From the Wall Street Journal:

BP Doesn’t Deserve a Liability Cap
By RICHARD A. EPSTEIN

Our national frustration continues to rise with each new drop of BP oil that leaks into the Gulf of Mexico. Everyone knows we can’t legislate away environmental risks without consigning ourselves to the Stone Age. What’s needed going forward is a comprehensive legal strategy that addresses the risks though a combination of regulation before the fact and tort liability (and criminal sanctions where appropriate) afterwards.

Tort remedies are essential to protect people (and their property) who do not have contractual relations with defendants from harms such as air and water pollution. The legal system should never allow self-interested parties to keep for themselves all the gains from dangerous activities that unilaterally impose losses on others—which is why the most devout defender of laissez-faire must insist, not just concede, that tough medicine is needed in these cases. The fundamental question here is one of technique: What mix of before and after sanctions will do the job at the lowest cost?

The first element in the mix is a no-nonsense liability system that fastens full responsibility on the parties who run dangerous operations, no excuses allowed. Accordingly, we have to be especially wary of statutory caps on tort damages, including the current law, under which, in the case of the oil industry, the “total of liability . . . with respect to each incident shall not exceed for an offshore facility except a deepwater port, the total of all removal costs plus $75,000,000.” That $75 million is chicken feed. Fortunately, the law removes that cap if the incident was caused by “the gross negligence or willful misconduct” of any party, or its failure to comply with any “applicable Federal safety, construction, or operating regulation.”

To truly have a “system of justice”, you can not have liability caps–for BP or any other negligent actor.

From Law.com:

‘Pants Judge’ Loses Wrongful Termination Appeal

Former administrative law judge Roy Pearson Jr. just can’t catch a break in his quest to hold someone accountable for losing his job with the District of Columbia.

Pearson, recall, was the judge who filed a multimillion-dollar suit against a dry cleaner over a lost pair of pants. The suit didn’t go unnoticed. In 2007, Pearson was denied reappointment to his post as a D.C. administrative law judge. Pearson sued, making a host of claims.

When Pearson’s wrongful termination suit was dismissed by the federal district court in Washington, he turned to the U.S. Court of Appeals for the D.C. Circuit. Thursday, a three-judge panel upheld the dismissal of the suit . . . .

“The district court correctly concluded Pearson’s testimony before the D.C. Council and private communication with the Council’s staff were not protected by the First Amendment to the Constitution of the United States,” D.C. Circuit Judges Douglas Ginsburg, Karen LeCraft Henderson and Merrick Garland said in a two-page judgment Thursday.

The judges pointed to a D.C. Circuit ruling last year in an unrelated case where the court said that a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities. “Pearson did just that,” the panel judges said Thursday.

Pearson’s suit against his dry cleaner was also not protected speech, the appeals court said. “That suit did not involve a matter of public concern; as the district court stated, it was more properly ‘characterized as a personal vendetta against a dry cleaners over a pair of pants.’”

Judge dismisses Lancaster Manor defamation suit
Lincoln Journal Star
by Algis J. Laukaitis
March 18, 2010

A judge has dismissed a defamation lawsuit filed by Hunter Management against Kim Kaspar and the union that represented Lancaster Manor employees.

“It’s very good news, and it’s consistent with our theory that this was an attempt to shut down our free speech,” said Lincoln attorney Gary Young, who represented Kaspar and American Federation of State, County, and Municipal Employees Local 2468.

Kaspar is president of the union, which fought unsuccessfully to stop the county board from selling Lancaster Manor, a 293-bed nursing home at 1001 South St. The sale is in the final stage of closing.

During several town hall meetings and appearances before the board, Kaspar and the union voiced concerns about Hunter Management and the care it gave residents. The Evanston, Ill.-based company owns all or part of about 40 nursing homes, including Homestead Rehabilitation Center in Lincoln . . . .

Rush Limbaugh featured the Anaya case on his October 30, 2007 morning update.

Rush’s Morning Update: Seized!
October 30, 2007

Six weeks ago, a Nebraska couple became first-time parents. However, their religious beliefs ran afoul of a Nebraska law requiring all newborn infants to receive a mandatory blood test to screen for several diseases. They refused the test. So sheriff’s deputies seized the newborn, allowed health workers to draw and screen the blood — then placed the infant into foster care for almost a week, waiting for the results.

According to a Department of Health and Human Services spokes-babe, this was the first time in Nebraska that an infant has been seized. While other states have similar laws on the books, four states — South Dakota, Michigan, Montana, and Nebraska — don’t offer religious exemptions.

