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Tuesday, November 25, 2003 |
Frederick C. Gamst
Abstract
The customary focus of internal and external investigations of human error on US railroads is the individual. For undistorted understanding of errors, and resulting accidents, we must understand the power structure in the hierarchy of levels of error. At the highest level, a state society and its culture(s) generate human errors. Below this are the errors from legislation, its executive enforcement including by regulatory agencies, and their judicial interpretations. Next, we reach the level of error from organizations, in actions and inactions of managers. At the bottom of the levels of error causation are the team and, then, the individual whose error is ordinarily not in isolation but shaped by errors on the higher levels. When supra-individual error remains uncountered, then, efforts to reduce error frequency in a workplace are largely ineffective.
Keywords: Human Error, Societal Levels, Organizations, Regulation, Railroads
8:18:28 PM 
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Suit Alleging Unfair Hearing Loss Settlements for Railroad Workers Moves Closer to Trial: Efforts to Appeal by Burlington Northern, Law Firm Denied; Suit Claims Secret Agreement Swindled Workers
SEATTLE, Sep 29, 2003 /PRNewswire via COMTEX/ -- A class-action lawsuit filed
on behalf of thousands of Northwest railroad workers with damaged hearing
recently moved several steps closer to trial when the Ninth Circuit Court of
Appeals denied efforts by defendants Burlington Northern Santa Fe Railway
Company (NYSE: BNI) and a Portland, Ore.-based law firm to appeal key rulings.
The suit, filed in U.S. District Court on March 26, 2001, claims Burlington
Northern entered into a secret deal that facilitated easy settlements for awards
drastically smaller than those of similar claims in actual court cases. In
exchange, Burlington Northern received the Portland lawyers' cooperation and an
agreement not to take the claims of present and future clients to court, the
suit claims.
After a July 7 order granting class-action certification for the case,
Burlington Northern and the law firm Bricker Zakovics Querin Thompson & Ritchey
PC (BZQ) filed separate petitions asking the Ninth Circuit Court of Appeals for
permission to appeal the ruling. The court denied both petitions on Sept. 15,
2003.
"Piece by piece, we're getting closer to unraveling how these settlements came
about so quickly and so easily," said Steve Berman, the attorney representing an
estimated 2,800 Burlington Northern workers. "We're encouraged by this ruling
and look forward to proving our claims in court."
The Ninth Circuit Court's rulings allowed plaintiffs' attorneys to distribute
notices to all class members and begin the process of gathering and sifting
through documents associated with class members' individual hearing loss claims.
The suit asks the federal district court to set aside releases that Burlington
Northern workers signed when BZQ settled their hearing loss claims, opening the
door for the workers to once again seek compensation for their hearing loss. The
suit also seeks return of all attorneys' fees paid by class members, estimated
to exceed $4 million.
Although railroad workers will need to again pursue their hearing loss claims if
the suit is successful, the court has already ruled that class members will keep
any money already paid by Burlington Northern.
"These workers lost a good portion of their hearing, in some cases going
completely deaf, while on the job," continued Berman. "We believe that
Burlington Northern knew this and still sought to take advantage of them through
collusive settlements."
Berman noted that class members are automatically included in the suit. A court
order changed the class from an "opt-in" class where members must sign up for
the suit before the trial, to an "opt-out" class where members are included
unless they inform the court that they do not wish to be a member of the class.
The suit, filed on behalf of workers by Berman and attorney Sim Osborn, also of
Seattle, claims Burlington Northern and BZQ conspired to settle the workers'
hearing loss claims without informing BZQ's clients that the law firm had waived
their right to a jury trial, saving Burlington Northern hundreds of millions of
dollars in claims while illegally curbing employees' rights. According to the
suit, BZQ failed to inform workers that it had agreed with Burlington Northern
not to file any lawsuits against Burlington Northern, let alone take any case to
trial, that all settlements would be capped at $65,000, and that the amounts
offered by Burlington Northern were far below similar claims decided in court.
After entering into the secret agreement with Burlington Northern, BZQ dismissed
the few cases it had filed on behalf of Burlington Northern workers, never filed
another lawsuit on behalf of any of those workers, and did not settle a single
claim for more than $65,000, the suit claims.
The complaint alleges that when one employee could not get BZQ to commit to try
his case, he hired a different lawyer and won $150,000 in a jury trial, an
amount five times what he would have received in a settlement negotiated by BZQ.
