Jewish World Review Jan. 3, 2003 / 29 Teves, 5763

Mona Charen

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Just what we need

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John Edwards, the handsome, and comely, and attractive senator from North Carolina (well, those are his chief assets) has announced plans to seek the Democratic nomination for president. A relative newcomer to politics, Edwards has caught the eye of party elders due to his, well, his looks.

Edwards does start with one big disadvantage, though. He's a trial lawyer, and while this allows him ready access to the deep pockets of his fellow trial lawyers, it causes many Americans to wrinkle their noses. Clearly, Edwards has been working on how to spin the trial lawyer handicap, and he's decided to frame it this way: His multimillion dollar business mau-mauing companies out of large settlements is really being "a champion for regular people."

Edwards' announcement is timely, coming as it does in the same week as a plaintiff finally lost a suit against a tobacco company on the West Coast. The family of Frank R. White, who began smoking at age 14, sued Phillip Morris and R. J. Reynolds, alleging failure to design a safer cigarette and failure to provide adequate warnings about the dangers of smoking.

All of this is pretty standard (though no less outrageous for that), until you notice that White died at age 81! He had already beaten the average male life expectancy by a good seven years, and he never got lung cancer. A sensible federal judge named Saundra B. Armstrong ruled that a jury could have no basis to find the companies liable upon the evidence presented. No doubt.

But what has become of the idea of damages? When I was in law school, we were taught that damages would be assessed on the basis of what is lost due to the negligence or malfeasance of the defendant. In other words, if through your negligence, you accidentally crush the hands of a surgeon, you will have to compensate him not just for the loss of the use of his hands, but for the loss of his livelihood. The amount would be calculated based on his projected lifetime earnings. (There might also be punitive damages as well, but those are separately calculated.)

If, alternatively, the hands you damaged were those of a 95-year-old man, his damages, based on his age, would be lower. This is not a moral calculation, merely an economic one. Even if the cigarette companies were responsible for getting White sick, which anyone who believes in personal responsibility would deny, the question remains: By what logic does an 81-year-old man demand damages upon his death?

Well, the great trial lawyer cash register continues to go ka-ching for thousands of lawyers and a few plaintiffs, while the rest of us pay the price. In six other West Coast tobacco cases in 2002, juries awarded plaintiffs a total of more than $30 billion (yes billion with a "b"). These awards were later reduced to $363 million.

John Edwards and other multimillionaire trial lawyers can attempt to style themselves defenders of the little guy against big powerful interests, but it's a tough sell. In these personal injury tort cases, the actual plaintiffs often wind up with very little. A class-action suit against Blockbuster yielded thousands of consumers a few free rentals after trial lawyers alleged that the company had earned too much in late fees. The lawyers, by contrast, walked away with a cool $9.25 million.

Meanwhile, the "regular people" Edwards claims to champion are having more and more difficulty finding doctors. The Wall Street Journal reports that doctors in Florida, Georgia, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Washington and West Virginia are cutting back on the services they provide because of the high cost of malpractice insurance. In West Virginia, surgeons have gone on strike at four hospitals to protest exorbitant malpractice premiums.

The tort bar has put some industries out of business, badly distorted others and constricted the freedom of all of us. Perhaps we need a class action suit against trial lawyers. Failing that, we need tort reform, and if the Edwards candidacy reminds us of that fact, he will have served his nation very well.

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