The baby tested okay, and is now back home with the parents. But the parents’ attorney, Jeff Downing, says it’s “a classic case of the government overreaching and violating a family’s constitutional rights.” Although the family isn’t seeking damages — they want to ensure this won’t happen again.

Put aside for the moment whether you agree or disagree with the parents on blood tests. What oughta chill you to the bone is what this incident represents. If government officials won’t hesitate to seize a newborn — imagine what they’ll do with you … should you make a decision they don’t like.

The more power you cede to the government over your health care, the less freedom you and your family have — over your own health, and your own life.

Keating, O’Gara’s Jeff Downing, attorney for the Anaya family, was then interviewed in depth by Rush during the second hour of his program:

RUSH: To the phones, Lincoln, Nebraska. Jeff, thanks for the call, sir. It’s nice to have you here.

DOWNING: Rush, Cornhusker dittos from the reddest of the red states.

RUSH: Thank you, sir.

DOWNING: It just so happens, Rush, that I heard the Morning Update this morning, and it’s one of my cases that you had an outstanding commentary on.

RUSH: Thank you, sir.

DOWNING: Well, it regards the Nebraska Newborn Screening Program, one of our Nanny State provisions in the law which requires that babies have a heel stick, and five drops of blood are put on some paper, and then the state screens for one of eight inherited metabolic genetic disorders.

RUSH: Such as…?

DOWNING: Such as things like a PKU, cystic fibrosis, hemoglobinopathy, like sickle cell diseases, and so on. These are things which are inherited. They’re incredibly rare, usually one in 10,000, one in 30,000, but nonetheless, our state — along with most other states — have these mandated screening programs. Unfortunately, Nebraska doesn’t have an opt-out provision, and so I, unfortunately, had some clients who, in declining doing the newborn screening after a home birth, were the victim of the Nanny State run amok.

RUSH: Yeah, let me briefly tell the story here because who we’re talking to, you’re Jeff Downing, correct?

DOWNING: Correct.

RUSH: You’re the parents’ attorney.

DOWNING: That’s right.

RUSH: The parents’ — I guess it’s for religious reasons?

DOWNING: Yeah, exactly.

RUSH: Decided that they didn’t want the screening done on their child, and so the state came in and took the kid.

DOWNING: Exactly.

RUSH: The state came in, took the child and tested anyway and put it in foster care, an infant, for a week!

DOWNING: Five weeks and four days old, still nursing nine to ten times per day, had never taken a bottle, had never been fed by anyone but his mother, Mary Anaya and the state came in — and the comment of the deputies as they carted this baby away, was, and she’s begging the nurse — “Ma’am, don’t worry. Professionals will take care of him.”

RUSH: Now, let me ask you: Did they take the baby from their home.

DOWNING: They did. They came right into the home, walked in, took the baby out of the arms of his 12-year-old brother, and then we were on a roller coaster for six days until we got this child back. The juvenile court judge just the signed an order saying: Well, if the state says these tests are mandated, then I think they should be done, regardless of the fact that the statute doesn’t even say what you do if the parents don’t test. It just says the judge can enter an order, but it sure doesn’t say sheriffs can come in and take children out of the home.

RUSH: Yeah, this is frightening. I remember what I said about this in the Update today that you heard, is this: “Put aside for a moment whether you agree or disagree with the parents and their decision to opt out of the blood test. What really ought to chill people,” and it probably did chill some spines of people hearing you that did not hear the Update today, “is what the episode represents: government officials walking into your house to seize a newborn. Imagine what they… If they won’t stop doing that, if they would not even hesitate to go take a five-week-old baby away from it’s nursing mother for six days, for blood tests, imagine what they might someday do to you should you make a decision as an adult that they don’t like. So my whole point about this, Jeff, was with people ceding all kinds of power to the government — particularly over their health, and their health care — this just equals less and less freedom that people and their families have, including over your own health. I’ve talked about this a lot lately. This is an example of the creeping control that the state is willing to assert over people, particularly in the area of health care.

DOWNING: Yeah.

RUSH: Now, help me understand. Why are people concerned about this — and this is not a critical question. I’m genuinely curious. Why is Nebraska, and other states, so concerned about testing to find these four or five diseases? They’re not contagious, are they?

DOWNING: They are not contagious. In fact, that’s an interesting point. All states unusually have a vaccination statute also. The vaccination statutes, however, provide religious exemptions or other medical opt-outs, and so if the government mandates something, but yet they give parents, who are in the very best position to know what is best for their children, then perhaps it’s not so intrusive. Here, the state interpreted this as saying, “Well, there is no opt-out, and so we’re coming in and we’re grabbing this baby,” regardless of the fact that he is still nursing nine or ten times a day.

