What Do Rice, Dark Money, and the Race for Chief Justice of the Arkansas Supreme Court Have in Common?

Now that early voting has started for primaries and "non-partisan" judicial races, the mud slinging is getting thrown into another gear. If you are a follower of this blog, you have seen post in the past referring to the influence of money in judicial, supposedly "non-partisan" elections.

Unfortunately, the trend of judicial elections is taking an anti-citizen turn ... again. In 2014, Circuit Judge Robin Wynne defeated attorney Tim Cullen with help of a "dark money" group based out of Washington, D.C. "Dark money" refers to an organization who is not required to disclose the identity of its donors. The Law Enforcement Alliance of America spent hundreds of thousands of dollars in tv air time in the Wynne-Cullen race. The LEAA ad misrepresented a position taken by Cullen in an appeal brief, which can be seen here. The LEAA accused Cullen of arguing child pornography was a victimless crime. Cullen actually argued the sentence for the perpetrator should fit within the federal guidelines. The president of the National Association of Criminal Defense Lawyers had this to say about the LEAA ad:

“The idea of attacking someone simply for fulfilling the mandate of the United States Constitution to provide every accused person with a defense attorney is inconsistent with the nation’s fundamental values. The founders of this nation recognized that no person should ever stand alone when the government seeks to condemn, imprison, or kill a person. To suggest that one’s qualifications for the bench are diminished for having lived up to the ideal of the right to counsel is an ill-conceived line of attack.”

— http://www.nacdl.org/NewsReleases.aspx?id=33063&terms=cullen

Wynne won the election by getting 52% of the vote.

On March 1, 2016, Arkansas voters will decide between Associate Justice Courtney Goodson and Circuit Judge Dan Kemp for who will become the next Chief Justice of the Arkansas Supreme Court. Goodson's platform includes her experience as an Associate Justice on the Supreme Court, as well as her experience while serving as an appellate judge on the Arkansas Court of Appeals. Kemp's platform includes his faith, integrity, and following the constitution.

Earlier this year, a dark money group called the Judicial Crises Network ran the following tv ad against Goodson:

I recently saw this website come across my facebook page, and I soon realized what the JCN is all about. At the bottom of the page, there is a footnote to the following quote:  "on the Supreme Court Goodson consistently sides with the Trial Lawyers, issuing legal opinions that make them millions more in their lawsuits." The "opinion" (singular) refers to the opinion Goodson wrote in Bayer CropScience LP v. Schafer, 2011 Ark. 518.

For those unfamiliar with the facts of the case, Bayer Cropscience produced genetically modified strains of long grain rice in the '90s. The Food and Drug Administration never approved the use of these strains. No foreign governments authorized the commercial use of these strains for human consumption. In 2006, these strains of rice were found to exist in the United States' long grain rice supply. Prior to that time, 52% of the long grain rice grown in the country was exported to other countries. Arkansas is the leading producer of long grain rice in the United States.

The United States Department of Agriculture quickly granted approval of one of the strains of rice. However, they banned the use of another strain for the 2007-2008 crop year, and implemented efforts to eradicate the contaminated rice. The world-wide reaction was much more guarded due to foreign governments' resistance to genetically modified food sources. Several countries required certification or testing that the rice was not contaminated before being allowed within its borders. These countries included Mexico, Canada, Iraq, Korea, Taiwan, Saudi Arabia, Cuba, and Japan. The Philippines and Russia banned the import of American rice. The European Union (consisting of 27 countries and 1/6 of the American rice export market) imposed stringent testing requirements at every port of entry. American rice exports decreased by 622,972 metric tons between 2005 and 2008.

This financially ruined several rice farmers and small businesses across Arkansas. So they joined together and filed a lawsuit in Lonoke County. The rice farmers and small business owners alleged Bayer knew the majority of American rice was exported; Bayer knew other countries did not import genetically modified rice; and Bayer knew any contamination of the United States rice supply with genetically modified rice would depress the export market and negatively affect the price of American long-grain rice. The rice farmers and small business owners claimed Bayer was negligent for allowing the genetically modified strains of rice into the nation's rice supply. They alleged Bayer was not careful enough during the strains' testing to prevent contamination of genetically modified seed with conventional seed. The rice farmers and small business owners claimed Bayer's negligence caused economic harm by driving down the market price for American long grain rice. They also claimed punitive damages to punish and deter future similar conduct by Bayer since Bayer knew or should have known that its conduct would probably result in damages to the rice farmers and small business owners; and because Bayer continued to pursue their negligent conduct with a reckless disregard of the consequences.

