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c TAMING THE MASS TORT MONSTER c MARTI[N F. CONNOR Daren Bakst Mark G. Ellis Editors PREFACE c On the turn of a dime, a prosperousbusinesscan find itself choosing between bankruptcy protection or settling a meritless tort claim. American consumersmust be protected from harmful products and compensatedsufficiently when the situation warrants such a result. Unfortunately, however, our civil justice system has been so skewed against defendantsthat only ambitious personal injury attorneys are being served, not the interests of justice. Mass torts, referring to incidents that,leadto multiple personalinjury claims, are the “golden geese” for the plaintiffs’ bar. A masstort systemmust be developed that adequatelyprotectsconsumerswith valid claims while placing the fair amount of liability on defendants.This desirable systemmight be a long way off, however, as contingent-fee lawyers fight hard in the political arenato maintain the status quo. In this issue of BRIEFLY. . ., author Martin Connor offers a practitioner’s analysis and perspective of the mass tort scenewhile also identifying new approaches to reforming the system. The monographarticulatesthe importancepolitics plays in maintaining the status quo. Contingent-fee lawyers arewell organizedandundeniably c have been successful in protecting the system that they desperately want to maintain. While tort reform has been important to many national companiesand organizations,there are but limited resources being expended in this fight. To further exacerbate the problem, popular culture often makesthe plaintiffs’ bar look like the champion of good while businessis the greedy and unfeeling “bad guy,” content to play the role of Goliath. As the author details throughout the monograph, the mass tort system is deeply flawed and only new solutions will fix the problems. This monograph, like all others published by the National Legal Center, is presentedto encouragegreater understanding of a legal issue.It is not intendedto influence current or potential legislation but to enlighten its readersthrough the thought, experience, and know- ledge of others. The views expressedin this monograph are those of the author and do not necessarilyreflect the opinion of the advisors, officers, or directors of the National Legal Center. The publication is presentedpurely as an educational public service. r c Ernest B. Hueter, President National Legal Center TABLE OF CONTENTS c PREFACE ERNEST B. HUETER . . . . . , . . . . , . . . . . . . . . Inside Front Cover TAMING THE MASS TORT MONSTER MARTIN F. CONNOR INTRODUCTION........................................ 1 THE MASS TORT MONSTER ............................... 3 The Coming of the Monster ........................... 3 Wherethe Monster Feeds ............................ 6 TheJudicial Response............................... 8 THE MASS TORT INDUSTRY ............................. 10 Mass Tort Lawyers: From Cowboy to Organization Man . . 10 Media-Manufactured h4assTorts ..................... 12 Selling the MmssTort. .............................. 13 The Heart of the Matter ............................. 14 The k&s Tort Political Machine ..................... 15 How the Public ViewsMass Torts ..................... 17 SEARCHWGFORSOLUTIONS............................. 18 L Mass Torts and the Scholars ......................... 18 Mass Torts and the Lobbyists ........................ 20 Punitive DamagesReform ....................... 21 Class Action Reform ............................ 23 The Banknrptcy Alternative .......................... 28 NEW DIRECTIONSFORMASS TORT REFORM ................ 28 Preliminary Comments ............................. 28 Fix the AsbestosLitigation .......................... 31 Correct the Risk/Reward Imbalance ................... 35 Make Regulatory Compliance Matter .................. 40 CONCLUSION ........................................ 45 A PERSONALEPILOGUE .. *...i ......................... 46 ABOUT THE AUTHOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 THE MISSION OF THl3 NATIONAL LEGAL CENTER . . . . . . . . . . . Inside Back Cover c .. . 