduced the jury's initial $120,000,000 punitive award to $100 million; now, who knows where it will end up.

Why this second reduction by the Oregon Supreme Court?

Apparently, the tobacco company's defense argument - that jury instructions failed to stop the jurors from awarding punitives against Philip Morris for cancer deaths other than Michelle Schwartz's - prevailed upon appeal.

This, even though the jury's verdict was totally valid under the law that existed at the time that the verdict was reached and the judgment was signed by the trial judge.

What happened?

It wasn't a case of reevaluation of the court's charge: the defense's proposed jury instructions didn't get approved by the trial court judge, either. This decision is a direct result and reaction to the United States Supreme Court's decision that due process requires limitation on punitive damages.

Problem is, the US Supreme Court didn't give any clear help to lower courts in how they are to determine the due process parameters on punitive damage awards. As Oregon Justice Martha Walters explains in last week's opinion, the United States Supreme Court "... has thrust upon state courts the role of determining whether a jury award of punitive damages exceeds the outer limits that substantive due process allows."

Here's what the U.S. Supreme Court opined in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 422, 423 (2003):

"[a] defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis[.]"

Would the same result happen if this case had been filed in another state?

Gotta wonder if another state supreme court, say Texas, would see things the same way as Oregon in the application of this warning from the Supremes. And, will this result simply mean that Plaintiff's lawyers are going to be much more thoughtful about where they file suit against huge, monolithic corporations like Philip Morris?

Nothing like certainty in litigation.

Texas Death Row's Hank Skinner and the US Supreme Court - What About Post Conviction DNA Testing Under 42 USC 1983?

On Monday, the U.S. Supreme Court granted the Petition for Writ of Certiorari filed by Texas Death Row Inmate Hank Skinner.  It's a case to watch, because it means that the High Court will hear Skinner's argument he has a right to pursue a civil claim, not a criminal one, regarding his continuing assertion that he is innocent of the crime for which he has been sentenced to death.

Savvy Appellate Counsel file Civil Rights Claim

What Hank Skinner's savvy defense attorneys have done is file a civil rights claim which argues that his constitutional rights have been violated because the State of Texas didn't allow him to test evidence that was not tested at trial.   He's not arguing this as part of his criminal case (writ of habeas corpus); he's arguing it as a civil matter. 

The Fifth Circuit Court of Appeals already denied him, standing on past precedent and opining that any violations of his constitutional rights to (1) due process and (2) protection against cruel and unusual punishment based upon "the defendant district attorney’s refusal to allow him access to biological evidence" for purposes of forensic DNA testing need to be addressed in a petition for habeas corpus, not a petition for writ of certioriari. 

What Hank Skinner wants is to test evidence for the absence of his DNA long after the jury trial is over

Skinner wants to test things that were left outside the courtroom during the jury trial that found him guilty and sentenced him to die.  Professing his innocence of the crime, Hank Skinner wants the chance to take things in possession of the State of Texas, send them to a laboratory, and have the lab results show his DNA isn't on the stuff and therefore, he wasn't the killer.   (If you want to read the background facts of the case, read them in Skinner's own words in a Q and A he answers at the Texas Death Penalty Blog.)

What About the Evidence?

It's obvious from his arguments that not all the evidence found at the scene of the crime was tested for Hank Skinner's DNA.  And, of course it's true that DNA testing has exonerated many who have been wrongfully accused in this country (often, thanks to the efforts of The Innocence Project). 

Interestingly, the same day that the Supreme Court granted writ on the Skinner case, a Wisconsin County Judge freed William Avery, 38, after DNA evidence showed that Mr. Avery did not kill a Milwaukee prostitute 12 years ago.  He had served 5 years of a 40 year sentence. 

It's also true that failure to properly test the state's evidence has led to the execution of innocent men.  Texas executed Cameron Todd Willingham in 2004; today, there are few that doubt that Mr. Willingham was innocent of the arson deaths of his children, and that faulty testing of the evidence (and failure of the system) was to blame.

What Happened at the Trial?

However, what I'm wondering is what happened during the criminal trial?  Was this a defense attorney strategy back then -- to not dig too deep in the State's evidence bag, for fear that it would only reveal more evidence that could be used against the defendant? 

Why didn't the defense counsel at the trial do this testing?  Was it error? Or was it a conscious decision made in what was considered the best interests of their client at the time?

And, here's why I'm asking - gamesmanship and the jury trial. 

1.  In future cases, what if criminal defense attorneys make strategic decisions NOT to go into all the things that came from the criminal investigation.  Is the Skinner case going to mean that years down the road, a whole new series of appeals will begin, based upon a constitutional need to go back and check that stuff then?  Assuming so, then how can we protect against gamesmanship while allowing for legitimate claims?

2.  What does this do to the respect of the jury that is inherent in our system?  Already, we have seen mediation and other forms of ADR (Alternative Dispute Resolution) cast aside the constitutionally recognized sanctity of a trial by a jury of our peers in civil actions.  What impact will Skinner have upon the criminal jury system over the years, if the U.S. Supreme Court agrees with Mr. Skinner's arguments?

US Supreme Court's April 1st Dismissal in Philip Morris v Williams Is No Joke

There's been a lot of discussion and commentary on the US Supreme Court's knee jerk dismissal of the Oregon case involving tobacco giant Philip Morris and the huge punitive damage award granted to plaintiff Mayola Williams, which had already been approved by Oregon's high court.

In case you haven't heard, Mayola Williams filed and won a wrongful death suit based upon the untimely demise of her cigarette-smoking husband, Jesse Williams, due to lung cancer. Actual damages totalled around $800,000 and the punitives were assessed at $79.5 million -- at the juncture, what with interest, the widow Williams is looking at receiving over $175,000,000.00.

Of course, the defense bar had its fingers crossed that the US Supreme Court would take this opportunity to cap punitive damages. What they got, on April 1st, was a one sentence opinion from the highest court in the land, that it had "improvidently granted" writ in the case and had now changed its mind. Wo Nellie.

Which leaves the Oregon Supreme Court's decision intact, the Widow Williams ready to receive her final award, and the plaintiff's bar a very happy group of folk today.

Because despite all the defense talk that this case is limited to its four corners, it isn't. And, that argument that what happens in Oregon stays in Oregon won't fly either.

We all already know that other big damage cases in other states are going to use this case as a strong argument that the US Supreme Court has sent the message: in the right case, big punitives are totally acceptable.

And, you know what: I think they're right to do this. Punitive damages serve a purpose, and I think we can all agree in today's climate that money is the only language that some corporations understand.