John Edwards, the handsome, and comely, and attractive senator
from North Carolina (well, those are his chief assets) has announced plans
to seek the Democratic nomination for president. A relative newcomer to
politics, Edwards has caught the eye of party elders due to his, well, his
Edwards does start with one big disadvantage, though. He's a
trial lawyer, and while this allows him ready access to the deep pockets of
his fellow trial lawyers, it causes many Americans to wrinkle their noses.
Clearly, Edwards has been working on how to spin the trial lawyer handicap,
and he's decided to frame it this way: His multimillion dollar business
mau-mauing companies out of large settlements is really being "a champion
for regular people."
Edwards' announcement is timely, coming as it does in the same
week as a plaintiff finally lost a suit against a tobacco company on the
West Coast. The family of Frank R. White, who began smoking at age 14, sued
Phillip Morris and R. J. Reynolds, alleging failure to design a safer
cigarette and failure to provide adequate warnings about the dangers of
All of this is pretty standard (though no less outrageous for
that), until you notice that White died at age 81! He had already beaten the
average male life expectancy by a good seven years, and he never got lung
cancer. A sensible federal judge named Saundra B. Armstrong ruled that a
jury could have no basis to find the companies liable upon the evidence
presented. No doubt.
But what has become of the idea of damages? When I was in law
school, we were taught that damages would be assessed on the basis of what
is lost due to the negligence or malfeasance of the defendant. In other
words, if through your negligence, you accidentally crush the hands of a
surgeon, you will have to compensate him not just for the loss of the use of
his hands, but for the loss of his livelihood. The amount would be
calculated based on his projected lifetime earnings. (There might also be
punitive damages as well, but those are separately calculated.)
If, alternatively, the hands you damaged were those of a
95-year-old man, his damages, based on his age, would be lower. This is not
a moral calculation, merely an economic one. Even if the cigarette companies
were responsible for getting White sick, which anyone
who believes in personal responsibility would deny, the question remains: By
what logic does an 81-year-old man demand damages upon his death?
Well, the great trial lawyer cash register continues to go
ka-ching for thousands of lawyers and a few plaintiffs, while the rest of us
pay the price. In six other West Coast tobacco cases in 2002, juries awarded
plaintiffs a total of more than $30 billion (yes billion with a "b"). These
awards were later reduced to $363 million.
John Edwards and other multimillionaire trial lawyers can
attempt to style themselves defenders of the little guy against big powerful
interests, but it's a tough sell. In these personal injury tort cases, the
actual plaintiffs often wind up with very little. A class-action suit
against Blockbuster yielded thousands of consumers a few free rentals after
trial lawyers alleged that the company had earned too much in late fees. The
lawyers, by contrast, walked away with a cool $9.25 million.
Meanwhile, the "regular people" Edwards claims to champion are
having more and more difficulty finding doctors. The Wall Street Journal
reports that doctors in Florida, Georgia, Mississippi, Nevada, New Jersey,
New York, Ohio, Oregon, Pennsylvania, Texas, Washington and West Virginia
are cutting back on the services they provide because of the high cost of
malpractice insurance. In West Virginia, surgeons have gone on strike at
four hospitals to protest exorbitant malpractice premiums.
The tort bar has put some industries out of business, badly
distorted others and constricted the freedom of all of us. Perhaps we need a
class action suit against trial lawyers. Failing that, we need tort reform,
and if the Edwards candidacy reminds us of that fact, he will have served
his nation very well.