Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue

by Stephanie Mencimer

Overview

Thanks to constant political oratory against "frivolous lawsuits" and "jackpot justice," it is widely known that there's a legal crisis in this country. President Bush never misses an opportunity to call for laws that would bring more "common sense" to a legal system that, he claims, is out of control, wrecking the economy, driving doctors out of their practices, bankrupting small businesses, and costing American jobs. Journalists repeat the charges without examining them.

As a result, the lawsuit issue has moved to the political front burner, and in the past three years, state after state has responded by limiting citizens' rights to sue. Just this year alone, the Republicanled Congress has passed restrictions on class action lawsuits and is steps away from enacting limits on medical malpractice lawsuits.

But is there really a crisis? National data show that the number of civil suits is falling, not rising, and that the average damage award is also going down. Despite intense media hype to the contrary, the number of personal injury lawsuits filed every year has been tumbling for the past decade. Upon closer examination, the stories of ridiculous lawsuits usually turn out to be false or badly misleading. The crisis, in short, appears to be a phantom.

So how do we explain the scary headlines? Who's behind the "tort reform movement," and what are the real goals? Blocking the Courthouse Door will show that the movement against so-called greedy trial lawyers and irresponsible plaintiffs is the result of a concerted and successful campaign by large corporations to get this issue on the table and thus limit their own vulnerability in the civil justice system. They have spent decades, and many millions of dollars, on focus groups and Madison Avenue public relations research. They have funded institutes, sponsored academic research, bankrolled politicians, set up phony "astroturf " grassroots organizations (with chamber of commerce return addresses), and fed copy to all-too-gullible journalists.

For corporations, the self-interest involved is fairly plain. Tobacco companies, no longer able to dodge the bullet of liability for knowingly selling poisons, are making an end run around the civil justice system. If they can't win a class action suit, they'll make suing itself illegal. Insurance companies, drowning in red ink from mismanagement and bad investments in the bond market, hike insurance rates by huge sums and blame malpractice suits. The doctors in turn blame greedy lawyers — and their own injured patients. And for Republicans, the campaign provides an extra bonus: defunding the Democratic Party. Limits on lawsuits cut into the income of some of the Democratic Party's most generous donors, the trial lawyers, who are often the only source of campaign cash for Democrats in many states.

By exposing some of the dubious characters, corporate chicanery, skewed research, fudged numbers, and bogus journalism that have buttressed the calls for lawsuit reform,Stephanie Mencimer shows who's behind the movement to close the courthouse doors, and how they've successfully persuaded millions of Americans to give up their critical legal rights without fully understanding what they're losing — often until it's too late.

Product Details

ISBN-13:	9780743277013
Publisher:	Free Press
Publication date:	12/03/2011
Pages:	304
Product dimensions:	6.00(w) x 9.00(h) x 1.00(d)

About the Author

Stephanie Mencimer is a contributing editor of The Washington Monthly. She was previously an investigative reporter for The Washington Post and a staff writer for Legal Times. A native of Ogden, Utah, and a graduate of the University of Oregon, Mencimer won the 2000 Harry Chapin Media Award for reporting on hunger and poverty.

Read an Excerpt

Introduction

The story of Frank Cornelius would be funny if it weren't so awful.

In the mid-1970s, Frank Cornelius worked as a lobbyist for the Insurance Institute of Indiana, an industry group that was trying to change the state's medical malpractice laws. Back then, doctors across the country were protesting rising medical malpractice insurance rates, which they blamed on escalating jury verdicts in lawsuits filed by patients injured by bad medical care. The doctors staged white-coat protests at state capitals and buttonholed legislators with their claims that lawsuits and rising insurance costs were forcing them to stop delivering babies and to give up their practices.

Cornelius hand carried these gripes to the back halls of the Indiana statehouse. His goal was to win legislation limiting the amount of money injured people could receive in malpractice lawsuits, awards that were generally paid not by the doctors but by the companies that employed him. As he made his rounds, Cornelius told stories about frivolous lawsuits and ambulance-chasing lawyers. He argued that a cap on lawsuit damages would help the state rein in health care costs.