111 TAMING THE MASS TORT L MONSTER MARTIN F. CONNOR This issue of Briefly addressesthe mass tort phenomenon that bedevils American industry. Its message, in a nutshell, is that all aspectsof this problem have beenstudied and debatedadnauseamfor two decadesbut precious little has been done to improve the situation in which defendantsfind themselves.Federal class action rules have beentweaked. There have beenrandomly enacted,and mostly ineffec- tive, state limitations on punitive damageawards. There has been no organizedeffort to addressthe problem that lies at the root of the mass tort explosion: a perverse risk/reward system that extravagantly compensatesentrepreneurial contingent-fee lawyers while forcing defendantsinto desperate“bet the company” scenarios.There hasbeen no organized effort to address the fact that, in the words of one c respected academic commentator, “compensation [of mass tort claimants] through the tort system is broken-seriously, irreparably, and incontrovertibly.” Everything comesdown ultimately, therefore, to the politics of mass tort reform. Champions of the status quo are now America’s most powerful special interest.’ Contingent-fee lawyers have no more important issue and are willing to makewhatever investmentis needed ‘It is both humorousand sadto hearAmerican corporationsroutinely damnedas “special interests.”(For a recent example, seeJudgeAbner Mikva’s Op-Ed in the N. I’. Timesof Aug. 30, 2000.) Theseorganizationsare, after all, the basic building blocks of our economy. Their ultimate “interest” is their own and our national is prosperity.Their success a good thing for American citizens, consumers, workers and investors.They do, of course,occasionallyget things wrong, either by chance, or, innocentmistake, culpablecarelessness in the worst cases, This recklessness. is, after ail, to be expected;it is not companiesthat make decisions,but fallible human beings.The demonimtion of business, however,hasbeenthe work of the true special interests,notably contingent-fee lawyers and consumerists, who have little trouble equating their own self-interest (whether its rewards come in cash or in ego- c gratification) with the public interest. 1 TAMING THE MASS TORT MONSTER of time and money. They are superbly organized. They have been c particularly alert to the fact that tort reform begins, and must therefore be headedoff, at the ballot box. They have also learnedthat a friendly statejudiciary trumps the legislature every time. Those who should be advocating change,on the other hand, face a dizzying array of issues:taxes, trade, telecommunications,healthcare, employment, the environment, and so on. Mass tort reform, or any kind of tort reform, is seldom high on a company’s public affairs agenda, despite its lawyers’ urging. Tort reform, for national com- panies and the national trade associationsand advocacy groups they sponsor, generally has consisted of unplanned reactions to locally createdopportunities. Modest resourceshave beenspreadover far too many bases,usually without long-term commitment. There has been reluctance in many quartersto becomeinvolved in judicial or legisla- tive elections in order to advance the tort reform cause. It is no exaggeration,then, to say that since a string of legislative successes in the late 198Os,during the so-called “insurance crisis” of that period, there has been more “sound and fury” than effective action. What follows is no attempt to add to the masstort “literature.” There will be no pretensehere at legal scholarship. This is a public affairs c practitioner’s survey and assessmentof the mass tort scene and preliminary sketch of new directions in which an effective mass-tort reform program might move. Whatever merit the specific suggestions may have, the underlying messageis that nothing will changewithout commitment to a long-term program that is very tightly targeted at reshapingcurrent mechanismsfor compensatingindividuals injured by mass-marketedproducts. The emphasis, moreover, must be on new directions. Neither the traditional tort reform agendanor the scattershot approachto its implementation has beenequal to;the challenge of the Mass Tort Monster. Lest there be any misunderstanding,it must also be emphasizedat the outset that the merits of any particular mass tort claim, past or pending, are not at issue here. Claims must be judged on their facts. Some mass tort claims will have merit; others will not. Deserving individuals should be fully and fairly compensated.What is at issue here is aprocess for masstort claims resolution that is, in very basic respects,corrupt. c 2 F. MARTIN CONNOR THE MASSTORTMONSTER The Coming of the Monster The explosion of mass personal injury claims that began in the 1980sand continues unabatedto this day was a byproduct of the mass marketing of consumerproducts that startedperhapswith Henry Ford but took off in the” 1950s and 1960s with the advent of television advertising. An unsafe product, once introduced into a massmarket, can harm countless consumersover a long period of time. Mass tort