During the course of the case, the rice farmers and small business owners asked the circuit judge to declare unconstitutional a cap on punitive damages because it violated the Article 5, section 32 of the Arkansas Constitution, which states as follows:

“The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.”

The circuit judge agreed and found the punitive damages cap unconstitutional. The jury returned a verdict for compensatory damages in the amount of $5.975 million dollars collectively for the rice farmers and small business owners. The jury also returned a punitive damages verdict in the amount of $21 million dollars.

Bayer appealed to the Arkansas Supreme Court, and said the circuit judge made a mistake by holding the punitive damages cap unconstitutional. Goodson, relying on a case from 1998, 1954, and a case from 1950, found the legislature "may limit tort liability only where there is an employment relationship between the parties." Because the punitive damages cap limited the amount of recovery outside of an employment relationship in violation of Article 5, Section 32 of the Arkansas Constitution, Goodson held the punitive damages cap enacted by the Arkansas legislature was unconstitutional. 

Goodson followed and enforced the law. In doing so, she ensured hard-working Arkansas citizens were not financially ruined by the actions of a multi-national conglomerate corporation.

Goodson also maintained the integrity of the civil justice system in this state. Every Arkansan has a constitutional right to a jury trial. That means the people in our communities get to decide our disputes. This is the definition of local control, and what separates our system of government from other countries. Goodson's ruling sends a message to legislators that the Arkansas Constitution does not tolerate government overreach into the decision making of Arkansas citizens who serve on juries.

Instead of correcting the JCN's misrepresentations, Kemp embraced the message of the JCN in a February 10, 2016 campaign email. After a JCN mailer criticized Goodson for being part of a holding striking down a Voter I.D. law, Kemp said he didn't "believe there is any place in our judiciary for this type of politics."

Regardless for whom you vote, do your research and ask questions of the candidates. If you see an ad sponsored by an organization, ask questions about the organization. Misleading advertisements have no place in judicial or any other type of election.

A Super prognosis for Jim McMahon

Sunday marks the 50th anniversary of the biggest football game of them all:  the Superbowl. In honoring heroes of gridiron's past, ESPN's award-winning 30-for-30 series recently provided a documentary on the winners of Superbowl 20:  the 1985 Chicago Bears.

You know the names. Walter Payton. Refrigerator Perry. Former Razorback and NFL Hall of Famer Dan Hampton. Mike Singletary. Steve McMichael. Willie Gault. I remember Willie Gault being the guy you threw the ball to when you weren't giving it to Bo Jackson on Tecmo Bowl. There was also Gary Fencik. Wilbur Marshall. Dave Duerson. The list goes on and on.

And then there was the QB. The guy who personified the whole team. The sunglasses. The look. The attitude. The "Punky QB." Jim McMahon. The cocky BYU QB gave the Bears offense the balance it needed to win, and win big. I probably haven't told you anything you did not already know (including Willie Gault being the Raiders go-to wide receiver on Tecmo Bowl).

What you may not know is how McMahon's life has been since retiring from football. Over the last few years, several NFL players have been diagnosed with "Chronic Traumatic Encephalitis." The only way to diagnosed the disease is posthumously. Several former players have been diagnosed, such as Frank Gifford and Ken Stabler.

Some players have committed suicide as a result of the symptoms, such as Junior Seau.

"The disease is widely believed to stem from repetitive trauma to the head, and [thought to] lead to conditions such as memory loss, depression and dementia."

McMahon is different. He has experienced the same symptoms of the now deceased ex-NFL players. Through an acquaintance, McMahon received an upright MRI in upstate New York. The doctor "took a closer look at McMahon's neck and found that the top two vertebrae were misaligned, which caused a blockage of his cerebral spinal fluid."

McMahon ended up in a nearby office of a doctor specializing in treating disorders of the upper neck. Once properly adjusted, McMahon described the relief as "a toilet flushing." 

