Wal-Mart Sues, SCOTUS Screws Brain Damaged Woman
By Logan Murphy Monday Mar 24, 2008 7:01pm
The family of Deborah Shank has lost its last chance to stop Wal-Mart Stores from recouping hundreds of thousands of dollars in medical expenses from an accident settlement the Shanks hoped to use for her future care in a nursing home.
Last November, the WSJ reported in a front-page story how the retail giant had sued Deborah Shank—a 52-year-old former Wal-Mart employee left permanently brain damaged from a car accident nearly eight years ago—for the money and won. Like most employee health plans, Wal-Mart’s gives it the right to recover medical expenses for accident-related care if a worker also collects damages in an injury suit.
After losing in federal court and again on appeal, the Shanks’ last legal hope was a bid to the U.S. Supreme Court. Yesterday, though, the court announced it wouldn’t take up the case, bringing the matter to a close. Read on...
Welcome to the Bush-Wal-Mart America. Corporations trump the common folk every time. Elections matter, vote Democratic in November.
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[deleted - see the commenting policy. sitemonitor]
I may be wrong, but I thought all companies and/or individuals who pay for medical expenses are indemnified if the injured party receives monetary compensation for those injuries and it includes the medical expenses within the award.
The problem is caps on jury awards, and the GOP has done a slam-bang job of convincing people that injured parties are walking out of courtrooms with excessive awards for damages. The case of the elderly woman who sued McDonald's for the hot coffee spill is a classic instance of how the GOP bamboozled people into thinking she didn't deserve the award, when in fact she most certainly did, as anyone who is aware of all the facts of that case will agree.
[refers to deleted post. sitemonitor]
"Elections matter, vote Democratic in November."
Really? Because last time we voted Democratic to end the war, and, if I am not mistaken, the war is still going on. As well as torture, the suspension of Habeas Corpus, extraordinary rendition, the Patriot Act II...
But this time it will be different, right?
Walmart represents the very essence of US corporate culture. It derives its success from a profound understanding of the consumer based society that the US has proudly embraced for decades.
If Crooks and Liars really wants to reject Walmart and the system that allowed it to evolve, eliminate your advertising.
Yet one more excellent argument in favor of a cradle to grave national comprehensive health care system....Medicare for all.
If we had a system in place right now, Deborah Shank would get the care she needs for the rest of her life.
Of course we might have to cut the military industrial complex's nose off in order to get there....
Oh, never mind....
YA @ 4:
WELL JESUS CHRIST:
Vote republican then, instead of having a hissy fit here.
What is it with you people? Nadar's a dick by the way: an opportunistic, pompous, arrogant DICK.
Straight Shooter @ 2:
Yeah, someone definitely deserves a muti-million dollar award for spilling coffee on their self because the person in the drive-thru didn't tell them that their coffee was hot.
Or... the lesson here could be Don't work at Wal-Mart.
YA @ 4:
You gave them the 2/3 majority needed to end the war I see... along with the other bits of your shopping list.
I'm searching for a new home, anybody know a city with reasonable under-bridge property, and lovely views of gated communities?
Get your dander down folks. I am a liberal and handled insurance claims for over 40 years; this is no evil corporate plot to rob the poor. Such clauses as being enforced by Wal-Mart are standard and have been stardard for a long, long time. Consider, if the claimant gets paid the medical bills by both the carrier for the tort-feasor and by the medical health carrier, the claimant has been paid twice.... or, to put it simply, it would be double-dipping. Generally speaking, the injured claimant gets "general" damages (pain and suffering) and non-medical "special" damages (for instance, loss of earnings) from the insurance carrier for the tort-feasor (the 'at-fault' party), and that same insurance company usually will make a deal with the health care carrier to settle their lien for their medical expenses, with all parties agreeing to the settlement.
YA @ 4:
YES!! Curses on those democrats for vetoing and filibustering all the funding restrictions, withdrawal, making torture illegal, etc legislation that the democratic senate and house have passed.......wait, that doesn't make sense but then, neither does your post.
beltman713 @ 8:
I seem to remember that there is a limit to how hot the coffee can be and not burn someones mouth. This coffee exceded that amount so much that if she hadn't spilt it on her lap it would have scalded the inside of her mouth.IF SHE HAD BEEN GOING SAY 65 MPH ON THE INTERSTATE SHE WOULD MOST LIKELY HAVE KILLED HERSELF AND SEVERAL OTHER PEOPLE!
What does Bush have to do with it?
"Welcome to the Bush-Wal-Mart America. Corporations trump the common folk every time. Elections matter, vote Democratic in November."
Hahaha, yes, vote for Hillary Clinton, who sat on WalMart's board for seven years, or for Barack Obama, who's top contributors are corporate law and lobbying firms Kirkland & Ellis and Skadden. Things will REALLY change then.
EliteLemming @ 11:
What I'm suppose to tell you? Where will I live?
chris @ 15:
At least four members of the SCOTUS are also members of the club, Bush is the face of the club (ooh nice duality)... hence...
Plus two of em are his appointments.
beltman713 @ 8:
I said to read the facts of the case. This woman was hospitalized for an extended time, had several skin grafts, almost died. It was also revealed that other people had been seriously burned but McDonald's settled with them, under confidential agreements. The coffee was exceedingly hot, far beyond reasonable expectations.
Please do your homework before making snarky remarks about people who have been grievously injured. Thank you.
Do Something about it...
http://action.walmartwatch.com/page/content/debbieshank/
Mike Mid City @ 17:
Well, I priced some caves, but they were off the beaten path, and there wasn't much in the way of convenience nearby.
beltman713 @ 8:
What's funnier than a 79 yr. old woman with 2nd and 3rd degree burns over 20+% of her body, including her genitals, necessitating skin grafts and 2 years of medical treatment? Answer: everything. Read the facts of the case, like StraightShooter said.