claiming was inevitable. What was not inevitable was the litigation debaclethat followed. It has beena product, pure and simple, ofjudicial and legislative inertia, aided and abetted by a sensation-seekingmedia and a financially motivated contingent-fee bar. What are sometimes referred to as “dispersed” mass tort actions involve multiple occurrences, over an extended period of time, of personal injuries that have a common cause. They typically allege harms causedby unreasonablydangerousproducts or environmental L contaminants. They entail an indefinite and perhaps indeterminable number of individual claims for a variety of injuries, ranging from trilling to fatal or, with increasing frequency, simply a concern that such injuries will occur in the future. Causationis always an issue:(1) whether the product or substanceis harmful at all and, if so, what harms it may cause (general causation); (2) whether, given general causation, a particular claimant’s injury is attributable to the product or substance. (specific or individual causation). These are the “mass tort actions” we are concernedwith here.* Despite similarities, there is a difference between “single-accident masstorts” and “dispersed masstorts.” The former arise from single events,like explosions, building collapses,catastrophicfires, oil spills or plane crashes.They involve a known number of claimants who are injured or killed within a short time in a common accident having a single, determinablecause.They seldom involve complex legal issues. The buccaneersof the plaintiffs’ bar race to every disaster site. There. ! “The shorthandexpression “masstort” will be usedhereto refer to dispersedmass c personal-injuryclaims asopposedto single-accidentand economic-damages claims. 3 TAMING THE MASS TORT MONSTER is plunder to be had. But mass accident litigation is rarely the bankruptcy-threatening extravaganzathat dispersedmasstort actions are. As is the casewith so many common law developments,it is hard to pinpoint the precise moment at which the Mass Tort Monster appearedon the scene.And it is certainly difficult to predict whether, or when, the Monster will ever be tamed. The first truly noteworthy mass tort litigation was the fifteen hundred or so MER/29 cases brought against the Wm. Merrell Company in the 1960s. The King Kong of mass tort litigation, asbestos,was born in the mid-1970s and continues to grow. It was accompanied by another notorious Monster of the period, Agent Orange. But it is also noteworthy, as Mark Hermamr has pointed out, that no lawsuits followed the 1977 FDA ban on saccharin despite a host of media scarestories. ‘No lawsuits were filed seekingto recover for bladder cancer caused by saccharin. Zero lawsuits were filed seeking medical monitoring expenses.Zero lawsuits were filed to recover for plaintiffs’ fears that they might get sick in the future.” Ah, how times have changed!It is easy to imagine the litigation imbroglio L that will follow a saccharinban today. In the 198Os, with the experiencegained in the asbestoscases,and funded in part by the huge fees garneredthere, the contingent-fee bar embarkedon mass tort litigation on a grand scale. A random sample of high-profile, mass-tort cases since then might include DDT, Bendectin, DES, swine flu vaccine, Copper-7, PCBs, the Dalkon Shield, Shiley heart valves, heart catheters, pickup-truck fuel tanks, . blood products, silicone breast implants, pedrcle screws, penile implants, intraocular lenses, tobacco products, lead pigment, latex, dietary supplements, fen-phen, Rezulin, L-tryptophan, Duract, Parlodel, Synthroid, Propulsid and so forth almost ad injinitum. The most recent mass tort action, at this writing, was brought on September18,2000, when plaintiffs’ lawyers filsedsuits in California and New Jersey, alleging that Ritalin’s maker, Novartis, conspired with the American Psychiatric Association to create a disease, Attention Deficit Disorder, and to hype Ritalin as its remedy. (Ritalin ‘Mark Hemann, From Saccharinto BreastImplants: Mass Torts, Thenand Now, c LITIGATION 50 (Fall 1999). 