Trial Lawyers VS. Sanity

William F. Buckley
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Posted: Jun 09, 2001 12:00 AM
A week or so back, Blockbuster Inc. signed a consent decree. The aggrieved were folks who were "overcharged" for overdue rented movies. Retribution for movie renters will be in scrip. But with a limit per Blockbusterite of $18 in credit, about six movies. The winner, of course, is the trial lawyer. Is there one human being this side of the crazy houses who believes that an enterprising victim undertook to hire a lawyer to engineer a class-action suit in search of $18 worth of free movies?

Then last week in California a jury awarded a 56-year-old smoker $3 billion against Philip Morris. Everybody knows all the arguments on the cigarette controversies, but the argument that stood out in Los Angeles wasn't that Philip Morris never advertised the dangers of smoking, but that the Marlboro Man ads create an impression of the bionic man, whereas what is really happening to the smoker isn't that his chest is swelling with pride and health as he surveys the great western scene, but that his lungs are deliquescing.

Those are valuable lungs, this plaintiff's. At $3 billion, they're worth more than the Empire State Building and Rockefeller Center combined. But again, the interest here is the trial lawyer, who could claim $900 million, which is testimony to the lunacy of jurors, and the delinquency of Congress in doing nothing about tort reform.

Front and center in these matters is the patients' bill of rights. This issue got much attention at the Democratic National Convention last year. It featured Bill Clinton striding to his throne on stage through a long royal tunnel flecked with diamonds and moon dust, his passage illuminated by a visionary camera that tracked his way through the labyrinth, on to the podium, where he proclaimed the patients' bill of rights.

Now it is obvious that patients should have rights. Conventionally, these are rights protecting against fraudulent or tortious action. If a doctor amputates your left leg when it was your right leg that was giving you the trouble, you have a right to claims. If a manufacturer gives you insulating material for your house, which gives you warmth but also induces cancer, you have claims. As also if the pill you take, far from aborting the fetus, makes quintuplets out of him, you have a claim.

But the bill that has been introduced by Sen. John McCain and Sen. Ted Kennedy is one that would give the trial lawyers instant access to any disagreement between a patient and the managed-care provider. Opposing interests in the field are manifested every day of the week, not by the dozens but by the thousands. Attempts are made by providers to describe fully what it is that they will pay for, so that the buyer can beware. But inevitably there are points of disagreement, both as to the language that the provider has used, and whether or not it undertook to provide for this malady, but also as implied obligations.

Now, there are two roads to travel here. One is the courts, a second is arbitration. Some contracts contain arbitration clauses, in which the contracting parties agree to repose their rights in an arbiter. It is the obvious alternative to litigation, but doesn't cope with the odd cause of disagreement. An arbitrator might rule that the managed-care provider should pay for cataract operations but isn't ideally equipped to measure the cost of the fatal accident that resulted from the initial failure to pay for these operations.

And that, of course, describes the need for tort reforms of the kind that specify limits to recovery. A derivative of such limits would set limits on the cash amount recoverable by litigating lawyers.

The different approaches to the patients' bill of rights will be the battleground of the next skirmish between Mr. Bush and Mr. McCain. John McCain's collaboration with Sen. Kennedy should have warned him, inasmuch as Mr. Kennedy is guided by the general rule that anything that promotes redistribution is a good thing. And if the agents of that redistribution are trial lawyers, that is an even better thing.

Here Mr. Bush faces another of those challenges which hedge in his administration. There are principles involved, or that should be involved, in $3 billion awards to a single smoker who persisted in the habit through 30 years of minatory din against it -- principles involved in avoiding the bureaucratic and litigative overhead of our drift toward insured health care. Mr. Bush's tendency in the tax bill and the education bill has been to yield principle in order to effect legislation. Politicians need to do that, up to a point. But to assert principle gives perspective. This is useful to those congressmen who will listen, and to voters who seek to inform themselves about the character of their representatives.

Retribution for movie renters will be in scrip. But with a limit per Blockbusterite of $18 in credit, about six movies. The winner, of course, is the trial lawyer. Is there one human being this side of the crazy houses who believes that an enterprising victim undertook to hire a lawyer to engineer a class-action suit in search of $18 worth of free movies?

Then last week in California a jury awarded a 56-year-old smoker $3 billion against Philip Morris. Everybody knows all the arguments on the cigarette controversies, but the argument that stood out in Los Angeles wasn't that Philip Morris never advertised the dangers of smoking, but that the Marlboro Man ads create an impression of the bionic man, whereas what is really happening to the smoker isn't that his chest is swelling with pride and health as he surveys the great western scene, but that his lungs are deliquescing.

Those are valuable lungs, this plaintiff's. At $3 billion, they're worth more than the Empire State Building and Rockefeller Center combined. But again, the interest here is the trial lawyer, who could claim $900 million, which is testimony to the lunacy of jurors, and the delinquency of Congress in doing nothing about tort reform.

Front and center in these matters is the patients' bill of rights. This issue got much attention at the Democratic National Convention last year. It featured Bill Clinton striding to his throne on stage through a long royal tunnel flecked with diamonds and moon dust, his passage illuminated by a visionary camera that tracked his way through the labyrinth, on to the podium, where he proclaimed the patients' bill of rights.

Now it is obvious that patients should have rights. Conventionally, these are rights protecting against fraudulent or tortious action. If a doctor amputates your left leg when it was your right leg that was giving you the trouble, you have a right to claims. If a manufacturer gives you insulating material for your house, which gives you warmth but also induces cancer, you have claims. As also if the pill you take, far from aborting the fetus, makes quintuplets out of him, you have a claim.

But the bill that has been introduced by Sen. John McCain and Sen. Ted Kennedy is one that would give the trial lawyers instant access to any disagreement between a patient and the managed-care provider. Opposing interests in the field are manifested every day of the week, not by the dozens but by the thousands. Attempts are made by providers to describe fully what it is that they will pay for, so that the buyer can beware. But inevitably there are points of disagreement, both as to the language that the provider has used, and whether or not it undertook to provide for this malady, but also as implied obligations.

Now, there are two roads to travel here. One is the courts, a second is arbitration. Some contracts contain arbitration clauses, in which the contracting parties agree to repose their rights in an arbiter. It is the obvious alternative to litigation, but doesn't cope with the odd cause of disagreement. An arbitrator might rule that the managed-care provider should pay for cataract operations but isn't ideally equipped to measure the cost of the fatal accident that resulted from the initial failure to pay for these operations.

And that, of course, describes the need for tort reforms of the kind that specify limits to recovery. A derivative of such limits would set limits on the cash amount recoverable by litigating lawyers.

The different approaches to the patients' bill of rights will be the battleground of the next skirmish between Mr. Bush and Mr. McCain. John McCain's collaboration with Sen. Kennedy should have warned him, inasmuch as Mr. Kennedy is guided by the general rule that anything that promotes redistribution is a good thing. And if the agents of that redistribution are trial lawyers, that is an even better thing.

Here Mr. Bush faces another of those challenges which hedge in his administration. There are principles involved, or that should be involved, in $3 billion awards to a single smoker who persisted in the habit through 30 years of minatory din against it -- principles involved in avoiding the bureaucratic and litigative overhead of our drift toward insured health care. Mr. Bush's tendency in the tax bill and the education bill has been to yield principle in order to effect legislation. Politicians need to do that, up to a point. But to assert principle gives perspective. This is useful to those congressmen who will listen, and to voters who seek to inform themselves about the character of their representatives.