CLAIMSMAN @ 12:
You should read the WSJ article (note: WSJ not WaPo). The healthplan didn't even cover all of her expenses. They stopped coverage after a year or something and the lady still needed rehab and other care. The award was for medical costs from that date on. It was specifically designated for medical expenses related to care forward - and it was put in a trust for that purpose. The husband was also compensated around 200,000 - from which he paid some of her remaining medical bills. The health insurance company recouped all of their expenses - the guy's lawyer even argued that the "insurer" should only be compensated proportional to how much they covered, but the judge said, "no, we'll pay the health insurance company first."
That decision came less than a week after the husband found out his son had been killed in Iraq.
EliteLemming @ 21:
Evolution in reverse? Could you use a room mate?
Sickening, but not surprising. I'd rather pay double than give Walmart one cent.
On Wikipedia's 2007 list of billionares, five Waltons make the top 50 with just under $17 billion apiece. Just thought I'd throw that out there.
CLAIMSMAN @ 12:
Exactly. The health plan offered by Walmart is a self-insured plan under the ERISA
(Employees Retirement Income Security Act) of 1974; a federally enacted piece of
legislation and is NOT subject to the regulation of the various State Insurance Commissions nationwide. Many employers offer ERISA health plans because the cost
(premiums) are generally lesser than under a normal group health insurance plan underwritted by an insurance company...and some of the limitations/restrictions/exceptions contained in such plans are different than those
under a customary group health insurance plan.
Loved the WSJ ad posted with this -- made a peculiar intertextuality...
To be fair to Wal-Mart she did decline their offer to lock her into a store every night with the other cleaners until she'd repaid her debt. Indentured servitude, the Wal-Mart way of life.
Ron @ 24:
LOL
Sure, but if things really go bad we're eating your legs first.
chris @ 15:
Two SCOTUS nominees, corrupt justice department that won't investigate corporations, underfunding/understaffing/neutering regulatory agencies.
Mind you, I think he's just a figurehead and Cheney is pulling the strings - but Bush is still responsible for his part in it.
joeedugan @ 22:
Thanks, Joe. I'm doing beltman's homework for him/her, in case anyone else is interested:
79-year old Stella Liebeck and her grandson stopped by a McDonald's drive-through. Liebeck bought a cup of coffee, served in a styrofoam cup. She was sitting in the back seat of the car. When they had pulled out of the driveway, the grandson stopped for a moment so Liebeck could open the lid and put sugar and cream in her coffee (note: I've read several newspaper articles claiming that she was trying to open the cup while driving). The lid was stuck, so she tried to hold the cup with her knees while pulling the lid open with both her hands (which is very understandable, seeing as she's a weak elderly woman). As she removed the lid, the contents of the cup were spilled in her lap. She was wearing a pair of sweatpants, which absorbed the coffee, and held it next to her skin.
Now, here's the kicker: THE COFFEE WAS NOT HOT. It was SCALDING. The coffee was around 85° C (185° F). Normal household coffee is about 60° C (140° F). The coffee gave her third-degree burns over 6% of her body - her inner thighs, groin and buttocks. She had to be hospitalized for over a week, and had to undergo skin grafting. She had to pay 11 000 dollars for the treatment. And she's still crippled.
Liebeck sought to settle her claim for $20,000. McDonald's refused. They actually countered with an offer of 800 bucks.
During discovery, more than 700 claims from other people burned by McDonald's scalding coffee were produced. Many of them had stories similar to that of Stella Liebeck's. Before this was made known, McDonald's representatives lied to the court and jury about the existence of other claims. The claims documented that McDonald's were fully aware of the problem and its extent. McDonald's Quality Assurancy Manager also admitted during discovery that their POLICY was to hold their coffee at about 85° C in the pot (give or take a few degrees). This was based on a consultant's advice - he said that it'd maintain optimum taste longer after being taken out of the pot. Any coffee served directly from the pot WOULD in most cases cause burns to mouth and throat, and they knew it. The manager also testified that there is a burn hazard with any food/drink served at above 60° C (140° F), and that McDonald's coffee WAS NOT at all FIT FOR CONSUMPTION. He also testified that McDonald's had no intention to lower their holding temperature.
Other testimony showed that liquids at 85° would cause a full thickness burn to human skin in 2-7 seconds.
http://everything2.com/index.pl?node_id=1107089
Terry740 @ 14:
She spilled the coffee on her self. Hey, I spilled an entire medium coke in my lap one time in the drive-thru at Buger King one time. Should I sue them because my nuts got glued to my underwear?
EliteLemming @ 21:
There are always plenty of great fixer-upper possibilities at your local landfill. Plus, under the Bush Economy, opportunities for entrepreneurial garbage-pickers are booming! Add in the cries of the gulls and it's just like you're living in a shanty by the sea! Just remember to thank George W., after all hes done more for us even than Pat Buchanan has done for the negroes.
JW @ 16:
Old man Walton did buy American ,his low prices was for the most part correct but since his death his children haven't cared about anything but profit. Wal Mart was behind the Repugnics attempt at tort reform to stop all those" frivolous"
wage law suits. It may have been because quite a few was against them and they were losing almost every one. When Wal Mart first started (in Arkansas) it was a good thing but now I can't allow myself to shop there and haven't done so in nearly four years.
Check out Wakeupwalmart.com
Shamefully, I only JUST watched Sicko a few weeks ago. It has left me utterly depressed and discouraged and praying desperately for universal health care. As the wife of a type 1 diabetic and the mother of an 8 yr old epileptic, health care costs are always a worry for our family.
beltman713 @ 33:
I think in South Dakota you'd have to list each sperm by name as a co-claimant.
Welcome to America, if you work for a living your f**ked from the moment your born till the moment you die.
beltman713 @ 33:
You have to first have nuts, tough guy.
Old Billy Hussein @ 37:
Lol!
