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http://www.washingtonmonthly.com/features/2004/0410.mencimer.html
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October
2004 |
False Alarm
How
the media helps the insurance industry and the GOP promote the myth of |
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Among others, the story featured a softball tournament organizer, a
minister, and a doctor who all claimed to have modified their behavior
because they were terrified of lawsuits. Ryan Warner, an insurance
salesman in Page, The story as published, though, lacks a few critical details. Newsweek
didn't mention, for instance, that the 1997 federal Volunteer Protection
Act ensures that people like Warner are immunized from these types of
lawsuits. The article also excluded the injured man, Richard Sawyer, a
locomotive engineer who suffered a dislocated ankle and a spiral
fracture to the fibula--and missed months of work as a result--after he
slid into a base that was supposed to break away on impact but didn't
because the city hadn't followed the manufacturer's instructions for
maintaining these fixtures properly, according to Kevin Garrison,
Sawyer's lawyer. The event organizers had insurance--required by the city--to protect
against exactly this kind of situation, but Warner cancelled the
tournament anyway because he says the lawsuit was "a hassle."
Canceling the tournament proved a smart PR move, as it brought out an
immense amount of pressure on Sawyer to drop his suit, says Garrison.
The case was settled this January for an undisclosed amount and Warner
was never named. In fact, the tournament has been revived and scheduled
for early September. Not only were the particulars of the Newsweek story
misleading. The essence of the story was wrong, too. Newsweek's
"onslaught" of lawsuits simply hasn't happened. According to
the In 2001, they voted against plaintiffs in 75 percent of all medical
malpractice trials, according to the federal government's Bureau of
Justice Statistics (BJS). In an interview, It's not as though Newsweek wasn't aware of these facts. On
Friday, Dec. 5, a day before the story went to press, Incidentally, Howard also works for the law firm of Covington &
Burling, which represents Newsweek's parent company.
Post-Newsweek Inc. has been sued a number of times for employment
discrimination and was hit with an $8.3 million verdict in 1999, a fact
that Newsweek didn't mention in the story. Unfortunately, Newsweek's one-sided coverage of the civil
justice system is the rule, not the exception. Every few months, one or
another newspaper, magazine, or television show does a story just like
it. They all hew to a standard line, starting with a juicy but
misleading--or even fictitious--lawsuit horror story typically
describing an irresponsible plaintiff, followed by "studies"
on the economic damage of the tort system published by corporate front
groups, finally ending with calls for "reforms" to rein in
mushy-headed juries and greedy trial lawyers. Such skewed coverage
represents a victory in a sustained, 50-year public relations assault on
the civil justice system by the insurance industry, tobacco companies,
and other corporate giants. It's helped fuel political support for
curtailing Americans' right to hold corporations and individuals
accountable for negligence, fraud, and other malfeasance in court.
Perhaps more serious, journalists' willingness to perpetuate
anti-lawsuit propaganda has gravely jeopardized Americans' unique
democratic right to participate on civil juries. Runaway hedge-clippers The current PR campaign by the insurance industry and other big
corporations is just the latest iteration of a long fight tracing back
to the 1950s. That was when plaintiffs' lawyers started breaking down
some of the legal barriers that had long protected industry from
responsibility for injuries to workers and consumers and opened up jury
pools to make them more representative of the general public. The blood
bath on the nation's highways during the post-war auto boom also created
a whole new arena of litigation over who should pay for the injuries and
deaths caused in car accidents. Auto insurance companies were frequently
in the middle of these disputes (as they are today; insurance companies
are the defendants in 90 percent of all auto-accident lawsuits). With their profits threatened by unfavorable jury verdicts, the
insurance industry started running anti-lawsuit ads targeted at jurors.
