TLR Responds to Texas Monthly
In its November issue, Texas Monthly published an article by Mimi Swartz entitled “Hurt? Injured? Need a Lawyer? Too Bad!” The article takes the viewpoint that Texans for Lawsuit Reform has single-handedly manipulated the tort system in Texas to deprive injured Texans of their day in court.
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That viewpoint is neither accurate nor justified. The article is misleading and inaccurate. It makes incorrect statements of fact and law and reflects a startling lack of understanding of tort law, the Texas civil justice system, and TLR. The actions of the magazine after publishing the article also raise serious questions of objectivity and fairness. After reviewing the article, TLR sent the article’s author information from the Texas Department of Insurance concerning the favorable impact of the medical liability provisions of the Omnibus Tort Reform Act of 2003 (HB 4). The author immediately forwarded that information to the Texas Trial Lawyers Association (TTLA), which is the lobbying and public relations organization of the personal injury plaintiffs’ bar. The TTLA’s return email to the author promised that the TTLA would “get you some stuff” to deal with this independent and objective State agency information.
This commentary presents TLR’s point-by-point analysis of errors in the article. While this commentary does not address every error or omission in the article, it addresses many of the most obvious, important, or egregious ones.
- The article mischaracterizes the underlying purpose of the tort system.
- The article ignores the collaboration necessary to achieve tort reform.
- The article misstates facts about TLR’s gubernatorial campaign contributions.
- The article misstates facts about TLR’s judicial campaign contributions.
- The article criticizes TLR for disclosing contributions by plaintiff lawyers.
- The article mischaracterizes the passage of tort reforms in 1995.
- The article ignores significant reforms that occurred between 1995 and 2003.
- The article mischaracterizes the nature of the legislative process in tort reform.
- The article misstates TLR’s endorsements of candidates.
- The article implies that the practice of trial law is an entrepreneurial enterprise.
- The article wrongly impugns the motives of the founders of TLR.
- The article mischaracterizes the debate on Prop 12.
- The article misstates the impact of Prop 12 on the capacity to recover damages.
- The article ignores the beneficial impact of medical liability reform.
- The article oversimplifies the liability protection given to ER doctors.
- The article misstates the law regarding defective drugs.
- The article misstates the law concerning a defective automobile.
- The article misstates the law regarding negligent landowners.
- The article alleges that the Legislature is protecting negligent automakers.
- The article mischaracterizes the origin and the nature of the TRCC bill.
- The article implies that Supreme Court justices are beholden to TLR.
- The article incorrectly characterizes the controlling issue in the Dueñez case
- The article disparages a TLR leader without providing an opportunity to respond.
- The article reflects ignorance on how appeals to the Supreme Court work.
- The article misrepresents contingency fee and jury reforms advocated by TLR.
- The article ignores most civil justice reforms of the past decade.
- The article’s characterization of the overall effects of tort reform is dead wrong.
- The article reaches an absurd conclusion.
Texas Monthly: “Once upon a time, the purpose of tort law was to make injured people whole.” (p. 167)
The Facts: A fundamental principle of tort law is fault. What justice would be served by imposing a “make whole” judgment upon someone who is not at fault? Claiming that “once upon a time” the law enshrined some kind of “purpose” to “make injured people whole” simply turns centuries of Texas and common law principles upside down. The true purpose of the tort system is to allow an injured party to recover fair compensation from those who are responsible for causing the harm.In the trial of a tort case, a determination that there was no wrongdoing means the defendant owes nothing. The courts assess damages only when the defendant is found to be at fault for the injuries suffered by the plaintiff. Plaintiff trial lawyers like to promote the notion that the sole purpose of tort law is to make an injured party whole because it helps their long-term goal of undermining the concept of fault in tort law. They know that every terrible injury does not come with a truly culpable “deep pocket” defendant, so they like to downplay the idea of fault while promoting the notion that tort law is really a kind of welfare program.
Texas Monthly: “[Access to the courts for individual plaintiffs has been restricted because of] the efforts of a small group of wealthy and politically influential businessmen and a legislature slavishly devoted to … Texans for Lawsuit Reform ….” (p. 168)
The Facts: First, it is regrettable that Texas Monthly does not recognize its arrogance in asserting that our legislative representatives in Austin are “slavishly devoted” to a “small group” of any kind. The editors of the magazine show no faith in the citizens of Texas to choose wisely those they send to Austin to represent them. The Texas Legislature approaches tort reform proposals in a hard-working, deliberative manner that rigorously scrutinizes proposed changes to the State’s civil justice system.