To conceal the conspiracy, BZQ and Burlington Northern refused to release
clients' files, even when those clients were not bound by confidentiality
agreements, the suit states.
BZQ specializes in representing injured railroad workers and is listed by
several railroad workers' unions as "designated council," meaning that the union
approves the firm as counsel for injured railroad workers who are union members.
According to the suit, Burlington Northern knew as early as 1966 that hearing
loss from excessive noise was an occupational hazard for railway workers, but
failed to acknowledge the issue. The suit charges that Burlington Northern did
not address the hearing-loss issue for fear of prompting employee claims. Later,
when Burlington Northern became concerned that it faced hundreds of millions of
dollars in exposure because of hearing-loss claims, it coordinated the scheme as
a way to reduce liability, the lawsuit claims.
The suit represents all Burlington Northern employees with hearing loss claims
settled on their behalf by BZQ, and whose employment with Burlington Northern
was not terminated by the settlement.
About Hagens Berman
Steve Berman is managing partner of Hagens Berman in Seattle. Recently cited as
one of the nation's top 100 attorneys by The National Law Journal, Berman is a
nationally recognized expert in class action litigation. Berman represented
Washington State, 12 other states and Puerto Rico in lawsuits against the
tobacco industry that resulted in the largest settlement in the history of
litigation. Berman also served as counsel in several other high-profile cases
including the Washington Public Power Supply litigation, which resulted in a
settlement exceeding $850 million. Other cases include litigation involving the
Exxon Valdez oil spill; Louisiana Pacific Siding; The Boeing Company; Morrison
Knudsen; Piper Jaffray; Nordstrom; Boston Chicken; and Noah's Bagels. More
information is available at www.hagens-berman.com.
Simeon Osborn is the managing partner in the law firm of Osborn & Smith, which
specializes in personal injury, aircraft litigation and civil litigation. Osborn
has more than 17 years of experience in litigation and has developed a
reputation for success. Osborn successfully represented several clients in a
recent Longview, Washington railway accident as well as actions against the Port
of Seattle in a recent shooting in the SeaTac Airport parking garage. Osborn was
selected for inclusion in the biannual Best Lawyers in America list, given the
highest rating by his peers in the Martindale-Hubbell survey, included in the
Washington Law & Politics' Super Lawyers list and listed in the Bar Registry of
Preeminent Lawyers. Osborn has argued cases to the Washington State Supreme
Court and the Washington State Court of Appeals and serves on the Western Trial
Lawyers' Board of Governors. Osborn received his law degree from University of
Puget Sound in 1984.
CONTACT: Steve Berman of Hagens Berman, +1-206-623-7292, or
steve@hagens-berman.com; or Mark Firmani of Firmani & Associates, Inc.,
+1-206-443-9357, or mark@firmani.com, for Hagens Berman.
SOURCE Hagens Berman
CONTACT: Steve Berman of Hagens Berman, +1-206-623-7292, or
steve@hagens-berman.com; or Mark Firmani of Firmani & Associates, Inc.,
+1-206-443-9357, or mark@firmani.com, for Hagens Berman
URL: http://www.hagens-berman.com
http://www.prnewswire.com
8:11:15 PM
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http://www.commondreams.org/views02/1211-01.htm
Published on Wednesday, December 11, 2002 by CommonDreams.org
The Railroad Barons Are Back - And This Time They'll Finish the Job
by Thom Hartmann
The railroad barons first tried to infiltrate the halls of government in the
early years after the Civil War.
The efforts of these men, particularly Jay Gould, brought the Ulysses Grant
administration into such disrepute, as a result of what were then called
"the railroad bribery scandals," that Grant's own Republican party refused
to renominate him for the third term he wanted and ran Rutherford B. Hayes
instead. As the whitehouse.gov website says of Grant, "Looking to Congress
for direction, he seemed bewildered. One visitor to the White House noted 'a
puzzled pathos, as of a man with a problem before him of which he does not
understand the terms.'"
Although their misbehaviors with the administration and Congress were
exposed, the railroad barons of the era were successful in a coup against
the Supreme Court. One of their own was the Reporter for the Supreme Court,
and they courted Justice Stephen Field with, among other things, the
possibility of support for a presidential run. In the National Archives, we
also recently found letters from the railroads offering free trips and other
benefits to the 1886 Court's Chief Justice, Morrison R. Waite.
