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The myth of the litigation crisis
July 2006 | Volume 42, Issue 7

The gloves are off

For decades, tort ‘reform’ proponents have been fomenting suspicion of the civil justice system and anger at trial lawyers, who have taken it on the chin for far too long. It’s time trial lawyers fought for themselves and the courts as passionately as they do for their clients.

Bill Straub

It’s a joke everyone’s heard: Why do researchers prefer using lawyers in their scientific experiments instead of white rats? Because there are some things even a rat won’t do.

It’s a pretty funny line, actually, tapping into the public’s perception that attorneys, particularly those engaged in high-profile lawsuits involving millions of dollars, will do and say practically anything to win.

The comical professional image ranks right up there with doctors handing off their putters and removing their golf shoes just before they enter an operating room, and dozens of road workers standing around a pothole where one crewmember is doing all the digging. Americans enjoy laughing at themselves and, after all, what’s the harm in a little fun?

None, really, except when some of the nation’s most powerful lobbying groups—organizations with access to vast financial resources—use the image to destroy the civil justice system, which often is the only hope of recourse for people whose lives have been shattered as a result of another’s misconduct.

For example, the U.S. Chamber of Commerce is pulling out all the stops to ensure that big business won’t be held accountable for the faulty, often dangerous, sometimes deadly merchandise it puts on the market. The Chamber is working in all 50 states and at the federal level to dismantle the civil justice system.

It wants to limit the punitive damages that can be recovered in state courts by consumers or workers who have been injured or killed by a defective product. And the Chamber is trying to convince federal lawmakers that producers of a product more than 12 years old should be protected from liability if the product proves faulty and leads to injury or death.

Regrettably, the Chamber’s relentless campaign to eviscerate consumers’ legal rights has experienced some success. Individuals seriously injured by a product can no longer coalesce under a large class-action umbrella in state court. Most of these actions have been pushed into federal court, where progress is slow and judges are often less sympathetic.

All of these initiatives have one goal: to maximize profits by eliminating the ability of consumers and workers to hold corporations accountable for their negligent actions. But since the Chamber can’t admit its desire to block courthouse access to the weakest among us, it has constructed a straw man that it seeks to knock down—the trial lawyer.

In the fantasy world concocted by the Chamber, the trial lawyer is ruining the U.S. economy by attempting to “manipulate the civil justice system by inflaming the passions of juries, entreating them to ‘send a message’ to corporate headquarters, resulting in excessive verdicts . . . .”¹ “Mad-dog” lawyers, abetted by serial plaintiffs hunting for someone to sue at every opportunity, are allegedly killing research and development and leading multinational corporations to cower in fear.

It would be inaccurate to assert that the Chamber is alone in dreaming up this fable. Doctors, reeling from high malpractice insurance premiums, are practically begging Congress and state legislatures to pull the reins on trial lawyers, insisting that suits challenging physicians’ practices are driving up the cost of medical care.

Their claims are patently absurd. Data collated by the American Medical Association establishes that the number of doctors is increasing, not declining, even in so-called high-risk fields, like obstetrics and gynecology. Studies, like the one conducted by former Missouri Insurance Commissioner Jay Angoff for the Center for Justice and Democracy, show that high med-mal premiums are tied to poor insurance industry investments, not litigation costs.² (See article by Angoff on page 30.)

The insurance industry, the real culprit in the malpractice insurance scam, is working feverishly to cover its own tracks, scurrilously blaming trial lawyers for driving doctors out of business and creating a health care “crisis.” In that, they are much like the Wizard of Oz when he says, “Pay no attention to that man behind the curtain.’’

Even the president of the United States has joined the chorus, condemning the civil justice system for considering what he characterizes as “junk lawsuits’’—this from a guy who couldn’t get into law school.

Is it any wonder, with the quartet of the Chamber of Commerce, the American Medical Association, the insurance industry, and President Bush combining to beat the drums of misinformation harder than Charlie Watts, that trial lawyers are deemed by many Americans to be a scourge on society and a drain on our country’s productivity?

Pushing back

It’s time—past time, really—for trial lawyers to start pushing back, to aggressively fight the lies. This will require a change of direction, with trial lawyers standing up and launching a full frontal attack on those using deception and fraud to hurt America.

It’s imperative that the nation’s trial lawyers begin this push back. They must question the motives of those who have sought to demonize them and the civil justice system that has served the nation so well, while they simultaneously remind a cynical public of what they’ve accomplished and what they stand for.

It’s the trial lawyer, not the CEO with a $20 million paycheck and a place in the Hamptons, who seeks to protect the safety and constitutional rights of average Americans. This is especially critical today since the nation can no longer rely on others who historically have championed the public interest.

The federal government in recent years has all but abandoned its duty to protect the American public from unsafe pharmaceuticals, other hazardous products, and dangerous workplaces. For example, federal inspectors are paying little heed to dangers at job sites like meatpacking plants, leading to problems like the one at Wampler Foods in Pennsylvania in 2002, when 27 million pounds of cold cuts contaminated with listeria were recalled,³ creating an increasingly anxious atmosphere for both workers and consumers.