Indianapolis's governing class was persuaded. In 1975 the legislature passed one of the strictest medical malpractice laws in the country. The new law capped all awards at $500,000, including actual losses like wages and bills related to botched medical care, regardless of how much those bills actually amounted to. And legislators abolished pain-and-suffering awards entirely. In the places you'd expect, the champagne flowed.

The new law made Indiana, and Cornelius, early pioneers in tort "reform," an emerging movement led by insurance companies, doctors, big corporations, and conservative ideologues who sought to restrict personal injury and other lawsuits.

Cornelius's work on the medical malpractice bill was just one item in a long and quirky professional resume. He went on to lobby for several years on behalf of a state police group to ban cop-killer bullets, then later moved into journalism and, eventually, to running a car dealership.

But in late 1988, the forty-three-year-old Cornelius fell and injured his left knee. A few months later, he went to the hospital for routine arthroscopic surgery to fix the problem. When he went home, however, he suffered a great deal of pain. He called the surgeon several times that day without reaching him. The surgeon finally called back the next day, told Cornelius's wife, Cathy, to get him a bedpan, and then left on a skiing trip, saying he'd see Cornelius when he got back.

Cornelius continued to suffer, so he consulted another surgeon, who immediately diagnosed him with reflex sympathetic dystrophy, a degenerative nerve disorder brought on by an accident or medical prodecure. The condition is so painful that many sufferers desire to amputate the affected limb rather than endure the torture that comes with it, according to Stephen B. Caplin, Cornelius's lawyer.

To deal with his condition, which at that point was still treatable, Cornelius sought care from a physical therapist, who a few months later, Cornelius claimed, accidentally jolted his leg with a current of electricity from an improperly used medical device. The zap rendered his condition incurable and cost him the use of his leg. A year later, Cornelius had surgery to install a filter in his leg to catch blood clots, but the main vein from his leg to his heart was punctured. Cornelius would have quietly bled to death were it not for a visit that evening from his wife, who sounded the alarm. Another doctor intervened to save his life, although Cornelius suffered a punctured lung in the process.

The series of medical mishaps left Cornelius unemployed, a wheelchair user, and dependent on bottled oxygen and a continuous morphine drip to dampen the pain. His medical expenses and lost wages were estimated at more than $5 million should he live to retirement age.

Following the three-word American tradition known as "sue the bastards," Cornelius consulted a lawyer and filed a medical malpractice lawsuit against the physical therapist, the hospital, and some of the doctors. That's when he discovered exactly what he'd accomplished back in 1975. The medical malpractice bill he'd helped pass through the Indiana legislature as a lobbyist ensured that he could recover only a fraction of the $5 million in losses the health care system's failures had cost him. In 1990 Cornelius settled his lawsuits against the hospital and physical therapist for $500,000, the most he could get. The experience transformed Cornelius into something of a consumer advocate, and he used his lobbying skills to help Ralph Nader and others across the country campaign against further restrictions on lawsuits. He went on The Phil Donahue Show.

In 1994 he wrote a mea culpa in the New York Times in which he wrote, "I have received last rites from my church. . . . At the age of 49, I am told that I have less than two years to live. . . . All of my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn't." He went on to note that the argument he'd used to persuade legislators to cap malpractice awards — that it would reduce health-care costs — had proved to be a sham. Health care costs in Indiana had soared 139 percent between 1980 and 1990, he wrote, noting that it was just about the national average.

Cornelius's public act of contrition couldn't erase the severity of his condition. The daily dose of narcotics prevented him from driving, and the pain left him unable to work steadily, according to Cathy Cornelius, who became the breadwinner for a family of seven. Depression plagued him. His marriage fell apart, and as Cornelius wrote in the Times, "The emotional fallout on our five children has been difficult to witness, to say the least."

On March 1, 1995, Cornelius died, after intentionally overdosing on morphine. Along with his suicide note, he left behind one last piece of written testimony for the Indiana state legislature, which was considering a new bill to restrict lawsuits even further.

