tort deform
Myths, contradictions and foolishness of tort 'reform' revealed.

TORT REFORM...? REFORM THYSELF!
(Part one of Three)

By Dr. John Sase


     "Federal judges are a worse threat than Al Queda or the bearded terrorists of 9ll. They represent a greater threat to America than the Nazis  and are more destructive to our culture than was the Civil War." --Pat Robertson, on This Week with George Stephanopolis, 1 May 2005  

                                                                                                                                                          
"It's an arrogant, out-of-control, unaccountable judiciary. The time will come when the men responsible for this will answer for their behavior." --House Majority Leader Tom DeLay, discussing the Terri Schiavo rulings

Through a Dusty Mirror, We See Ourselves

     On May 9, U.S. President sat on a dais beside Russian president Vladimir Putin in Red Square to review columns of tanks and thousands of marching Russian soldiers to help celebrate VE day. It was the 60th anniversary of the fall of the Nazis and marked the first time an American leader ever attended one of these functions, much less sat on the dais.

     President Bush suffered hard and furious criticism by some of the hard right in his own party. He was also criticized by leaders of some of the Baltic countries for attending this event because of the post World War II Soviet occupation and domination most of Eastern Europe. Mr. Bush was compelled to criticize the Soviets for this, and went so far as to apologize for President Roosevelt's agreement to the Yalta Pact which allowed the Soviets to do this. Continuing with this theme during his subsequent visit to Georgia along the Black Sea, he also attacked Russia's backsliding in its march to "Democracy." Not to be outdone on this dour occasion, Mr. Putin responded on 60 Minutes that the U.S. has its own problems in the struggle for democracy and reminded us of our 2000 election that had to be decided in the courts.

"It's a Beautiful Day in the Neighborhood"
     Through all of this historical drama trading barbs back and forth, Mssrs. Bush and Putin never-the-less got on quite strongly, with our President riding around in Putin's collector 1956 Volga automobile, laughing and cracking jokes. It's as if the two gentlemen are quite aware that they are playing parts on a stage and there's really nothing to be excited about. And there really is nothing to be excited about, at least among these two peas in a pod. Both are leaders of systems in which, unlike church and state, there is little separation between industry and government. Functionally, one major difference between the two countries is apparent--the U.S. has an independent judiciary...for now.
 
     While much was made of the Yukos oil company case in Russia, there is another way of looking at those court proceedings should we choose to be a bit objective. When Mikhail Khodorkovsky, the Russian oil giant and "founder" of Yukos was doing splendidly until he started dabbling in politics--by which we mean that he tried to buy off huge chunks of the Russian Parliament. After that, he languished in a Russian jail, awaiting trial on fraud and tax-evasion. In respect to this case of a Russian oil company that is owned in part by American and British investors, Secretary of State Condoleezza Rice was prompted to say, "Washington [is] watching the trial closely to see what it said about the rule of law in Russia." ("Verdict is delayed In the Fraud Case of Yukos Founder," the Wall Street Journal, 2005)

     However, it appears that the Russian government was more concerned with the problem of eanings from Yukos leaking out of the Russian economy because in the aftermath of this case, Putin offered amnesty to "Russians willing to bring back money hidden abroad and promised to rein in tax inspectors who have slapped hundreds of businesses with massive back-tax claims." In a similar vein, the Bush administration just offered its own version of amnesty for American companies that hide their money abroad; bring your profits back to the states, they say, and we will only tax you at the rate of 5%. That's it, 5%.

Le Affair Enron Redux
     As if there were an orchestrated movement by persons in certain religious, political and business persuasions to chip away at the Judiciary, it was reported in the Wall Street Journal (ABusiness World Tells Government: Back Off;@ WSJ; 4-21-05) that the U.S. Chamber of Commerce Ais challenging the Justice Department=s efforts to secure long prison terms for five individuals convicted of conspiracy and fraud in the Enron Corp. scandal.@ The Chamber filed an amicus brief in the so-called Nigerian barge case, in which four former Merrill Lynch & Co. officials and a former Enron vice president were convicted last fall. The arguments put forth by the chamber, the article says, could affect the sentences in the barge case as well as other corporate fraud trials.

