Public Policy by Lawsuits --- No One Is Safe

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Thursday, September 14, 2000

The trend of enacting public policy by lawsuits went into high gear during the eight years of the Clinton-Gore administration, as frenzied attorney-litigators rolled over increasing numbers of unwary defendants.

Perhaps it is time we turn the ignition off to this litigation locomotive.

As we approach the presidential election this November, trial lawyers remain locked in an unholy partnership with the federal leviathan to tax the tobacco industry and plunder it to submission. And the government has effectively joined in the looting, so it can use the booty money to extend its socialist tentacles with more "outreach" government programs to seduce ever more citizens into dependency.

Americans have become unwitting accomplices in this looting. Consider: If the government was totally and sincerely concerned about the health of smokers, why not ban tobacco use, just as it has banned other drugs, e.g., LSD and crack cocaine, which have no medical use?

But no, government wants to share in the plunder of an industry in which it has previously had a vested financial interest.

Now the unholy partnership of trial lawyers and the government have set their mark on the gun industry, driving manufacturers into capitulation or bankruptcy. Today, it may be tobacco and guns. Tomorrow, it may be the airlines, HMOs, nutritional products, or fast food restaurants ­ all of these items sued and taxed to the limit supposedly to protect us from ourselves.

Using Greed to Circumvent Rights

But no one is really safe from extortion and plunder. In the case of the most recent attack on the gun industry, the government is, effectively, using the greed of the attorney litigators to circumvent a constitutionally protected right it finds inconvenient and perhaps threatening.

Because of this assault, eventually it will become more difficult for law-abiding citizens to obtain affordable firearms to protect themselves, their families, their businesses, and their homes. Yet, criminals will continue to obtain guns, and they will not be sued, because they aren1t deep-pocket defendants.

As with all public-private partnerships, the public partner, the government, usurps our liberties while it arrogates itself more power and control over our lives; the private partner satiates its greed under the cover provided by monopolistic government protection ­ the public-private partnership inherent to economic fascism.

To counteract this destructive affliction wrought by the litigation juggernaut, we should dust off and pull from our bookshelf a great antidotal medicine: The Litigation Explosion: What Happened When America Unleashed the Lawsuit, by Manhattan Institute scholar Walter K. Olson.

This momentous, witty and well-written book remains timeless, given the current legal resurgence against targeted industries.

Olson's book traces the history of legal theory and ethics, and discusses the impact of these evolutionary (and revolutionary) changes on modern American society.

Why is this relevant to us? Here1s why.

If Al Gore wins the presidential election and if the trial lawyers were to continue to be his greatest financial supporters, the litigation industry1s proclivity to generate business for itself would be given a new boost.

As things now stand, the adversarial litigation locomotive has continued full steam ahead, at an excess of 18 million lawsuits a year for the last 12 years.

Guns, Tobacco, Doctors ­ No One Is Safe

In 1989, at least two dozen top attorney-litigators in the United States made estimated annual incomes in excess of $4 million each.

In Houston, litigator Joe Jamail made "somewhere between $450-$600 million, mostly by talking a Texas jury into accepting the unprecedented proposition that unsigned contracts could be binding" in the famous Penzoil vs. Texaco case, in which Texaco, "the third largest oil company, was forced into bankruptcy," reported National Review.

In the 1990s, millions have become peanuts. We are now dealing with billions, as with Dow Corning, Intel, and more recently the tobacco industry litigation.

In fact, the federal and state governments began planning and spending the billions of dollars, in the ancient, distributive fashion of panum et circenses, in anticipation of getting their hands on the spoils of the tobacco wars.

And remember, this is an industry the government subsidizes, despite what has long been known about smoking and health, and the publishing of the Surgeon General report of 1964.

In the case of gun litigation, venerable factions of the much smaller but yet seriously embattled firearm industry are folding, even before the lawsuits have really gotten started, because they know they will not survive the litigation onslaught.

These legitimate businesses, American traditions like Colt firearms, do not believe they can survive financially even to mount a serious defense. This is taking place even as serious judges have been correctly dismissing lawsuits against the gun industry from various municipalities in Ohio (Cincinnati), Connecticut (Bridgeport) and Florida (Miami).

In the process, a constitutionally protected right, nevertheless, is being eroded and threatened to extinction by extra-constitutional means. Big money awards are obtained as booty, or as extortion, in the usurpation process.

As Olson points out in his book, big money awards are "protected behind the banner of a moral crusade with media coverage of splashing philanthropic ventures, played to the hilt which help deflect public criticism (of whopping awards and luxurious lifestyles) in advance."

The trial lawyers have found allies in the media who see an opportunity to correct perceived evils of society which they attribute, among other things, to economic maldistribution and legal inequities of the past.

They see litigation against "deep pocket" defendants as a means to redistribute wealth and of correcting social injustice (either real or imagined).

Olson correctly points out the litigators themselves see these nebulous abstractions as gold mines to be exploited while they last. They propagate the myth that those who press their legal rights to their stretchable limits are performing a public service by leading a moral crusade to re-establish justice and extirpate the evils of society, including the greed of rich physicians and unscrupulous businessmen, and the avarice of rapacious insurance companies and sinister corporations.

In medical care, practicing physicians have inured the endemic medical liability crisis since the 1970s without relief. Yet, the threat of litigation affects the everyday decision-making process of practicing physician.

The direct cost of the medical litigation in the form of defensive medicine has been estimated to be on the order of $50 billion a year. Medical malpractice insurance premiums for neurosurgeons range from a high of $100,000 to a low of $7,673, depending on coverage limits. This, mind you, in the era of managed care and cost-containment health care rationing.

The time is ripe for tort reform resurrection.

It is time for a group of young, bright attorneys and judges in concert with a group of like-minded activist-physicians, businessmen and other professionals to roll up their sleeves and get to work for an uncompromising and vigorous push to change the litigation rules that are wreaking social and economical devastation on plaintiffs and defendants and return them to the standards of ethics and justice where they originated.

The current rules benefit two groups ­ trial lawyers, who enrich themselves at the expense of the rest of society, and demagogic politicians, who arrogate to themselves political power.

Olson's book, if you can find a copy, should be read by all Americans concerned with the litigation explosion ­ and that should be all of us, for we all are at risk.

We must do this not only to protect our pocketbooks, but also to preserve what remains of our legacy of freedom that we must pass to our children.

Miguel A. Faria Jr., M.D., is editor in chief of Medical Sentinel of the Association of American Physicians and Surgeons (AAPS) and author of Vandals at the Gates of Medicine (1995) and Medical Warrior: Fighting Corporate Socialized Medicine (1997). Web sites: and

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