Judge Kavanaugh’s Bloody New World
On the day President Trump nominated Judge Brett Kavanaugh to the U.S. Supreme Court, I was bothered by old dreams from a case I lost long ago.
I see dark figures outside a warm, bright home. Perhaps they called before they came. Maybe there was no answer. They would have gotten in a car and showed up at the house, knocked at the door, and waited. They had bad news.
The blood medicine you need for your child to live, the one you’ve been using on your little boy for years?
It may be infected with HIV.
They would have gone to the refrigerator, taken the medicine out, followed strict protocols for safe handling. They would have returned that dangerous little package to the pharmaceutical company that sold it.
This was in the 1980s. Bayer Corp. and other companies sold blood-based medicines contaminated with HIV. Thousands of hemophiliacs got infected and eventually died.
The pharmaceutical companies halted production and developed a new product, heat-treated to kill this virus. The little boy in my dream was not yet infected, and because he switched to the heat-treated medicine, he never would be.
But this dream is not about him. It’s about what happened to all the medicine that had never been heat-treated. Like the one that was removed so carefully from that little boy’s home. That little American boy’s warm, bright American home.
The pharmaceutical companies were not happy about their “excess inventory.” Cutter Biological, now a division of Bayer, knew that three out of four patients who received the unheated product would get infected with the deadly virus.
But destroying that contaminated medicine would mean a loss of profit.
So they decided to sell it. “Use up stocks” in other countries, the company ordered, before shipping the uninfected medicine.
They shipped the old product to South America, to Asia. Wherever they could get away with it. Cutter shipped over 100,000 vials. Other drug companies – Armour Pharmaceutical, Baxter International and Alpha Therapeutic – did the same.
They kept doing it, kept selling that infected “medicine” until the U.S. Food and Drug Administration found out.
It’s ancient history, I suppose. But I still think of a little boy in South America who got his first vial in 1985. The heat-treated medicine was being used in the United States, but he got the old medicine, and he got HIV too.
I filed a wrongful death lawsuit for his mother. I filed it in the United States because that’s where the misconduct happened, and because there was no possible way to get justice in his country. But the U.S. federal judge dismissed the lawsuit and ordered us to litigate in South America. Some victims tried, but it was pointless. The little boy’s mother told me that the courts in her country were cold, dark places. They were powerless against massive corporations.
Since then, the world has changed.
Conservative judges in the U.S. have become far more aligned with big business and against individuals, consumers, and smaller businesses. They have created new corporate constitutional rights. I say “created” because even though these judges aspire to be strict constructionists (meaning that they would apply the law exactly as written), they have found some remarkable new corporate rights hidden somewhere in our precious Constitution, somewhere special. Somewhere so special that I, with my merely human eyes, cannot see.
The U.S. Constitution is clear and explicit: our citizens enjoy the right to trial by jury. And this constitutional right has protected Americans from the unchecked corporate power that allows companies in some parts of the world to get away with murder.
The architects of our Constitution considered the right to trial by jury – and the corresponding power of juries to punish defendants – to be fundamental to our freedom and our safety. But did you know that this right, written in plain English in our Constitution, must yield to the “Constitutional” right of massive corporations to avoid punishment beyond a certain limited ratio even when they intentionally act in ways that kill people?
The U.S Supreme Court found just such a corporate constitutional right to avoid full punishment imposed by juries, and they have even found that this hidden corporate constitutional right trumps the clear language of the U.S. Constitution that guarantees trial by jury.
Judge Kavanaugh’s judicial opinions -- on power plant pollution, the consumer financial protection bureau, net neutrality, food safety, and worker rights – fit right into this new pro-corporate judicial philosophy. I have no doubt that Judge Kavanaugh is a good man. But if replaces Justice Kennedy, then the Supreme Court will lose an old-school conservative and gain a corporate power activist. I know where this leads, and I wish he could see it too.
I used to pray for that lost little boy and all the living human beings who would die someday soon because they did not have a civil justice system like America’s.
I thought that Americans understood how lucky they were. I thought that American judges would never tear down the America that President Reagan called “a shining city on a hill.” I thought that these other countries would grow to be more like us, not that we would grow to be more like them.
I was wrong.
John Uustal is a Ft. Lauderdale trial lawyer with a national law practice focused on serious injuries resulting from dangerous and poorly designed products. His upcoming book Corporate Serial Killers focuses on companies that choose profits over safety.