     The Chamber has been particularly active, challenging moves by the Securities and Exchange Commission and Justice Department and it is supporting Arthur Anderson LLP=s pending Supreme Court appeal of the account firm=s obstruction-of-justice conviction for destroying documents related to longtime client Enron.

     AThe Chamber=s brief,@ says the article, Ais the latest example, observers say, of a feeling within the business community that the government=s crackdown on corporate behavior may have gone too far in the wake of the scandals at Enron and other giant companies. With the passage of time, >perhaps the business community feels the climate is a bit better for them to push back= against some of the initiatives,= says Robert Litt, a former senior Justice Dept. official and now a partner at the Arnold & Porter law firm in Washington.

     Significantly, the article was buried in section c of the journal, which supports the administration=s social security initiatives which would involve investing SS payments in the stock market. The Wall Street Journal, of course, notably supports the interests of its main advertisers-the investment bankers, market funds and major corporations that might be slightly concerned with a Ahostile judiciary.@ It goes without saying that the journal and the various entities it represents regard trial lawyers with as little warmth as the Russians in Red Square might regard Nazis. Tort reform has always been one of the biggest issues with their editorial staff, though it has always been the case that, while most lawsuits in this country involve businesses suing other businesses, the only 'greedy trial lawyers' seem to be those whom represent consumers, though the WSJ itself has probably employed as many attorneys at one time or other as will ever read this article.
 
    If we have used Russia in this article it was as a somewhat rusty mirror for purposes of self-examination, and certainly not as any model for future developments. As our future articles get into more detailed discussions of tort reform we felt it necessary to see this movement in the context of a broader movement to first humble, intimidate and otherwise gain control of the judicial branch of government by special interests, which already seem to have disproportionate influence on the legislative and executive branches.

     It would be possible, for persons perhaps more cynical to suggest that lobbyists maybe even comprise a fourth branch of government. That being said, let us also lament the fact that they pull both Democrats and Republicans, always have-but we must say that we are most alarmed by those interests who finance and benefit by such influences as Grover Norquist of the 'Club for Growth' who has often been applauded for saying 'we want to shrink the federal government to the size where we can drown it in a bathtub.'     He could do that, of course, in Iraq, but he would have a hard time finding running water. 

Dr. John Sase

ECONOMIC RESEARCH & CONSULTATION (serving the legal community since 1997)

Used with express written permission from Dr. John Sase. All rights reserved.


REFORM TORT? REFORM THYSELF!
(Part Two of Tort Reform Series)

by Dr. John Sase & Associates

"A woman named Eileen Wilson recently told the BBC about her grandfather, John Edward Puzey, a steward on the Titanic. He lost his life, leaving a wife and two sons. Ms. Wilson recalled [that her grandmother] 'was given a few sovereigns and that was it. They were left in poverty.' It wasn't until July, 1916, more than four years after the Titanic sank, that White Star and all the U.S. plaintiffs came to a settlement. White Star agreed to pay $665,000--about $430 for each life lost on the ship, though Titanic was insured for $5 million. This 'average' is skewed by the wealthy survivors, who could afford good representation, but most of the people who had traveled third-class had neither the knowledge nor the means to hire a lawyer."                                        

                                    --Cynthia Crossen, Wall Street Journal, 5 February 2003
         
     When discussing the idea of tort reform, it is useful to place it in the context of its origins within the evolution of our economic system. As a political issue, tort reform is championed primarily by the Conservative branch of the Republican Party. However, not all Republicans champion tort reform. Conservative theorists view it generally as part of a laissez faire philosophy and specifically as part of an overall effort to repeal most of the "New Deal" --that is to say, Big Government, or what Conservative columnist George Will calls "the Nanny State."

     This repeal program is logically conceived and coherent. As an idea, tort reform is allied with tax reduction, social security reform, for-profit health care, and other ideas that, when applied as a consistent whole, promise to reduce the role of government "to the size that it can be drowned in a bathtub," says one of its leading proponents, Grover Norquist of the Club for Growth (www.clubforgrowth.org).

     That the majority of Americans take these ideas seriously is proven by repeated election results. We think that much of the success of the Conservative program is due to the fact that its opponents have no coherent alternative, i.e. they battle issue by issue, losing ground through a political strategy as old as Julius Caesar--divide and conquer. It always has worked and always will.