RUSH: Right.

DOWNING: It was the first time.

RUSH: What’s superseded here was the law, the letter of the law — even though there was no provision for what you do if the parents opt out — over common sense.

DOWNING: Exactly.

RUSH: In this case. What’s the reason? Look, I don’t mind admitting my ignorance on this. What’s the reason for the state to know whether somebody has a baby with cystic fibrosis?

DOWNING: Well, they simply want to be able to provide the parents — by the way, here’s what the next letter or section of the law says. If the child has one of these rare metabolic disorders, then they provide the parents with information about it, and then the parents can make a decision about treatment. That’s literally what the law says. It doesn’t say then –

RUSH: Well, wait a minute. What are doctors supposed to do?

DOWNING: Well, that’s exactly right. The doctors of the Nanny State are not the ones who control the decision making. It’s the parents. So that’s what’s so particularly (garbled).

RUSH: No, what I meant was you’ve got the state mandating the doctors explain to you if your child has one of these metabolic disorders, or is it the state that comes in and tells you, a representative of the government that comes in and tells you what your options are and how you should take care of the kid?

DOWNING: Yeah, as a matter of fact, they order the doctors to provide the parents with information. So, again, it’s more intrusion into the physician’s practice as well.

RUSH: Okay, what are the “good intentions” behind? There always are good intentions when legislators start passing laws like this. What are the good intentions behind this, Jeff?

DOWNING: The good intentions are this. In these very rare instances, if the child is provided with medical treatment in the first days or weeks of life, then perhaps the metabolic disorder can be reversed and the child may not suffer from mental retardation or very devastating things. But yet, when the government says, “Even though this is incredibly rare, we’re going to mandate this,” they then follow it up with armed men coming into your home with all the force of the government coming down upon this family. So it was the biggest government overreach that I’ve ever seen, as a lawyer. It was the first time I didn’t feel like I was participating in the American legal system, and it had everything to do with a mandate in the health care industry.

RUSH: Did you try to talk your clients into changing their mind about the testing?

DOWNING: I didn’t, Rush, because our country is founded upon people having religious and conscientious objections to the way a state or a government is running things. That’s why our founders came here and started this grand experiment in democracy. So it really goes to the very root of what our religious freedoms are, and I know your brother, David, wrote a fantastic book called Persecution which, in instance after instance, he highlighted how the government has come in and intruded into the private lives of people, over matters of conscience or faith, and that really is what happened in the Anaya case here.

RUSH: Is everything okay with the child?

DOWNING: Well, of course the silver lining is — and what we knew to the case was — this baby didn’t have any problems. In fact, he was healthy as a horse. He was growing. He was strong, and the only times that there was any disruption to his life, and he was perhaps endangered at all, was when he was taken from the sustenance of his mother for almost five and a half days. She did get to nurse a little bit, but nowhere near the level of care he had before.

RUSH: Yeah, but you heard — hey, I said this to your clients. “Hey, we’re all professionals here.” (laughing) When I hear that line, it’s time to run for the tall grass. “We’re all professionals here.”

DOWNING: That’s exactly right, and this was a case where it was great that an organization like the Alliance Defense Fund, who I’ve been trained by, there are hundreds, if not a thousand, lawyers now spread across the country that when we see government intrusions and overreaching like this, we’re trained and we can jump in and represent people in circumstances like this.

RUSH: Well, you know, here’s the thing, and I’ve only got 20 seconds here. The law is the law. The problem with this law is that there was no provision for an opt-out. What’s the penalty? What do you do? So they just assumed that they had the right, even though the law didn’t give them the right, to go take the baby. But the law does say the kid has to be tested. You can argue the — and I know you did argue — religious exemptions and so forth, but this is an example where law being really rigid sometimes is not good law.

END TRANSCRIPT

Keating, O’Gara has filed a federal civil rights lawsuit (viewable here: amended-complaint.pdf) to vindicate the rights of the Anaya family of Omaha.

On October 11, 2007 without warning or notice, the State of Nebraska removed baby Joel Anaya, then just 5 weeks and 4 days old, from the family home even though there were no emergent medical circumstances.

From The Guardian:

Suit Says Baby’s Seizure Violated Rights
By ANNA JO BRATTON
Associated Press Writer

OMAHA, Neb. (AP) – A Nebraska couple sued state health officials Thursday, arguing their rights were violated when their newborn baby was seized by sheriff’s deputies so a mandatory blood test could be performed.

Joel Anaya, who was almost 6 weeks old, was kept in foster care for six days until the tests came back negative earlier this month.