Career public servants at agencies like the FDA have been replaced by political insiders. Clauses are being written into regulations to protect the financial status of the lords of industry, not the hourly worker on the assembly line. Earlier this year, for instance, the FDA issued a rule rendering pharmaceutical companies immune from liability based on their failure to warn doctors and patients of a drug’s dangers, as long as its warning label met new minimum federal standards.⁴

The liability protections were not included in the original, publicly circulated draft. Rather, as the FDA admitted, the provisions were added behind the scenes, after the agency consulted with the drug industry and before it announced the final rule without subjecting it to public comment or any review. Several state attorneys general objected to this sham process, to no avail.

Illinois State Sen. Steve Rauschenberger, president of the National Conference of State Legislatures, wrote a letter to the FDA protesting the action, saying, “This attempt to insert preemption language is a thinly veiled attempt on the part of the FDA to confer upon itself authority it does not have by statute and does not have by way of judicial ruling.”⁵

And that is just one example. In March, the House passed the National Uniformity for Food Act, pushed vigorously by the Grocery Manufacturers Association, which touts the measure as “a single set of food safety and warning standards that will help consumers to make educated choices.”⁶ What it really does is kill state regulations that often set higher requirements for food safety and places the entire standards process under the FDA’s control.

Need more? The Bush administration has helped big business enhance its bottom line by watering down regulations dealing with pollution, ultimately harming everyone.⁷ Meanwhile, Congress is working to let corporate America off the hook for its pension obligations, condemning retirees to an uncertain future. Under the pending Pension Protection Act, ERISA-sponsored health plans would be awarded the unqualified right to full reimbursement with money that an injured person recovers from a third party—including the party responsible for the injuries. Reimbursement would be permitted in all circumstances, even if it would leave the injured person unable to pay for his or her own care.⁸

The inmates, it seems, have gained control of the asylum.

Meanwhile, the traditional government watchdog, a free press, has lost its bite. Economic conditions and competition from within the information marketplace have forced a number of media leaders—including the Washington Post and the New York Times—to trim their news-gathering operations. Reporters, who once held the White House and Congress accountable for their actions, have, as Don McLean said in his 1972 hit song “American Pie,” “caught the last train for the coast.”

So who is left to protect people? Should the Chamber of Commerce be trusted to ensure that faceless corporations take all the necessary steps to produce the safest products possible and minimize hazards in the workplace?

The answer is obvious. The nation’s civil justice system has become the last line of defense—the place where even the most powerful are called to account for their misconduct. It’s the duty of trial lawyers to guide the maimed, the jobless, and the families of the deceased through the dense thicket of laws, regulations, and practice rules that lead to fair compensation. And it’s a job that ought to be done unapologetically.

Recent history firmly establishes trial lawyers as a positive, progressive force in our culture. It was trial lawyers who championed a litany of changes that made automobiles safer, pushing for features like seat belts and air bags to enhance the protections afforded drivers and passengers.

It was trial lawyers, along with consumer advocates and others, who forced the clothing industry to manufacture children’s pajamas with flame-resistant material. The number of kids who died from burns suffered when their nightclothes caught on fire fell tenfold from 1970 to 1991.⁹

More recently, trial lawyers have been on the front lines in battles with pharmaceutical giants, protecting consumers from unsafe drugs and securing just compensation for people injured by them or for the families of people who have died. The highest-profile example involves Vioxx, a painkiller manufactured by New Jersey-based Merck & Co. that contributed to tens of thousands of deaths from heart attacks, strokes, and blood clots. Merck’s own memos prove the company knew Vioxx posed heart risks as early as 1997, but Merck ignored its own facts and made billions through aggressive marketing. Now it’s up to trial attorneys to make sure the company is held accountable.

The Vioxx tragedy is just one example of corporate misconduct. Trial lawyers are, or at least should be, secure in the knowledge that they are on the right side of both the issues and history. They have a long and honored legacy of pressing the case against interests who have a financial stake in making America less safe, and they’re still hard at it.

The facts are on the side of trial lawyers—every credible study makes their case. But they’ve been spinning their wheels by treating the tort “reformers’” lies and affronts as if they were produced at an evidentiary hearing. They’ve refuted claims made against them by citing the facts and attempting to establish that the objectives of civil justice are to benefit the consumer, the worker, and the weakest among us.

In a sense, trial lawyers have been bringing a knife to a gunfight. They’re constantly on the defensive, answering bogus charges and trying to refute lies with logic. The problem is that once a lie is rebutted, another is unleashed.

It’s time the other side was placed on the defensive—not from lies or exaggerations, but from the one thing it fears the most: the truth.

Game on

Trial lawyers work to ensure the rights of average Americans while holding corporate America, negligent doctors, and the insurance industry responsible for their many sins. It’s really a simple message, and it has the advantage of being truthful. The question is how to advance it.

Trial lawyers must stop playing defense and go on offense, something that’s more difficult than it sounds, given the amount of money and the cast of powerful characters on the other side. But it can be done.