For instance, in 1953, the industry ran ads in Life magazine and The
Saturday Evening Post that declared, "ruled by emotion rather
than facts, [jurors] arrive at unfounded or excessive awards--verdicts
occasionally even higher than requested!" The ads implored
potential jurors to remember that "you pay for liability and damage
suit verdicts whether you are insured or not." The industry also successfully planted articles in national magazines
and TV shows that were designed to look like investigative reporting. In
1962, CBS broadcast "Smash-Up," a fictionalized docudrama that
portrayed sleazy lawyers faking auto accident cases. The Insurance
Information Institute, the industry's public relations arm, helped write
the script. In 1977, the venerable insurance company Crum & Forester
sponsored one of the first print ads that included what would become a
staple of anti-lawsuit rhetoric: the fictional lawsuit horror story. The
ad told the story of a guy who collected a $500,000 jury verdict after
he was injured using a lawnmower as a hedge clipper. The agency later
conceded that it had no factual basis for the story, but that didn't
keep it from circulating widely in the media and in conservative
political speeches. The industry knew what it was doing. In 1979, Elizabeth Loftus, the
famous memory researcher and In the mid-1980s, with insurance companies hitting a slump, the
insurance industry's "tort reform" movement, as it became
known, broadened its emphasis. Instead of limiting itself to targeting
individual jurors through mass media advertising, the industry began to
heavily lobby legislators to restrict citizens' ability to sue. The
movement pursued strict caps on damage awards, tougher standards for
proving liability, and caps on plaintiffs' attorney fees. The industry's
crusade was taken up by small government conservatives, who believed
that tort reform paralleled their own efforts to fill the federal bench
with pro-business jurists and roll back government regulations. They
were also upset by changes in the 1960s and 1970s that broadened legal
protections for women and minorities, such as the 1964 Civil Rights Act,
and the expansion of product liability doctrines that made it easier for
injured consumers to force companies to compensate them for faulty
products. Politically, it was a lot easier to attack juries and trial
lawyers than the popular consumer, civil rights, and environmental
protection laws they enforced--or the injured victims they represented. Advertising was a key component of those efforts. In 1986, Newsweek
ran a series of ads sponsored by the insurance industry under the
heading, "We all pay the price." The ads warned that lawsuits
were driving ob/gyns out of business, shuttering local school sports
programs, and scaring the clergy out of counseling their flocks--though
few of these assertions turned out to be true. That same year, 1,600
tort reform measures were introduced in 44 state legislatures, 21 of
which passed significant restrictions on lawsuits and jury awards before
adjourning. Tort reformers still weren't satisfied but were hamstrung by the fact
that most Americans didn't see lawsuits as a huge problem. After all,
most people never have any contact with the legal system unless they're
getting divorced. So, a group of corporate leaders, including AIG's
Greenberg, set about to change that by pumping money into right-wing
think tanks to prepare a body of "evidence" proving that not
only was there a crisis in the courthouse but also that "we all pay
the price" as a result. One of the most influential of those groups is the Manhattan
Institute, founded by the late CIA director William Casey. In 1986, the
institute created its Project on Civil Justice Reform with funding from
all the same insurance companies who'd been responsible for circulating
bogus lawsuit horror stories. The project was targeted specifically at
journalists. In a 1992 memo, institute president William Hammett
explained the strategy for molding reporters into a "pro-tort
reform" position: "Journalists need copy, and it's an
established fact that over time they'll 'bend' in the direction in which
it flows. For that reason, it is imperative that a steady stream of
understandable research, analysis, and commentary supporting the need
for liability reform be produced. If sometime during the present decade,
a consensus emerges in favor of serious judicial reform, it will be
because millions of minds have been changed, and only one institution is
powerful enough to bring that about: the combined force of the nation's
print and broadcast media, the most potent instrument for public
education--or miseducation--in existence." Over the next decade, the institute produced a blizzard of reports,
conferences, op-eds, books, and mailings all decrying the
"litigation explosion" and greedy trial lawyers. They
cultivated sympathetic and influential journalists such as
"20/20"'s John Stossel, then-New Republic editor
Michael Kinsley, and TNR columnist Fred Barnes, and more
recently, Stuart Taylor, who frequently cites their work in his columns
for Newsweek, The National Journal, and The Atlantic Monthly.
The "research" conducted by the institute usually purported to
show how lawsuits impact the average consumer's daily life by raising
the cost of groceries or auto insurance or driving their favorite
physicians out of business. But some of the institute's
"scholars" played a little fast and loose with the facts. Take the idea of a "tort tax," the financial hit allegedly
taken by every citizen because of the legal system, which While the Manhattan Institute targeted the media elite, large
corporations also set about creating the appearance of a
"grassroots" movement to persuade lawmakers that tort reform
had broad populist appeal. As Neal Cohen, one of the PR geniuses behind
this project explained to a meeting of the Public Affairs Council in
1994, "In a tort reform battle, if State Farm...is the leader of
the coalition, you're not going to pass the bill. It is not credible.