His parents, Mary and Josue Anaya, believe that the Bible instructs against deliberately drawing blood and that ignoring that directive may shorten a person’s life. State health officials “conspired to deny the Anayas their rights of due process, and to seize and test baby Joel without notice or a hearing in district court,” according to the filed in U.S. District Court in Omaha.

“This is a classic case of the government overreaching and violating a family’s constitutional rights,” said Jeff Downing, the couple’s attorney.

The Anaya family is not seeking damages, but they want to ensure that this won’t happen again if they have more children.

It’s the first time in Nebraska a child was taken from parents to draw the drops of blood from the baby’s heel for the screening, said Marla Augustine, spokeswoman for the state Department of Health and Human Services. Nebraska is one of four states – South Dakota, Michigan and Montana are the others – that doesn’t offer a religious exemption for parents who don’t want the test performed.

Health officials say the newborn screening program is one of the state’s most cost-effective public health programs. The newborn blood test – usually performed within 48 hours of birth – screens for dozens of rare diseases, some of which can cause severe mental retardation or death if left undetected.

Last year, out of 26,819 babies tested, 537 tested positive for one of the dozens of diseases, and 43 of those results were confirmed, according to the state’s Newborn Screening Program.

Augustine said Thursday that state officials had not seen the lawsuit and would have no comment.

The decision to seize Joel Anaya and test him was made by Douglas County prosecutors who have said they only did what was necessary to protect the baby’s health.

When the Anayas’ daughter Rosa was born in 2003, a hearing was held in Douglas County District Court and the couple voiced their objections. The state Supreme Court eventually turned down their arguments, but Rosa never was tested.

This time, the county wanted to make sure the testing was completed, said Nicole Brundo Goaley, a deputy Douglas County Attorney. So the county got an order from a juvenile court judge to test the baby.

Sheriff’s deputies came Oct. 11 to take the child, who remained in foster care until tests came back Oct. 16. During that period, social workers let Mary Anaya nurse her son several times a day.

Scott Voorhees of KFAB Radio interviews Mary Anaya and attorney Jeff Downing here.

This beautiful family, the Anayas of Omaha, was torn apart October 11th when baby Joel, age 6 weeks, was removed from the family home by the Department of Health and Human Services with the assistance of three armed deputies.

The officers were acting on an ex parte court order because baby Joel’s parents, Josue and Mary Anaya, have faith-based objections to Nebraska’s Newborn Screening program which requires that blood be drawn for testing.

Jefferson Downing of Keating, O’Gara, Nedved & Peter is representing the Anaya family.

Nebraska’s program screens for nine very rare genetic diseases. The presumptive positive rate for the newborn screens in 2006 was less than 1/4 of 1 percent. The percentage of confirmed positive cases was even lower.

Baby Joel is back home now but only after going through six days of traumatic separation from his family and the blood draw procedure which deeply offended the parents’ faith and conscience.

From the Omaha World Herald:

Baby is now home from foster care
BY JENNIFER PALMER
WORLD-HERALD STAFF WRITER
October 17, 2007

Baby Joel Anaya was welcomed home Tuesday into his mother’s arms. And his father’s arms. And his sister’s. And his brother’s. And another sister’s. And another brother’s.

In fact, all nine of Joel’s siblings held, kissed or otherwise fawned over the 6-week-old brother they hadn’t seen since he was whisked into foster care last week.

“Finally, he’s home,” said older brother John Anaya. “He should have never left.”

The family of 12 piled onto a small couch for a photograph of the happy moment, with the baby in the center. Not having Joel “has been very stressful for the family,” said Josue Anaya, their father.

Despite the objections of Josue Anaya and his wife, Mary, Joel’s blood was drawn Friday and screened for medical conditions, as required by state law. The tests screen for a variety of conditions, including cystic fibrosis and sickle cell disease, which could lead to mental retardation or death.

Joel had been in state custody since Oct. 10 when a petition was filed in Douglas County Juvenile Court, alleging the Anayas put their son at risk by not having him screened.

Following a court order, Joel remained in foster care until the preliminary test results were received Tuesday. The Anayas were then reunited with their son, and prosecutors dismissed the case.

Joel’s parents say they object to the testing because of their religious beliefs and conscience. They believe in certain Scriptures that say life is in the blood.

Attorney Jeff Downing, who represents the Anayas, said it was appalling that Joel’s blood was drawn before the Anayas had an opportunity to appeal the judge’s decision.

“We can’t undo what was done,” Downing said. “But from a legal standpoint, we have a right to appeal.”

They are considering filing an appeal, either in Douglas County District Court or the Nebraska Court of Appeals, he said.