The ads are gone!!! Hahahahaha. Thanks John.........oh and on topic
Is it not a little odd to be thrashing Walmart, and then saying "vote Democratic", when the remaining candidates for the Dems have connections to Walmart? I mean, that seems a bit weird.
EliteLemming @ 30:
You might change your mind after you see how skinny my legs are.
Bud Osama Bin Laden Hussein @ 39:
Never fails. You try and have a discussion and then some jackass has to start getting personal.
beltman713 @ 33:
Boil a pot of water, dunk your junk in it until you've got 3rd degree burns all over. Then you'll be an expert on this woman's experience. We eagerly await your next post.
beltman713 @ 43:
You compared spilling pop on your balls with some woman getting scalded so bad as to need major surgery, and you call other people jackass? Yikes. Dude, get a mirror.
I found this link on Boing Boing:
Walmart growth graphic.
http://blog.kiwitobes.com/?p=51
beltman713 @ 43:
If your nuts came off with your underwear you might have a case.
ConcernedCanuck @ 45:
[deleted.......abusive......Please bring it down a notch.Site Monitor]
Looks like her lawyer didn't do her any favors. Should have worked out an agreement with Walmart before settling.
Isn't Hillary Clinton still on the board of directors for Walmart? How's that for health care for everyone?
Abbybwood @ 6:
This is why our taxes wouldn't go up if there was a national health care in place. If the US paid money to help people and not pay money to kill people, you would see a huge change for the better. The US is also creating a socialized system by bailing out the ShearBears' with 200 billion. Why do people in the states never see this? Privitize profits, socialize losses.... sad
Are we going to end up as a country where there are no personal rights or personal property? Just corporations which have written the laws to collectivize all rights and property for themselves, and stacked the courts to enforce them?
EliteLemming @ 11:
come up to the great white(refers to snow, I know you're a little sensitive on race down there)north, we regulate mortgages, banks, hospitals,insurance, well pretty much everything and our bridges are built to drive on not sleep under.
The Republic party is all about survival of the fittest. . . Who is easier to take advantage of than a woman who has suffered brain damage ! Let's just see her try to fight back ! Ha ! It's like a rabid pit bull on an infant . . .
Goddamn I hate WalMart. I stopped going there years ago...
CLAIMSMAN @ 12:
But that's NOT what happened in this case. Any fair and equitable outcome of this case should have resulted in the preservation of some of her damages award, either through settlement or in a legal judgement, in order to fund the ongoing care she needs as a direct result of the accident.
For Crissake, Walmart sued her for money she didn't have and NEVER had to begin with - because her original $700,000 insurance payout for the accident was reduced by legal costs and lawyers fees to $417,000 - less than the cost of her medical care, now repayable to Walmart.
Yes, Walmart had a contractual right to recover its medical payout, but because the medical system and legal system in the US is set up the way it is, huge overhead costs are built into the "medical costs" Walmart is allowed to recover.
Think about it. This poor woman had her accident insurance payout reduced by 40% ($283,000) just to pay the lawyers and courts. Call this the "legal discount" she had to pay, just to get get the money she was owed by the owner of the truck that scrambled her brain.
And yet Walmart's claim against her wasn't discounted. They sued for and won every bit of the medical insurance money she was paid as a Walmart employee. Why wasn't their claim discounted, as her accident damages were? Why did the cost of recovery, for her and Walmart, fall only on her? Yes, I know Walmart insurance agreement stated this, but it's NOT RIGHT.
And what about the huge overhead cost of medical care, built into the bills of Mrs. Shank and every American? Nobody else in the world pays so much for the cost of insurance industry bureaucracy.
What incentive is there for corporate insurance purchasers like Walmart to reduce the cost of insurance, when they get to recover the full cost of medical care, including overhead of 25% and more?
It's like a cost-plus arrangement. The bloated overhead that reduces affordability for so many Americans should not be recoverable when corporations ask injured employees to pay back medical costs from third-party insurance payouts. Let Walmart and its insurance subcontractor eat the overhead. Then the medical insurance companies would come under real pressure to make themselves more efficient. Citizens have no power to reduce overhead. Walmart does.
Funny thing is, Walmart employees in Canada have public single-payer insurance, just like all Canadians. If the company is like most employers in Canada, it pays all or part of employee health premiums.
I bet Walmart pays way less for medical insurance in Canada (and the UK, and the other countries it operates in) than it does in the US.
Ironic, no?
EliteLemming @ 26:
Yeah, they really need all that money.
Sick, predatory parasites.
CLAIMSMAN @ 12:
Not in Canada
Annoyed Canuck @ 56:
No, it's not ironic.
It demonstrates that even huge companies like Walmart will comply with the law - eventually.
All that is needed is the backbone to have the right laws.
Four more years of conservative governance and this site will be getting posts: "Not in Mexico."
steve @ 52:
Thanks for the invite. Need to brush up on Hockey rules and I'm on my way. You guys alright with immigrants?
D.G. Bowman @ 57:
It's its own form of drain bamage.
If elections matter.
Then vote NON-CFR.
Hillary, Obama and McCain are CFR/ NWO members.
They will all screw us blind.
They WANT a North American Union and a New World Order.
Guess who's not in the CFR, who loves the Constitution and is STILL in the race.
Do you really believe that the results of this election is going to change any of this?
It's tough to complain about anything when there are people like Deborah Shank. How can so many horrible things happen to some people and not others.
How did we let American workers get screwed so bad by corporate America? Please vote Democratic. There's no guarentees but we've seen what Republicans have done. They took her son, and then they took her money.
beltman713 @ 8:
More important than the facts of the specific case (which you don't know), is that we can't use isolated cases of percieved abuse to cripple a whole system like that. You don't think one person deserves the award she got so you want to make it illegal for anyone to get a big award regardless of their circumstances? That makes about as much sense as legalizing torture just because of one fictional scenario on a tv show.