OK? Because it's so self-serving." Cohen was speaking from
experience. Since 1988, he had been running Philip Morris's "family
tort project" through the D.C. consulting firm APCO, where he
helped the tobacco industry wage a multi-million stealth campaign to
insulate itself from smokers' lawsuits. By 1995, the tobacco industry
was providing almost half the budget--$5.5 million in a single year--for
the American Tort Reform Association (ATRA). ATRA, in turn, helped funnel money to state level organizations
called Citizens Against Lawsuit Abuse (CALA). These chapters were
responsible for holding "lawsuit abuse awareness week," buying
ads on buses and billboards, providing experts for reporters, generating
"polls" that claimed 99 percent of Americans believe there are
too many frivolous lawsuits. The groups were hardly grass-roots
organizations of inflamed citizens; the original chapter, in Even after the corporate backing of these groups came to light
(thanks in part to Cohen's speech, a tape of which was obtained by some
muckraking reporters), tort reformers have continuted to use variations
of the technique. Most recently, doctors seeking to restrict medical
malpractice lawsuits have worked with corporate front groups like Texans
for Patient Access and Californians Allied for Patient Protection. After 50 years and hundreds of millions of dollars spent convincing
the public of a litigation crisis, the tort reformers have largely
succeeded. There's very little that journalists won't repeat and readers
won't swallow about the evils of the civil liability system. The lying florists In November 2002, viewers of "60 Minutes" learned that
Fayette, During the broadcast, Safer interviewed Wyatt Emmerich, the publisher
of a newspaper in Tiny Jefferson County's national reputation as a "judicial
hellhole" came in part from intense publicity from the American
Tort Reform Association, which every year publishes a "study"
purporting to identify various jurisdictions around the country it deems
too plaintiff-friendly and in need of reform. At the time of the
"60 Minutes" episode, the U.S. Chamber of Commerce's Institute
for Legal Reform was spending millions nationally on advertising and
lobbying for restrictions on citizens' rights to sue. At least $100,000
of that had recently gone into an advertising campaign in It wasn't the first time "60 Minutes" got duped in an
anti-lawsuit segment. Back in 1986, the show profiled the owner of a
ladder manufacturing company who claimed his company had been hit with a
$300,000 jury verdict in a suit by a man who fell off a ladder because
he set it in a pile of manure. The business owner claimed the lawsuit
alleged the company should have warned buyers of the dangers of setting
ladders in dung. The real lawsuit had nothing to do with manure; the
ladder had broken with less than 450 pounds on it, even though it had a
safety rating that said it could support up to 1,000. Tedesco says the
show never ran a correction. The print media, mostly opinion columnists, have proven even more
gullible in publishing stories about lawsuits that are simply fictional.
For instance, in June 2003, in a column entitled, "Welcome to Sue
City, U.S.A.," U.S. News & World Report owner Mort
Zuckerman claimed that "litigation has become our national
pastime." As proof, he offered several examples of lawsuits that
illustrated the nation's "enormous inflation of rights over
responsibilities." Zuckerman wrote, "A woman throws a soft
drink at her boyfriend at a restaurant, then slips on the floor she wet
and breaks her tailbone. She sues. Bingo--a jury says the restaurant
owes her $100,000! A woman tries to sneak through a restroom window at a
nightclub to avoid paying the $3.50 cover charge. She falls, knocks out
two front teeth, and sues. A jury awards her $12,000 for dental
expenses." The anecdotes were catchy. Unfortunately, they weren't true. The
stories had been circulating in an email for two years and had made it
into several mainstream news outlets, including another Zuckerman
property, The New York Daily News, which had published an email
containing one of the fake lawsuits in the sports section a year earlier
(with no correction). When The Washington Post's Howard Kurtz
called him on the U.S. News error, Zuckerman was unapologetic.
The magazine only published a brief clarification about the fictional
suits, which ended by saying, "Mr. Zuckerman continues to believe,
and most Americans agree, that we live in a country where far too many
frivolous lawsuits are filed each year." When contacted by The
Washington Monthly, a spokesperson for Zuckerman refused to disclose
the source of the lawsuit anecdotes or to offer an explanation as to why
Zuckerman would publish anything from a spam email without checking it
out first. Small-town papers seem even more vulnerable to such fabrications than
the national media, yet their impact is substantial, as battles over
most tort reform laws are fought in state legislatures, and juries are
drawn from local pools. For instance, in February last year, the Weirton
Daily Times in The media mogul Steve Brill first wrote about litigation myths back
in 1986, when, as a journalist he traced several examples of the
allegedly "frivolous lawsuits" for The American Lawyer
magazine and found that many of them were simply urban legends. He says,
"I had gone back through the archives of Time magazine, and
every ten years, Time declared a 'litigation crisis.' But there
was no crisis." Reporters' perpetuation of the litigation myths has
become one of Brill's pet peeves, even though, as a business owner
himself, he supports legal changes that would protect businesses.
