3/04/2005

Challenging tort reform misconceptions

From Stephanie Mencimer at The American Prospect:
Politicians, like the rest of the general public, have been influenced by a sophisticated media campaign waged by the insurance and tobacco industries and other large companies to help insulate themselves from liability for injuries to consumers. They’ve heard the story of the McDonald’s coffee lawsuit.
“It’s the result of 30 years and hundreds of millions of dollars by the business community to convince people that tort reform is right,” says Pamela Gilbert, a Washington attorney who served as the executive director of the Consumer Products Safety Commission during the Clinton administration and has lobbied for consumer groups against tort reform. “The public is beginning to believe that we have too many lawsuits and the people to blame are the ones suing, not the wrongdoers. The Democrats who vote for tort reform should know better.”
Sober government data lend credence to what Gilbert is saying. Despite Bush’s frequent characterization of the legal system as “out of control,” his own Justice Department notes that lawsuit filings are on the decline and jury awards are down. The Government Accountability Office has concluded that doctors aren’t leaving medicine because of lawsuits.
But as with Iraq and Social Security, the Democrats are deferring not to the facts on tort reform but to some political calculus defined by their opponents. “They’ve gotten into this losing mind-set that they’re constantly playing defense,” Weaver says. “They’re constantly giving up ground to the Republicans over what were once their core principals.”
Gilbert believes the move by Democrats to embrace tort reform is shortsighted, because despite what they may think, it doesn’t protect them from attacks by Republicans and big business. Take Nelson, the Nebraska senator, she says. “The Republicans will go after him anyway,” Gilbert says. “They’re not going to reward him for those tort-reform votes.”
Indeed, the state of Mississippi provides a case study in how Republicans have effectively used tort reform to regain political dominance in once-Democratic strongholds, where many Democrats attempted to find “middle ground” on tort reform and still got clobbered for it in elections. In the state’s 2003 gubernatorial race, Washington über-lobbyist Haley Barbour effectively pummeled Ronnie Musgrove as a shill for trial lawyers, even though Musgrove had actually signed into law sweeping tort reform a year earlier in an attempt to mollify the business community. Democratic Lieutenant Governor Amy Tuck, due to her embrace of tort reform, lost her trial-lawyer support and was forced to switch to the Republican Party to save her political career; there was simply nowhere else to turn for campaign donations as a Democrat. In Mississippi, like in many states, trial lawyers are the only source of significant campaign funding for progressive candidates.
Pam Johnson, a lobbyist for the Mississippi Trial Lawyers Association, says that the Republicans, aided by outside money and resources from the U.S. Chamber of Commerce, did such a good job of demonizing trial lawyers and candidates who took their money that Democrats felt like challenging the tort-reform myths outright was a losing battle. As a result, she says, “Nobody will come out and say it’s a big lie.”

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