4 MARTINF.CONNOR c has been used in the treatment of millions of patients for over 40 years.) The casesseekbillions of dollars in damagesand, according to the lawyers, will be followed by suits on behalf of consumersin other states. The lawyers are led by Richard Scruggs of Pascagoula, Mississippi, notorious for helping negotiatethe 1998tobacco industry settlementwhile earning his law firm an estimated$1 billion fee. Other lawyers involved in the Ritalin suits are members of the “Castano Group,” a network of plaintiffs’ lawyers who have filed suits against the tobacco industry on behalf of smokers. The mass tort de jour at this time, however, is the Bridgestone/ Firestone AT/ATX radial tire affair. It plainly offers “the greatest happinessto the greatestnumber” of contingent-feetlawyers. The tire recall was announcedon August 9. Three weeks later, on August 3 1, the Wall Street Journal reported: Besides more than 100 suits for personal injuries, the recall is spawning a growing number of class-action suits, seeking to representmillions of Firestone-tire purchasers.The class-action lawyers say Firestone’s recall and tire-replacement policies don’t t go far enough to compensate consumers for the damage and inconveniencethey have suffered. Plaintiffs’ lawyers estimate20 to 50 suits seekingclass-actionstatusagainstFirestonehave been tiled to date.Already, someplaintiffs’ lawyers haveapplied to the U.S. multidistrict-litigation WL] panel to consolidatethe cases; the judicial panel is expected to take up the issueat a hearing in November, and possibly sooner. The betting among lawyers is that the litigation will end up in federal court in Nashville, Tennessee, near Firestone headquarters. This is the typical birthing of a Mass Tort Monster. The problem has been identified. The recall of 6.5 million tires is under way. The cost will be enormous.Bridgestone has lost half its market value. Whether its U.S. Firestone operation even has a future is unclear. The National Highway Traffic Safety Administration (NHTSA) and its regulatory processesare under intense congressionalscrutiny that undoubtedly will lead to an upgrading of incident reporting. The pressreports that a Texas lawsuit brought by the mother of a young woman killed when one of her Ford Explorer’s tires lost its tread was a prime factor in c c bringing the problem to the public’s attention. If true, that is commendable.But nothing else that happensin the courts will make _ tires safer or “send a message” (in the popular words of plaintiffs’ lawyers) that Bridgestone and Ford have not already received. All that is guaranteedis that many lawyers will soonbe wealthier than they are today.4 Wherethe Monster Feeds What feeds the Monster? Mass tort litigation has many sources. l New technologies and materials have been aud will continue to be a primary source. Keep an eye particularly on the new biogenetic technologies. They promise great economia, environmental and health benefits but will also entail real or fancied health risks. Almost certainly they will be a breeding ground for future masstort litigation. l Any new product that requires hazard and safety testing during its development is and ever will be a potential: subject of mass tort c litigation. There are practical and technical limits to hazard and safety testing. There are trade-offs that often must be made in designing a product. (Safety versus fuel economy in vehicle design is an obvious example.) Moreover, once a product is on the market, it takes time to develop the information neededto assessa newly alleged cause/effect relationship and, in such cases,as the breast implant litigation illustrates, litigation often outracesscience. l Pharmaceutical products are uniquely positioned to be targets of masstort litigation. As the insert in any drug packageconfirms, they inevitably have potentially harmful side efI?ects.The Mass Tort Monster is undeterred by the fact that they are on the market becausetheir benefits outweigh theserisks. “‘Theonly peoplein thewhole tire fiasco seemhappy arethe personal who injury lawyers, who are looking forward to more huge fees.But they say little about why out of they kept almost two dozenfatal crashes of a federal database safety problems for yearsevenasthey quietly filed multimillion-dollar iaw+its againstFirestoneand c sometimes at 1. Ford aswell.” “Week in Review,” N.Y. TIMES, Sept. 17,2000, Section4, 6 -.-_- &fARTIN F. CONNOR c l Individuals have beenschooledby the media and the contingent-fee bar to assert,and sincerely believe, “I have been exposed,therefore I am harmed.” Mass personal-injury litigation :inevitably follows whether or not there is any demonstrable causal relationship between exposure and adverse effect and-with increasing frequency-whether or not there is any evidenceof injury. l Perhapsthe most pervasive source of masstort claiming, however, of is the relentless‘message the media and contingent-fee bar that every human ill and ailment, every ache and pain, must have a specific external cause that can be identified and attributed to a financially responsibleparty. One very illuminating illustration ofthis