What's your position, that corportations like McDonald's have been getting kicked around by the little guy for too long?
Seriously?
I would side with Walmart at this case as they have do no wrong. You wouldn't want to get tax twice would you? Why then must Walmart pay the victim twice in this case? It would have been different if Walmart tried not to compensate the victim, however they did and the victim wants twice the money. This to me is greed and personal greed like this are the cause of progressive movements not being able to advance our honest agenda.
Chris @ 64:
If america actually had an election campain on the issues instead of all the crap that goes on, yah it probably would.
But as I watch your election campain disintegrate into the usual discussions (race,religion,tax returns?...etc) probably not.
Estan @ 63:
==================================================
To narrow things down a little further Hilliary, Obama and McBush, which one was on the board for Wall Mart, hmm, who was that?
See this is how uneducated our public is. Look at the facts of the Mc Donald coffee case. It is not about the warning of how 'hot' the coffee is. If you look at the victim, it actually left a heavy burnt scar. This case is about Mc Donald's serving their coffee above the limit of how hot hot drinks can be served (above boiling point) and this was done so that they could mass produce coffees rather than serve as your order.
gwen @ 66:
something was really wrong with this settlement
she only got 700k for what should have been a lifetime of care?
this is what happens when you have tort reform...the victim gets screwed
the settlement shouldve covered all medical bills...including what wallmart covered
doesnt change the fact that the multibillion dollar wallmart are evil aholes
burn all wallmarts to the ground
Lollimom @ 7:
I'm not going to be voting for the Democratic candidate. I'm sure you aren't in favor of the current two-party system, so really, voting Nader is the strongest left challenge to corporate interests which dominate both parties. Clinton served on the board of Wal-mart, so how could her or her party be supportive of working-class interests? Trading votes for perennial promises has never brought progress, if we break from the people causing the problems and build our own party, seriously independent, unafraid of using power then we can change politics.
I fail to see what is wrong with Wal-Mart's course of action. Why should Wal-Mart have to pay damages if the Shanks collected damages from those directly at fault? Why does this story fail to mention how much the Shanks collected in the injury suit? It obviously well exceeded the amount of the medical care required.
It's a sad story, but just because Wal-Mart is the big corporation and the Shanks are the "little guy" doesn't mean Wal-Mart is in the wrong here.
Instead of the usual hand-wringing and victim mentality, how about fighting back with a boycott of Wal-Mart? That could result in the entire amount of its lawsuit recovery being lost in sales every hour or so. Oh, and tell them about the boycott so they know.
sounds to me like the lawyer committed malpractice. As a personal injury attorney I deal with these issues all the time and there are ways under the policy and state law to deal with these issues. Most states have a way to have the court rule and apportion the settlement. the lawyer tried to play fast and loose on this one and his client got screwed. he should be putting his malpractice carrier on notice. I am willing to bet the only reason he continued dealing with the appeals was to try and run the statute of limitations out on a malpractice claim. The lawyer screwed this one up, not Wal-Mart. By the way, most trucking companies have insurance policies with much higher coverage limits than the settlement here.
Kyuzo @ 73:
NO, Mrs. Shank's accident damages did NOT exceed her medical costs. READ THE LINKED STORIES.
She was paid $700,000 in damages, of which she actually received $417,000. 40% of the award went to legal and lawyers' fees. Walmart sued for $470,000. And the Walmart insurance contract insulated the corporation from having to pay legal fees in case of a suit over the medical payout. She bears this cost.
The $700K was put in trust to care for ongoing care necessary because of the accident. It isn't enough to provide for her. She wasn't fully compensated for what happened to her. The $700K is over and above the medical costs already incurred. The judgement in favor of Walmart doesn't recognize any of this.
So now, having paid her medical premiums in good faith to a corporation that took on the responsibility for her bills, she has nothing and Walmart walks away with zero cost.
I wonder if Walmart will reimburse her medical premiums? Fat chance.
And the kicker:
" The ruling [in the August, 2006 appeal] came six days before the Shanks' 18-year-old son, Jeremy, was killed in September last year in Iraq shortly after he arrived in the U.S. Army's 25th Infantry Division.
"I wanted to give up at that point, tell Wal-Mart they won," Mr. Shank says, but his lawyer, Mr. Graham, said he'd continue with appeals.
Mrs. Shank went to Jeremy's funeral. But because of memory problems due to her injuries, she gets confused about what happened. On a recent morning, she cried several times and asked what had happened to her middle son. Mr. Shank says that he obtained a divorce from Mrs. Shank this year, partly because of advice from a health-care administrator that she might be more eligible for public aid as a single woman. Mrs. Shank, who has been declared incompetent by a court, hasn't been informed of the divorce by her family.
The Shanks lost an appeal before a three-judge panel in the 8th Circuit Court of Appeals in August and last month were denied a request for a hearing before the entire court. They plan to appeal to the U.S. Supreme Court, though only a small percentage of cases are chosen to be heard.
"Sometimes I want to tell Wal-Mart, 'Ok, you won on the principle. But just let us keep the money," Mr. Shank says."
Appalling all around.
A good Republic has to ask. . . "what would Jesus, our Savior, do??? He of course would say " goeth outeth and getteth a job lady!
There ain't no free rides ! . . . And since you are damaged goods, why should I have to pay you minimum wage??"
I haven't read this whole thread, but in the first few posts, I have seen a number of misconceptions, and the overall tone has a feel of "mob justice" to me.
First off, I do not know the facts of this case, and they certainly are not presented here. There are any number of circumstances wherein this verdict could be the correct and just one. If the injured party lacks adequate funding for future medical care, in could be a case of poor legal advice and representation. It may also be that the family settled on the basis of believing the payor of already paid medical expenses had no claim, which would again be their lawyer's fault. There are endless permutations of this scenario.