For example, Bill Ratliff (R-Mount Pleasant), the Senate sponsor of the reforms that became HB 4, and the Senate State Affairs Committee that he chaired, heard many days of testimony about HB 4 from individuals who have suffered injury, personal injury plaintiffs’ lawyers, defense lawyers, and respected law professors. Chairman Ratliff and the Committee carefully reviewed HB 4 and rewrote entire sections. Even a casual observer of the process would conclude that Chairman Ratliff and the Senate acted independently, without “slavish devotion” to anyone but the people of Texas. Notably, Senator Ratliff has been widely acknowledged as one of the most independent and fair members of the Legislature, and was named one of the “Ten Best” legislators by Texas Monthly for six consecutive sessions, including the one in which HB 4 was enacted.
Additionally, Representative Joe Nixon (R-Houston), the House sponsor of HB 4, and the House Civil Practices Committee which he chairs, heard a great deal of testimony from dozens of interested individuals and groups, and Chairman Nixon met repeatedly with members of the personal injury plaintiffs’ bar. During several days of debate on the floor of the House, Rep. Nixon accepted several floor amendments. In fact, he authored an amendment that made several changes to the bill that TLR opposed. It is notable that the magazine did not interview Chairman Nixon for its article.
Second, the tort reform movement is not “a small group of wealthy and politically influential businessmen” as alleged by Texas Monthly. In fact, TLR is only one component of the huge tort reform coalition, which includes countless trade, business, and professional organizations representing every aspect of Texas life. TLR itself is composed of over 13,700 Texans, living in 735 different Texas communities, representing over 1,200 trades, professions, and businesses of all sizes.
TLR invited the author of the article to visit our supporters around the state or to attend speeches conducted by our volunteer speakers, who address groups all over Texas, in order to observe the scope and breadth of the tort reform movement. Regrettably, she chose not to.
Finally, Texas Monthly ignores the important role that lawyers serve in making TLR aware of the abuses in the legal system and crafting the reforms that cure those abuses. Since Texas Monthly is intent on making “wealthy businessmen” the bogeymen of the Texas civil justice system, it chose to ignore the significant contributions that lawyers make to tort reform.
Texas Monthly: “There was a new governor too: George W. Bush, who had defeated Ann Richards, in 1994, by sticking to four issues, one of which was tort reform. (By the time he was reelected, in 1998, TLR and similar groups had given more than $4 million to his two campaigns).” (p. 220)
The Facts: TLR PAC contributed a total of $25,000 to the gubernatorial campaigns of President George W. Bush. Texas Monthly does not say where the other $3,975,000 of the cited $4,000,000 came from. Nor does it reveal how much money President Bush’s opponents received in campaign contributions from personal injury plaintiffs’ lawyers.
Texas Monthly: “TLR’s leadership turned its attention to judicial races, investing around $1 million to defeat Elizabeth Ray, a Houston district judge, in a 2002 Republican primary runoff election for the Texas Supreme Court… [I]n an exceptionally bitter race, TLR tarred her as a sham Republican and a friend of the plaintiff’s lawyers. Its candidate, Dale Wainwright, won.” (p. 228)
The Facts: TLR PAC contributed a total of $15,500 to Judge Dale Wainwright’s campaign, not $1,000,000. Texas Monthly does not explain who contributed the remaining $984,500 in stated contributions or the basis of its assertion that it was TLR. TLR endorsed Judge Wainwright because it believed he was the more qualified and judicially conservative candidate. The Texas electorate agreed.
Texas Monthly’s assertion that TLR “tarred” Judge Ray is also inappropriate. (What was the author’s motive in choosing the pejorative verb “to tar” in its description of TLR’s activities?). In her campaign against Judge Wainwright, Judge Ray raised at least two-thirds of her campaign funds from personal injury and mass-tort plaintiffs’ lawyers, including Walter Umphrey, John Eddie Williams, John O’Quinn, and Fred Baron, among others. TLR does not “tar” a candidate when it informs the electorate of a candidate’s connection to the personal injury plaintiffs’ bar — this is information that the electorate deserves to know in order to make an informed decision at the polls. If the association of the personal injury plaintiffs’ bar with a candidate harms that candidate at the polls, that is the fault of the plaintiffs’ bar or the candidate, not TLR.
Texas Monthly: “‘Support from plaintiff’s lawyers is a campaign issue’, Trabulsi told me solemnly.” (p. 228)
The Facts: The entrepreneurial mass-tort plaintiffs’ lawyers are large contributors to candidates for public office. They are in such low repute with the electorate, however, that they generally choose not to openly endorse candidates; they also attempt to disguise their financial support through deceptively-named political action committees. Texas Monthly is well aware of this. In fact, the article attributes the following quote to a mass-tort plaintiffs’ lawyer, regarding the efforts of the personal injury plaintiffs’ bar to defeat the Prop 12 constitutional amendment at the polls: “The biggest problem we face as lawyers when we try to get our message across on this issue is that the MESSENGER is KILLING the MESSAGE.” (Article, Page 254). TLR believes that Texans are entitled to know which candidates for public office are financially supported by the personal injury plaintiffs’ bar.