last point has beengrowing of popular acceptance “newly recognized” catchall diseases. most The popular today appearsto be “multiple chemical sensitivity” (MCS), sometimes also called chemical hypersensitivity, total allergy sensitivity, environmental illness or sick building syndrome. MCS, we are told by one “public advocacy” organization, “is c marked by multipie symptomsin multiple organ slystems (usually the neurological, immune, respiratory, skin, gastrointestinal and/ or musculoskeletal)that recur chronically in responseto multiple chemical exposures. “MCS usually starts with either an acute or chronic toxic to exposure, after which this initial sensitivity broadens, include many other chemicalsandcommon irritants (pesticides,perfumes andother scentedproducts,fuels, food additives, carpets,building materials, etc.). “MCS symptomscommonly include difficulty breathing, sleeping and/or concentrating,memory loss, migraines, nausea,abdominal pain, chronic fatigue, aching joints and muscles, and irritated eyes, nose, ears, throat and/or skin. In addition, some with MCS show impaired balanceand increasedsensitivity not just to odors but also to loud noises,bright lights, touch, extremesof heat and cold, and electromagneticfields.” c THE TAMING MASSTORT MONSER c MCS Web sites list over a hundred symptoms that are supposedly indicative of MCS! And multiple chemical sensitivity necessarily implies multiple potential defendants.Is it surprising that these sites typically have links to lawyers’ websites? There are no limits to the Mass Tort Monster’s appetite. A professionalperiodical recently singled out “dental unit water contami- nation,” whatever that may be, as the next great masstort! There is no end in sight. TheJudicial Response Thejudiciary first respondedto the new wave of consumerpersonal- injury actions, in the 196Os,by fashioning the law of strict product liability. This body of law was intended, of course, for conventional one-on-one litigation, conductedunder then-current procedural rules, and in its earliest formulation clearly contemplated only traumatic injuries caused by defectively manufactured products. But then, in subsequent the decades, courts attemptedto usethesesameprocedural and substantivemeasuresto resolve the hundreds,thousandsor tens of L thousandsof claims that erupt in a masstort context. The courts were ignoring, of course,the biblical admonition that one doesnot put new wine in old wineskins. It doesnot work. In masstort litigation, independentadjudication of individual claims on their merits becomesnear impossible. Yet the American judicial system is geared toward individualized justice. The clash of adver- saries as a meansof ascertaining the truth is perhapsthe most deeply rooted principle in Anglo-American law. Each party is afforded a due process right to “appear and be heard.“And the emphasis of this adversarysystem is upon resolving private disputes: policy making is to be left to the legislature. The flip side of individualized justice is the presenceof a neutral decision-maker.Judgestraditionally havebeenseenaspassivearbiters of conflicting private interestswho rule on questionsof law. Neutrality in judges always has beenregardedas a good thing. Mass torts do not tit comfortably within this system. The adversary system’s approach to individualized justice is impractical when thousandsof claims must be dealt with quickly and efficiently. Courts c 8 h’&RTIN F. CONNOR c become active managersand watchdogs, disregarding the traditional norms of judicial passivity and neutrality. It is not surprising, therefore, that a tendency soon grew to litigate and settle masstort casesby devicesthat are themselvesuntraditional but provide some ability to deal with large groups of similarly situated parties: the class action, caseconsolidation and bankruptcy. By the end of the 198Os,formal aggregative procedures such as centralization of multidistrict litigation, classactions andconsolidation were being commonly usedto resolve the massivenumbers of claims that would otherwise have sat in courts’ backlogs. From a mass tort claimant’s perspective, this developmentmeans that today, as a practical matter, the only options are between being buried in a contingent-fee lawyer’s “inventory” (a very telling expression)or being one of thousandsof membersof a class. From a defendant’s perspective,the effects of aggregationhavebeen even more severe.It is hard to imagine a greater threat to corporate health or survival than facing hundreds or thousands of claims in a single proceeding. In these circumstances,mass tort litigation