For years, the tort reform movement was something of a fringe element in Washington and elsewhere, a special-interest group that popped up every ten years or so when insurance premiums got out of whack. Democrats have historically opposed it, and Americans have never put lawsuits at the top of their list of national concerns. They're far more concerned about education, crime, and Social Security. Even the term itself, tort reform, is largely meaningless outside of Washington and certain legal and business circles. (Tort is the legal term for "injury.") As the famous Mississippi trial lawyer Richard "Dickie" Scruggs reportedly once said, "Most Americans don't know what tort reform is, and if they did, they'd be against it." But when President George W. Bush and Senator John Kerry sparred over the issue in front of fifty million TV viewers in the second 2004 presidential debate, tort reform went mainstream, joining the Iraq war and illegal immigration as top issues facing the nation.

During that debate in St. Louis, audience member Norma-Jean Laurent posed a tough question for the Democratic challenger. Laurent noted how Kerry had bemoaned the rising cost of health care for Americans. Yet she wanted to know how the candidate could reconcile this concern with his choice of a running mate who had made millions of dollars successfully suing medical professionals.

The question reflected the ongoing debate over high rates for doctors' medical malpractice insurance. Bush had turned this into a major campaign issue by blaming the problem on greedy trial lawyers and frivolous lawsuits and calling for restrictions on jury awards. It also presented Kerry with a tremendous opportunity. As a lawyer himself, Kerry had a powerful opportunity to deliver a spirited defense of the civil justice system. He could have argued for the good sense of American jurors, who know a frivolous lawsuit when they see one, without needing the heavy hand of Washington to tell them what to do. He might have suggested that people need the legal system to hold doctors accountable for the injuries they cause, which number in the hundreds of thousands every year. Most important, he might have pointed out that malpractice awards had little to do with rising health care costs.

Instead, Kerry simply said, "John Edwards and I support tort reform." Kerry then referred Laurent to his website, where he said she could find a tort reform plan outlining his proposals for limiting lawsuits.

Kerry's dodge reflected just how much success the business lobby has had in framing the nation's conversation about the civil justice system. In putting himself and trial lawyer John Edwards on record as tort reform supporters, Kerry was explicitly endorsing the conventional wisdom put forth by Bush and his business backers that Americans are too litigious, that an epidemic of frivolous lawsuits is driving doctors out of business, and that lawsuits are hindering America's economic progress.

Kerry's office never responded to several requests to interview him for this book to clarify his position, but in truth, Kerry and Edwards did not support tort reform, at least not as it's commonly articulated by its major proponents. In the Senate, neither man had ever voted for a major tort reform bill, and Kerry would go on to vote against a bill to restrict class actions in 2005. Apparently, though, not even the $33 million donated to his and Edwards's campaigns by plaintiff lawyers, whose primary issue is fighting off limits on lawsuits, or the fact that his kid brother is a trial lawyer, could persuade Kerry to rise to the defense of the beleaguered American civil justice system on prime-time TV. And why would he?

Thanks to three decades and millions of dollars' worth of careful marketing by corporations and their paid legions of lobbyists, pundits, and think-tank hacks, it's hard to find an American who hasn't heard the story of Stella Liebeck, the woman who spilled McDonald's coffee in her lap and won a $3-million jury verdict against the company. Poll after poll shows that Americans overwhelmingly support limits on "lawsuit abuse" and believe that out-of-control litigation is just another symptom of the decline of personal responsibility in America.

Persuading Americans that the "litigation crisis" is a myth was a losing battle, and one that would take a lot longer than the brief time Kerry had to respond in the televised debate. Besides, as it's currently packaged, tort reform sounds so reasonable. Who could be against reform?

But the self-described "reformers" Kerry was rhetorically linking arms with are anything but. They are a retrograde alliance of insurance companies, corporate interests, and political operatives — mostly Republican — who seek to do away with many of the consumer, worker, and environmental protections established in the 1960s and 1970s. They have manufactured a litigation crisis that does not exist, to support their efforts to limit or even abolish average citizens' right to sue for damages when they have been wrongfully injured. And the legal rights they seek to curtail are things that most people take for granted, at least until they really need them.

It's hard to think of another public policy issue where the reality is so far removed from the myths that dominate the public discussion. Popular culture regularly leaves the impression that justice in the courtroom is alive and well. Movies like Erin Brockovich or A Civil Action suggest that David regularly bests Goliath in the courthouse and that great legal heroes are still fighting the good fight on behalf of the little guy. That impression, though, couldn't be more wrong.

