September 28th, 2015|
Embedded in the Declaration of Independence and Constitution is the basic principle that all people – regardless of title or wealth – are to be governed equally by one universal set of rules. The rights to freedom of expression, religion, and political association; to petition the government; to bear arms; to be protected from unreasonable search and seizure, self-incrimination, and cruel or unusual punishment; the right to trial by jury in criminal and civil proceedings: these are the birthright of every American citizen.
We sometimes take for granted what “having rights” actually means; that there are certain civil liberties (like jury trial, or free speech) we are entitled to by the simple fact of living in America. We loosely throw around the language of rights – lawyers are more susceptible than most in doing this. This is part of why lawyers are a favorite whipping boy for a number of society’s ills, and in particular, trial lawyers. As a plaintiffs firm, we are commonly accused of appealing to the basest instincts in people and wrapping it all up in the language of rights – “Have YOUR RIGHTS been violated? Get the money YOU DESERVE today!” A lot of people simply believe trial lawyers are self-interested, merchants of misery.
Tort reform advocates handpick verdicts from civil cases that validate their claim that frivolous lawsuits are dragging down the nation. Take the infamous McDonald’s hot coffee case where the plaintiff burned herself after spilling coffee in her lap and successfully sued McDonald’s for millions of dollars. The instinctive response to this headline for most folks is to cry foul: “We need to litigate when people spill their coffee now? What happened to personal responsibility? It’s just a few greedy individuals teaming up with their huckster lawyers looking for a handout.”
What most people don’t know is that the 79-year-old plaintiff had to be hospitalized, receive skin grafts for her third degree burns, and is permanently disfigured. McDonald’s required its restaurants to serve the coffee at 190 degrees (water boils at 212 degrees), even though this high temperature causes burns in the mouth and throat, and the coffee is too hot to drink. Over 700 other claims for injuries, including other third degree burns, had been made against McDonald’s in the decade prior, and the company did nothing.
This information changes people’s minds, and it certainly convinced a 12-member jury – so much so that they awarded the plaintiff $2.7 million in punitive damages. And $2.7 million wasn’t just a number pulled from a hat; it was the amount McDonalds earned in two days solely from coffee sales in the United States at the time.
That last sentence speaks to the real hollowness of what the tort reform people are peddling. In so many of the cases that Cory Watson handles we see that the companies making and marketing defective or hazardous products knew of these safety risks beforehand, and still decided to move forward with pushing their products on the public – often without informing them of the danger.
Consider as an example, Johnson & Johnson and its antipsychotic medication Risperdal. Johnson & Johnson knew the drug significantly increased the risk of gynecomastia (development of male breasts) in children and adolescents as well as stroke risk in the elderly. Yet Johnson & Johnson aggressively marketed Risperdal to exactly these people – the most vulnerable people in society, and for whom the drug was not FDA-approved. It manipulated or hid data about adverse health consequences, crafted new uses for the drug outside its original narrow use in adult schizophrenics, and paid doctors to promote their drug.
For all this, Johnson & Johnson settled with the Department of Justice for $2.2 billion dollars and plead guilty to criminal wrongdoing in marketing Risperdal to elderly patients; but it did not admit wrongdoing for the civil part of the settlement. While $2.2 billion may sound like a lot – it was the third largest pharmaceutical settlement in U.S. history – it was a mere drop in the bucket compared to the $30 billion Risperdal netted in worldwide sales.
The big companies are not just prepared for but expecting litigation. Their strategy is simple: create a new product with the goal of turning a massive profit; if there isn’t need for the product, structure it through marketing; if there are defects or safety risks with the product, manipulate the data, sponsor positive studies to conflict negative ones, or simply bury the evidence. Should this strategy be executed successfully, by the time the lawsuits start rolling in, the legal defense budget will already be well furnished by receipts from the product in question.
How anyone who is informed of the facts and claiming an unbiased perspective can look at a situation like this and says the real problem is the trial lawyers is mystifying. And yet at this very moment, tort reform advocates and their corporate backers are engaged in an extensive campaign to discredit trial lawyers and dismantle the consumer protections and constitutional rights owned by every American citizen.
The Seventh Amendment of the Constitution guarantees citizens the right to trial by jury in civil cases. In more and more of the contracts you sign, such as the terms and conditions you agree to in iTunes, companies are including clauses waiving your right to jury trial in favor of arbitration. In arbitration, arbitrators are typically chosen by the company with whom you’ve signed the contract and aren’t necessarily even required to have a legal background. And most arbitration decisions are final, with no right to appeal.
This means that if you are defrauded or injured by a company with whom you have signed an arbitration clause – even unknowingly – that company will in effect get to decide your case.
The campaign to supplant jury trials with arbitration is being pushed on the American people from the top-down. Not only does this contravene the guarantee of the Seventh Amendment, it flouts the notion of equal justice for all embedded in the Amendment and the broader Constitution. How can the average citizen really expect to receive a fair hearing in this setting?
To people who might say that the monetary awards in mass tort litigation are not an appropriate medium for delivering justice and unjustly line lawyers’ pockets: the same profit that motivates big pharmaceutical companies (as an example) to push drugs they know are dangerous onto the market is what allows trial lawyers to perform as powerful advocates for their clients. In order to police large companies, you need to be able to threaten their profits to deter them from unethical or illegal behavior. It takes money and resources to enter the fight and win.
Our official government regulators, like the FDA, whose budgets are set by Congress, cannot match the high salaries offered by the industries they are supposed to regulate in the competition for the same pool of talent and expertise – necessary for good regulatory performance. Moreover, in the current political climate of the past 30 years, the trend has been to roll back rather than strengthen government regulations, diminishing regulators’ ability to perform their mandate.
It falls to the trial lawyers to pick up the regulatory slack, checking the powerful and promoting the interests of the average individual. Consumers are entitled to know the risks when they use a potentially dangerous product; the makers and vendors of these products do. The work we undertake as a plaintiffs firm not only serves our direct clients: it makes everyone’s lives safer. For example, Cory Watson’s work on the quit-smoking medication, Chantix, was instrumental in getting the FDA to add a black box warning about the drug’s side effect of suicidal tendencies.
Admittedly, there are a few unsavory characters employing unsavory practices among our branch of the legal profession, and unfortunately, they do diminish the reputation of the profession. Taken altogether, however, trial lawyers provide a service vital to the health of our republic. Returning to where we began, the prosperity and greatness of the United States is built on the principle that everyone plays by the same rules. Trial lawyers exist to preserve the rule of law against the law of the jungle, where the strong do as they please and society at large bears the costs.