Tort Reform: Giving a Damn

John Stossel, the co-anchor of ABC’s “20/20,” was the keynote speaker at yesterday’s forum discussing trial lawyers and tort reform, but Dickie Scruggs, litigator extraordinaire, made the most compelling statement. The forum, “Trial Lawyers, Inc. — Myths and Realities,” was held at the Roosevelt Hotel and sponsored by the Manhattan Institute. Mr. Scruggs, representing the side of the litigants, admitted that the tort reformists were winning the debate on the public relations and the political level. This, he said to the mostly conservative audience, is the good news. “The bad news is that nobody gives a damn.” He went on to say that no one is discussing this around the dinner table. It is not high up on anyone’s agenda. He is absolutely right. Mr. Scruggs is one of the most successful trial lawyers in the country and was the chief negotiator of the tobacco master settlement agreement, and you have to give him credit for appearing in a debate where the facts and figures would heavily favor his opponent’s position. The forum began with a presentation by James Copland, director of the Center for Legal Policy at the institute. The charts displayed on a large screen reported the tort cost to the nation was $233 billion in 2002. Asbestos suits have been in the courts for the past 20 years and there will be upcoming “junk food” cases, he warned. Contrary to charges by trial lawyers, insurance companies are not behind the calls for tort reform. Malpractice awards exceed the insurance premiums and most insurance companies consider malpractice insurance unprofitable. When Mr. Scruggs took his turn at the podium, I expected him to shoot down most of these facts. Instead, he smoothly conceded that the tort reformers were using Madison Avenue intellectual resources to pursue their agenda. Tort reformers have also been successful at painting litigation as a sinister industry. He charged they have manufactured the crisis in the medical community over the cost of malpractice insurance costs. One of the most outrageous remarks he made was to insist the tort reformers were packing the federal judiciary with conservative judges. That will come as a surprise to Miguel Estrada, whose nomination was just one of many blocked by our esteemed Senator Schumer, who never met a conservative he’d like on the bench. But Mr. Scruggs did hit on a valid point. When we complain about runaway jurors, he said, we should examine why most juries are made up of common citizens.They are not affluent and may eagerly award the plaintiff a “lottery” decision. So many of us, including many in that room, opt out of the jury system. We always find excuses for not serving. Steven Hantler, the assistant general counsel for Daimler Chrysler, charged that trial lawyers inflame the passions of the jury and because of some states arcane laws, the jury does not always get to hear the whole truth. Did you know, he asked, that in some jurisdictions, you’re not allowed to say if the plaintiff was wearing a seat belt, or driving while drunk, or passed a red light? “We are raising a litigation-happy generation whose first reaction to any problem is litigation,” he said. He charged that many decisions are made in the backrooms of judicial hellholes where judges’ rulings are part of the deal. Contrary to what trial lawyers claim, Mr. Hantler said, big awards are not a deterrent to risky behavior nor do they benefit the plaintiff. Most of the awards go to transaction costs, such as the lawyers and extra witness fees. They are not predictable, fair, efficient, or timely. Mr. Stossel, whose book, “Gimme a Break,” was on the New YorkTimes bestseller lists for several weeks, did not mince words in his speech.“Trial lawyers are looting the country,” he said, though he added that they are necessary in the same way as nuclear weapons. These suits, Mr. Stossel said, do not make us safer. They target hospitals, paramedics, and drug companies. There used to be 20 companies making vaccines. Now there are only four. “In this age of bio-weapons and the SARS virus, do we really want only four companies working on research?” Mr. Stossel alleged that cringing fear of suits has forced some drug companies to stop their AIDS research programs. He detailed many of the companies that have gone out of business because of these lawsuits. It is economic freedom and entrepreneurism that creates wealth. “Let us fight for the liberty that makes all things possible.” I’m not sure what steps are involved in tort reform, and this debate did not specifically address any details, but it would be a pity if Mr. Scruggs’s assessment that we don’t care were correct. I had read John Grisham’s latest book, “The King of Torts,” an eye-opener exposing the incredible greed of the class-action trial lawyers who possess enormous wealth gained on the backs of unfortunate victims. I went up to Dickie Scruggs, mentioned the book, and asked him if he owned a jet. He smiled and admitted he did and said Mr. Grisham always includes a bit of him in his books. I wonder if he realized this is not something to be proud of.