NYT On Mass Torts: It’s Better To Make Money By Hurting People Than By Helping Them
Over at The New York Times, business columnist Joe Nocera published a jumbled rant complaining that plaintiff’s lawyers in the BP spill litigation have done too well in helping the spill victims recover compensation for their losses.
There’s a lot of nonsense to unpack here, so let’s start with his only concrete factual conclusion: that there’s no need for litigation over the Gulf Coast oil spill outside of the BP claims process. Nocera claims:
BP is the best example I’ve ever seen of a company that actually tried to find a better way [to resolve mass torts]. Immediately after the spill, it set up a claims process to get money into victims’ hands quickly, without having to file a lawsuit. Though that process had its critics, it worked. Of the $11 billion BP has paid out in claims, $6.3 billion was paid through that process.
The key part in there is the assertion that the BP claims process “worked.” For whom? For BP? The claims process obviously didn’t work for the victims who had to go outside the process to get a fair offer — indeed, as revealed by Nocera’s own numbers, that work outside of the claims process produced an additional $4.7 billion in victim’s compensation. (Perhaps I should double-check those numbers: Nocera has proven himself unable to count either barrels of oil or corporate profits.)
So what’s Nocera’s real concern? He says:
One of the things I find particularly offensive is that the settlement includes criteria that virtually ensure that businesses unharmed by the oil spill will get compensation. … [One of the plaintiff’s lawyers] said that the Oil Pollution Act of 1990 was aimed at helping people who have been harmed “indirectly.”
(Sneer quotes in original.) Basically, Nocera blames plaintiff’s lawyers for doing what they are professionally obligated to do, i.e., secure full and fair compensation for their clients. Nocera’s real argument is that he thinks “indirect” damage caused by the spill is unworthy of compensation, and he wants to obfuscate that argument by blaming the lawyers instead of blaming the oil spill victims, the real target of his ire.
I happened to have grown up on the Gulf Coast, and my family still lives there, and so I also happen to know that every business in the region was harmed by the oil spill. Like a herbicide on a plant, the oil spill poisoned the whole economy, from root to leaf, starting with fishing and tourism — the largest industries on the Coast — and expanding from there. There was indeed billions of dollars in “indirect harm.”
I would end the post there — Nocera doesn’t have much to offer on the BP litigation other than a veiled argument that only the people on the Gulf Coast literally drenched in oil deserve compensation from BP — but Nocera tried to use the BP example as a springboard for attacking mass torts plaintiffs’ lawyers in general. He describes mass torts as a binary world, in which there are only two possibilities for mass torts:
(1) “the court system provides the appropriate forum to address corporate wrongdoing [and works].”
(2) “plaintiffs’ lawyers gin up cases.”
Yes, there are certainly times when the court system provides the appropriate forum to address corporate wrongdoing. But just as often — more often, in my view — plaintiffs’ lawyers gin up cases because, well, that’s what they do. Like the corporations they sue, big-time plaintiffs’ lawyers have a business model. Theirs requires them to constantly seek out cases that can be blown up into giant mass torts, as they’re called, which can then be used to extract billions from companies.
As Nocera either can’t understand or doesn’t want to admit, however, there’s a key difference between the business model for big corporations and the business model for plaintiffs’ lawyers. The big corporations’ business model encourages them to be as cheap, slipshod, careless, and dangerous as they get away with, and the vast majority of that occurs without any oversight whatsoever, whether by lawyers, courts, or government agencies. In contrast, the plaintiffs’ lawyers business model encourages them to maximize compensation for the victims of corporate recklessness and negligence — and everything they do is within an open process, where defense lawyers try to thwart them from helping victims at all, and where multiple judges oversee the whole process, from the trial judges up to the Supreme Court Justices.
To the millions of Americans out there injured and cheated by corporations every year, there’s a big difference between someone making more money by making you less safe, and someone making more money because they were able to help victims and to make people more safe.
