Editore"s Note
Tilting at Windmills

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February 15, 2005
By: Paul Glastris

TORT REFORM FOLLOWUP....On December 16, 2004, just as we were going to press with our January-February 2005 issue, we received a very long letter to the editors by Newsweek legal writer Stuart Taylor. The letter criticized a piece by Stephanie Mencimer that we had run in our October 2004 issue ("False Alarm: How the media helps the insurance industry and the GOP promote the myth of America's 'lawsuit crisis'") about the media's treatment of the tort reform issue, which was itself critical of a piece that Taylor had written for Newsweek. We had planned to run Taylor's letter in the very next issue, March 2005, along with a response from the author, until Taylor decided to publish his letter first on the pro-tort reform web site overlawyered.com. You can read Taylor's letter here.

We have posted Mencimer's response below the fold.

Stephanie Mencimer replies:

Stuart Taylors conspiracy theory about The Washington Monthlys failure to print his letter in what he views as a timely fashion is flawed. Heres what really happened: Taylor missed the deadline to get his letter into the combined January/February issue shortly before Christmas. The Monthly didnt have another issue scheduled to go to press until March, and had every intention of publishing Taylors letter in that issue.

Along with his conspiracy theory, Taylor has accused me of regurgitating personal-injury lawyer propaganda, a charge that I find not just insulting, but also rather nervy coming from someone who regularly provides a free, high-profile outlet for slanted, industry-financed research designed to bring about changes in the legal system restricting citizens rights to sue.

For the record, I have taken most of my data on the decline in tort filings and civil jury trials from nonpartisan entities such as the National Center for State Courts, which is funded by the courts themselves, the U.S. Bureau of Justice Statistics, the Congressional Budget Office, as well as the Rand Corporation, which is famous for its objectivity despite the fact that it is funded, in part, not by trial lawyers but by the insurance industry. I have tried to make my reporting as transparent as possible and to rely on original sources and academic researchers who have no financial ties to either side of the debate. There are many such sources, but few of them ever make it into the mainstream media or, notably, anything written by Taylor. In addition, I have never taken any money or other perks from trial lawyers or organizations supported by them. My research over the past year has been funded by the Alicia Patterson Foundation, a journalism foundation created by the former editor and publisher of Newsday, as well as the Fund for Investigative Journalism, neither of which has a dog in this fight.

Here is my attempt to respond to some of Taylors specific criticism.

Ryan Warner, softball and the Volunteer Protection Act

Taylor is right when he says the Volunteer Protection Act is irrelevant in the case of the Arizona softball tournament organizer, Ryan Warner, but thats because Warner was never sued. No one ever alleged that Warner was guilty of anything, much less gross negligence. Its unfortunate that Warner had to be deposed. But crafting a legal system to prevent softball organizers from being inconvenienced without also excluding serious and meritorious lawsuits is nearly impossible. Thats why Congress did not extend the Volunteer Protection Act to cover volunteer organizations from liability. Doing so would have granted immunity not just to Little League, but to groups such as the Ku Klux Klan, another volunteer organization whose paramilitary training camps in Texas and Alabama were successfully shut down by lawsuits by the Southern Poverty Law Center in the 1980s. The American remedy for inconvenience, one unfortunate downside of an incredibly democratic legal system, is insurance, which Warner and the tournament organizers had to pay for any legal costs they would have incurred.

As for the injured man, I never said that Sawyer dropped his suit, only that he was pressured to do so. Conversely, Warner was not pressured to cancel the softball tournament. Indeed, there was no legal reason for him to do sono ongoing danger, no further legal threats, etc. The choice to cancel was his own.

Its true that Arizona law allowed Sawyer to recoup his medical expenses regardless of whether he had health insurance. Thats because in many cases, health insurance companies demand to be repaid out of any settlement or jury award arising from a lawsuit. In this case, Sawyer had insurance and he did not have to reimburse his insurer, but according to his attorney, that fact was acknowledged in the settlement negotiations.

Falling lawsuit filings

In accusing me of making factual errors in asserting that lawsuits filings have fallen radically in recent years, Taylor says, The most recent NCSC report states that its (incomplete) data 'indicate a 40 percent increase in tort filings' from 1975 to 2002. Census figures indicate that the population increase from 1975 to 2002 was about 33 percent. So tort filings per capita have not declined by 8 percent since 1975; they have increased somewhat.

But he badly misinterprets the state court data. The NCSC data from 1975 to 2002 includes tort filings from only 16 states, not the whole country. The Congressional Budget Office, the source for my original story, adjusted those NCSC numbers for population growth in the 16 states studied and determined that far from an increase, the rate of tort filings fell 8 percent. (Heres the link.)

Taylor is right that between 1993 and 2002, California tort filings fell by 18 percent, not 45 percent. I erred by not explaining that I was referring to lawsuits filed during the same time frame that I used for calculating the Texas tort filings, 1990 to 2000. Between 1990 and 2000, according to NCSC data, the rate of tort filings in California fell 44 percent, which I mistakenly rounded out to 45. As a result of this decline, Californias tort filings are hovering around a 30-year low. I regret the errors, but my overall assessment that tort filings have fallen substantially is very much on target. I must say, too, that I am amused to be having a debate with Taylor about the extent to which tort filings have plummeted.