"Reporters are basically lazy," says Brill. "You can
always find a ridiculous lawsuit to make the system look crazy." The $30,000 jackpot The plain fact is, most lawsuits are neither ridiculous nor
lucrative. Despite the eye-popping headlines about billion-dollar fen-phen
verdicts or David v. Goliath movies about little guys taking on
corporate wrongdoers in court, the civil justice system looks a lot more
like this: On Aug. 2, 1997, Bonnie Daniels rear-ended Diane Pitnikoff in
Cumberland County, Maine, and was arrested for drunk driving. Pitnikoff
suffered a number of lingering injuries and ran up $42,000 in medical
bills. Pitnikoff sued Daniels for $100,000. On It's not a very sexy story--hardly the kind of thing that captures
the imagination and lands on the cover of Newsweek. Yet most tort
lawsuits in this country--nearly 60 percent--involve simple
fender-benders, and the awards are generally quite small and getting
smaller. New data released in April by the Justice Department's BJS show
that in state courts, the median "jackpot" jury verdict in all
tort suits was a mere $37,000 in 2001--down from $65,000 in 1992. And what of the undeserved billions in punitive damages that Newsweek
says Americans win from sympathetic juries? Punitive damage awards are
intended to punish wrongdoers for reprehensible conduct, and as a
result, must be high enough to get the defendant's attention. That's why
an Because the Justice Department data conflict so sharply with
conventional wisdom, you'd think it would have been big news. The media
coverage that resulted from the new government study? Forty words in the
USA Today. As of mid-August, no major media outlet had covered
the study, including Newsweek. National editor Tom Watson says
that his magazine has a strict policy of not commenting on its own news
coverage. "No one is willing to report that tort awards are down,
and that they're 30,000 bucks, not 5 million," says Theodore
Eisenberg, a Indeed, the tort reformers' message has proven remarkably resistant
to correction. Part of the reason is that those who have another side of
the story to present have vastly fewer resources with which to make
their case. BJS has a publicity budget of zero dollars, making it tough
for the bureau to publicize its remarkable findings. Trial lawyers, who
do have some money, have been reluctant to fight back in the media
because they recognize that they are universally mistrusted. They've
picked their fight in the courthouse, where they challenge tort reform
proposals as unconstitutional. Tort reformers, too, have deftly manipulated reporters' weaknesses,
like the over-reliance on the anecdotal lead. Editors are always
imploring writers to find a perfect anecdote that can sum up a
complicated problem in 40 words or less. This can be a useful tool for
conveying information to a reader, but when it comes to something as
complex as civil justice system, the technique often backfires because
the juiciest anecdotes tend to be the exception rather than the rule.
And reporters simply don't expect to be lied to when an advocacy group
hands them tales of a crazy lawsuit or a study about economic trends--a
naiveté that the tort reform movement has skillfully exploited. Gary
Alan Fine, a sociology professor at Lobbying groups and industry financed think tanks have also taken
advantage of an information vacuum. For years, most state courts never
collected information on case outcomes and jury awards, so real numbers
were hard to come by. Tort reformers have expertly filled this void with
their own figures. "When there's no data, you can just make stuff
up," says Eisenberg. Even when there are relatively good data, they are easy to misread.
The RAND Corporation's Institute for Civil Justice has reliable jury
verdict data for two counties in Indeed, the "onslaught of litigation" over the past 30
years decried in Newsweek is a relative term. In 1962, for
instance, only about 300 civil rights lawsuits were filed in federal
courts. In 2000, there were more than 40,000--an onslaught, to be sure,
but that's because prior to 1964, racial discrimination was legal. Michael McCann, director of the Comparative Law and The news coverage may be creating some unexpected consequences: Some
academic researchers suspect that all the hype about the litigation
crisis might actually be making Americans more litigious by giving them
the erroneous impression that compensation is available through the
courts for most injuries. As McCann says, "Tort reformers may have
produced more frivolous claims while making legitimate claims harder to
bring." Indeed, if Americans really are overcome with fear of lawsuits, it
might be because they've been reading too many Newsweek articles.
At least that's the rationale cited by the organizers of annual Polar
Bear Plunge back in Page,
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Last December, Newsweek featured a cover package by Stuart Taylor
and Evan Thomas that blared: "Lawsuit Hell: Doctors. Teachers.
Coaches. Ministers. They all share a common fear: being sued on the
job." Paired with a weeklong tie-in on NBC News and online chats on
MSNBC.com, the article claimed that because "Americans will sue
each other at the slightest provocation," the country is suffering
from an "onslaught of litigation" that costs Americans $200
billion a year. The story was full of tales claiming to illustrate
Americans' overarching sense of legal entitlement and desire to
"win a jackpot from a system that allows sympathetic juries to
award plaintiffs not just real damages…but millions more for the
impossible-to-measure 'pain and suffering' and highly arbitrary
'punitive damages.'" 