Trial and Error

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Trial and Error

 

With John Edwards in their sights, Republican spin

doctors are railing against an epidemic of " lawsuit

abuse " -- but the facts don't support the rhetoric.

 

Stephanie Mencimer

September/October 2004 Issue

 

In January 2003, President George W. Bush gave a

speech in Scranton, Pennsylvania, in which he declared

that the American health care system was broken. Too

many people, he said, couldn't get medical care when

they needed it. The solution was " getting at the

source of the problem, which are the frivolous

lawsuits. " The political subtext, at a time when the

Democratic presidential hopefuls -- including former

trial lawyer John Edwards -- were gearing up, was

clear: One White House aide explained that the speech

was part of " Whack John Edwards Day. "

 

The White House has long been laying the groundwork

for a campaign against the North Carolina senator, who

made his fortune representing people with injury

claims against doctors and corporations. Bush and

other Republicans have blamed lawsuits for everything

from rising health care costs to unemployment; with

Edwards on the Democratic ticket, the GOP -- and its

allies in the corporate world -- have dramatically

turned up the volume. Treasury Secretary John Snow

fired the first shot, two days after John Kerry

announced his selection: " An abusive lawsuit has never

created a single job, except for personal injury

lawyers, " he told an audience in Maine, " but baseless

and excessive suits have killed many. " Vice President

Dick Cheney struck the same chord at a July 12

fundraiser in Pennsylvania, saying, " For the good of

this economy, we need to end lawsuit abuse. Junk and

frivolous lawsuits put people out of work. " The Bush

campaign has also unleashed a new TV ad, attacking

Kerry for missing a vote " to lower health care costs

by reducing frivolous lawsuits against doctors. "

 

Behind those slogans are years of painstaking

fine-tuning by Republican consultants, focus groups,

and corporate think tanks. The term " lawsuit abuse "

was coined in the early 1990s by Jan van Lohuizan, a

Washington pollster wholater helped plan Bush's 2000

presidential campaign. More than 100 corporate-funded

groups have been working to convince the public that

the legal system is out of control; organizations such

as the American Tort Reform Association and Citizens

Against Lawsuit Abuse, using expensive PR firms and

funds from companies like Philip Morris, have spent

years testing sound bites and spreading stories of a

court system out of control.

 

That multimillion-dollar investment has turned

corporate concerns about such esoteric things as

" joint and several liability " into a populist crusade

to " stop lawsuit abuse " and return the country to the

good old days when old ladies who spilled hot coffee

on themselves got sympathy, not punitive damages. The

U.S. Chamber of Commerce has spent more than $100

million over the past three years on TV ads and

lobbying for legislation to restrict citizens' right

to sue, a goal known as " tort reform. " (In the courts,

" tort " means an injury, which can include anything

from libel to malpractice.) The issue is such a high

priority for the Chamber that its president, Thomas J.

Donohue, moved in the wake of Edwards' selection

toward abandoning a longstanding policy of neutrality

in presidential elections. Jerry Jasinowski, president

of the National Association of Manufacturers, told the

New York Times that businesspeople are " more

frightened by [trial lawyers] than terrorists. "

 

Yet much of the anti-lawsuit campaign is based on

dubious numbers, questionable anecdotes, and, in some

cases, out-and-out fiction. Consider Bush's claims of

a malpractice insurance crisis in Pennsylvania. Soon

after his speech, doctors marched on the Pennsylvania

Capitol with placards that cried: " Need an

appendectomy? Call a trial lawyer! " The Washington

Post reported at least 1,100 doctors had left

Pennsylvania in recent years because of rising

malpractice premiums caused by lawsuits, and a Time

cover story declared that nationwide, doctors were

retiring because of higher premiums resulting from

" multimillion-dollar judgments awarded for tragic but

sometimes unavoidable outcomes. "

 

It wasn't until nearly a year later, in April, that

Pennsylvania Medical Society chairman Daniel Glunk

told state legislators the truth: Rather than losing

more than 1,000 doctors, Pennsylvania may have gained

as many as 800 over the past two years. Around the

same time, the state's deputy insurance commissioner

reported that malpractice payouts had fallen for the

second year in a row, and lawsuit filings were also

declining. (Not that doctors necessarily benefited:

Insurers, in Pennsylvania and nationwide, have raised

premiums even as malpractice suits have declined.)