draws its strength from raw numbers,not from evidenceor science. t “If plaintiffs’ lawyers can create enough paralllel litigation,” we recently read in Fortune magazine, “if they can scare thousandsof clients into filing lawsuits, then the strength or weaknessof the actual caseswill be renderednearly irrelevant. The sheervolume of lawsuits will force companiesto plead for mercy.” New wine requires new wineskins, not patcheson the old ones.We need substantiverules and procedural mechanismsthat permit indivi- duals who have been injured in fact by an unreasonably dangerous mass-marketedproduct or environmental hazard to be compensated fairly, expeditiously and at minimum expense.That does not happen today. It is contrary to the Mass Tort Monster’s interest. c 9 TAMING THE MASS TORT MONSTER c THE MASS TORT INDUSTRY Mass Tort Lawyers: From Cowboy to Organization Man The critical factor that turned an emerging mass tort phenomenon into a Mass Tort Monster has been the growth of what has been well describedas a “mass tort industry.” Given the enormousfinancial stakesinvolved, the economic oppor- tunity mass tort litigation offers a contingent-fee lawyer is obvious. The organization and resourcesthat are neededto exploit it are very different, however, from what has been required for a traditional plaintiff practice. The asbestoslitigation was the schoolroom in which the contingent- fee bar learned what it would have to do to exljloit the opportunity masstort claiming presented.Fortunes were made in the early stages of this litigation through close cooperation of individual lawyers and law firms with local unions. Workplace exposures were the norm; claims were concentrated in a relatively few venues. With time, though, it became clear that the mass tort plaintiffs’ bar could most L efficiently and effectively deal with enormous volumes of widely dispersed claims by networking, pooling information and expertise, and sharing the financial investment thesecomplex casesrequired. The lessons were well learned. The result today is a highly integratedmasstort industry, most visibly and formally apparentin the tobacco litigation. The “Castano Group,” for example, is a vast, well- ended joint venture of contingent-fee lawyers organized to file tobacco class actions. Others are less formal but just as effective. The Association of Trial Lawyers of America (ATLA), the contingent-fee lawyers’ trade association, houses some 70 “Litigation Groups” in which experience and resources are pooled. In connection with ATLA’s 2000 annualmeeting there were postedmeetingsofLitigation Groups dealing with breast implants, diet products, firearms and ammunition, HMOs, laparascopy,lead pigment and steroids. Newspaper accounts of the BridgestonefFirestone AT/ATX tire litigation report the central role of the Attorneys Information Exchange Group (AIEG), a national federation, basedin Birmingham, Alabama, of contingent-fee lawyers who bring automobile and tire-defect cases. (The group itself actually participates in casesat times. For example, c 10 F. MARTlN CONNOR L it filed an amicus brief in Geier,‘) Leading litigators against the tire industry, like Bruce Raster of Ocala, Florida, may like to describe themselves as “cowboys,” as he does, but they are actually quintessentialorganization men. One of the most striking, and seldom noted, features of this integrating processhas beenthe “syndication”’ of masstort cases,with “shares” of casesbeing peddled to other contingent-fee lawyers. The masstort casesof the 1980sproducedmulti-millionaire and billionaire lawyers who can be wealthier, when they band together, than companies they attack. Examples of such wealth are legion. Peter Angelos purchasedthe Baltimore Orioles for $173 million from the spoils of the asbestos litigation. John O’Quinn once joked that estimatesputting his income from breast implant settlementsat $13 million a month were too low. The tobacco settlements,as we shall see,make these sums seempaltry. The common law barred outsiders from investing in lawsuits. It was concerned, quite properly it would seemtoday, with the distortions that might result from speculative investments in marginal or groundlesslawsuits. Most stateshave now relaxed that ban, however, c for fear that it kept,.meritoriouscasesout of the courts. The distancewe have come is well illustrated in an article in the WallStreet Journal of September15,2000.6 We read there that a Las Vegas businessman,Perry Walton, has organized Resolution Settlement Corporation, which invests in lawsuits around the country in return for a sharein future settlements. “He