Judge Elizabeth Crnkovich was not looking out for the child’s best interests in Friday’s court hearing, Downing said, criticizing her comment that it was inappropriate to allow Mary Anaya the frequent visits needed to breastfeed Joel at every meal.

Not allowing Mary Anaya to consistently breastfeed Joel during the critical first few weeks of attachment put him at greater risk than the chance that he had one of the diseases being screened for, Downing said.

Mary Anaya, 40, said she will keep pushing for Nebraska to adopt an exception to the state-mandated testing, for the sake of her children and the grandchildren she hopes to have in the future.

Most states provide some sort of exception for people who object to the blood tests based on “religious” or “sincerely held” beliefs. Nebraska has no such provision.

Joel was born at home. Workers with the Nebraska Health and Human Services Department routinely cross-check a database of newborns who have had the screening with birth certificates issued. In Joel’s case, a worker noticed the boy had a birth certificate but had not been screened.

The HHS worker first sent the Anayas a certified letter informing them that their baby needed to be screened in accordance with state law. She also called Mary Anaya, congratulated her on her new baby and asked if she planned to have the baby screened, according to court testimony.

Mary Anaya said she did not. Then the worker asked Mary if she knew what would happen next. Mary said, yes, we’ve been through this before.

The Anayas previously fought a court order that required that the testing be done on their daughter Rosa. But in 2005, the Nebraska Supreme Court upheld the order to have the testing performed. In that case, Rosa remained in the Anayas’ custody while the case was being argued.

So when sheriff’s deputies arrived Oct. 10 to take Joel into state custody, it was a complete shock, Mary Anaya said. She expected to be summoned to court, but she didn’t expect her child to be placed in foster care.

In court Friday, Mary Anaya explained that part of her objection to the blood screening is she doesn’t believe in inflicting pain on a healthy infant. She also said the Bible talks about how life is in the blood. “To me, the blood is something important and not to be tampered with lightly,” she told the court.

Mary Anaya declined to discuss her religious beliefs in detail Tuesday because she said she feared others might mock them. Anaya and her husband are ordained ministers. They also are administrators of the Mission for All Nations food and clothing pantry in Omaha.

They have avoided having the metabolic screening done on most of their 10 children, who now are ages 21 years to 6 weeks.

Every parent chooses the risks they are or are not willing to take with their own children, she said, adding that she won’t allow her son to play football because of the risk he could be injured.

In an earlier proceeding the Court not only ordered the blood draw but placed restrictions on Joel’s ability to be nursed by his mother–the only form of hydration and nutrition he has known in his young life:

Omaha court case widens from screening test to baby’s meals
BY JENNIFER PALMER
WORLD-HERALD STAFF WRITER
October 13, 2007

A judge ordered that 6-week-old Joel Anaya, whose hungry cries interrupted Friday’s court hearing, be administered the state-mandated newborn screening test his parents object to and remain in foster care until the test results are received, despite the mother’s wishes to continue nursing the boy.

. . . Earlier in the hearing, Mary Anaya, who has been visiting her son several times a day in foster care to breastfeed, cringed when she heard him crying from outside the courtroom.

Dressed in a conservative black suit, she told the judge her convictions prevented her from swearing, so instead she “affirmed” to tell the truth before taking the stand. During her testimony, she answered questions about her son’s feeding habits. “Do you nurse your baby?” her attorney, Jeff Downing, asked.

“Yes,” she replied.

“How many times per day?”

“Eight or nine times,” she said.

“If I said someone came in and said the baby needs nursed, this would be about the right time, wouldn’t it?”

Interrupting, Crnkovich said the line of questioning was inappropriate and briefly talked to the attorneys in private.

She then left the courtroom, and when she returned, she quipped, “It has come to the court’s attention . . . that the child is hungry and needs to be fed.”

She ordered workers with the Nebraska Health and Human Services Department to take the baby out of the courthouse, feed him, and not bring him back.

She later added, “I don’t approve of Mom popping in (to the foster home) nine times a day to nurse.”

The hearing continued with Mary Anaya on the stand.

When asked what her objection to the testing was, Anaya said the Bible states that life is in the blood. “To me, the blood is something important and not to be tampered with,” she said.

Anaya and her husband are ordained ministers and administrators of the Mission for All Nations food and clothing pantry in Omaha. They take their faith very seriously and are raising their children according to those beliefs, Anaya told the court.

But after the hearing, crying in a courtroom hallway, Mary Anaya seemed more concerned about her son being fed than the testing being done.

“This is inhumane — to deny my right to feed my baby,” she said, distraught over where her baby had been taken.

The Anayas have 10 children aged 21 years to 6 weeks. They have avoided having the metabolic screening done on most of their 10 children.