Lawyers On the Loose

December 12, 1997 • Commentary

Trial attorneys began lining up at courthouse doors even before the Food and Drug Administration (FDA) ordered fen‐​phen diet drugs off the market. Yet another liability lottery has opened, with consumers likely to be the ultimate losers.

The theory of negligence law is simple: when a person is harmed by someone else’s mistake, he or she is due recompense. The practice of negligence law today, however, is far different. A trial attorney searches for people to convince that they’ve been injured, concocts a plausible cause of harm, locates a “deep pocket” to sue, and attempts to find a jury that will rule their way. Even one win sets off a feeding frenzy, as lawyers seek to extort lucrative settlements from defendants who find it cheaper to compromise than fight.

Fen‐​phen might be dangerous and those who used the pills might deserve compensation, but the trial bar is more interested in finding plaintiffs than evaluating evidence. Even before the FDA acted against fen‐​phen, attorney Paul Rheingold began running magazine and newspaper ads and hitting the usual TV talk shows looking for potential litigants; he also created a Web site and organized a network of similarly‐​minded attorneys. Mr. Rheingold now has more than 100 potential plaintiffs. “I’m trying to get out in front on this one” he explained to the Wall Street Journal.

But as defense attorney David Bernick puts it, Mr. Rheingold is “investing in litigation rather than pursuing it.” Even Ralph Knowles, who has handled breast implant cases, says that the blatant search for plaintiffs “appalls me” It would be better; he argues, to have a successful case or two first.

Only far‐​reaching legal reform can ensure that the system focuses on rewarding injured parties rather than entrepreneurial lawyers.

Silicone breast implants offer one of the clearest cases of abusive litigation, however The Journal of the National Cancer Institute recently reviewed scores of medical studies, reporting that implants show no relationship to breast cancer and only a very slight statistical link (a “borderline result”) to other diseases. Moreover, that “borderline result” signifies very little. An earlier study, published in the Journal of the American Medical Association, found that women with implants had engaged in riskier conduct than had women without implants. Such factors “potentially make these women more or less likely to develop certain diseases,” which means that mere correlation proves nothing.

And the weight of evidence — including studies by the Mayo Clinic and Harvard University — runs against the claim that implants cause disease. That doesn’t mean women with implants suffer no health problems. Rather, explains Dr. Marcia Angell, author of Science on Trial, which reviews the breast implant case (Norton has just released the paperback version), they “developed symptoms that any woman over 25 could develop.” Although research should continue, nothing found so far warrants the legal deluge that has needlessly terrorized women with implants and destroyed the silicone breast implant industry.

The massive tobacco settlement is based on the premise that smoking raises health care expenditures for states. Yet in October the New England Journal of Medicine reported that “in a population in which no one smoked the costs would be 7 percent higher among men and 4 percent higher among women.” Why? Smokers tend to die younger, thereby generating lower total health care bills. Such premature deaths are tragic, but they mean that the entire $370 billion settlement is based on a falsehood.

Sometimes the trial bar generates such underlying falsehoods. Wall Street Journal columnist Holman Jenkins has reported on an internal memo on asbestos litigation from Baron & Budd, a Dallas law firm, that comes close to promoting perjury. The document tells prospective witnesses what to say and not to say — it is important to maintain that you NEVER saw any labels on asbestos products that said “WARNING or DANGER,” and so on. Observes Lester Brickman of the Benjamin Cardozo School of Law, “Asbestos litigation today is based largely on sham testimony.”

Nor is there any end in sight to such cases. Attorneys are starting to explore the litigation potential of the year 2000 glitch in computers. Explains Stuart Levi of New York’s Skadden, Arps: “Whenever there’s this kind of money involved, people always start looking for people to shift the liability to.” Lawyers convened a conference on the issue in San Francisco in November; some analysts are predicting that computer 2000 suits will surpass asbestos and other massive tort class actions.

A well‐​functioning liability system promotes justice by providing compensation to those injured through the negligence of others. But the notion of fault is steadily disappearing from American tort law. Only far‐​reaching legal reform can ensure that the system focuses on rewarding injured parties rather than entrepreneurial lawyers.

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