Attempting to refute every charge or lie tort “reformers” level at the civil justice system is a no-win game. Trial lawyers can talk to the point of exhaustion, refuting whatever claim is devised, and still end up on the short end, forced to explain the next line of deceit.

Any time a question about trial lawyers’ integrity is raised, they must question the ulterior motive of those issuing the challenge. The Chamber of Commerce, for example, is dedicated to expanding corporate profit margins at the expense of everything else, including consumer safety. It’s time to ask: Does the Chamber defend Merck and the way it promoted Vioxx long after learning of its dangers? Does its CEO, Tom Donohue, think it’s OK that thousands of patients die each year as the result of potentially preventable safety incidents?¹⁰ Let the Chamber defend its misplaced priorities for a change. What, exactly, is it doing to protect the American public from products that maim and kill? Trial lawyers know the answer to this, of course—nothing.

When they have nothing else to say, the leaders of multinational corporations love to talk about how trial lawyers are getting rich by taking them to court, as if corporate officers’ primary goal isn’t to expand their already-bloated wallets. Well, think about this:

• In 2005, the typical CEO of a Standard & Poor’s 500 company took home $11.8 million.¹¹
• Rick Wagoner, the chairman and CEO of General Motors, received compensation totaling more than $9.9 million in 2004, when he was leading what was once the world’s most powerful corporate entity toward bankruptcy.¹²
• Lee Raymond, the head of Exxon, took in $48.9 million in 2005,¹³ while his counterpart at Occidental Petroleum, Ray Irani, pocketed $64.3 million.¹⁴ Remember that the next time you fill up at the gas pump.
• Edwin Crawford, the head of Caremark Rx—the nation’s largest prescription management and pharmaceutical services business—hauled in $17.3 million in 2005.¹⁵ And we wonder why health insurance premiums are so high.
• William McGuire, CEO of UnitedHealth Group, Inc., was paid $37.7 million in 2005.¹⁶ Think he’s complaining about the high cost of health care?

This is just the tip of the iceberg. Representatives of big business and big insurance seek to enrich themselves at the expense of the health and safety of consumers and workers. They are the ones who should answer to the public, not the trial lawyers who defend the public interest and the civil justice system that serves it.

Bill Straub is a deputy director of communications at ATLA.

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1. U.S. Chamber Inst. for Legal Reform, Issues: Non-Compensatory Damages, at www.instituteforlegalreform.com/issues/index.php?p=damages (last visited May 25, 2006).

2. Jay Angoff, Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry, at www.centerjd.org/ANGOFFReport.pdf (last visited May 25, 2006).

3. THE CONSUMER FEDERATION OF AM., NOT “READY TO EAT”: HOW THE MEAT AND POULTRY INDUSTRY WEAKENED EFFORTS TO REDUCE LISTERIA FOOD POISONING (Dec. 2004), at www.fsis.usda.gov/OPPDE/Comments/97-013F/97-013F-6.pdf (last visited May 25, 2006).

4. Marc Kaufman, FDA Tries to Limit Drug Suits in State Courts, WASH. POST, Jan. 19, 2006, at A2, available at www.washingtonpost.com/wp-dyn/content/article/2006/01/18/AR2006011802320.html (last visited May 22, 2006).

5. Press Release, Nat’l Conference of State Legislatures, Proposed FDA Rule Preempts State Product Liability Laws, available at www.ncsl.org/programs/press/2006/pr060113.htm (last visited May 25, 2006).

6. Press Release, Grocery Mfrs. Ass’n, House Vote for National Uniformity for Food Act a Victory for Consumers (Mar. 8, 2006), available at www.gmabrands.com/news/docs/NewsRelease.cfm?DocID=1634 (last visited May 25, 2006).

7. See information compiled at National Resources Defense Council, The Bush Record, at www.nrdc.org/bushrecord (last visited May 25, 2006).

8. The Pension Protection Act of 2005, H.R. 2830, 109th Cong. (2005).

9. The Pajama Game, Public Campaign (Sept. 9, 1998), at www.publicampaign.org/publications/ouch-cpi/001-020/ouch009.htm (last visited May 25, 2006).

10. HEALTHGRADES, HEALTHGRADES QUALITY STUDY, THIRD ANNUAL PATIENT SAFETY IN AMERICAN HOSPITALS STUDY 3 (2006), available at www.healthgrades.com/media/dms/pdf/PatientSafetyInAmericanHospitalsStudy2006.pdf (last visited May 31, 2006).

11. 2005 Trends in CEO Pay, AFL-CIO, at www.aflcio.org/corporatewatch/paywatch/pay/index.cfm (last visited May 25, 2006).

12. Executive PayWatch, AFL-CIO, at www.aflcio.org/corporatewatch/paywatch/; click on “CEO and You,” and then on the “database” link to search by company name. (last visited May 25, 2006).

13. Graef Crystal, Oil Executives Strike Gushers as Highest Paid, Bloomberg.com, at www.bloomberg.com/apps/news?pid=10000039&sid=ahWvkX7FsZxY&refer=columnist_crystal (last visited May 25, 2006).

14. Id.

15. Id.

16. Id.

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