New state laws pushed by anti-lawsuit crusaders and slanted media coverage are partly responsible for pushing jury trials to the verge of extinction, and the trial lawyers who lead them are an endangered species. Sober government data repeatedly show that plaintiffs' success rates at trial are at an all-time low, and they're winning ever smaller amounts of money. The right to a civil jury trial — guaranteed by the Bill of Rights — is in serious jeopardy. Personal injury lawsuits, the kind most despised by Bush and his business supporters, are on the decline. Punitive damages awards, which are given only in cases involving really egregious conduct, are equally rare events. The notion that Americans who take on deep-pocketed defendants or health care providers are making out like bandits is belied by numbers showing that plaintiffs in civil cases are taking it on the chin, losing far more often than they win.

Yet the perception of the legal system as out of whack has proven highly resistant to correction by the truth. This is by design. The movement against greedy trial lawyers and irresponsible plaintiffs is the result of a concerted and successful campaign by large corporations (especially the tobacco and insurance industries, but many others besides), to get this issue on the table and limit their vulnerability in the civil justice system. They have spent decades, and many millions of dollars, on focus groups and Madison Avenue public-relations research. They have funded institutes, sponsored academic research, bankrolled politicians, set up phony "Astroturf" grassroots organizations (with chamber of commerce return addresses), and fed copy to journalists. And in 2004, they succeeded in making the issue the stuff of a presidential debate, after having funneled millions of dollars into every one of Bush's political campaigns since 1994.

For corporations, the self-interest involved is fairly plain. Tobacco companies, no longer able to dodge the bullet of liability for knowingly selling poisons, are making an end run around the civil justice system. If they can't win a class-action suit, they'll make suing itself illegal. Insurance companies, drowning in red ink from mismanagement and bad investments, hike insurance rates by huge sums and blame malpractice suits. The doctors, in turn, blame greedy lawyers — and their own injured patients.

In larger terms, the tort reform movement is just the logical sequel to the war against government regulation. Unable to fully dismantle popular consumer-protection and environmental laws in Congress, corporations have changed tactics and instead gone after trial lawyers and the suits that give teeth to those laws. This has proved to be an effective strategy, achieving the same results without mobilizing political resistance. After all, who can really come to the defense of lawyers?

Tort reform also draws on the ideological backlash against the 1960s-era policies that expanded civil rights and protections for various minority groups and added new legal remedies for people injured by defective products and environmental degradation. The language of antilawsuit propaganda is rich in calls for "personal responsibility." The welfare queen of the 1980s has been replaced by the fat guy suing McDonald's. The movement is populated by people who want to return to the golden years when elderly women who spilled coffee on their laps got sympathy, not punitive damages.

Even so, tort reform for many years had been a hard sell. Most of the companies looking for protection from lawsuits had such dismal safety and environmental records that they were case studies in the need for lawsuits. Tort reform might have remained on the fringes were it not for the beauty of polling data. In the early 1990s, based on polling and focus-group research largely underwritten by the tobacco industry, Republicans discovered that tort reform offered an ideal wedge issue in competitive campaigns. When framed as "lawsuit abuse" and focused on greedy trial lawyers rather than polluting and negligent corporations, it played wonderfully as a populist notion with voters.

As Bush also discovered, it made for a fabulous fund-raising vehicle as the "chronic defendants" in the business world happily anted up to support lawsuit restrictions. Even more importantly, though, GOP strategists realized that by attacking lawsuits and trial lawyers, they had a tremendous opportunity to undermine a principal source of Democratic support. Limit the earnings of plaintiffs' lawyers through caps on damages and other restrictions on lawsuits, and you limit a major source of income for the Democratic Party.

This book is in part about that marriage of corporate desire for immunity from lawsuits and the new breed of GOP politics. It's also the story of how big businesses succeeded in taking bad public-policy proposals, packaging and stage managing them, and selling them to the public through well-paid "experts," gullible journalists, and intensely misleading propaganda — all to the detriment of the average citizen, who still thinks that if he ever needs the legal system, it will be there for him. Unfortunately, as this book will show, in many parts of the country today, that is no longer the case.