The same cerebral spinal fluid blockage McMahon lived with for so long has been linked to whiplash associated disorders.

In a 2010 study published in the Brain Injury Journal, researchers took 1,200 people and subdivided them into four groups. One subdivision involved non-trauma versus trauma (from motor vehicle collisions). The other subdivision involved an upright versus lying down specialized type of MRI sequence that took place on each individual.

The researchers wanted to know how far the lower brain extended down into the base of the skull in each subgroup. An imaginary line was drawn across the base of the head from which to measure, as seen below:

The findings showed the lower brain in the trauma group to be significantly lower than the lower brain in the upright and lying down MRI groups. This effect was seen 2.5 times more often in the upright trauma group versus the lying trauma group; and seen 4 times more often in either of the non-trauma groups. The authors concluded

“Unless the difference between trauma and non-trauma cases was a result of unforeseen variability, it is reasonable to conclude these results reflect a degree of gravity dependent instability in the trauma group that was not observed in the non-trauma group. It is probable that the differences observed between the study groups were due to the independent variables of interest rather than some unforeseen bias between the groups.”

— Michael D. Freeman, Scott Rosa, David Harshfield, Francis Smith, Robert Bennett, Christopher J. Centeno, Ezriel Kornel, Ake Nystrom, Dan Heffez & Sean S. Kohles, A case-control study of cerebellar tonsillar ectopia (Chiari) and head/neck trauma (whiplash) 24(7-8) Brain Injury 988 (July 2010).

The upright MRI explains the differences between the upright and lying down groups, as well as McMahon finding out what was wrong with him. The authors of the study stated the lower brain extending down into the base of the skull "is due to the fact the flotation level of the brain is dependent on the amount of cerebral spinal fluid within the dural covering of the spine and brain." Crash trauma causing a dural leak could result in a cerebral spinal fluid leak and lowered pressure," resulting in the lower brain causing a cerebral spinal fluid blockage at the base of the skull.

McMahon had this to say about the problems facing former NFL players:  "Let's raise the awareness about this problem. I wish they had figured out what was wrong with me sooner, but at least I got some help. Let's help others out there and let's deal with the problem."

The same could be said of injury victims in car wrecks. The 30-for-30 documentary on the '85 Bears premiered on February 4, 2016. It had a segment discussing McMahon's journey after football. Watch this segment as well as the rest of the documentary about "the Superbowl Shuffling" Bears.

So Long, Farewell

Today marks my last day at the Chaney Law Firm. I've accepted a position at the University of Arkansas for Medical Sciences (UAMS) in Little Rock. I'll be working in the Biomedical Research facility in the Office of Research Regulatory Affairs, which assists the UAMS research community.

I'm very excited — I've long been interested in the convergence of law, medicine, and technology. My favorite class at W&L School of Law was Professor Timothy Jost's Medical Technology and the Law. It's the only class where I actually referred to my law school notes while handling a case. Here at the Chaney Law Firm we focus on medical technology tools (see the sidebar at right/bottom) that help our clients get well and prove the extent of their injuries. I hope this move will allow me to continue helping even more Arkansans receive the very best of medical treatment.

With my move, the Chaney Law Firm will no longer be handling patent and trademark matters. If that's why you've come to our site, give the firm a call and we can steer you to someone who can help meet your needs.

Thanks to Dad, Mom, Hilary, Taylor, and all our wonderful staff for making the last 6+ years great. It's been a joy to be able to walk to work and see my folks on a daily basis, and I appreciate their support as I move towards a new chapter. Maybe they'll even let me come back and guest post every once in a while.

One love.

Ugly Sweater Contest Winner

Folks in downtown Arkadelphia were giving the members of the Chaney Firm some strange looks around lunchtime today. On the line during the Ugly Sweater Contest was a $25 gift card to local coffee shop Java Primo. Here are all the contestants:

The Chaney Firm

Terri and Don

Nathan

Hilary

Taylor

Debi

Michael

Jessica as "Christmas Cheer"

CJ

Kelly and Mylee

There's a pretty hilarious bonus video as well:

Here are the results of the firm vote:

Contest Results

Who do you think should have won?