charges clients as much as 15% per month in interest on their outstanding balances,“.according to the Journal. Through his Future SettlementFunding Corp., Mr. Walton, a onetime rock musician with no legal training, also conducts seminars for others who may want to enter this new market. The Journal reports that he has trained 400 people in his business. Betting on lawsuits is, says the Journal, a “growth industry.” ‘Geier et al. v. American Honda,No. 98-1811.This is an auto airbagcasedecided by the U.S. SupremeCourt on May 5,200O. 6ALas VegasLender TestsOddsin Court-And Forms on Industry WALL ST. J., c Sept. 15,2OOQ, Al.at 11 TAMING THE Ii4.4ss TORT MONSTER Media-Manufactured M&w Torts In large measure,the masstort industry’s successhas been built on its symbiotic relationship with the massmedia. Americans are now routinely exposedto mass media stories that blithely claim causal connections between consumer injuries and product use or exposureand then proceedto castigate a businessand point out the potential for litigation. The proliferating “news magazine” programs, with their insatiable appetite for audience-grabbing stories, are obvious culprits. It is no great exaggeration, for example, to say that Connie Chung mothered the breast implant litigation and Ed Bradley fathered the Alar apple scare. Bradley told viewers that Alar was “the most potent cancer- causingagentin the food supply today.” A preposterousstatement.But “investigative reporters” of all media, both print and electronic, constantly feed the public thesesensationalstories.Discussing the Alar apple scare, a New York Times columnist suggestedthat one possible explanation of this phenomenon is that “The need for accuracy is inversely related to the scareworthinessof the story.” c Scary stories about claimed product hazardsare a staple of the mass media. “If a product is safe, that is not news. A story about that product will not sell advertising or boost ratings. Rather, news is made only by products that are dangerousand threaten the public health. [These] products are also precisely what plaintiffs and the lawyers who representthem need to vilify. . . . Trial lawyers and television have a common agenda.“” None of this happensby chance.It is unlikely that Ed Bradley or his CBS colleagues stumbled on Alar without outside assistance.Breast implant ‘tictims”did not spontaneouslyshow up for the TV cameras at rallies outside courthousesacross the country. Plaintiff law firms now routinely use public relations firms to get their messageto the public and to orchestrate’ events that then become news stories themselves.Mass torts are aproduct of massmarketing. The slownessof defendantcompaniesto recognize this unpleasant fact has contributed greatly to their woes. The head of one of the most c ‘Hermann, supru 3, at 5 1. note MARTIN F. CONNOR c notorious plaintiff PR firms tells friendly audiences that mass tort casesare tried-and won or lost-not in the court room but in the media. Or, as Wall Street Journal columnist Holman W. Jenkins, Jr. recently put it, “When a negative story gets lifted to pyrotechnical prominence, public relations is the only calculus that matters.“* SelIing the Mass Tort Members of the masstort industry do not wait for clients to come to them. They assiduouslyadvertisetheir availability to representspecific classesof claimants. They aggressivelyseekout claimants, particularly in the wake of a media “expose.” Like any industry, the mass tort industry has its wholesalers and retailers. The wholesalers prefer aggregatetreatment of claims. They race to file class action lawsuits. They must get to the head of the paradeif they are eventually to be namedlead counselor appointedto a steering committee. The retailers, on the other hand, rush out with their newspaperand television advertisements.Their goal is to build as large an inventory of claims as possible before others have picked c the field clean. Every available communicationschannel is used.A typical print ad of the masstort industry appearedon pageA5 of TheNew York Times, August 14,ZOOO. "ATTENTION HEARTBIJRNSUFFERERSWHOTOOKTHEPRESCRIPITON DRUG PROPULSID,” it screamsin giant type-size. “You may be eligible to file a claim against the medication’s manufacturer . . . . To fully explore your legal rights, you are invited to call the law firm of & immediately. [The firm] is one of America’s foremost mass tort/product liability law firms and has achieved prominence in such national litigations as Asbestos,DES and Silicone Breast Implants . . . . c 'WALL ST.J., Sept. 13,2000,atA27. 13
"TAMING THE MASS TORT MONSTER"