Since 1986, forty-eight states have passed some type of restriction on lawsuits, ranging from limits on lawyers' fees, to restrictions on plaintiffs' access to expert testimony, to caps on noneconomic and punitive-damage awards. Since 1995 Congress also has passed legislation to rein in shareholders' lawsuits and class actions, and it has attempted to grant legal immunity to favored industries, from defense contractors to pharmaceutical companies to gun manufacturers to fast-food chains.

None of these restrictions on civil lawsuits and the power of juries that have come over the past twenty years would have been possible without the complicity of the media. The vast majority of the reporting on the civil justice system has been lazy and gullible. Reporters have bought into the propaganda, the spoon-fed story tips and bogus research generated by the tort reform movement. Respectable outlets like 60 Minutes and U.S. News & World Report have reported outright falsehoods about lawsuits and the legal system, without apology. There are reporters who have questioned the conventional wisdom, but they are few and far between.

In one sense, it's easy to see how it happens. Few newspaper or TV reporters ever cover the civil side of the legal system as a beat, so they rarely understand its complexities. They only report the occasional big verdict, which skews the coverage by suggesting that such events are commonplace, when they aren't. Unlike most Americans, journalists are also frequently threatened with lawsuits, and occasionally sued. The same goes for their employers, which are increasingly the same types of huge corporations that have long backed the tort reform movement.

The truth is that the corporate war on the courts is also a war on journalists. It's an effort to keep the lid on potentially damaging information. Journalists are deluding themselves if they think they can produce important and groundbreaking investigative reporting without the documents and other information that is produced in discovery through private lawsuits. The Catholic Church wasn't about to turn over its files on pedophile priests just because the Boston Globe asked nicely. Most of the documentation on the scandal, including the names of the victims and the errant priests, came into the public eye because those victims sought out lawyers, who then forced the church to come clean under the threat of court sanctions.

Indeed, much of the country's greatest investigative journalism over the decades has relied heavily on information produced in the very private lawsuits that tort reform seeks to restrict. Who can forget the story of the Ford Pinto, where lawyers turned up the written cost-benefit analysis the automaker used to decide whether it was worth $5 per car to prevent passengers of the Pinto from going up in flames? The 1977 story in Mother Jones magazine that turned the Pinto into a national scandal would never have been written without the information produced in those lawsuits.

Only through private lawsuits did the public learn the extent to which asbestos companies hid the dangers of their products — products that have caused the deaths of more than 250,000 people since the 1960s, with numbers increasing daily. Ditto for tobacco litigation, which forced the release of millions of internal documents from big tobacco companies showing just how much they were lying to the public. All of this litigation produced award-winning journalism, which in turn created the impetus for change for the public good.

The same big businesses that want to put caps on medical malpractice lawsuits also want to limit plaintiffs' ability to request documents in discovery, and they want to keep those documents that are released sealed away from the public view. While they claim to fear the financial implications of litigation, they are just as afraid of the outrage that might occur if the public really knew the truth about how they run their businesses or treat workers and consumers.

In a country with a weak regulatory system, moreover, it's rarely the Food and Drug Administration or the Department of Justice that sheds light on these critical public concerns and generates calls to withdraw dangerous drugs, ban toxic substances, or address rollover risks on SUVs. It's private citizens through lawsuits. In fact, not only do journalists rely on these lawsuits for information, so do government regulatory agencies that lack the resources or the power or the political will to investigate themselves. Oftentimes, the most important function of civil lawsuits, even beyond compensation or justice for injured victims, is their role in unearthing critical health, safety, and financial information about the workings of private institutions.

Perhaps more than anything, tort reform is a frontal assault on the civil jury. It's designed to limit the power of average citizens to set community standards, mete out justice, and to hold wrongdoers accountable in the courts. That's why tort reform, at its heart, is an elitist notion based on distrust of the intelligence and good sense of American citizens to sit in the jury box and make a decision. That same logic can be used to make a case against voting, as voters and jurors are one and the same. With its current emphasis on caps on damage awards, tort reform creates arbitrary limits on a jury's power and vests judges — some who have lifetime political appointments — with vastly more authority over the outcome of a trial.

