The dust of the 2005 session of the Missouri General Assembly has cleared, and the proponents of "tort reform" are standing tall.  Governor Matt Blunt has traversed the state, engaging in multiple tort reform legislation signings before crowds of beaming physicians who have believed the propaganda.  Hubert H. Humphrey was wrong when he said, "Propaganda to be effective, must be believed.  To be believed, it must be credible.  To be credible, it must be true."  Truth has not prevailed, and time will eventually make that apparent. 

Propaganda may seem an extreme term, but its definition could not be more fitting:  "the spreading of ideas, information or rumor deliberately to further one's cause or to damage an opposing cause."  But the wielding of rumor and conjecture-based propaganda is accompanied by a silent and future danger.  It has been said that "propaganda is a soft weapon; hold it in your hands too long, and it will move about like a snake and strike the other way." (Jean Anouilh). 

For example, tort reform was driven on the notion of "frivolous lawsuits" because that was the propaganda that worked, not because it was true.  Those who spoke of frivolous lawsuits will have to give an account to physicians across the state who are expecting lower medical malpractice insurance premiums.  And they will have to give an account to future victims of negligence.  This issue contains articles by our members which focus on the rights of children as such victims of negligence.   I would not want to face the parents of these children standing in the shoes of the proponents of tort reform. 

And some of those who spoke of "frivolous lawsuits" will ultimately have to give an account for their own hypocritical actions. 

Case in point.  Has President George W. Bush mentioned lawsuits without using the adjective "frivolous"? In his 2004 State of the Union Address, President Bush declared, "we must eliminate wasteful and frivolous lawsuits."  His State of the Union Address in 2005 contained more of the same theme:  "We must free small businesses from needless regulation and protect honest job-creators from junk lawsuits."  (I guess the terms "junk" and "frivolous" are interchangeable!)  As Governor of Texas, George W. Bush "declared a legislative 'emergency' on 'frivolous lawsuits'".  Over his two terms, then Governor Bush signed "a series of brutal bills that severely reduced injured consumers' rights to go to court."1

And yet the Center for Justice & Democracy in its 2001 publication,  "Not in My Backyard? The Hypocrites of Tort Reform", revealed the following evidence of hypocrisy.  Despite Bush's public perspective, his actions in a situation involving his own family were quite different.  In 1999, Bush reportedly sued Enterprise Rent-A-Car "over a minor fender-bender involving one of his daughters in which no one was hurt."  According to the "Not in My Backyard" report:

Although his insurance would have covered the repair costs, making a lawsuit unnecessary, Bush sought additional money from Enterprise, which had rented a car to someone with a suspended license.  In this case, Bush seemed to understand one of the most important functions of civil lawsuits ? to deter further wrongdoing.  The case settled for $2,000 to $2,500.2

The perception that we as trial lawyers engage in an enterprise of filing frivolous lawsuits continues to drive the hue and cry for tort reform.  We know the very notion is absurd and self-defeating.  To do so would preclude our own success.  Multiple safeguards were already in place to prevent, dismiss and correct frivolous lawsuits.  The contingency fee system keeps attorneys from taking baseless cases.  A certain quantity and quality of evidence is required for any case to proceed.  Cases that lack merit are dismissed.  Attorneys who file frivolous lawsuits can be punished.  If we filed frivolous lawsuits, we would soon be out of business.

So, when is a lawsuit not frivolous?  Apparently, the rules change when a corporation is the plaintiff, rather than the defendant. 

Monster Cable Products, Inc. has filed multiple suits against entities using the word "monster" in its name or business.3 

Enterprise Rent-A-Car sued Rent-A-Wreck for alleged violation of Enterprise's trademark phrase "We'll Pick You Up."  In its radio ad, Rent-A-Wreck used the phrase "And of course, they'll pick you up."  After settlement of this suit, Enterprise then sued Rent-A-Wreck for its use of the phrase "We'll Give You a Lift."  That suit was eventually dismissed.4

In 1997, the CEO of Schutt Sports testified before Congress about the need for a federal product liability law that would have placed severe restrictions on the rights of consumers to sue manufacturers of defective products.  She alleged that litigation and the threat of frivolous lawsuits stifled innovation, hurting businesses and consumers.  What Schutt Sports' CEO failed to mention was that, in 1978, Schutt Sports filed suit against Riddell, Inc., "claiming that the protective face masks on Riddell helmets too closely resembled Schutt's and that Riddell copied its sizing specifications.  The case was thrown out, with the court noting 'seldom have we seen a lawsuit as unwarranted and frivolous as this one.'"5

But other corporations have managed to successfully play both sides of the fence.  Exxon Corporation supports laws to limit the ability of consumers to sue their insurance companies when those companies unfairly deny claims.  But when Lloyds of London refused to pay Exxon $250 million for losses it suffered resulting from the Valdez oil spill in Alaska, Exxon did what all consumers should have the right to do; it sued its insurance company... and won.6

For other related stories, see the 2002 sequel publication by the Center for Justice &  Democracy "Not in My Backyard II? The High Tech Hypocrites of Tort Reform."7

Tort reform is not about fixing a broken civil justice system; it's about protecting the public image and bottom lines of the biggest and most powerful companies in the world.  Tort reform isn't about protecting doctors from high insurance rates; it's about protecting medical malpractice insurers from having to pay large judgments where negligent conduct caused catastrophic results.  Tort reform isn't about keeping "greedy lawyers" from filing frivolous lawsuits; it's about keeping innocent victims of negligent conduct out of our court system and keeping the misdeeds of corporate America out of the public eye.

The truth about tort reform will be told.  Unfortunately, it will now be told by our clients.  Listen and watch as legislators and the media begin to grapple with the results of their actions on those most affected.