     In future columns, we will include examples of literature that presents tangible evidence that tort reform does not solve the problems that its proponents say that it has. At this time, it would be useful for us to offer a more coherent description of FDR's much-denigrated New Deal program for economic recovery.
 
The Great Vampire Slayer
     The Great Depression is not only an economic term. It referred to the mood of the times. It was as if an enormous, ravenous bat had spread its wings and darkened the earth. People slept in parks and subways. Money circulated slowly. One could buy a mansion for a song. However, the flow of money continued to dry up. It looked as if there soon would be no banks.

     Franklin Roosevelt promised an actual coherent program that would reverse the economic tide absolutely. It was accepted so heartily that the U.S. Congress voted to accelerate his inauguration by four months. A month later, Congress voted to give FDR the ability to control all money and banking-a legislative act that was upheld by the Supreme Court. He gave the banks a "holiday" to help them to reorganize. He also gave the banks an infusion of cash reserves and instituted the Federal Deposit Insurance Corporation, which started paying depositors some of what they had lost. Roosevelt instituted the Securities and Exchange Commission to protect people from unscrupulous brokers, who flitted like fruit bats in an orchard.

     Later, Social Security was enacted after removing the proposal for national health care--a "minor" concession to the American Medical Association (AMA).  A national health-care program was supposed to be included as part of Social Security. Had this program not been excluded due to a furious campaign by the AMA, a coherent system of income support and health maintenance would have produced economies of scale that may have made U.S. industrial production less expensive (think legacy costs, not to mention Medicare). Had this happened as planned, Social Security would not be an issue that divides the young from the old, the sick from the able, and the insured from the victims of vampires.

     Under the New Deal, insurance companies were restricted from investing in the common stock of corporations. This helped to keep the insurance companies solvent. These new regulations allowed insurance companies only to invest their clients' money in "Class A" and government-backed bonds.

Also significant to this argument is the fact that the U.S. Bureau of Standards was established. In effect, this bureau was a large coterie of government scientists that would inspect all inventions and practices, not only to improve American productivity in manufacturing and agriculture but to protect the public from fraudulent products, dangerous machinery, and egregious commodities.

     We believe that very few people who are alive today really appreciate what the New Deal was, or what it really could have been.

Economic Warfare
     A very compact, terse, and articulate account of this era comes from R. Buckminster Fuller in his book Critical Path (St. Martin's Press, 1981). Fuller, a famous author and inventor, was an editor of Fortune magazine and, later, a director of FDR's Board of Economic Warfare. You could say that he was an insider. He also was farsighted and knew a bit about economics. 

     In "Legally Piggily," the crucial chapter of his book, Fuller details not only the origins and fruits of the New Deal, but goes much further. He teaches that the Conservative revolution, "Legally Piggily" in his words, did not start with Reagan or Goldwater, as we might assume. Instead, it started with the modest and congenial Dwight D. Eisenhower. According to Fuller, the great general had much to be modest about. However, by his modesty he allowed himself to be a tool of sharp Wall Street lawyers and investment bankers. With an obvious bias, Fuller goes so far as to say that we have gone economically from finance capitalism (pre-Roosevelt) to managerial capitalism (via Roosevelt) to Legal Capitalism (post-Roosevelt), or as Fuller calls it--LAWCAP.

     A technocrat with Socialist leanings, Fuller felt betrayed by the great corporations that were saved by policies instituted by Roosevelt's Board of Economic Warfare. Not only were these companies given enormous war contracts at a federally guaranteed profit of 10%, they also were given sizeable loans and technical expertise via government scientists. Since Fuller was a leading advocate of technocracy who hoped to use it to revolutionize the world, the board even forgave most of these loans. They also altered the tax code to make all research and development a pre-tax expense.

     However, the Wall Street lawyers, being among the best strategic minds of their generation, lobbied Eisenhower to eliminate the U.S. Bureau of Standards. Also, they had convinced him by 1952 to allow insurance companies to invest in any common stock that their directors saw fit. In respect to tort reform, this made it possible for insurance companies to invest as much of their clients' money as possible in higher risk/return equity, knowing that they always could recover any losses by raising policy premiums as they eliminated the major watchdogs of their industry.