Waite, however, didn't give in: he refused to rule the railroad corporations
were persons in the same category as humans. Thus, the railroad barons
resorted to plan B: they got human rights for corporations inserted in the
Court Reporter's headnotes in the 1886 Santa Clara County v. Southern
Pacific Railroad case, even though the court itself (over Field's strong
objections) had chosen not to rule on the constitutionality of the
railroad's corporate claims to human rights.
And, based on the Reporter's headnotes (and ignoring the actual ruling),
subsequent Courts have expanded those human rights for corporations. These
now include the First Amendment human right of free speech (including
corporate "speech" to influence politics - something that was a felony in
most states prior to 1886), the Fourth Amendment human right to privacy (so
a chemical company has successfully sued to prevent the EPA from performing
surprise inspections - while retaining the right to perform surprise
inspections of its own employees' bodily fluids and phone conversations),
and the 14th Amendment right to live free of discrimination (using the
free-the-slaves 14th Amendment, corporations have claimed discrimination to
block local community efforts to pass "bad boy laws" or keep out predatory
retailers).
Interestingly, unions don't have these human rights. Neither do churches, or
smaller, unincorporated businesses. Nor do partnerships or civic groups.
Nor, even, do governments, be they local, state, or federal.
And, from the founding of the United States, neither did corporations.
Rights were the sole province of humans.
As the father of the Constitution, President James Madison, wrote, "There is
an evil which ought to be guarded against in the indefinite accumulation of
property from the capacity of holding it in perpetuity by... corporations.
The power of all corporations ought to be limited in this respect. The
growing wealth acquired by them never fails to be a source of abuses." It's
one of the reasons why the word "corporation" doesn't exist in the
constitution - they were to be chartered only by states, so local people
could keep a close eye on them.
Early state laws (and, later, federal anti-trust laws) forbade corporations
from owning other corporations, particularly in the media. In 1806,
President Thomas Jefferson wrote, "Our liberty depends on the freedom of the
press, and that cannot be limited without being lost." He was so strongly
opposed to corporations owning other corporations or gaining monopolies of
the media that, when the Constitution was submitted for ratification, he and
Madison proposed an 11th Amendment to the Constitution that would "ban
commercial monopolies." The Convention shot it down as unnecessary because
state laws against corporate monopolies already existed.
But corporations grew, and began to flex their muscle. Politicians who
believed in republican democracy were alarmed by the possibility of a new
feudalism, a state run by and to the benefit of powerful private interests.
President Andrew Jackson, in a speech to Congress, said, "In this point of
the case the question is distinctly presented whether the people of the
United States are to govern through representatives chosen by their unbiased
suffrages [votes] or whether the money and power of a great corporation are
to be secretly exerted to influence their judgment and control their
decisions."
And the president who followed him, Martin Van Buren, added in his annual
address to Congress: "I am more than ever convinced of the dangers to which
the free and unbiased exercise of political opinion - the only sure
foundation and safeguard of republican government - would be exposed by any
further increase of the already overgrown influence of corporate
authorities."
Even Abraham Lincoln weighed in, writing, "We may congratulate ourselves
that this cruel war is nearing its end. It has cost a vast amount of
treasure and blood. The best blood of the flower of American youth has been
freely offered upon our country's altar that the nation might live. It has
indeed been a trying hour for the Republic; but I see in the near future a
crisis approaching that unnerves me and causes me to tremble for the safety
of my country.
"As a result of the war," Lincoln continued, "corporations have been
enthroned and an era of corruption in high places will follow, and the money
power of the country will endeavor to prolong its reign by working upon the
prejudices of the people until all wealth is aggregated in a few hands and
the Republic is destroyed. I feel at this moment more anxiety than ever
before, even in the midst of war. God grant that my suspicions may prove
groundless." Lincoln held the largest corporations - the railroads - at bay
until his assassination.
But then came the railroad barons, vastly enriched by the Civil War.
They began brining case after case before the Supreme Court, asserting that
the 14th Amendment - passed after the war to free the slaves - should also
free them.
For example, in 1873, one of the first Supreme Court rulings on the
Fourteenth Amendment, which had passed only five years earlier, involved not
slaves but the railroads. Justice Samuel F. Miller minced no words in
chastising corporations for trying to claim the rights of human beings.