No system of justice is perfect, but the American civil jury system is close to perfect democracy. As a lawyer once explained to me, jury verdicts are like having 100 percent voter participation in elections; except in the case of the jury, the "voters" are much better informed. On a jury, everyone has to listen to the evidence presented by both sides, hopefully by articulate advocates, and then they have to vote. The jury is a tremendously powerful institution, powerful enough to prompt businesses to spend millions of dollars trying to disarm it. The Founding Fathers saw the jury trial as a protection against imperial judges, and the Constitution was nearly scuttled because it didn't include a provision for civil jury trials. (One was later added in the Seventh Amendment.) The French author and statesman Alexis de Tocqueville thought the civil jury was evidence of Americans' great faith in their ability to govern themselves.

In supporting the tort reformers' agenda, Americans don't seem to realize that they are hastening their own exclusion from the democratic process and creating yet another impediment to meaningful participation in public affairs. It's not just the ability to recover financially from a wrongful injury that's disappearing as a result of restrictions on lawsuits. Fundamental constitutional rights are dying a quiet death, as the thousands of serious lawsuits that never got filed are eclipsed by one or two big ones that did. The irony of the tort reform movement is that even as it's convinced Americans that the nation is in the midst of a litigation crisis, it's reinforced their misguided belief that the system will work for them if they need it. Like Frank Cornelius, a great many people have discovered the hard way that this just isn't the case. This book, I hope, will tell some of their stories and serve as a wake-up call about what's been lost — and what else we are about to lose — as the nation embraces the corporate war on lawsuits.

Copyright © 2006 by Stephanie Mencimer

Table of Contents

CONTENTS

INTRODUCTION

CHAPTER ONE Too Good to Check: Media Myths about the Civil Justice System

CHAPTER TWO When the Smoke Clears: Big Tobacco's Secret Tort Project

CHAPTER THREE Mess with Texas: George W. Bush and the Texas Tort Moguls

CHAPTER FOUR We Wuz Robe'd: Unseating Liberal Judges

CHAPTER FIVE Cash Bar: The Campaign to Cut Attorney Fees

CHAPTER SIX Shock and Law: The War on Lawyers

CHAPTER SEVEN Millions Served: Jackpot Justice and the Jefferson County Juries

CHAPTER EIGHT Crackpot Justice: The Myth of the Frivolous Lawsuit

CHAPTER NINE E Pluribus Screw 'Em: Class Action Reform and the Attack on Consumer Protection

CHAPTER TEN Slip and Call: Merchants' (Irrational) Fear of Getting Sued

CHAPTER ELEVEN The Hypocritical Oath: When Doctors Double as Tort-Reform Lobbyists

CHAPTER TWELVE In Big Government We Trust: How the GOP Learned to Love Bureaucrats

CHAPTER THIRTEEN In the Tanker: Exxon's Stealth Campaign against Punitive Damages

CHAPTER FOURTEEN Can I Get a Witness?: Junk Science and the War on Experts

CONCLUSION Why It Matters

ACKNOWLEDGMENTS

ENDNOTES

INDEX

Editorial Reviews

"The great American civil justice system — a major pillar of our democracy — is under relentless assault by the corporate wrongdoers' lobby. Blocking the Courthouse Door irrefutably exposes their power, money, lies, and propaganda geared to destroying judicial justice for wrongfully injured people. This book educates and activates fighting back." — Ralph Nader

"Mencimer's book is a tonic for anyone who's ever heard the words 'tort reform' and lapsed into a guilty stupor. Blocking the Courthouse Door deftly illustrates how the big business and big government that fuel and feed litigation reform have — surprise — also reaped all the benefits of litigation reform. Mencimer proves that scrupulous legal reporting can result in an accessible page-turner. She reminds us that if we turn a blind eye while they're robbing the little guy of his day in court, the courts become a playground for the big guy." — Dahlia Lithwick, senior and legal correspondent, Slate

"Blocking the Courthouse Door is a must-read for every American. Mencimer makes the case with power and merit that unless we act, one of the fundamental tenets of our liberty — access to justice — may not survive this generation. " — Jan Schlichtmann, plaintiffs' lawyer in Jonathan Harr's A Civil Action

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