    In Critical Path, Fuller wrote, "In the invisible, esoteric world of today's science there is no way for the American public, without the U.S. Bureau of Standards' scientists, to follow the closely held technical secrets of the big, profit-oriented corporations. To a small extent such popular journals as Scientific American help people follow details of this-and-that special case science without learning of the significance of the information in respect to comprehensive socioeconomic evolution." (Note: On 9 June 2005, the Wall Street Journal featured an article, "Ethics of U.S. Scientists May Be Shaky, Poll Says," that stated, "A major survey of U.S. researchers has found that 33% of scientists admit to engaging in at least one of 10 behaviors considered unethical by university officials, such as 'cooking' research data, changing results, or ignoring rules designed to protect human volunteers.")

     Of course, there was much more unraveling of the New Deal program during the 1950s, including the continued refusal by the new Republican administration to complete the development of the Social Security program by including national health care. From a Conservative standpoint, one would have to admire the strategy of the insurance companies that enabled them to extract large, increasing premiums that were subsidized by Roosevelt's tax plan, a plan that made health insurance a pre-tax accounting item. The relaxation of industry regulations allowed insurance companies to make investments in medical technology and, later, to commandeer almost the entire health-care industry via HMOs under policies enacted by President Nixon.

     It should be noted that one of the New Deal programs, the GI Bill, unleashed a veritable "army" of new attorneys who found plenty of work in the fields of product liability and medical malpractice. Of course, it is a legal nicety that physicians and hospitals take the brunt of malpractice suits, since there is a firewall that protects HMO corporations. Through their policies, HMOs push doctors and hospitals to use the standard industrial practices of speed-up, downsizing, and other managerial principles that have often negative results for which the HMOs (that profit from these actions) are not liable legally.

     In the 1950s, the AMA, with its $25 million lobbying effort, was one of the first groups to fight the New Deal. Their lobbying effort led to the defeat of national health care. This effort was the most expensive and expansive lobbying campaign to that date. However, the AMA plan seems to have backfired. Today, many physicians must pay malpractice premiums that are so high that doctors are being driven out of practice in certain states in the country, or out of medicine entirely. For now, let us say to the AMA, "It's your karma, baby!"    

 

Dr. John Sase

ECONOMIC RESEARCH & CONSULTATION (serving the legal community since 1997)

Used with express written permission from Dr. John Sase. All rights reserved.


REFORM TARTS? REFORM YOURSELF!

(Part three)

                                                                                                                                                                                  
By Dr. John Sase & Associates

     "Three years before prison guard Edmond Hook sexually assaulted and impregnated inmate T'Nasa Harris, officials at the Camp Brighton facility near Pinckney received an anonymous letter claiming he was a 'sexual predator.'" Four months after Michigan Department of Corrections officials got the letter, eighteen women complained that Hook leered at them in the shower or groped them during pat downs. Corrections officials made no effort to closely monitor Hook. These incidents came as the U.S. Justice Department was suing the state for failing to address conditions that allowed female prisoners to be sexually abused by guards. On May 25, 1999--the day the state settled that suit--Hook was admonished to "exercise better judgment in dealing with females."
--Melvin Claxton, Ronald J. Hansen and Norman Sinclair, "Guards Assault Female Inmates," Detroit News, 22 May 2005
 
Desperate Housewives... Not!
     Before we address this serious problem of sexual harassment in prisons, let us make a conscious effort to concede that sometimes there are problems with frivolous lawsuits. For example, on 9 July 2005, the Detroit News reported that a Russian astrologer named Marina Bai sued NASA in Moscow, asking for $300 million in damages. In this suit, she claims that, by blasting pieces off of the comet Tempel, NASA upsets the balance of the universe and will throw off her horoscopes.

     Female inmates in Michigan, for whom the universe consists of six by eight feet of concrete blocks, should have such problems. In a series of blockbuster articles last May, the Detroit News did a scathing expose of sexual predation and corruption within our State penal system, situations that Amnesty International and even the United Nations attempted to investigate, not to mention Human Rights Watch. However, they were rebuffed by State and Federal officials. The only reason that we know anything at all about the sexual theme parks that make up our female prisons is because of various lawsuits, cases that are threatened by federal and state tort reforms. These reforms may make further monitoring even more difficult.
 
