Consumers turn to trial lawyers: their critics liken them to parasites, but others say trial lawyers are the only remaining champions of consumer rights—thanks to the federal government's indifference

0 Comments | Insight on the News, Sept 2, 2002 | by Christopher Whalen

Financial host Daria Dolan asked her guests on WOR in New York: "What is the most sued company in the U.S.?" Both guests replied immediately: "Ford." But they were wrong. The right answer? Wal-Mart, the nation's biggest employer. But the guests on this leading New York talk-radio station reflected a common negative perception among the public earned by Ford Motor Co. as a result of hundreds of deaths and many more lawsuits involving the company's popular Explorer sport utility vehicle (see "An Explorer May Lead Ford to Ruin," Aug. 20, 2001). Likewise, a TV ad now running for the Wall Street Journal offers to tell readers "which tire company has the best lawyers," seemingly a reference to the much-sued Firestone.

Ford and Firestone are but leading examples of dozens of U.S. and foreign corporations that have been hit by a rising tide of litigation, much of it in the state courts, seeking compensation for allegedly defective products. Forbes magazine recently described how trial lawyer Johnny E. Parker has turned the Hampton County Courthouse in South Carolina into a "litigation machine" where at least 31 companies are facing claims because of a state law allowing residents to sue locally for damages that occurred elsewhere. The cases involve distant defendants such as General Motors (GM), Cooper Tires, Monsanto, rail giant CSX, Ford and Sears, according to Forbes.

Conservative lawmakers and public-policy groups decry the litigation explosion as an attack on private property and an assault on the shareholders of corporations compelled, so they say, to settle product-liability cases for big sums rather than face jury trials in hostile state courts. The automotive and other industries, meanwhile, have called for legislation to limit the ability of individuals to sue companies for injury or death due to defective products, adding to the considerable exemptions to lawsuits already in the federal statutes.

But critics say laws placing further limits on litigation generally and class-action lawsuits in particular would block individuals from holding companies accountable for the products they make and the services they provide. If consumers cannot make civil claims against those that sell defective goods, they contend, or damage or steal your belongings, or maim or kill your loved ones, then there is no effective protection for life or property in America.

Part of the problem, of course, is that in the post-Reagan era of deregulation the federal government largely withdrew from effective regulation of consumer products and services. That left a vacuum for settlement of grievances by consumers that trial lawyers gladly filled. "The role of the trial lawyer has definitely become more important and the government has grown increasingly reluctant to regulate," says Allison Zieve, head of litigation for Public Citizen, a nonprofit consumer-advocacy group founded by Ralph Nader in 1971.

Zieve, who earlier this year filed a lawsuit against the National Highway Traffic Safety Administration (NHTSA) to compel it to implement a workable mechanism for monitoring tire-inflation levels, says conservatives like to have it both ways. "They advocate states rights but support federal laws that would make it difficult or impossible for individuals to seek damages for negligence or injury in state courts," Zieve says. In reality, she continues, many federal agencies, such as the Food and Drug Administration, actually use civil lawsuits as a valuable source of information. "Tort suits in state court have become a complement to the regulatory process," she opines, though Zieve also notes there still is no national tort law in place.

The evolution of the trial lawyers into a quasi-governmental agency is an important story that has gone virtually unnoticed by the national media. In the Ford/ Firestone case, for example, armies of trial lawyers have been organized on a state-by-state basis to attack both companies for alleged (and seemingly proved) product defects in both the Ford Explorer and Firestone tires. Ford, at least, still denies any defect ever existed. Yet both these companies, as well as other manufacturers of autos and tires such as GM and Michelin, regularly settle lawsuits before trial rather than defend their products and reputations in open court.

Meanwhile, separate lawyers and law firms actively cooperate on related consumer-product lawsuits around the United States and the world. While the trial lawyers claim that their actions are not coordinated, INSIGHT has confirmed that trial lawyers around the country have formed a de facto alliance, creating an unelected alternative government replacing state and federal consumer-protection agencies.

Plaintiff's lawyers tell INSIGHT that a secretive "committee" of senior trial lawyers guides personal-injury and class-action lawsuits such as those pending against Ford and Bridgestone/Firestone. They share information, legal resources and financial backing in a collective effort that belies their claims of independent action. One group, for example, calls itself Trial Lawyers for Public Justice and boasts: "We are supported by--and can call on--a nationwide network of over 2,700 trial lawyers and others, including consumer advocates, personal-injury lawyers, constitutional litigators, employment lawyers, environmental attorneys, civil-rights lawyers and class-action specialists."