Beyond a variety of vague “I’ve seen …” assertions, Nocera references a single example where he claims mass torts resulted in unjust compensation: the breast implant litigation. The chronology isn’t a mystery. The cases weren’t “ginned up.” The implant manufacturers spent more than a decade refusing to perform scientific studies that would show their risks. After years of research and litigation, a small fraction of which went in favor of the plaintiffs, The Institute of Medicine released a report concluding silicone breast implants may be responsible for localized problems such as hardening or scarring of breast tissue, but they don’t cause autoimmune disorders like lupus or rheumatoid arthritis.
In a perfect world, the litigation would have been restricted to the ruptures and the local tissue injuries. Then again, in a perfect world, the implant manufacturers would have done appropriate studies in the first place, and thereby would have obviated the need for the litigation.
Should we shut down the mass torts system, denying millions of people lawful compensation, because of a single example in which some women received compensation for autoimmune disorders that, in retrospect, were not caused by the implant? That’s like shutting down The New York Times because it produced Judith Miller and Jayson Blair.
Another problem with Nocera’s binary world in which mass torts always hit the jackpot is the third possibility he ignores:
(3) the legal system fails to provide redress for corporate wrongdoing.
We’re seeing that right now in the Medtronic Infuse Bone Graft litigation. The Infuse is a synthetic spinal bone implant approved for a narrow purpose based on fraudulent research data — a fraud revealed by lawsuits, investigative reporting by the Journal Sentinel, and a comprehensive review by The Spine Journal — that then exploded, thanks to illegal marketing by the company, into one of the most common procedures in the country. More than 85% of the procedures today are “off label,” meaning the device is being used in a manner not approved by the FDA. Thanks to that off label use, and the inherent dangers of the synthetic bone growing out of control, hundreds of thousands of patients annually are exposed to inflammatory cysts neuritis, retrograde ejaculation, systemic toxicity, reproductive toxicity, immunogenicity, organ damage, and increased risk of cancer, sterility, and infections, for procedures the FDA hasn’t even determined are beneficial, much less worth the risk.
Sounds like a slam-dunk case for those people permanently injured by illegally marketed procedures, doesn’t it? But the cases are being thrown out of court before discovery, not even making it to a jury, because of the doctrine of “preemption.” Courts have been holding that, even though the FDA approval was based on fraudulent data, and even though the FDA didn’t approve the vast majority of the uses, the FDA’s narrow approval leaves the manufacturer free and clear from responsibility for the damage it has caused, even for uses outside the approval.
Or consider Vioxx. Vioxx was a big win for patients, right? Not necessarily: sure, there were many settlements, but not everyone got one. Merck only admitted that Vioxx increases the risk of heart disease after 18 months, and so the settlements for patients who took it for less than 18 months were far smaller. Indeed, Merck forced many of those patients to go to trial — even though their own data showed a risk beginning at least as early as 4 months — and many of them lost, like the Garza case.
Now that the Vioxx litigation is over, we know the problem is far worse than even the plaintiffs’ lawyers alleged. It turns out that “eight placebo-controlled, randomized trials, performed to find new uses of these [COX-2 inhibitor] drugs, showed that they posed a cardiovascular hazard, similar in magnitude to that resulting from being a smoker or a diabetic.” Vioxx starts hardening your arteries from the moment you start taking it, but Merck didn’t have to pay for thousands of those injuries, and it never will.
Or consider the NuvaRing litigation. The NuvaRing cases in New Jersey were all recently dismissed by a judge, who held it didn’t matter that patients and their doctors weren’t told NuvaRing had between 1.4 times and 4 times greater risk of venous thromboembolism.
So, yes, mass torts plaintiff’s lawyers have a “business model,” but it’s it’s fraught with risk, and often stops short of redressing corporate wrongdoing because of judges and jurors who hold similar views to Nocera. Mass torts lawyers can take on nothing but strong, meritorious cases based on sound science, and still end up, after years of litigating, with nothing but a loss, while corporate America keeps making billions by dumping crude oil on our beaches and injecting uncontrollable synthetic bone implants into our spinal columns.