Cerebral Palsy Child

How the “Tort Reform” Movement is Responding to a Major Defeat in the Supreme Court.

By Wayne M. Willoughby, Immediate Past President, Maryland Association for Justice

Recently the consuming public won a major victory in the courts. In a 6-3 decision, the United States Supreme Court held in Wyeth v. Levine, 129 S.Ct. 1187, 173 L.Ed. 2nd 51 (2009), that federal law did not preempt a state law claim brought by a musician who lost her arm to gangrene as a result of a defectively labeled nausea medication. The action alleged that the manufacturer’s label was defective because it did not warn health care providers of the substantial risk of loss of limb if the drug is administered by IV push. The Court specifically rejected the pharmaceutical company’s defense that because Congress empowered the Food and Drug Administration to approve drug labels, that federal action preempted state products liability laws. This major decision assures that irresponsible companies cannot misuse the laws designed to promote food and drug safety to avoid liability for producing and selling unsafe products.

Not to be undone in the public’s eye by such an important loss, the forces behind the decades old movement to protect businesses from being held accountable for corporate misconduct fired back. The United States Chamber of Commerce (acting through its benignly named “Institute for Legal Reform”) has begun to push a “Faces of Lawsuit Abuse” campaign at local movie theaters with two-to-three-minute advertising trailers before movies.

One such trailer in the Chamber’s campaign tells a story about a Rockville swimming pool business sued when a Canadian goose nesting near the store attacked a customer causing her to fall and break her hip. In order to subject the legal system to ridicule, the Chamber distorts the facts of the case and omits one tiny little truth: the defense attorney who represented the company stated that the action was NOT a frivolous case.1 The Chamber is not alone in warping reality in order to produce a compelling anti-consumer/ anti-justice message.

Last month a group with the innocent sounding name, Maryland Citizens Against Lawsuit Abuse (MdCALA), joined with the National Federation of Independent Business (NFIB), to issue a joint survey claiming widespread fear of lawsuits by small business owners. Aside from the fact the study was unscientific and was comprised of only 129 on-line responses, MdCALA failed to mention that the results of its paltry survey pool were in marked contrast to a much larger survey (3,530 small businesses surveyed) conducted by the NFIB only ten months earlier. This earlier study concluded that so-called “lawsuit abuse” is not a major concern for small business owners. In fact out of 75 possible priorities and concerns, small businesses ranked the “costs and frequency of lawsuits/threatened suits” at 65th on the list.2

To the well informed it comes as no surprise when a group name containing the words Citizens Against Lawsuit Abuse (CALA) in its name unfairly attacks the legal system.3

The CALA movement began in the early 1990’s when the American Tort Reform Association and a Washington, D.C. law firm that represents Big Tobacco retained APCO & Associates, one of the nation’s leading “grassroots” lobbying/public relations firms, to build a network of local organizations to act as the mouthpieces for anti-consumer tort law changes.4

Masquerading as “grassroots” organizations, but bankrolled by big tobacco, big pharma and insurance companies, when CALA issues an alleged study or survey, the public should expect nothing less than another attack on the laws which protect consumers from the excesses of corporate greed. For more information on CALA and the tort reform movement in general, read, “The Attack on Trial Lawyers and Tort Law”, a report by the Commonweal Institute.5

At some point, however, the public will come to see CALA groups for what they are: Astroturf movements by powerful business and political interests that want to overpower the people’s right to justice in our courts in order to protect corporate profits no matter how those profits were obtained.

The Empire may strike back, but ultimately the truth will prevail. Until then, the Maryland Association for Justice will continue to fight for the people’s right of access to the courts, right to trial by jury, right to due process and right to equal protection under the law.

1. Tamber, Caryn. “Take a Gander at This Movie Trailer.” The Daily Record 22 Apr. 2009 Web. 12 May 2009. <http://www.mddailyrecord.com/article.cfm?id=11409&type=UTTM>.

2. “Small Business Problems and Priorities.” NBIF Research Foundation June, 2008 Web. 12 May 2009. <http://www.nfib.com/Portals/0/ProblemsAndPriorities08.pdf>.

3. Mencimer, S.. “Blocking the Courthouse Door; How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue.” Free Press 2006 Web.13 May 2009.

4. “The CALA Files: The Secret Campaign By Big Tobacco And Other Major Industries To Take Away Your Rights.” Center for Justice and Democracy and Public Citizen Web. 12 May 2009. <http://www.centerjd.org/archives/issues-facts/stories/cala.php>.

5. Johnson, David C.. “Th e Attack on Trial Lawyers and Tort Law.” Commonweal
Institute 01 Oct 2003 Web. 12 May 2009. <http://www.commonwealinstitute.org/cw/files/AttackTrialLawyersTortLaw.pdf>.

A couple weeks ago, Wayne M. Willoughby of Gershon, Willoughby, Getz & Smith, LLC, spoke to a class of graduate level students at the John Hopkins University School of Medicine about medical malpractice from the perspective of a malpractice lawyer who represents children with Cerebral Palsy.  The class consisted of medical students, journalists, freelance researchers and writers, and others interested in medicine. He shared the floor that evening with an OB/GYN leader the “tort reform” movement in Maryland, who was there to offer his perspective on the topic.

Given the factually erroneous and often outlandish claims made over the past several years by those seeking to limit the rights of brain damaged babies, it was surprising that the end of the doctor’s presentation with how much the doctor and lawyer were in agreement. 

The doctor candidly told the class that damage caps on pain and suffering are irrelevant to lowering malpractice premiums – a point patients’ rights advocates have been making for years.  Likewise, the doctor acknowledged that frivolous lawsuits are not the cause of high malpractice premiums, a concession previously made by Medical Mutual’s CEO to a Maryland Senate committee in October 2004 (as reported at the time in the Baltimore Sun).

