Is the sun finally beginning to set on the excesses of trial lawyers? If developments in state legislatures are any indication, the answer is yes. In the last 12 months, more than half the states have passed tort reform measures. Even in places once considered the friendliest to plaintiff suits, laws that cap punitive damage awards and prevent venue shopping are finally becoming a reality. In addition, legislation that would put restraints on class action lawsuits by moving them into federal court now appears to have a fighting chance in the U.S. Senate. None of this is good news for the business in which Democrat vice presidential candidate John Edwards made his fortune.
On an even more fundamental level, a series of recent verdicts and rulings in high-profile product liability cases nationwide indicate that reason and rationality are beginning to prevail over the kinds of cases where hype and hysteria once reigned. If the trend continues, it is one that could be devastating to the McDonald's hot coffee and junk-science type lawsuits that seemed to symbolize the litigation craze of the last decade.
Several months ago, the cold medicine phenylpropanolamine, or PPA, seemed to many plaintiffs' attorneys like a sure thing. PPA had been on the market for more than 50 years in products such as Alka-Seltzer Plus and Robitussin, but in 1999 the Food and Drug Administration requested companies voluntarily withdraw products containing the ingredient because some regulators were concerned it might cause strokes.
Taking that as a green light, approximately 1,300 suits have since been filed against companies that included PPA in their products, alleging injury by PPA and that manufacturers hid incriminating evidence. The first cases to go to trial were supposed to be a dream. Instead, they've been rude awakenings. Jurors in separate trials in California, New Jersey and Pennsylvania courtrooms concluded that PPA was safe and products that contained it hadn't been misleadingly labeled. Jurors also said there wasn't any evidence of a corporate "smoking gun."
Lawyers had their sights set on IBM, as well, for purportedly making computer circuit boards that gave employees cancer. Suits alleged a massive cover-up, one that put "profits over people." Last fall, the first of more than 200 cases against IBM finally went to trial in Santa Clara, Calif. The jury scrutinized evidence for five months and earlier this year rejected the allegations with a unanimous verdict, causing plans for similar suits against the high-tech industry to be scrapped.
OxyContin was a similar target. Trial lawyers argued that it is the scourge of the pharmaceutical industry because it turns unwitting patients into addicts. If true, that scenario ought to be a cakewalk for the tort industry. Instead, OxyContin cases have been rough going. No suit against it has ever resulted in a judgment. In one of the more telling cases, a West Virginia man acquired the medicine, illegally crushed the pills in violation of the warning label, and injected the substance into his wife, causing her to die. Incredibly, he had the audacity to sue the manufacturer to try to collect damages. Even in a place designated as a "judicial hell hole" because of the region's willingness to favor plaintiffs, the case was dismissed.
For years, asbestos has been like a gravy train for attorneys, but even that seems to be ending. Jurors are deciding that penalizing those who had nothing directly to do with manufacturing asbestos is a far cry from justice. This spring, a jury in Fort Worth, Texas, generated headlines when it found against claimants who asserted that floor tile gave them cancer. Jurors concluded that the tile showed no greater release of asbestos than that which occurs in the air over the average city.
Americans have witnessed the high-fiving among lawyers on Court TV and through other judicial watchdog reporting that didn't exist 10 years ago. The public has also seen the media hyperventilate over cases such as Love Canal and silicone breast implants where there was more "scare" than substance. Those cases have made jurors wise to what ABC News "20/20" co-anchor John Stossel calls the Texas Sharpshooter Fallacy: A drunken rancher shoots 100 bullets into the side of his barn and then draws a bull's-eye around the biggest cluster of holes and says with a straight face that he was aiming for that particular spot. "Clusters of cancer may be just as random," says Stossel, "but if a power line or chemical plant is nearby, lawyers and reporters get excited."
Despite these setbacks, trial attorney Arthur Sherman's enthusiasm hasn't waned. "We'll learn from these verdicts," he said in an interview, "but they're not going to hold us back." There's something almost poignant about such tenacity. However, it's reassuring to know that even in the most emotionally charged lawsuits, jurors increasingly seem to be saying that skepticism can sometimes be a good thing, especially in the courtroom.