The fourteenth amendment's "one pervading purpose," he wrote in the majority
opinion, "was the freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly-made freeman
and citizen from the oppression of those who had formerly exercised
unlimited dominion over him."
But the railroad barons represented the most powerful corporations in
America, and they were incredibly tenacious. They mounted challenge after
challenge before the Court, claiming the 14th Amendment should grant them
human rights under the Bill of Rights (but not grant such rights to unions,
churches, small companies, or governments). Finally, in 1886, the Court's
reporter defied his own Chief Justice and improperly wrote a headnote that
moved corporations out of the privileges category and gave them rights - an
equal status with humans. (Last year we found the correspondence between the
two in the National Archives and put it on the web. By the time the
Reporter's headnotes were published, the Chief Justice was dead.)
On December 3, 1888, President Grover Cleveland delivered his annual address
to Congress. Apparently Cleveland had taken notice of the Santa Clara County
Supreme Court headnote, its politics, and its consequences, for he said in
his speech to the nation, delivered before a joint session of Congress: "As
we view the achievements of aggregated capital, we discover the existence of
trusts, combinations, and monopolies, while the citizen is struggling far in
the rear or is trampled to death beneath an iron heel. Corporations, which
should be the carefully restrained creatures of the law and the servants of
the people, are fast becoming the people's masters."
The Founders of America were clear when they wrote the Bill of Rights that
humans had rights, and when humans got together to form any sort of group -
including corporations, churches, unions, fraternal organizations, and even
governments themselves - that those forms of human association had only
privileges which were determined and granted by the very human "We, The
People."
But, as if by magic, even though in the Santa Clara case the Supreme Court
did not rule on any constitutional issues (read the case!), the Court's
reporter rewrote the American Constitution at the behest of the railroad
barons and moved a single form of human association - corporations - from
the privileges category into the rights category. All others, to this day,
still only have privileges. But individual citizen voters must now
politically compete with corporations on an equal footing - even though a
corporation can live forever, doesn't need to breathe clean air, doesn't
fear jail, can change its citizenship in an hour, and can own others of its
own kind.
Theodore Roosevelt looked at this situation and bluntly said, in April of
1906, "Behind the ostensible government sits enthroned an invisible
government owing no allegiance and acknowledging no responsibility to the
people. To destroy this invisible government, to befoul the unholy alliance
between corrupt business and corrupt politics is the first task of the
statesmanship of the day."
And so now, corporate-friendly Michael Powell's FCC is moving toward lifting
the last tattered restrictions on media ownership, allowing absolute
concentration of the voices we hear into a tiny number of corporate hands.
Any day now a case involving a multinational corporation claiming the right
to deceive people in its PR - its 1st Amendment right of free speech - may
be coming before the Supreme Court. (The New York Times corporation
editorialized on December 10th that corporations must have free speech
rights: the lines are being drawn.)
As much as half the federal workforce is slated to be replaced by corporate
workers under a new Bush edict. Government (which doesn't have
constitutional human rights of privacy, and so is answerable to We, The
People) will then be able to use corporate-4th-Amendment-human-rights of
privacy to hide what those workers do and how they do it from the prying
eyes of citizens and voters. In a similar fashion, corporate-owned and thus
unaccountable-to-the-people voting machines are being installed nationwide;
in the last election these machines often produced vote results so different
from the polls that pollsters who have been successfully calling elections
for over 50 years threw up their hands and closed shop.
This administration is set to complete what the railroad barons pushed the
Grant administration to start: to take democracy and its institutions of
governance from the hands of the human citizen/voters the Founders fought
and died for, and give it to the very types of monopolistic corporations the
Founders fought against when they led the Tea Party revolt against the East
India Company in Boston Harbor in 1773.
And, in the ultimate irony, the new man in charge of economic policy as
Secretary of the Treasury will be a multi-millionaire Bush campaign
contributor, chairman of The Business Roundtable (an elite corps of 100 of
the nation's most powerful corporate CEOs), and, himself, a railroad baron.
Thom Hartmann is the author of "Unequal Protection: The Rise of Corporate
Dominance and the Theft of Human Rights" - www.unequalprotection.com and
www.thomhartmann.com. Permission is granted to reprint this article in print
or web media, so long as this credit is attached.
7:54:14 PM
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