Hurt? Injured? Need a Lawyer? Too Bad!
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Frantically, Hankinson enlisted a diverse coalition to fight the amendment, including members from the American Association of Retired Persons, Mothers Against Drunk Driving, the League of United Latin American Citizens, the Sierra Club, the Texas Federation of Teachers, and others. One group was missing in action: trial lawyers. “The biggest problem we face as lawyers when we try to get our message across on this issue is that the MESSENGER is KILLING the MESSAGE,” TTLA president John Eddie Williams wrote in a June e-mail to his members. “To make this program work we must vow to not communicate with the public. . . . NO LAWYERS—NO EXCEPTIONS.”
Within weeks, the arguments about court access began to have an effect. July polls showed that the two groups were almost dead even; the same was true in August, as political ads from both sides became more strident and more questionable. Particularly troubling were advertisements in print and on television that put the cap for noneconomic damages at $750,000. On election day, Prop 12 was defeated in every major city in Texas but still won, by a margin of one percent of the vote. The decisive votes came from South Texas and rural areas, where voters feared that lawsuits might leave them without doctors or hospitals. “If we’d had another week, we could have cleaned their clock,” Hankinson told me. Instead, Alvin Berry, Karen Hindman, David Fuller, and thousands like them have found their rights diminished when they needed them most.
ON MY LAST VISIT with TLR, U.S. senator Sam Brownback, of Kansas, was just leaving as I arrived. An old friend of Linbeck’s, he is just the kind of politician TLR likes: Republican, wealthy, with Christian right bona fides, and— in the words of Thomas Frank, the author of What’s the Matter With Kansas?—“a stalwart friend of the CEO class.” When he clapped Trabulsi on the shoulder to thank the group for all its hard work in Kansas, the four men beamed. “They brought back the small-aircraft industry,” Brownback assured me. “It was dead. Dead.”
After he left, I asked the quartet what, exactly, they had done in Kansas.
“Ah, nothing,” one of the members said. “He was speaking generically about tort reform.”
It might seem that after the sweeping 2003 reforms, there is little left for TLR to do. But the bogeyman of excessive litigation is always out there, and TLR is, in fact, laser-focused on the one Texas Supreme Court decision of the past few years that did not go its way. The case involves Ashley Dueñez, who was nine when, in 1997, a drunk driver, Roberto Ruiz, swerved across the centerline on a highway near Port Lavaca, crashed head-on into the Dueñez family car, and left her severely brain damaged, requiring around-the-clock care for the rest of her life. Ashley’s father, Xavier, a corrections officer, also suffered some brain damage and needed plastic surgery.
Ruiz had drunk one and a half cases of beer while chopping wood earlier in the day and then, stumbling and drooling, bought another twelve-pack at a convenience store before getting back into his truck and destroying the lives of the Dueñez family. The defense argued that the clerk who sold the beer was primarily responsible, not the convenience store chain, but last September the Supreme Court upheld a $35 million judgment for the Dueñez family against F.F.P Operating Partners, the owners of the convenience store. The 5—4 decision was based on anti—drunk driving laws passed years before the 1995 change in proportionate liability. (The majority relied on a law that reflected basic common sense: Too often a drunk driver can’t afford to make restitution to his victims; bar and liquor store employees have the opportunity to stop drunks from getting drunker and going on the road by simply refusing to serve them.)
But in April of this year, the court agreed to a rehearing, a highly unusual move, particularly because four of the original justices who had decided the case had left the court and been replaced by judges perceived to be even more defendant-friendly. One possible reason given for the turnaround was the half a dozen friend-of-the-court briefs supporting the motion for rehearing, including one from TLR, stressing the importance of proportionate liability. Justice Priscilla Owen, whom TLR had helped elect, had conceded in her dissent that “a provider of alcohol should be vicariously liable for a patron’s intoxication.” But she went on to say that she did not believe the Legislature meant what it said when it passed a law stating that a provider of alcohol was 100 percent liable for damages caused by an intoxicated patron who had been allowed to buy alcohol when he was clearly already drunk.