Secondly, I saw a comment about the problem being "caps on awards." While I agree that the "plaintiff as lottery winner" is overplayed, it can be and has been a real problem in some states. I am not a lawyer, but having some connection to this area of law, I can say I have never encountered a BLANKET "cap on settlements". I have a hard time believing such a law could even stand up. However, I HAVE seen (and do support) caps on the "Pain and suffering" portion of such settlements - monetary awards for losses that are priceless and cannot have a meaningful price attached to them.
My understanding under this scenario would be that this woman could sue for and (if she shows negligence/legal liability) win compensation for all medical care directly related to the injuries past, present, and future, lost wages, incidentally incurred expenses (such as child care, or lost wages, etc.) to the sum total of all reasonably incurred and anticipated losses, without limit, PLUS whatever the legal limit on "pain and suffering" would be. Of course, in rare circumstances, punitive damages could be added, or applied as a multiplier.)
I feel terrible for this woman, and if she was really ripped off, I am outraged. However, just because a defendant has deep pockets does not mean that defendant is not entitled to their contractually agreed-upon recoupment of certain expenses... no matter which party is in power.
Yes!!!
It's survival of the fittest !
ralph @ 79:
I think you mean... richest?
or as Ghandi would say:
'Earth provides enough to satisfy every man's need, but not every man's greed'
I have never set foot in a Wal-Mart, and never will!
Just about my sentiments exactly. The people who followed the hue and cry to turn the rascals out last time just wound up replacing them with a different bunch of rascals. There isn't a rich, elitist politician alive today who gives a rat's ass what happens to people like the Shanks and we need to stop kidding ourselves.
Instead of voting FOR a democrat how about we just start voting against anybody with "incumbent" next to his name every election. I'm beginning to think the last damned thing we need these days are experienced (professional) politicians.
Hey...maybe The Shanks can ask Hillary for help. You know that she sat on the Board of Directors back in the late 80's and early 90's. I hear she is the one totally responsible for making Wal-Mart the largest retailer in the world!!!
I bet you don't hear 'ol "Ready from day one" comment on this subject!
The story about Wal-Mart vs Debera Shank has come to our attention. We were shocked to read about and watch the story. As you may not know Wal-Mart makes $20,000 per minute, 24-7, 365 days a year! That is $10,512,000,000 per year. Keep this in mind when you read Debera's Story and watch the video. http://fjd1.com/obama_petition/index.html
It should also be known the Shanks recently lost their son to the war in Iraq. We can not stand by silently and allow Wal-Mart to crush this family's misfortune even further into the abyss. How much money does the Walton family really need to make? If they take this woman health care trust fund away the tax payers will foot the bill and Wal-Mart keeps making $20,000 per minute.
The $470,000 that Wal-Mart wants is just 23.5 minutes of their profits for a year. They should call the 23.5 minutes of their operation a benefit for Debera and leave her health care money alone.
Go to this site sign the petition urging Wal-Mart to drop their action against this family. http://fjd1.com/obama_petition/index.html
Steven @ 67:
Yeah, that poor woman looks like she just couldn't wait to start spending all that do re mi. Do us a favor, will ya? Shut the fuck up!
Of course, the amusing part is how hatemongering liberals like Obama and Hillary call Wal-Mart "greedy" for doing this.....but never seem to mention that plans like Illinois Medicaid and Federal Medicare do exactly the same thing.
In short, Obama and Hillary and their ignorant partisans are screaming that Wal-Mart is "greedy" for doing exactly the same thing as the government healthcare plans that Obama, Hillary, the Democrat Party, and these Democrat partisans created and support do.
In america you have food to eat ,
Dont have to run thru the jungle and
scuff off your feet .
Or park your rv's at sam's club or wall mart ( the same ) does wal mart have have bennies for rv'ers , I will work for my heart med's .
cant work to hard , I'm old , very skilled and an artist , but no need to corp america .
The Dread Pirate Wesley @ 9:
And don't shop there either!
Lollimom @ 7:
Seems like you're stuck in the 2-party lesser-of-2-evils paradigm. I am voting for Nader. I don't know who this Nadar you're referring to is, but he sounds good too. I'll check him out.
The culprit is a federal law called ERISA. It needs to be retooled at least, if not repealed outright.
$450,000 is one hell of a deductible.
The insurance company should have sued the wrongdoer, not the insured. It's quite a scam that the insurance company has the insured assume the risk of the lawsuit and then collects any winnings. If the insurance company ultimately did not "pay out" then what of the premiums? I understand the legal argument but find it obtuse - certainly this woman's injuries are not chits to be traded - she cannot be made whole. She has not been "paid twice", she has been injured twice, and the insurance company has neatly zeroed out a column at her expense.
North Dallas Thirty @ 88:
But guess what? When I call Medicare, or other medical providers, and let them know that my client has been injured severely, and has not been made whole, they almost always agree to negotiate, and cut their amount owed (substantially), or even waive it outright.
Walmart won't negotiate? Won't waive it? Just because you CAN do something, doesn't mean you should do it. We used to be able to own slaves by law. Didn't make it right, did it?
--Blue Girl @ 93:
I really, really don't think you want to see ERISA repealed. It was specifically designed to (and generally does) convey far more rights to American workers (and protections from corporate skullduggery) than the reverse, with a primary goal of establishing one-stop federal protection and governance for employee benefits such as pension and health plans sponsored by private employers, compared to what used to be a hodge-podge of individual state laws. Retooled, yes--ERISA has been retooled countless times since 1974, mostly in favor of workers, or at least in ways that are perceived to be in favor of workers. But it is still not perfect. No law is, nor can any law entirely capture what we feel to be the morally right result in all cases.