     In another article in this series, it is was suggested blatantly that, if nine female prisoners were lined up naked in embarrassing postures and photographed, as were prisoners at Abu Ghraib, then the guards doing this in Michigan would have less to fear than those military guards in Iraq. Two years ago, the Michigan Legislature closed its office that heard inmate complaints and passed a law that makes it more difficult for prisoners to sue for damages. "By stripping imprisoned women of this basic civil right, the state has emboldened sexual predators who may be attracted to prison work," said Michael Pitt, a lawyer in one of several class-action lawsuits against the Michigan Department of Corrections, to the authors of this article.

A Letter from the Union
     In a letter to the Detroit News ("Corrections Officers Do Their Jobs Honorably," 6 May 2005), Tom Tylutki, President of the Michigan Corrections Organization, presented the officers' defense:  "I am writing in response to the recent Detroit News series 'Sexual Abuse Behind Bars' (22-24 May 2005). As president of the Michigan Corrections Organization, the union that represents Michigan state corrections officers, I was disappointed and personally offended to see old news about former MDOC employees rehashed in the News. The series gave the impression that today's corrections officers continue this despicable behavior and that the MDOC has been slow to reform our prison system. That's just not true. The truth is, Michigan=s corrections officers are among the most highly trained, professional officers in any prison system today. The Department of Corrections implemented policies and procedures to protect everyone involved. Our officers face a lot of tough challenges today--staffing levels are dangerously low, legislators are attempting to close much-needed correctional facilities.... But one thing we should never have to worry about is carrying the stigma created by a few, corrupt individuals a decade ago." There is more in this letter, of course, but nothing as relevant as the protectionist obfuscation from the officers= union, which, of course, poses part of the problem.

    As opposed to Mr. Tylutki's assertion, Claxton, Hansen, and Sinclair state ("Prisoner Complaints Unheeded," Detroit News, 24 May 2005), "In the meantime, the number of sexual abuse complaints against guards by female inmates is slightly higher than it was a decade ago when federal officials first identified Michigan's prisons as a problem, according to the News analysis of corrections records turned over in a class-action lawsuit against the department."

    According to this article, in 1999, legislators took away inmates' right to sue under Michigan=s Civil Rights Act. That same year, they also changed the law that requires prisoners to prove lasting physical injury from an assault to obtain damages in court. In other words, if a guard brings "flowers and candy" on such an occasion, are we to regard this as standard operating procedure?
     Indeed, Kym Worthy, the Prosecutor of Wayne County, where nearly half of the state's 2,000 female prisoners are housed, said that a shortage of prosecutors forced her office to end its traditional role of prosecuting prison sex-abuse cases. In an article in the Detroit News ("Michigan Faces Conflict of Interest, 24 May 2005), Worthy told Claxton, Hansen, and Sinclair, "Because of our budgeting situation, we can no longer devote our scarce resources to investigate and charge crimes committed in state correctional institutions."

"Abandon Hope All Ye Who Enter Here"
     On 24 February 2001, one day after testifying against guards in a sexual-abuse lawsuit, inmate Robin McArdle received a ticket for not being on her bunk during a head count. This is a violation of prison rules, according to Claxton, Hansen, and Sinclair. In their article "Guards Assault Female Inmates" (Detroit News, 22 May 2005), the trio wrote, "The officer at the Wayne Correctional Facility who cited her, testified for the guards in that case. Although she had no misconduct tickets on her record in her first eight years in prison, McArdle received a total of five tickets after she first testified in a prisoner abuse lawsuit in 1999." Such tickets can result in an inmate not even being allowed to attend a parole hearing and hence can cause one to endure more years of their sentence.

     Indeed, as the News points out, the department continues to punish inmates whose charges do not stand up under scrutiny in order to discourage false complaints. However, inmates and prison advocates contend that the practice requiring victims to offer overwhelming evidence has chilled reports of assaults. Furthermore, sexual misconduct complaints are still dismissed routinely on technical grounds, such as the way that forms are filled out. In some cases, prison officials have dismissed typewritten complaints as "illegible."

