Hurt? Injured? Need a Lawyer? Too Bad!
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Because there were many things that just didn’t seem right about that visit to the emergency room, Karen and her brother David Fuller began an investigation. They hired a private pathologist to go over their mother’s medical records, which showed that Sylvia’s cardiac enzymes had been irregular (a sign that often necessitates a hospital stay). Two EKGs revealed an irregular heart rate. No one had mentioned either finding to Karen or her mother at the hospital. In written notes, the ER doctor had suggested that the irregular heartbeat was a side effect of digitalis—a drug Sylvia wasn’t taking. Hospital records also stated that Sylvia had walked out of the emergency room on her own, when in fact she had been discharged, heavily medicated, in a wheelchair. Then David discovered that the pathologist who had conducted the autopsy for the hospital had a checkered history; he had left the Harris County medical examiner’s office under a cloud after jeopardizing at least fifteen homicide investigations because he was practicing without a Texas medical license.
Like Alvin Berry, Sylvia Ann Fuller’s children had never sued anyone before. But they also felt that their mother had been robbed of her life and didn’t want what had happened to her to happen to anyone else. “If the emergency room had been very crowded and they had been overwhelmed, I could even forgive them,” David told me. “But she was the only patient in there.” One employee had been watching TV, Karen had told him. So, with his sister, David began looking for a lawyer.
They saw the first one last December. He explained the realities: The facts of the case looked promising, but because their mother was retired, they would have a hard time getting any lawyer to take the case. It was, essentially, the same story Kelly Reddell had told Alvin Berry: Anyone who didn’t work—the elderly, homemakers, or children—was looking at a cap on noneconomic damages of $250,000. Trying such cases was simply not cost-effective for the lawyer or the client. (“It’s an assault on those who are the most vulnerable,” one plaintiff’s attorney told me. “It’s almost legal malpractice to take those cases.”)
David contacted about fifteen lawyers and was turned down by all of them. One letter explained why: “Unfortunately, many of your legal rights have been taken away by state laws proposed and lobbied for by insurance, HMO, and corporate interests,” the lawyer wrote. “You and your family deserve better from the Texas government.” The lawyer suggested that David contact a citizens’ advocacy group and state officials.
So that’s what he did. He described his mother’s experience in a letter to Governor Rick Perry and received a form letter from someone in the constituent services office. It described Texas’s great success in limiting frivolous lawsuits and reducing medical malpractice rates. “Please let us know if we may assist you in the future,” the letter ended.
The letter made him more determined than ever to find a lawyer. So far, he’s had no luck.
“I THINK IT’S IMPORTANT to set the stage for this discussion by talking about what the civil justice system in Texas was like in the eighties and early nineties,” Dick Trabulsi told me earnestly, during our first meeting. The past was a mirror image of today: Trial lawyers, most of whom were Democrats who were generous with their campaign contributions, had lots of loyal friends in key legislative positions, as well as in the governor’s office and throughout the judiciary, from the Texas Supreme Court down to local district courts. They were skilled in the art of “forum shopping”—filing their cases in friendly counties, particularly in South and East Texas—and styled themselves as defenders of the weak while using their money and power to bend the rules in their favor. “Legalized extortion” is the way former lieutenant governor Bill Ratliff—who, as a state senator, wrote most of the 2003 tort reform law—described the situation to me. “If a really mean trial lawyer had a case in the right courtroom, he would break you. Insurance companies would settle anything for higher and higher amounts rather than go to a stacked court.”
Because venue laws were so loose in Texas, a case with only the most tenuous connection to the state (or the county) could still be tried in that locale, regardless of where the alleged wrongdoing had occurred. (In a seminal case, workers at a Costa Rica banana plantation who claimed to have been injured by a pesticide manufactured by Dow Chemical and Shell Oil outside the state sued in Texas, where Shell was headquartered—and won.)
Public attitudes in those days were more sympathetic to consumers and injured people than to corporate defendants. Texas attorneys made hundreds of millions of dollars in cases involving everything from breast implants (in which the science was debatable) and tobacco (in the celebrated case in which five trial lawyers, including courtroom superstar John O’Quinn, received an arbitrated fee, paid by tobacco companies, of $3.3 billion) to asbestos (in which people who were not sick managed to routinely walk away with very tidy payouts of cash from their former employers). The turning point came in 1987, when famed Houston trial lawyer Joe Jamail allowed himself to be filmed by 60 Minutes as he cozied up to Texas Supreme Court justice Oscar Mauzy and bragged about his $25,000 campaign contributions soon after the court had allowed a $10.5 billion verdict Jamail had won for Pennzoil against Texaco to stand. (“Justice for Sale?” the segment was titled.) The New York Times said that the conduct of Texas’s courts was “reminiscent of what passes for justice in small countries run by colonels in mirrored sunglasses.”
Corporate America fought back, decrying a crisis in litigation. Republicans like Vice President Dan Quayle capitalized on the partisan aspects of the issue by attacking the mostly Democratic trial lawyers in speeches as elitists. Advocacy groups sprang up across the nation—the tobacco industry in one year gave $55 million to the American Tort Reform Association—while the conservative Manhattan Institute asserted, loudly but debatably, that abuses of our legal system were costing Americans $300 billion a year.
It was in this atmosphere, in 1993, that Dick Weekley decided he had had enough. As he would later write with Hugh Rice Kelly in TLR’s monograph, “Template for Reform,” “The Trials controlled the Legislature, and Austin mandarins dismissed attempts at meaningful reform as wishful thinking.” Weekley began to convene meetings of Houston businessmen and community leaders to discuss the problem, and the people who kept coming back were Leo Linbeck, Trabulsi, and Kelly. They formed Texans for Lawsuit Reform, styling themselves as outsiders, refusing to “go along to get along.” To defeat “the most powerful special-interest group in the country,” they knew that they had to match their opponents “in focus, funding, and tenacity.”
IT WAS PROBABLY NOT surprising that the Legislature initially viewed them with derision and contempt—“Dick Weekley is gonna feel like he was f—ed by a bull,” one lobbyist vowed—but they were undaunted. TLR’s chief lobbyist, a former Republican legislator from Houston named Mike Toomey, explained to the group that they would never effect change until they could break up the coalition of Democratic state senators who could prevent tort reform legislation from coming to the floor for a vote. So the group set to work, tattling on legislators who paid lip service to tort reform back home but in Austin remained beholden to the trial lawyers. They raised $600,000 for the 1994 elections and spent about $300,000 on three contests in which novice Republicans were trying to unseat veteran Democrats—and won them all. The new senators TLR helped to elect gave Republicans their first majority in the state Senate in more than a century. Suddenly, the trial lawyers weren’t laughing anymore.
There was a new governor too: George W. Bush, who had defeated Ann Richards, in 1994, by sticking to four issues, one of which was tort reform. (By the time he was reelected, in 1998, TLR and similar groups had given more than $4 million to his two campaigns.) Karl Rove told the Washington Post that once Bush took on the trial lawyers, “Business groups flocked to us.” Enron CEO Ken Lay, an early TLR member, warned the newly elected governor in a letter, “Let me finally say that I believe there are few, if any, issues more important to this state than reforming our tort system. It has become the laughing stock of the country and is certainly discouraging companies from moving offices and plants into Texas. Over time it will encourage many of us with large operations in Texas to entertain moving some of these to other states to attempt to reduce our exposure to what has become an extremely capricious legal system.” (Lay did not mention Enron’s long history of pipeline safety violations.) In February Bush responded by declaring tort reform an emergency issue, overriding a rule that prohibited lawmakers from taking up legislation during the first sixty days of a session.