I didnt get into the issue of auto accident lawsuits because Taylors original story didnt either. Newsweek, after all, gave the erroneous impression that the vast majority of lawsuits were over such things as softball injuries and hugs from friendly ministers, not car accidents, which indeed make up the bulk of all tort lawsuits. He is right that some of the decline in lawsuits can be traced to the fall in car crash cases. Its also true that some of the earlier increases in tort filings that have Taylor so excited were also car crash cases, which increased not because Americans grew more litigious but because they got more cars and drove them farther. Taylor wants to have it both wayshyping a now-ancient increase in car crash lawsuits as a sign of the end of civilization as we know it and the death of personal responsibility, but then dismissing a radical decline in tort filings as simply the result of fewer car accidents.

As for the alleged increase in medical malpractice filings, again, Taylor is misrepresenting the NCSC study. He conveniently leaves out the part that says while the number of medical malpractice lawsuits increased in real numbers between 1992 and 2001, Adjusting the trend for changes in population over time provides an alternative, if not more accurate, way to view this information the 1992 to 2001 trend in medical malpractice filings per 100,000 population has only fluctuated minimally, with an overall 1 percent decrease in per capita filings.

Taylor also ignores the many changes in state laws that have taken place since 2001 that will accelerate this trend, including a constitutional amendment in Texas that allowed the state to radically cap pain and suffering awards in medical malpractice cases, a change that took place with a great deal of publicity three months before Taylors story was published. Since September 2003, the Dallas Morning News reports, medical malpractice filings in Texas have fallen 80 percent.

Tillinghast and the tort tax

The tort tax study to which Taylor refers is so deeply flawed and largely meaningless that TTP has finally acknowledged as much in the most recent edition, writing that the costs tabulated in this study are not a reflection of litigated claims or of the legal system.

The problems with this study have been repeatedly outlined in academic journals now for almost a decade. But the primary reason for this latest admission by TTP is that its definition of tort costs includes such things as insurance claims where no lawsuits were filed, such as for auto accidents, including those in no-fault states where lawsuits are in fact banned in auto accidents, and for which people pay insurance premiums.

Their tort costs also dont take into account the profits that the insurance companies earn from premiums or the dividends paid to policyholders (like doctors), or the earnings from their investments. If Taylor wants to claim that these insurance/tort costs are a drain on the economy, he has to acknowledge that the profits generated by insurance industry (which is having a booming year, incidentally) significantly offset those costs.

Even if the tort tax were an accurate reflection of the tort system, it cant be used to compare the American legal system to most other industrialized nations because most of those countries have higher taxes to pay for comprehensive social welfare systems as well as larger, bureaucratic regulatory systems that negate the need for much of what tort litigation does in this country.

Taylor says that TTP doesnt undertake this study to influence policy, but I have not found any evidence that this study is used for anything but changing public opinion. Why else would TTP pay an expensive New York PR firm to distribute it widely to op-ed columnists and other opinion leaders in the media? Taylors repeated use of this study in his columns and public appearances suggests that TTPs PR budget has been well spent.

Incidentally, Joanne Doroshow at the Center for Justice and Democracy provided Taylor with much of the well-known criticism about the failings of the TTP study, but he decided not to share any of it with his readers.

Medical Malpractice

It would take an entire new article to sufficiently address all of the myths Taylor has put forth about medical malpractice, but I feel compelled to respond to one or two key points.

Taylor asserts that studies show that 80 percent of malpractice lawsuits are unfounded. Its hard to refute that statement without knowing to which studies hes referring, but most of the peer-reviewed empirical research in this area shows that he is wildly off the mark.

For instance, the Harvard Medical Practice Study famously found that medical malpracticeand not just bad outcomes, but outright negligencewas widespread in the health care industry, but that very few people ever sue as a result. Their work concluded that for every seven people injured by medical negligence, only one lawsuit was ever filed. The Harvard researchers recognized that some lawsuits are invalid because no negligence occurred. But they determined that for every doctor or hospital charged with an invalid claim, there were grounds for at least seven other meritorious suits that were never filed. Similar results have been found in numerous studies since then, all suggesting that Americans rarely sue even when they have an actionable injury, but when they do, and lawyers agree to risk their own money to put up the significant resources needed to bring those cases, they are in fact, quite serious.

Common Good

I never suggested that Taylor didnt verify the information he got from Common Good. My point was only that he has been a willing recipient of materials produced by a vast corporate PR machine that has long been assisting journalists in finding anecdotes to support its cause. I noted his sources to show that Taylors observations about the legal system were not only unrepresentative of reality, but also werent the product of hours of reporting he did at the local courthouse digging through civil filings himself. If he had actually done such an exercise, I suspect he would have a very different story to tell.

Newsweek's Covington & Burling link

And finally, Taylor asks: Does Mencimer think that every article about the litigation system ever published should list the lawsuits that have been brought against the publisher?

Yes. When writing articles supporting policies that would financially benefit ones employer, I think it best to err on the side of full disclosure by providing at the very least a list of jury verdicts and large settlements paid by the publisher in successful lawsuits and let readers decide whether that information

Stephanie Mencimer
Washington, DC

Paul Glastris 1:51 PM Permalink | Trackbacks

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