I've worked in ERISA for over 30 years. By the way, one of the earlier posters seemed to indicate that Walmart's plan was governed by ERISA because it's "self-funded," rather than provided through insurance. That's not relevant--the only distinction here is that Walmart itself was exercising its subrogation rights under the terms of its health plan, rather than an insurer exercising its subrogation rights under the terms of an insurance contract. In either case, I've not been able to read the court decisions involving the Skanks, but depending on the facts and the specific terms of Walmart's plan, the court of appeals very likely reached the correct result under the law as it now is, and the Supreme Court probably denied review based at least in part on some quite recent decisions of its own that have addressed similar issues, decisions which have not always gone in favor of the employer or insurance company--in fact, one of the major decisions just a few years ago in this area going against an insurance company was authored by one of the Supreme Court's most notoriously conservative justices. There are some pretty complex areas of law involved with each of these cases, and each case is different.
As sympathetic as the situation with the Skanks is, and as greedy as Walmart might seem (and probably really is), it and most other employers (or insurers) have a legal right under many circumstances to recover under a health plan's or policy's subrogation clause. Changing the law is one thing, and changing it in the right ways might be the correct thing to do, but "throwing out the baby with the bathwater," so to speak, can result in undesirable unintended consequences.
In case anyone is wondering, I'm a life-long liberal Democrat and fervent Obama supporter, so I have no conservative axe to grind here.
Mike the Canuck @ 69:
Yes, elections can change this. Why do you think that the judges found for Walmart? Because Republicans appointed most of them with Reagan, Bush I, Bush II (20 years worth of appointments) compared to Clinton (8 years of appointments) over the last 28 years. These Republican appointed judges come from a mindset that it is better to protect a corporation than an individual. This type of ruling is the result. Elections matter.
Greg @ 96:
ERISA protects employers, not employees, check this article: http://findarticles.com/p/articles/mi_m0843/is_2_25/ai_102274367/pg_2
It may have been originally intended to do just the opposite, but it no longer functions that way. ERISA needs big time adjustments, or just to be gotten rid of. If the Chamber of Commerce wants ERISA protections so badly that they threaten to remove insurance benefits if ERISA protections are removed, then you KNOW it has to be bad for employees.
kevo @ 94:
Although it wasn't an insurance company, and instead was Walmart's self-insured plan, your question on why Walmart didn't sue the wrongdoer/tortfeasor is a good one that I'm also curious about. There could be a number of reasons, some of which might be revealed in the court of appeals decision. By the way, if Walmart had sued the wrongdoer for recovery, that would more accurately be "subrogation." In my previous post, I used the term "subrogation" when in fact I really should have said "reimbursement," i.e., Walmart sought reimbursement from the Skanks, versus "subrogation" where Walmart would sue the wrongdoer in place of the Skanks.
legal arguments aside, this if just disgusting to an extreme. when the law becomes the shield for the wealthy and the knife in the back of the rest of us, and the very same supreme court that saw merit in allowing anna nicole smith's case to come before them does not allow a case like this, the mind reels.
Estan @ 64:
Mike Gravel?
I actually think if Wal Mart family owners bankrupted the store chain, Bush would bail them out with tax dollars.
This is another Free Market corrects itself without consideration for human beings.
go1 @ 98:
I don't want to get into a debate at this late hour, but I think you're making a gross over-generalization. First, you link to a single article from way back in 1999 that said the U. S. Chamber of Congress made threats if ERISA protections are "removed." The article is so brief that I can only surmise they're referring to ERISA's preemption of state law causes of action in litigation, meaning that instead of suing in state court, a lawsuit involving pension or health plans must be handled in federal court, where the types and amount of legal relief available for a plaintiff (usually, but far from always, an employee) are more limited than they are in state court. Making it easier for employees to recover broader forms of legal relief is something worth discussing, and it has been discussed frequently.
But do you think ERISA is only about lawsuits? The burdens on employers regarding disclosure to employees regarding their rights, non-discrimination in the amount of benefits (so that Mr. Big doesn't get the whole apple), etc. and the penalties on employers for failure to comply (and the ability of employees to sue over it) have increased significantly over the years. If you're covered by a pension or health plan (and if your employer is in compliance with the law), you get all kinds of materials that ERISA requires, and you have the right to demand many other materials, or else your employer will be paying Uncle Sam (and in some cases, you directly) for screwing up. Sounds pretty "bad" for employees and Shangri La for employers to me.
Anyway, I'm sorry if I sound cranky, but really think you should do a little homework before making a sweeping comment like the one you made, especially when it is mostly in the wrong direction.
P. S. Blue Girl--I wouldn't take sweeping threats from the U. S. Chamber of Commerce too seriously anyway in this regard. Half the benefit to employers for providing health and pension benefits is the tax deduction. If they take away the benefits, they lose the deduction.
kevo @ 94:
Well put.
Walmart managed to walk away from Mrs. Shank without paying a cent. They even stuck her with the legal fees. It was Walmart that double-dipped, not the victim. The company accepted her insurance premiums, then took back the payout for her medical bills. Mrs. Shank only got 60% of her damages payment (net of legal and court fees), which was not enough to fund her ongoing care, then she lost it to Walmart.
Now she has nothing but medicare. What was the point of her having insurance at all??
WAY TO GO HILLARY!!!!!!!!!!!!!!!!!!!!!
I still don't understand why these scumbags don't have the burden to include themselves before the judgment is rendered and get their cut off the top, instead of hounding injured people after the jury prescribes a verdict based upon the injuries and future damages. How about this: Require 1) notice to the Insurance Co that a suit has been filed and 2) a deadline to join (with the threat of whopping malpractice for attys fail either 1 or 2)...is it really that complicated?? Wouldn't joinder save everyone load$$$ on atty fees and cynical outrage?
I don't shop at Wal-Mart. I don't have any kids, so I don't mind paying a wee bit more in local shops. (Not exactly, ..."Lifestyles of the Rich and Childless," but not clipping coupons either.) (I know people gotta make ends meet, and their prices are good, I guess. Not guilting anyone out for shopping there.)
