As stated in my prior article, I have become LESS and less impressed with Bill O'Reilly over the years. That process has occurred even faster with Megyn Kelly--who is just not that bright or intelligent on legal matters (or anything else). I never was that much impressed with Fox News as a whole, and have for years stated that Fox News is part of the PROBLEM of modern "journalism", and NOT part of the solution. Read "Airframe"--the novel by Michael Crichton which says it better than I ever could. (I dare any "journalist" to read "Airframe" and keep anykind of self-image, as modern "journalism" has turned into an entire profession beneath contempt.) The core assertion by Crichton is that modern "journalism" is NOT INTERESTED in factual information, which is the essential thing to realize when dealing with modern "journalism"--whether as an interviewee or watcher/reader.
It is a rare "news" sstory today that gets the FACTS right. But this goes beyond incompetence, because these people (modern "journalists"--Fox News and ALL of the mainstream and other media) DO NOT CARE about information. They only care about agenda (not even necessarily a political agenda, although almost all have that). It is time for more specific examples.
Go back to Monday of the previous week (January 24, if I remember the day correctly). O'Reilly and Kelly were discussing the Obama health care law and whether it will be ultimately struck down because of the individual mandate. So far, so good--although there was no great insight exhibited by O'Reilly or Kelly. Everyone knows lthat the Obama health care law attempts an unprecendented expansion of the interstate commerce clause by MAKING Americans buy someting. But that is the key point here. The LIMITATIONS on government in the Constitution apply mainly to the FEDERAL GOVERNMENT, and not to the states. The Federal Government is supposed to be a government of LILMITED power, with only those powers GRANTED to it in the Constitution. In contrast, the states are governments of UNLIMITED POWER, except as specifically restricted by the Constituton (or their own state constitutions). That means that Massachusetts can pass a law MANDATING that people buy health insurance, and no one is asserting that such law violates the United States Constitution (at least no one of whom I am aware--no one getting any attention). This is significant.
It is significant because O'Reilly and Kelly proceeded to get in a discussion about the Orweelian Big Lie that the Obama health care law is nothing new (a leftist lie, as is appropriate for lthe Orwell reference). The assertion is that everyone accepts the idea that there is no problem with laws mandating that people buy auto insurance. O'Reilly and Kelly solemnly agreed that the leftist lie (without O'Reilly and Kelly identifying it as such) was not applicabble, because mandatory auto insurance is only required if you drive a car (and then usually for the car). You don't have to drive a car.
Hogwash. Double hogwash. Total idiocy. And I have heard the same idiocy from supposedly conservative politicians and commentators. Yes, it is true that ObamaCare goes beyond akuto insurance in its assertion of the power of the Federal Government to MAKE people buy something. But the implicaton--almost the direct asssertion--of what O'Reilly and Kelly said was that there is no distinction between a Federal law and a state law. That is a LIE, and O'Reilly and Kelly merely exposed themselves as total morons. Yes, I AM saying that a FEDERAL law requiring the purchase of auto insurance would be just as unconstitutional as the Federal law madating purchase of health care. The issue is not one of wisdom (whether we should have laws madating auto insurance OR purchase of health care insurance). The issue is one of POWER. The Federal Government has no power to mandate purchase of auto insurance, any more than it has to mandate health insurance. Yes, the Federal Government probably does have the power to mandatre insurance for interstate carriers--like TRUCKS operating in multiple states--but the distinction there is obvious. If you are going to operate an interstate carrier business, then you have to accept responsibility to comoply with Federal mandates (including insurance). This does NOT apply to individual auto insurance. If you believe that the Federal government has the power to rquire individuals within states to purchase auto insurance, then I am sorry for you--even more sorry if you think that is a good idea. O'Reillyl and Kelly obviously do belileve the Federal Government has that power, and I DO feel sorry for them. They are either idiots, or they DO NOT CARE (and are just adopting the Orwellian Big Lie being spread by the left, and the mainstream media, because they don't want to try to explain what I just explained becakuse they think people are too stupid to understand the separation of powers in our federal system). No, I give O'Reilly and Kelly no slack on this. They are beneath contempt--either because of massive stupidity or because of a cynical conclusion that no one is interested in the concept of federalism.
I am not through. Today, I saw Judge Nepolitano (sp.? I am only spelling the name phonetically). being interviewed on one Fox show or another. He was talking about that tragic incident where a woman got the wrong medication--receiving medication that might abort or deform her unborn child (the kind of possibility which did not keep pro-abortion fanatics from insisting that "morning after" pills be OVER THE COUNATER--but what can you expect of pro-abortion fanatics who really don't have any problem with infanticide being committed as a baby is being born, or even after, so long as lyou have a professed intent of committing an abortion). What abortion drugs do to a fetus--or what horrible things may be done to a creature that will be a baby in a matter of seconds--seems not to concern our dekpraved society except when the mother wants the child. That, however, is not the point here. The point is that this woman has a lawsuit for being given the wrong medication. But the "judge" got the deetails of the law WRONG. I can say this with confidence, because I was a Texas lawyer for 35 years, and for most of those years I did personal injury litigation.
That is the first thing the judge got wrong. He implied that the law was the SAME in every state. Not true. He even said that EVERY state requires EVERY pharmacy to have ADEQUATE insurance to handle any possible claim. I am moraly certain that this is not true, but I don't know. Neither does the "judge. You can believe he checked the law of all 50 states. I don't. And I guarantee you that the law of NO state can GUARANTEE that there is "adequate" insurance to cover every possible claim for a deformed baby. Think of that "mandatory" auto insurance, and the fact that very often inuries in an auto accident may exceed the required insurance coverage. Yes. I did medical malpractice, and the AMOUNT of insurance carried by doctors varied widely. I am not even absolutely sure doctors are/were REQUIRED to have insurance, although it would not surprise me that there is some such requirement in many or most states. Lawyers, for example, are NOT required to have any insurance at all, although it is obviously folly not to have it. But the "judge" sounded like he "knew" what he was talking about, and that was all Fox (or the judge) cared about. I am not through.
