The People v. Big Corporate Interests

In Broken States Like Ohio, the Result is Always the Same

Several months ago, after interviewing Mike Berkheimer and hearing him describe what’s happened to his life after almost dying from swallowing a chicken bone, I couldn’t sleep.

The physical and emotional toll from Mike’s injury was a true nightmare. He’s a life-long hockey player and a tough guy, and a fighter, but I could feel his pain through the screen as he described his harrowing journey.

But just as harrowing to me was the injustice of the Ohio Supreme Court telling Mike that he couldn’t even have a jury of his peers weigh his case and consider imposing accountability against those who’d turned his life and health upside down. Because, according to this hopelessly partisan and broken court, and against all common sense (and even the dictionary)…

Merriam-Webster publicly corrected the Ohio Supreme Court, affirming that the meaning of “boneless” “includes “being without a bone” (as in “jellyfish are boneless”) and “having the bone or bones removed.”"

…Mike should’ve fully expected to be eating bones when he ate the falsely advertised “boneless” chicken he ordered.

Imagine being Mike — told that the corporate interests who so grievously wronged you get off scot-free because, according to four members of the Court backed by insurance companies and the business lobby, the word boneless means the opposite of what anyone with common sense understands it to mean.

It’s the perfect, painful symbol of the deck being stacked against everyday Ohioans like Mike.

And the brutal reminder that when pitted against the interests of corporate profits, Mike didn’t stand a chance—no matter how much he suffered, and no matter how basic and straightforward the words at issue may have been. The Court was willing to twist and warp those words to ensure that Mike lost and corporations won.

Maddening.

Sickening.

…..

That same sick feeling has returned the last few days.

First, the Ohio Supreme Court voted 4-3 earlier this week to double down on its absurd ruling against Mike:

The next day, the same Court ruled in favor of giant corporations who profited from the opioid catastrophe—reversing a case where a jury had ordered those companies to help clean up the mess they created. Programs funded by that jury award that would’ve boosted treatment and prevention for Ohio’s addiction epidemic will now go by the wayside.

The timing of the release of these decisions only weeks after the election is, of course, highly convenient. Joe Deters, who “wrote” both opinions and who (with no judicial experience) had no business being appointed to the court in the first place, was one of the candidates on the November ballot.

Whether it’s this court or gerrymandered legislatures, false advertising cases or public nuisance cases (the opioid case), the theme is always the same: everyday Ohioans/Americans and communities get screwed.

Who always wins in states like Ohio?

The unaccountable corporations showering dollars on those in public power (legislators and judicial candidates) to shield them from facing accountability even in the most extreme and tragic cases.

Mike’s case. The opioid reversal. They’re perfectly symbolic of so much that is wrong these days.

Two justices who have laudably stood up for the rule of law and common sense are now in their final weeks on the Court. Justice Mike Donnelly and Justice Melody Stewart have both been wonderful jurists, toppled by a legislature manipulating Ohio election rules so that judicial races are now as partisan as everything else, and by big corporate money used to smear their good names because they had the audacity to stand up for everyday Ohioans like Mike Berkheimer.

Their dissents in the “new” chicken bone decision powerfully sum up the problem:

Justice Donnelly:

“If there was an Olympics for sophistry, the majority’s opinion would certainly have taken the gold. The majority blatantly orchestrated the desired result by usurping the jury’s traditional role as the determiner of fact. This is exactly the type of activism self-described conservative justices purport to disdain….

Without a doubt, this case carries profound implications for all Ohioans. Among the biggest problems with this decision is that it causes people to lose faith and confidence in the impartiality of the justice system….the members of the majority have once again elevated the interests of the defendant corporations above a grievously injured plaintiff’s constitutional right to a jury trial, denying Berkheimer the mere opportunity to try his case to a jury. (For the record, I have never stated that there was negligence in this case, only that a jury, not judges or justices, should determine whether there was negligence.)

The members of the majority have granted virtual immunity to entities involved in the meat industry for any bone-related injury that might be caused by their “boneless” products. The three defendants—and other similarly situated entities—now have less incentive than ever to carefully produce, process, procure, or prepare meat products before advertising them as boneless.”

Justice Stewart:

“The way this product was advertised was obviously problematic to the majority’s analysis. So, to circumvent that problem, justices in the majority created their own definition of “boneless,” one that is completely divorced from reality, let alone what any reasonable person would understand the word “boneless” to mean….

The majority’s determination that “boneless” represents a cooking style has no basis in law, no basis in fact, and no basis in reality. Yet this erroneous creation is central to the majority’s holding that Berkheimer should have anticipated the presence of bones in his food and guarded against injury.…

This court, like all others, should be independent—not swayed by media commentary or other influences like political-partisan allegiances. [T]he way in which justices are now elected to this court critically calls into question the independence of this body.,,,

“[C]ommentary [from the media] is nowhere near as damaging as the politicization of, what should be, an independent judiciary. As Alexander Hamilton said in Federalist No. 78 when speaking on the importance of an independent judiciary to the separation of powers, “as liberty can have nothing to fear from the judiciary alone, [it] would have everything to fear from its union with either of the other departments.” The Federalist No. 78, at 465.”

Thank you, your honors.

Here’s a lawyer commenting on how outrageous the decision is:

Day 12, December 12, 2024 — The Parade of Compliant Billionaires

Beyond Elon Musk, prominent billionaires are all lining up in fealty to Trump. It was revealed that Mark Zuckerberg and Jeff Bezos have both forked over a million dollars to Trump’s inauguration, while Google co-founder Sergey Brin dined with Trump at Mar a Lago.

Because he owns The Washington Post, Bezos would know more than anyone that one of the first scandals in the first Trump term was the excess and graft involved in Trump’s inauguration operation, orchestrated by the cast of shady characters who put it all together. The $107 million raised and spent was more than the double what Obama’s inaugurations had cost, even though the Trump festivities were less extensive. Millions of dollars (far beyond the cost of the inauguration) went unaccounted for while millions more ended up in the pockets of cronies, including more than a million in Trump’s own hotel business.

As for those business leaders cozying up to Trump to curry favor, they might want to read “Garden of Beasts” to see the effectiveness of their strategy (or ask Justin Trudeau). As I wrote several weeks ago:

“For….business leaders or journalists or others, who decide to go along with the program, either out of fear or greed or assuming you can ultimately control those leaders; or betting that you will fare better by muting criticisms as opposed to airing them loudly and clearly...know that did NOT work. History is painfully clear about that. In fact, you are often the first targets of retribution.”