Ben Grants @ 10:
Amazing how some people conveniently forget that the funding part of the war, you know the MONEY that allows the war to continue is 100% initiated by the Democratically controlled house. That only takes a majority vote. Even before 2006 the Democrats in the Senate could have filibustered war related bills.
The Democrats we elected never intended to give us what they promised us back in 2006. Democrats are equally responsible for the start of this war and equally responsible for it's continuation. And since they have taken office they are 100% responsible for Darth and Chimpy's continued rape and pillage of this country. Impeachment hearings should have started in Jan 2007. The war should have been over by Mar 2007.
As opposed to the repigs in this country, I hold the people I elect accountable for their actions. I expect them to keep promises, and I sure as shit will NOT vote for them next time.
Welcome to the
BushHillary Clinton-Wal-Mart AmericaI had to fix the error. I don't know if Bush ever had strong ties with Walmart but correct me if I'm wrong.
Wal-Mart Sues, SCOTUS Screws Brain Damaged Woman
The Supremes got nekkid and had a gang-bang witih Terry Schiavo's corpse?
If Americans boycott Wal Mart and send the money to this woman to help out with her medical expenses, this brings a lot to national attention:
Wal-Mart is a piss-poor employer who will screw you over even though they can afford not to;
The SCOTUS is politicized;
The need for Universal Health Care is first and foremost in America. Other Westernized countries have it, why can't America?
tas @ 76:
I agree. I've been a lawyer for over 20 years and have worked on both sides of the fence in personal injury cases. Most states allow the injured party's medical insurance company to recoup its payments out of any third party settlement or jury verdict, so it is generally required that the injured party's lawyer notify the insurer of the progress of any lawsuit. Any plaintiff's lawyer worth his or her salt will make sure they work out a deal with the insurer before they finalize any third party settlement to avoid exactly this kind of situation. I can't understand how the Shank's attorneys ever allowed this to get to the point where their clients were sued by Wal-Mart. I think the laws allowing for recoupment are unfair, but they've been around for a long time and not taking that law into account sure smells like malpractice to me, too.
This story seems standard for modern America. Corporations ALWAYS win out over the common people. If you look at our trade agreements (um, NAFTA comes to mind) and our economy in general, you'll see that our government always protects the interests of the big corporations first, allied governments second, subsidiary corporations third, and maybe--just maybe--the common people last.
Wal-Mart is a great example of the best and worst of corporate capitalism all at once. I live in central Arkansas, and people here rely on Wal-Mart to make ends meet. If not for their low prices and wide selection, a lot of people wouldn't be able to afford to feed their families. YET...Wal-Mart ruins other businesses, buys products made by near-slave laborers in foreign lands...
I feel for this poor lady, but I also have to point out that this is the logical outcome of our system and the necessary result of corporate capitalism in a non-healthcare nation. Boycott Wal-Mart all you want, but it won't change the SYSTEM, and that's where things have gone wrong. Misapplied capitalism is the problem.
Hillary and Bill are beholden to Wal*Mart. Not sure if she still is or not, but Hillary was a share holder during her tenure on their board. Will it be listed on her tax returns? Also, Wal*Mart has donated half a million to the Clinton foundation. Wonder if that was to thank them for giving China preferred trading status, enabling Wal*Mart to import their toxic crap. It's important to vote for Democrats, but not the Clinton's. Don't vote for a Clinton and stop shopping at Wal*Mart. Period.
Advocates of capitalism are very apt to appeal to the sacred principles of liberty, which are embodied in one maxim: The fortunate must not be restrained in the exercise of tyranny over the unfortunate
So, why don't all of you pissing and moaning here take a moment to exercise the charity Wal-Mart didn't and send this family a few bucks? That way Wal-Mart looks badder, they don't get that few bucks you were going to spend there on slave-labor shit, and the Shanks family gets some help?
That's more American than whining.
Annoyed Canuck @ 57:
Over 700,000 Wal Mart employees do not have health insurance!
Remember this story the next time you go into a Walmart to save 13 cents on a box of corn flakes or 4 bucks on a set of sheets.
Walmart is the devil and one of the top 3 reasons that manufacturing jobs have all gone overseas. Wouldn't go in one to save my life.
And may I quote:
"Alright, everyone back to work. Don't forget to clock out first, though."
_Walmart Assistant Manager_
Greg @ 99:
What would make you think Walmart DIDN'T sue the wrongdoer AND this woman?
They have lawyers on retainer who probably have nothing to do all day but look for ways to double dip for the corporation. Probably get a bonus, too.
Now we know what Satan's OTHER job is...running WAL*MART. Seriously though, their P.R. people should have told their attorneys to lay off this one. They are getting more than 100's of thousands of dollars of BAD publicity. I heard this story on 3 different radio stations this morning. What SHOULD have happened if that WM not only didn't go after the money, but they gave the ex employee a million dollars in the name of her dead U.S. soldier son. THAT would have bought them about 20 million dollars of GOOD publicity. Short sighted dopes...
If there's ever a revolution in this country...I think every walmart should be taken over, and used as bases for the freedom fighters! Then burned to the ground.
As I recall. the lid had not been properly place on the cup of scalding hot coffee. When the clerk handed the cup to the woman in her car the cup collapsed at the sides spilling the coffe in her lap. The elderly woman received burns on her vagina from the scalding coffee. She suffered compications from the burn and was hospitalized for some time recovering from the infection. When the details are placed into the coffee incedent the story changes. What if that had been your grandmother.
muggs @ 123:
That coffee was like almost 200 degrees or something right? If it had been my granny? I'd be in jail for beating the shit out of the clod who didn't make damn sure that lid was on securely.