     Another article in Claxton, Hansen, and Sinclair's series, perhaps the most poignant ("Suicides Follow Unheeded Complaints," Detroit New, 22 May 2005), tells the sad story of Alisha Smith, who hung herself in the Robert Scott Correctional Facility in Plymouth on 13 February 2003. Before killing herself, Smith wrote frantic letters to her aged parents complaining of sexual abuse by guards. Since 1990, at least eight women who said they were sexually assaulted have attempted suicide, and two succeeded. In their article "Michigan Faces Conflict of Interest" (Detroit News, 24 May 2005), Claxton, Hansen, and Sinclair explain that it is up to the Attorney General of Michigan to prosecute officers involved in the assault of inmates. However, it is also the Attorney General of the State of Michigan who defends the state against lawsuits resulting from prisoner abuse! A Catch-22? At the very least, an apparent lack of the separation of functions.

Dr. John Sase

ECONOMIC RESEARCH & CONSULTATION (serving the legal community since 1997)

Used with express written permission from Dr. John Sase. All rights reserved.



TORT REFORM? REFORM THYSELF
(Part Four)


By Dr. John Sase & Associates

"Michigan's shoreline may belong to the people. But its court system, and a majority of the state Supreme Court justices who oversee it, still belong to the insurance industry. Late last month, even as it was upholding John Q. Public's right to walk the Great Lakes shoreline, Michigan's highest court handed insurance companies a license to defraud consumers."
--Brian Dickerson, Detroit Free Press (8 August 2005)
    
     Brian Dickerson, a normally sedate columnist for a mainstream media outlet, finally has vented frustration with a system that never should have been allowed to go so far in the first place. In his column of 8 August, he refers to the State Supreme Court ruling on Rory vs. Continental Insurance. In this case, two little old ladies, who had sustained neck and back injuries in a 1998 auto accident, were unable to collect damages due to some fine print that was hidden in the obscure legalese of their policy. Waxing boldly, Dickerson said, "The court=s ruling in Rory vs. Continental commands renewed scrutiny of the way candidates for the appellate courts are financed….Wouldn't it be more efficient, for instance, if insurance companies paid the justices' salaries directly? The companies would save the hassle of laundering payments through the soft-money campaign finance machine, and their water carriers in Lansing could dispense with the charade of judicial impartiality."

The Conservative Juggernaut
     The American Surrealist Franklin Rosemont once said that pretending to ignore the reality of politics is to ignore the reality of everyday life. Michigan voters continue to elect a Conservative legislature and judiciary. However, the Democrats and Republican "Moderates" (those of us in that in between non-party party that split down the middle in the last two presidential elections) who might oppose the resulting Conservative juggernaut have failed repeatedly to underscore how the daily lives of Michigan's citizens have suffered from this long legacy. Michigan residents are not stupid. Rather, they are the victims of very sophisticated and well-financed public-relation campaigns.

     Here is a radical, simple illumination for anyone wishing to understand the psychological infrastructure of the American public:  Go to a university library and visit their publications file. You will find that there is a vast, preponderant section on marketing and marketing strategy. Even some cursory investigation would reveal that, while Washington and Jefferson are the original founding fathers, P.T. Barnum is certainly the step-dad--one with an attitude.

     So, the people of Michigan went for "smaller government" with tax rollbacks, deregulation, and tort-reform, all with the desirable goals of making our state business friendly, self-reliant, and a fertile ground for investment. The result? Until Mississippi surpassed us recently, Michigan had led the country in unemployment. Furthermore, one out of three children in this state continue to live in poverty.
                     
Tongue-Tied and Incoherent
 
     The Rory vs. Continental insurance case is a result of deregulation, whereby the concept of "Auto-Choice" was enacted. This is the idea that people in the low-income bracket at least could get minimal insurance coverage by paying a lesser rate, thus opening a whole new insurance submarket. Auto-Choice occurs in a context where A) it is required by law that all motorists have auto-insurance; B) there is little or no reliable, dependable public transportation in low-income areas of this state; and C) there is no general-assistance welfare in Michigan. This means that the poor need to work and, therefore, must find low-cost transportation to their jobs.

     Does anybody remember Auto-Choice as a topic of conversation? Was the public made aware of the legal ramifications of such a choice? Of course not. Auto-Choice was snuck through under the public=s noses--with no thanks to our state's media. As Rory vs. Continental suggests, the media, rather than being on top of their game, tends to publish the personal tragedies of citizens who have suffered the delayed remote-controlled bombs planted by our legislature. Indeed, the inadequacy of much of Michigan's media, with often substandard political and legal coverage, makes it necessary to get much of our information-indeed, the best and sometimes only important ideas--from unpaid writers in the "Letters to the Editor" sections of our newspapers.