I don't know everything there is to know about pharmacy insurance. I do, however, know about the law of strict liability and negligence. The "judge" knows little about it--at least if the Fox interview is any indication--but that did not stop him from making dogmatic, but FALSE, statements. The "judge" said that this providing of the wrong medication was a matter of "strict liability" (again implying that this was the same in all states, which is flatly not true). Under Colorado law, where this Safeway evidently was, this MAY be true. But I would NOT rely on the "judge" to tell me so. He is an idiot--and an idiot who does not seem to know about our federal system any more than O'Reilly and Kelly do.
"Strict liability" means much less than the judge would have you believe. It is the doctrine--now usually known as "products liability"--that you don't have to prove negligence to recover for injury caused by a defective product. You only have to prove lthat a product was defective, and that the DEFECT caused the injury. You should see the first problem here. IS this really a case of a defective product? Or is it really a case of negligence? No, it is NOT obviouis--to me, at least. The pharmacy made a mistake, but it was not even a mistake in labeling. The product was fine. The pharmacy simply gave the WRONG PERSON the product (giving the woman a bottle meant for another person with the same last name). Now is there a PHARMACY regulation in Colorado imposing "strict liability" on a pharmacy that makes this kind of mistake? Maybe. It is possible. But it requires much more of an explanation than the "judge" gave, since he assumed--FALSELY--that his is an OBVIOUS case of "strict liability". Not so. Now are there any FEDERAL regulatioins that apply here? I don't know. I would say not, but there are so many Federal regulations in so many areas that I would not guarantee it. But on a STATE law claim, violation of a Federal regulation would not create "strict liability" except to the extent state law makes that viiolation automatically a basis for liability. (No, I cannot even be absolutely sure that the Federal Government has not snuck in some requirement on mandatory auto insurance in a highway bill--a requirement that states mandate such insurance--although I am not familiar with any such Federal mandate and would oppose it as Federal overreaching. You will remember that we once had Federal SPEED LIMITS that the states had to impose--a thing I opposed at the time.). The Federal mandates of ObamaCare, by the way, are going to BANKRUPT the states--the imposition of costs on the states being one of the many ways that Obama and the Democrats tried to say that the bill would not raise the deficit.
Okay, you say, so the "judge" may have gone beyond what he really knows. You have not really shown he said anything obviously false. Wait. I am not through. The "judge" went on to say that "strict liability" means that your own negligence is irrelevant (such as not reading the label). Nope. Sorry, judge. You are an idiot. For decades, Texas (for one) has applied the doctrine of COMPARATIVE FAULT. That means that the jury is supposed to COMPARE the percentage of causation that applies to ALL factors that resulted in the injury (all factors for which anyone is responsible). That includes BOPTH negligence and "strict liability". Thus, if the incident in question had occurred in Texas, it would indeed be relevant whether the woman should have read the label herself. Yes, the pharmacy would surely be held responsible--either in "strict liability" or negligence--but the jury would then be asked to COMPARE the percentate that the pharmacy was responsible for the injury to the percentage the woman is responsible (if the jury found her negligent). And if the jury found the woman's negligence a sufficiently large percentage of the fault, she might recover NOTHING. This is all complicated by the cause of action the BABY might have, assuming the baby is born alive. No, all states do not apply the same rules as Texas. That is, indeed, the point. The "judge" made an assertion about "strict liability" IN GENERAL, which is totally FALSE. He should have limited ALL of his comments to Colorado law, and TEN only after making sure he investigated (preferably by asking a Colorado attorney who has handled that kind of case) exactly what Colorado law is.
Yes. I know. All of this is theory. This woman is going to recover. Safeway is going to SETTLE. That is why "news' people can get away with this kind of atrocity. But remember the DECEASED Gabby Giffords? The failure to be interested in verifiable INFORMATION caused almost every "news" organization to report that Gabby Fiffords was dead. Was that just as big a mistake as the Safe way pharmacy? I think so. Then there is Newsweek, which MURDERED people by FALSELY reporting that a Guanatnamo guard had urinated on the Koran--murdered people because this directly led to riots in which people were killed. "Journalists", of course, have sold the idea that there is no such thing as "journalistic" "malpractice" because of the First Amendment. But, even if that is the price we have to pay for a free press, this does not change the MORAL fault. As stated, these people are beneath contempt. Yes, they are even more beneath contempt than lawyers. Fox "News" did commit "journalistic" malpractice with the Judge. But I am sure they DO NOT CARE, especially since they know that no one but me will call them to account for it. You say Fox committed no "harm"? I disagree. no, it does not matter in terms of what happens with this woman's probable lawsuit. But the facts MATTER. More importantly, if you don't think the facts matter, then you are a modern "journalist" doing your best to destroy modern civilization.
Next article: "Obama Attacks the First Amendment: CNN, The Liar Network Lies Again"--an article dealing with CNN's MISREPRESENTATION (lie) about lthe proposed Arizona law declaring that non-residents of the United Statews cannot create an American citizen by arranging for their baby (niether parent being a permanent resident of the United States nor a citizen) to be born on American soil.
P.S. Note, as usual, that the above has been neither proofread nor spell checked (my eyesight), unless this note is deleted.
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