CNN Anderson Cooper 360 is doing a story tonight at 10 p.m. EST about the Shank case. You can learn more and take action by going to: http://action.walmartwatch.com/debbieshank.
Wal-Mart funds their own health care plan so this is just another case of them not wanting to put more money into covering the health care of their workers.
that @ 101:
Exactly.
But guess what? When I call Medicare, or other medical providers, and let them know that my client has been injured severely, and has not been made whole, they almost always agree to negotiate, and cut their amount owed (substantially), or even waive it outright.
Pity your fellow trial lawyer was too busy counting his 40% fee to do that, wasn't it?
Wal-Mart should not have had to pay for anything; the reckless driver's company should. This is solely and wholly the lawyer's fault for doing a piss-poor job of representing his or her client.
And furthermore, you still didn't answer the question; why are liberals calling "greedy" health plans that follow exactly the same rules and have the same rights as the government ones they want to impose on us?
Does anyone remember that WalMart advertises itself as one of those "Christian" businesses?
right.
Greg @ 103:
ERISA limits worker rights far more than state law do. Under state law in Florida, the insurer would have been required to accept a pro-rata reduction for fees and costs and if the case is resolved for less than full damages due to comparative fault, etc., the ordinary insurer must accept its share of that reduction as well. ERISA gives the employer full reimbursement and first dollar rights. And if you have to fight over a claim, they do not have to pay your legal expenses. And there is not recourse if the employer stops paying the expenses. ERISA is terrible.
paul B. @ 114:
You're right. No matter how many heads of the Hydra you cut off, you're still fighting seven times the number you began with. You need to stab the monster through the heart to kill it, and stop the indecent multiplication of poisonous, fanged mouths eating up everything around them. The system has got to be changed, but we're nowhere near the nothing-left-to-lose point that will get most people on their feet and motivated to work for real change. Right now we're at the "wouldn't it be nice if things would change... without my having to DO anything about it" stage.
I'm not a big fan of wal-mart. there are many things they did that i don't agree with them, but in this case, i think its not their fault; they just didn't handle the case very well. on the other hand, the victim's family should be blamed to some extend too.
nowadays, i always hear about people complaining about what multi-national corps. are doing wrong, which sometimes is true, but many of them over exaggerate the situation so they can get something in return-like get rich. this case is very similar, what the victim's family doing i wrong. they are collecting money from both sides, wal-mart and settlement money from the accident. although im not an expert, however, im sure there is a reason why she was the 400k settlement money from the accident. the court must have judged her lost, injuries and etc to come up with that money. in other words, she would not have been given that much money if she wasn't badly injured; therefore, that money was supposed to be used for her medical needs. by no means im saying that 400k was justifiable for her loss, seeing that her live was basically destoryed after the accident, i do have sympathy for her. that still doesn't gives them the right to cheat. instead of properly use that money, they planned to set it aside , and exploit their health policy, which is totally out of greed.
now that the husband is coming out tv trying to win supporters by purely being emotional acting as if they did nothing wrong. from wal mart point of view, they don't want to make an exception for this family because if they do, they 'll have to make more. although i do believe their decision on them is harsh. i think the best solution for this problem is for wal-mart just to take back what they have been spending on her medical bills, and for the family, if they need more medical expenses, i'm sure they can some how get coverage from the truck driver's insurance company since what happened to her was because of the accident.
There is already a mechanism in place to make corrections to excessive jury awards, the appeal system. First in the case cited the initial award wasn't granted because the woman involved wasn't told the coffee was hot, the award was granted because the MacDonald's outlet in question had been notified on hundreds of occasions that they were overheating the coffee and had done nothing to correct the situation.
On appeal the award was substantially reduced providing a much more equitable result. Caps would result in situations where corporations would simply do 'cost-benefit' analysis, being now able to calculate their absolute liability versus the profitabilaty of continuing an unsafe practice as for instance as with Ford with the exploding gas tank in the Pinto.
beltman713 @ 8:
Straight Shooter @ 2:
Straight shooter:
Walmart didn't have a thing to do with her accident, they helped her by paying her medical bills. I don't know of an insurance company in the world that would let you collect twice for the same medical condition. I'll bet that yours doesn't. I didn't hear you say a thing about the lawyers getting the a big share out of her settlement. If she worked for you, you wouldn't let her keep over $400,000 dollars. Just because it's a large company you liberals think they should. Call the Clinton's and tell them they should send her the money from their windfall for being President. If that doesn't work the Democratic Party would certainly kick in.
WAL-MART is a synonym for inhumane, greedy, corporate interests. Just because it's in their insurance fine print, doesn't make it right. The health insurance industry coupled with Wal-Mart makes for embarrassing excuses for their behavior. Just another example of when W-M says they provide health care ... or health insurance ... don't believe their marketing. Malignant capitalism that is undermining OSHA, Clean Water Act, etc. Because they don't care if they have to pay multiple millions of dollars in fines in at least 17 states for their monster construction jobs of mega stores.
Just because it's legal, doesn't make it right. Shame on Wal-Mart. Again.
gwen @ 67:
Whatever your perceptions of this walmart case, this seems to be an isolated oneas well. I think it is equally dangerous to use this isolated case of perceived abuse to cripple a whole system.
Steven @ 71:
85C is not above the boiling point.
This is a very very sad case and unfortunately it all falls with the parameters of the law. My suggestion is very simple, Wal-Mart must sue the trucking company to recoup their loss. This family has not only lost financially and emotionally, but also they have just lost their son in Iraq in a terrible war situation that tears at the hearts of all Americans.
I just don't understand why a company so large is not making the right decision. Let the family keep the money and go after the trucking company. God knows the family is in enough pain.
Skorpeeyo
EVERYONE CALL MASSIVELY WALMART ETHICS LINE at 800-963-8442
Ask them how is that lawsuit ethical.
I told them that boycotting them is on the other hand utmost ethical.
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