Cyrus Dugger

Malicious Intent

Here is an excellent recent article from the Washington Monthly discussing the contours of the tort “reform” movement. The article also begins with a discussion of the story of our guest contributor Jordan Fogal, and contains a review of the book “Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right To Sue” by Stephanie Mencimer, another Tort Deform guest contributor.

Malicious Intent: How the GOP’s war on the tort system has caused pain
and suffering to victims and Democrats.

By Kevin Drum

The personal is political. So let’s take a personal tour of the American legal system as it’s currently practiced in the great state of Texas, shall we?

Blocking the Courthouse Door - by Stephanie Mencimer; Free Press $26
Victim #1 on our tour is Jordan Fogal, a middle-aged Republican homemaker who bought a home in Houston four years ago. On the day the Fogals moved in, Jordan’s husband pulled the bathtub plug after he had finished taking a bath and, as Jordan later recalled to Randall Patterson of Mother Jones, “all 100 gallons of that water came down through the dining room ceiling, into the light fixtures, down the columns, onto my dining room table and Oriental rugs. And I just started screaming.”

The Fogals’s builder fixed the drain, but more problems cropped up. And then more. An inspector found serious roofing problems, widespread moisture and rot, and encroaching mold. Jordan called and called but got nowhere. Their inspector estimated repairs at $199,000. The builder eventually offered $5,000. Later, Jordan discovered that other houses in the same neighborhood had reported similar problems, and that her house had displayed water and mold problems even before they had bought it.

So did the Fogals take their builder to court? No. Like many states, Texas requires dissatisfied homeowners to settle disputes out of court in binding arbitration. But that’s not all. The Texas legislature has also abolished “workmanlike construction” standards for homes, done away with punitive damages, and created a builder-controlled commission that determines whether you’re even allowed to file for arbitration in the first place. Of the few who get there, even fewer win in arbitration, and there is no appeal. Jordan Fogal was stuck.

Victim #2 is Alvin Berry. Like many Texans, he voted Yes on Proposition 12, a 2003 initiative that limited pain and suffering damages in medical malpractice suits. “I think there are too many frivolous lawsuits,” he told Texas Monthly reporter Mimi Swartz.

But then Berry suffered some malpractice of his own: a doctor who ignored a set of plainly dangerous lab results for months. When the doctor finally ordered a biopsy, he discovered that Berry had prostate cancer that had spread to his bones in 20 places. He gave Berry five years to live.
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Unlike Jordan Fogal, Berry had the right to go to court. In theory, anyway. In practice, as his lawyer explained to him, it’s now usually an exercise in futility. Because of the new damage caps, it’s not worth it for lawyers to take anything but the most slam-dunk cases. What’s more, even if you can find a lawyer to represent you, insurance companies have very little incentive to settle since their losses are limited by law. Thus, between court costs, attorneys’ fees, and other expenses, Berry would be lucky to recover $75,000. Maybe not even that much. Given that reality, was he really willing to sign up for two years of litigation? Most people aren’t.

Victim #3 is Juan Martinez, who was killed in 1999 when a reactor exploded at a Phillips Chemical Plant in Pasadena, Texas. Dozens of workers had been killed at the plant in the previous decades, along with hundreds injured, and when his widow’s case went to trial a year later, the evidence of negligence on the part of Phillips was clear and compelling.

Jurors in the case were appalled and socked Phillips with punitive damages equal to a month’s profit for the company—a pointed warning to clean up its operations. But Phillips never paid anywhere near that amount. Thanks to a tort-reform law championed by George W. Bush in 1995, state law reduced the punitive damages by 97 percent. With no prospect of ever losing a significant amount of money for worker injuries or deaths in Texas, a simple cost-benefit analysis suggests that Phillips has little incentive to change a thing. It’s cheaper to let people die than to upgrade their plant.

“Defunding the trial lawyers”

That last example comes from Stephanie Mencimer, author of “False Alarm,” an award-winning 2004 article for The Washington Monthly about the myth of America’s lawsuit crisis. Mencimer has now expanded that article into a book, Blocking the Courthouse Door, that documents the relentless campaign waged over the past two decades by conservative activists and their corporate allies to limit access to the civil court system. It joins Tom Baker’s excellent The Medical Malpractice Myth, published last year, on the (still) very short shelf of books finally fighting back against the tort-reform industry.

And an industry it is. Insurance companies have been dutifully warning the public since the 1950s that “you pay for liability and damage suit verdicts whether you are insured or not.” But for its first three decades, their lawyer-bashing campaigns were both sporadic and desultory, a subject of interest only to a few conservative wonks camped out in little-known D.C.-based think tanks. That all changed in the late 1980s and early 1990s when a succession of Republican partisans, including Dan Quayle, Karl Rove, Newt Gingrich, and Grover Norquist, finally realized just how powerful an issue tort reform could be.

Up until then, lawyer bashing had been mostly a pro forma applause line for Republican politicians: a reliable way to loosen the checkbooks of large corporations and generate cheers from local Chamber of Commerce audiences. But in the 1980s and 1990s, conservative activists began pursuing a series of strategies aimed not just at increasing Republican votes and campaign contributions, but also at reducing Democratic votes and campaign contributions—and doing so in a structural way that would permanently erode the Democratic Party’s ability to win elections. The result was an increased interest in gerrymandering, union busting, voter ID laws, and the K Street Project, a party-wide program aimed at persuading lobbying firms to stop hiring Democrats.

And, of course, tort reform. Tort reform was already a natural Republican Party issue thanks to its support in the business community, but it was Norquist, in his usual bald style, who pointed out in 1994 that there was more to it than just that: The big losers in tort reform are trial lawyers, and trial lawyers contribute a huge amount of money to the Democratic Party. “The political implications of defunding the trial lawyers would be staggering,” he wrote. (link)