 

As for the broader " lawsuit crisis, " a report from the

nonprofit National Center for State Courts found that

tort filings have been falling steadily over the past

decade, dropping by 9 percent between 1992 and 2002.

In Texas, the rate of tort filings fell by 37 percent

between 1990 and 2000; in California, it plummeted 45

percent. What's more, plaintiffs lose about half the

time they go to trial in state courts, according to

the Bureau of Justice Statistics; in medical

malpractice cases, doctors win almost three-quarters

of the time.

 

When plaintiffs do win, the " jackpot " is getting

smaller all the time. New data released in April by

the Bureau of Justice Statistics shows that in jury

trials in state courts, the median award fell by

almost half during the 1990s -- from $65,000 to

$37,000. Punitive damages, the tort reform campaign's

top target, were awarded in only 6 percent of all jury

trials in 2001, and the median award was $50,000.

 

Michael McCann, the director of the Comparative Law

and Society Studies Center at the University of

Washington, says anti-lawsuit rhetoric works in spite

of the facts because it feeds into well-established

stereotypes. " The image of the irresponsible plaintiff

is right up there with the welfare queen, " says

McCann. " That's why Americans respond to this because

it's a morality tale. " Pollster Frank Luntz once told

Republican members of Congress that " it's almost

impossible to go too far when it comes to demonizing

lawyers. "

 

But talk of a court system run amok doesn't just make

good campaign slogans. It's also a prodigious

fundraising tool, as Bush has known ever since his

first race for governor of Texas, in 1994. With

encouragement from Karl Rove, then a consultant to

Philip Morris, Bush embraced tort reform as one of his

top three campaign issues. As a result, Rove later

told the Washington Post, " Business groups flocked to

us. " Tort reformers also worked hard to put Bush in

the White House. In 2000, one of the Bush presidential

campaign's cochairs was Ralph Wayne, the president of

the Texas Civil Justice League, a tort reform group

whose board members include executives from

Halliburton, Dow Chemical, and other major oil and

chemical companies. Wayne told reporters that

three-quarters of the league's members supported

Bush's 2000 bid.

 

Many of them have signed on for 2004 as well. Among

Bush's major fundraisers this year is Allan " Bud "

Shivers Jr., a board member of Texans for Lawsuit

Reform. And the Bush campaign's list of " Rangers " --

people who've pledged to raise at least $200,000 --

includes Maurice Greenberg, chief executive of AIG,

the nation's largest liability insurance company.

Greenberg, whose company foots the bill when doctors

or companies lose lawsuits, has been a vocal tort

reform advocate. Changes to the court system are also

an issue for many of Bush's other corporate backers,

including Exxon -- which still hasn't paid a $4.5

billion judgment from the Exxon Valdez spill -- and

Halliburton, which has lobbied hard to limit asbestos

claims, a move that would save it hundreds of millions

of dollars.

 

As president, Bush has yet to deliver on his promises

to enact major lawsuit restrictions, in part because

most of the litigation that business is concerned with

takes place in state, not federal, courts. But that

hasn't stopped him from taking every opportunity to

endorse tort reform, including a bill to severely

limit class-action suits -- the most far-reaching

change to the civil court system in decades. (If the

bill were law today, cases such as the litigation over

the diet drug fen-phen and several workers' lawsuits

against Wal-Mart would most likely not have gone

forward.)

 

Although 62 senators backed the legislation, it was

killed by a procedural vote in July. The effort to

pass the bill is likely to continue into 2005, and,

contrary to the Republican campaign message, it's one

instance where trial lawyers do create jobs: Major

companies and business groups have hired at least 475

lobbyists to push for the measure.