The students also heard the doctor explain that the real problem for physicians in not the high cost of medical malpractice insurance. The real problem is that doctors in Maryland are nearly the lowest reimbursed physicians in the United States. Again, this is a point patients’ rights advocates have been making for years.

Fifteen years ago, the doctor received $3,000 in insurance reimbursement for an ordinary vaginal delivery of a baby, $4,800 for a surgical delivery. Today, for the same services insurance companies reimburse obstetricians in Maryland less than half those amounts. Because of the dramatic cut in his income for delivering babies, the doctor said he was unable to keep up with the costs of malpractice insurance. Thus, he stopped delivering babies.

The doctor acknowledged that if insurance reimbursements for delivering babies remained the same as a decade ago, there would have been no fight over the cost of malpractice insurance; he and others simply would have paid their premiums like any other cost of doing business and continued to delivery babies. 

So, given the recognition by this physican-leader of the “tort reform” movement that frivolous malpractice lawsuits are not a problem driving up the cost of malpractice insurance, and that damage caps do not lower insurance premiums, perhaps this year physicians will cease their annual efforts to limit the rights of babies with CP.  It is time for physicians to focus their energy on an issue that doctors and lawyers can agree on – the need to hold health insurance companies responsible to deal fairly with physicians and patients.  

What can you buy after receiving $85 billion in a taxpayer bailout of your business? The executives at insurance giant American International Group have an answer; within days of staving off bankruptcy with taxpayer money, AIG racked up nearly a half-million dollar tab at a posh California resort. Now AIG wants an additional $38 billion from you and me.

People of all political parties and ideologies are outraged over AIG’s apparent belief that it can act irresponsibly without suffering any consequences. Yet, the actions of Wall Street and our nation’s banks that led to our current financial crisis demonstrate AIG is not alone in the belief that “accountability” is a precept inapplicable to corporate America.  

When the outrage over AIG’s arrogance and our nation’s financial meltdown subsides many questions will need to be answered, among which is the question of how America found itself in the position where corporations and their officers believe they can engage in wrongful and negligent conduct without being held responsible. The answer is rather simple.

Over the past eight years big corporations took advantage of all of us. They pushed for lax regulations, no oversight, and no accountability in almost all areas of business. Leading the charge has been Washington’s largest lobby, the U.S. Chamber of Commerce.

The U.S. Chamber represents the biggest domestic and foreign corporations and their CEOs.  Afraid to speak out on their own, these businesses and their leaders hide behind this corporate lobby machine. The U.S. Chamber is caked in mud from all its dirty work to protect negligent corporations, lobbying for elimination of government oversight and accountability, the causes of the financial predicament stressing our nation today.

Again, look at AIG.  A recent report revealed that AIG has given at least $23 million this decade to the U.S. Chamber.  The majority of this money, $15 million, was pledged in 2003 immediately after the passage of Sarbanes-Oxley.  The goal: undo this legislation enacted in response to a series of major corporate and accounting scandals that shook the securities markets, including the scandals at Enron, Tyco International, Adelphia, Peregrine Systems and WorldCom.  Apparently, the U.S. Chamber and its corporate benefactors feel no need for corporate America to be held accountable for fraudulent and other wrongful conduct. 

Now five years later we are in another financial crisis with U.S. Chamber again at the center of the storm.  During these five years, U.S. Chamber has been the leader in pushing for less regulation, less oversight, and less accountability.  Their favorite target is the legal system, trying to eviscerate it at every turn so those injured by the negligence of corporations are left with no recourse.

If there has ever been a calamity that demonstrates why we need a strong civil justice system to hold wrongdoers accountable, our current financial situation is it.  The American people were lied to and investors were duped.  CEOs are walking away with multi-million dollar golden parachutes while employees are left jobless and retirees see their savings and 401ks obliterated. 

This is the kind of justice that U.S. Chamber and other corporations subscribe to but definitely not the justice the American people want or need.

So, what has the Chamber proposed to do about the financial crisis?  In 2002, U.S. Chamber CEO Tom Donohue stated, “There is no right for business to go to government to take care of their follies and their errors.”  Well, that was then and this is now.  The U.S. Chamber has been one of the loudest voices begging for a government bailout to fix the follies and errors of corporate America.  The government listened.

The cure being dispensed for our financial ills is government borrowing of astronomical sums of money, effectively mortgaging away our children’s, grandchildren’s and great-grandchildren’s futures, so government can intervene to undo the damage caused to the American people.

To be clear, the issue is not whether a government bailout is good or bad, was needed or not.  The issue is one of unrestrained corporate greed, a philosophy of valuing profit over people that ultimately resulted in the loss of the former and injury to the later.

In other words, the present economic catastrophe has reinforced the importance of holding corporate and other wrongdoers accountable so they will act responsibly and not chase profit at the expense of people’s lives and wellbeing.

U.S. Chamber has been on the wrong side of the accountability issue time and time again but the Maryland Trial Lawyers Association has not.  The MTLA has always fought to hold corporate and other wrongdoers accountable for the harm they cause.  We believe in valuing the lives of people over the profits of corporations.

We hope with this latest crisis, the days of negligent corporations trampling over the rest of us are finished.  Yet, hope is not enough.  The Maryland Trial Lawyers Association will continue to fight for the rights of people to a fair and just legal system.

Over the years, it has become clear that those trying to destroy the civil justice system will do almost anything to accomplish their misguided goal. Corporations have spent millions funding groups to peddle junk studies and fabricate statistics and figures designed to undermine the people’s confidence in our legal system, its courts, judges, juries and lawyers. Unfortunately, there are too many corporations attempting to stack the deck against everyday Americans so they can increase their profits by avoiding accountability for their negligence. Read more…