Sebastian County jury tells State Farm safety rules matter

Don and Taylor spent the week of December 1-4, 2015 in Fort Smith trying a motor vehicle collision case. It was a classic example of an insurance company hiding behind their insured. The wreck happened after our client dropped her son off at a Boys and Girls Club in Fort Smith.

She was headed home with her daughter when another vehicle hit them in the middle of their van on the passenger’s side. An elderly State Farm insured did not look to his left before pulling out of the parking lot of a barber shop. The elderly State Farm insured admitted to violating the safety rule to pay attention.

The collision threw our client toward the point of impact. Her torso got caught in the seat belt. This caused an aggravation of a pre-existing back condition that had given her no pain in over a decade.

Our client reported back pain to the police officer who responded to the scene. Our client's pain intensified overnight and she went to the ER the next day. The ER found degenerative changes in her back; told her she would probably be a little stiff; prescribed anti-inflammatories and muscle relaxers; and told her she would probably be fine in a few weeks. Our client took the medication. A few weeks passed. Her pain returned and worsened. She also starting having mild incontinence.

Seven months before the wreck she had seen a chiropractic physician for mild neck pain. So she went back to him three months after the wreck. Her chiropractic physician sent her to the ER on her very first visit. The same degenerative changes were found at the ER as three months beforehand. The most noticeable of these changes were at the same level our client had an old work injury in 1995. Her incontinence problems worsened. She began seeing her family doctor. This resulted in a referral chain to a neurosurgeon; a pain management specialist; a urologist; and a gastroenterologist. Our client also had neck injuries from the wreck. These injuries resulted in a 23% whole person impairment rating.

Before the wreck our client was a hard-working mother of seven adopted children. She took pride in being a big woman. She also coached her children's sports teams; drove and maintained a school bus; enjoyed being a substitute teacher; took occasional family vacations to Ohio and other locations; enjoyed attending her children's sporting events; and kept an orderly home while cooking and cleaning everyday for her family. After the wreck, she began having "accidents" in public. These "accidents" were caused by her incontinence problems. They not only embarrassed her, but also her children and anyone else with her at the time they happened. She learned to avoid "accidents" by not eating. As a result, she lost a significant amount of weight. This negatively affected her self-esteem. A nerve stretch injury was diagnosed in her low back as a result of the wreck. This kept her from being able to sit or stand for long periods of time. The nerve stretch injury eliminated her ability to watch her children's sporting events the way she could before the wreck.

It forced her to quit coaching. It stopped her from adopting a sibling of her other children. It forced others to pick up the physical tasks required of a mother and wife. Our client's dream was to become a full-time teacher of at-risk junior high children. She went back to school after the wreck to become certified. However, her injuries from the wreck forced her to give up this dream. Her only way of being gainfully employed after the wreck was to have an understanding supervisor. She worked several jobs where her supervisor allowed her to take unscheduled breaks as a result of "accidents."

Our client incurred a little under $40,000 in medical expenses when the trial began. She sustained injuries in the wreck that will be with her for as long as she lives. The most State Farm offered was $11,500 despite their elderly insured having only $25,000 in coverage. This is the minimum amount required by state law. State Farm's low ball offer left our client with no choice but to try her case to a jury of her peers. State Farm relied on the jury to give their elderly insured a pass. They counted on the jury to disregard the traffic safety rules that keep us all safe from danger.

Instead, the jury enforced the safety rules. They returned a verdict of $84,500. Clearly, the jury cared much more about the safety of their community than State Farm. The jury cared about a safety rule violation leading to a teacher who could no longer help kids nobody else wanted. The jury cared about a wife who could not help her husband make ends meet as she did before the wreck. They cared about a mom who is less of a mother to her children. They cared about a member of the community who is embarrassed about the person she has become. They cared about protecting the life of one of their own.

What does State Farm care about? They tried to hide behind their insured and get away with it. They also helped sponsor tort-reform legislation during the regular session of the 90th General Assembly in 2015. This legislation would have required injured Arkansans to receive no benefit for the premium dollars paid to their own automobile insurance companies. State Farm cares much more about their own profits than taking care of the people of Arkansas. Does that sound "like a good neighbor"?