Mothers Against Drunk Driving, which believes that a company that profits from the illegal sale of alcohol should also bear the burden when injuries occur, had supported this law. Owen didn’t see it that way, and neither did TLR, especially Trabulsi, who opened himself to conflict-of-interest criticism as the owner of Richard’s Liquors and Fine Wines. As John Griffin, the attorney for the Dueñez family put it, “They are asking the court to take a Magic Marker and put a big black mark through the Legislature’s description of its own laws.” The assertion that legislators didn’t know what they were saying, he says, was “sophistry.”
There are other areas of the law that TLR would like to see “reformed.” Along with prohibiting contingency fees for lawyers hired by government agencies, TLR wants to restrict who can serve on juries, which, after all, are unpredictable. According to its latest press kit, the group is intent on “upgrading the qualifications required to serve on juries.” Explains Trabulsi: “We want to make sure that someone who is a claimant or defendant is tried in front of a jury of their peers. And we believe sometimes that doesn’t happen. We’re going to take a look at the whole realm of the jury system to try to make sure it operates as efficiently and as constructively and as fair as it possibly can.”
After surveying their handiwork, one can legitimately ask, fair for whom? While TLR and the governor’s office extol the return of insurance companies to the medical malpractice insurance business in Texas and a 6.35 percent drop in malpractice rates (less impressive when you realize that rates for the state’s major insurers went up more than 100 percent between 1999 and 2003), they have surprisingly little else to show for their labors. When I asked TLR for evidence of a tort-reform-fueled business boom, they handed me a five-year-old study.
Several recent studies, on the other hand, make you wonder whether there was ever a litigation crisis at all. Four law professors, including two from the University of Texas, Bernard Black and Charles Silver, found no link between lawsuits and rising insurance premiums. They studied resolved malpractice claims from 1988 to 2002, relying on data from the Texas Department of Insurance. The number of large claims—those with payouts of at least $25,000—had remained basically flat since 1988; jury verdicts in favor of plaintiffs in civil courts had likewise shown no change over the same period. Furthermore, malpractice claims made up less than one percent of total health care expenditures in Texas. In short, nothing changed much in fourteen years except that insurance company profits doubled. And the promised results of tort reform have not occurred: Malpractice insurance reductions have been less than 1.5 percent since 2003, and the hoped-for return of doctors to underserved areas has not taken place. A briefing paper released by the Economic Policy Institute, in Washington, in May 2005 further found no evidence that tort litigation was responsible for causing unemployment, dampening productivity, discouraging research, or driving up liability insurance rates. The institute found, in fact, that the number of lawsuits in the U.S. actually dropped 4 percent in the decade prior to the tort reform year of 2003.
The tort reform movement was born in an era when the pendulum had swung too far in the direction of plaintiffs, and reforms that restored fairness and integrity to the system were justified. But as so often is the case in politics, the wronged side overreached. Now the pendulum has swung too far in the opposite direction—so far that the Legislature has usurped the lawmaking powers of the courts, and meaningful access to justice has been eliminated for the likes of Alvin Berry, the children of Sylvia Ann Fuller, Brian and Stephanie Zaltsberg, and—if business and the tort reformers have their way—Ashley Dueñez. If lower awards limit the number of cases a good lawyer can afford to take, the remainder of cases will fall to less competent lawyers, who, if they take a case at all, will most likely win much lower settlements for their clients or, more likely, not win at all. When I suggest this to Trabulsi, he insists that attorneys can attend seminars to learn how to get around the caps. “And lose,” Mark Lanier adds.
Maybe that’s the point. With the courts closed and the Legislature supine, the good people of TLR will have remade the world in their image, one in which there is no recourse for wrongdoing, one in which the powerful simply get their way.
Brian Zaltsberg, for one, is going down fighting. As soon as he finishes college, he plans to attend law school.