     It was on 18 May 2005, Mr. Dickerson, that attorney J. Martin Brennan Jr. wrote to the Detroit Free Press, "As a trial lawyer and former candidate for the Michigan Supreme Court, it was with great interest that I read Justice Clifford Taylor=s commentary concerning reforms for jury duty…. Justice Taylor=s platitudes about the right to a trial by jury are completely meaningless when you consider the track record of this justice and his four Republican cohorts on the Supreme Court. Since the Conservative majority has taken over the court, the decisions have tendentiously favored corporations, insurance companies, doctors, hospitals, and prosecutors. Access to the courts by regular, working-class people has been severely curtailed as the Supreme Court continues to restrict what lawsuits can be filed."

     Likewise, on 16 June 2005, attorney J. Douglas Peters wrote to the Detroit Free Press to complain about the column written by attorney Andrew Doctoroff on 1 June 2005. Peters stated, "'Restricting drug lawsuits proves proper for Michigan' shows he did incomplete research or, worse, intentionally misled the public about the State of Michigan=s Drug Product Liability Law. Because of the preceding prohibition, Michigan=s Statute grants absolute immunity to pharmaceutical manufacturers. Michigan is the only state in the country with such a law. Had he done his research, Doctoroff would know that his clients Wyeth-Ayerst (the company that brought us Fen-Phen, since withdrawn from the market after causing deaths and permanent heart valve damage) and Merck (manufacturer of Vioxx, which has also been removed from the market, having been associated with causing strokes and heart attacks) know that Michigan grants absolute immunity to drug product manufacturers, and in a needy, greedy, and seedy way, they are hoping to spread Michigan=s contagion to 49 other states."

     Note that in both of these cases (and there could be scores of others) the attorneys are writing letters in response to columns published in the Detroit Free Press by the established interests. What the public may not understand is that manufacturers and other corporate interests have a willing and compliant media to do their marketing and public relations work gratis because A) drug companies, hospitals, manufacturers, and other corporations not only advertise but sit on the boards of media companies, and B) it is less expensive to print their "social commentaries" than it is to pay in-house writers like Dickerson to do their homework.

     One might argue that the Conservative ideology, while potent, consistent, and self-coherent, is incoherent and contradictory in its larger context. According to commonly accepted economic principles, there should be a social welfare benefit that is derived from deregulation. It follows that there also should be a social welfare benefit to tort reform. However, as Merrill Goozner, the director of the Integrity in Science project at the Center for Science in the Public Interest, has asked, what are we to make of the fact that Dan Cory, the chief counsel for the FDA used to be a drug-industry lobbyist? It's like having a vampire in charge of a blood bank. We have lawyers who represent drug companies who are accessing the media at will. These lawyers complain that citizens are driving up the cost of doing business and tying up the courts. However, four-fifths of the lawsuits that are brought against businesses are filed by other businesses rather than by ordinary citizens.

 
     As Robert Reich, our former Secretary of Labor, wrote in TomPaine.common sense (www.tompaine.com, 22 December 2004), "You might ask the same question all over government these days. Pick an agency--not just the FDA--but the Securities and Exchange Commission, the Consumer Product Safety Commission, the Federal Trade Commission, and so on. They=re supposed to protect the public. But they=re all understaffed, their budgets have been whacked, and many of them are in the pockets of the very companies and industries they=re supposed to regulate." Bob Reich should know. Isn't he one of the economists who in the early 1990s helped to lay the groundwork for the most successful economic growth that the world had known to date?  Has the more recent reversal of fortunes been the result of an aggressive public-relations campaign? Has this campaign, which favors some political groups more than others, been the result of a well-oiled and superbly orchestrated media noise machine? The information presented above seems to tip the scales in favor of such assertions.

     The next issue will contain the fifth and final installment of our series on tort reform.

Dr. John Sase

ECONOMIC RESEARCH & CONSULTATION (serving the legal community since 1997)

Used with express written permission from Dr. John Sase. All rights reserved.