Texas Monthly: “Still, there were enough Democrats in high places that TLR didn’t get everything it wanted [in the 1995 legislative session]. Lieutenant Governor Bob Bullock, who presided over the Senate, forced TLR and other tort reform groups to sit down with the trial lawyers and negotiate a compromise, which they did, near the end of the 1995 session.” (p. 222)
The Facts: The late Lt. Governor Bullock, a Democrat, strongly endorsed TLR’s 1995 legislative agenda and was key to its passage. Lt. Governor Bullock “forced” nothing on TLR. On the contrary, Mr. Bullock was so impressed that Dick Weekley and other TLR supporters personally lobbied the Legislature that he referred to Mr. Weekley as “Mr. Smith Comes To Austin,” after the legendary idealistic character played by Jimmy Stewart in the film “Mr. Smith Goes To Washington.” Texas Monthly knows that, but chose not to mention it in the article, presumably because Lt. Governor Bullock’s recognition of Mr. Weekley’s idealism sharply contrasts with the magazine’s projection of selfish motives to TLR’s leaders.
As can be expected during any legislative process, there were modifications to TLR’s original proposals in 1995. However, this has been true of every reform proposed by TLR in every legislative session. TLR has never been inflexible in its legislative advocacy. Lt. Governor Bullock, a Democrat, suggested some of the modifications in 1995, but so did the bills’ sponsors – Senator David Sibley, a Republican, and Rep. Bob Duncan, a Republican – among others.
Texas Monthly knows, but chose not to acknowledge, that TLR’s proposals have had wide public support and have been enacted into law with large bi-partisan majorities in both chambers of the Legislature. The votes passing HB 4 in 2003 were 27 to 4 in the Senate and 110 to 34 in the House of Representatives. SB 15, the asbestos/silica litigation reform bill, which Texas Monthly totally ignores in its article, passed 30 to 0 in the Senate and by voice vote without notable opposition in the House earlier this year.
Texas Monthly: “The years between 1995 and 2003 were frustrating for TLR. Many legislators in both parties lacked the stomach for another tort reform battle, feeling they had addressed the issue well enough.” (p. 228)
The Facts: Although TLR was disappointed that many of its most important reform proposals were bottled up in a House Committee for three sessions by the then-Speaker of the House, Texas Monthly is nevertheless wrong to declare that “legislators in both parties lacked the stomach for another tort reform battle.”
The magazine ignores the tort reform successes in the years from 1997 to 2001. In 1997, forum-selection reform gave greater authority to Texas judges to send non-Texas plaintiffs back to their home states or nations for legal redress of alleged wrongs (this bill passed by a vote of 27 to 4 in the Senate and 128 to 5 in the House). A 1999 TLR-inspired reform creates checks and balances on State officers who enter into contingency-fee arrangements with outside lawyers for State business. This reform will prevent the kind of contingency-fee abuse by future State officers that landed former Texas Attorney General Dan Morales in prison because of the fee ($256 million!) he tried to give a lawyer friend as part of the tobacco lawsuit.
Additional reforms in 1999, each of which passed with overwhelming bi-partisan majorities in both legislative chambers, accomplished the following: (1) Extends the protections in the charitable immunity statute to doctors and other health care providers who donate their time and skill to treat people unable to afford medical care. (2) Gives employers reasonable protection from civil damages for giving job performance information about current and former employees that the employer reasonably believes to be true. (3) Bans lawsuits by governmental entities against firearm manufacturers, trade associations, or sellers for claims arising from the lawful design, manufacturing, marketing or sale of firearms or ammunition in order to stop government lawsuits against the firearms industry arising from crimes committed with firearms. (4) Creates a fair and sensible legal framework in which to litigate any disputes arising from computer problems related to the change of the century, known as the Y2K bill.
Texas Monthly: Discussing the 2003 legislative session in which HB 4 was passed, “The 1995 tort reforms had been forged during negotiations between lawyers on the two sides, but with Republicans in total control of the legislative process, compromise was a thing of the past.” (p. 230)
The Facts: Texas Monthly persists in trying to frame civil justice reform as a partisan issue when it is not. The article asserts that Republican leadership prevented a healthy dialogue between the contesting parties on tort reform in the 2003 session of the Legislature and refused any accommodation to opponents of specific reforms that were part of HB 4. That is wrong, as we have demonstrated in Sections 2 and 6 above.
Texas Monthly’s allegations of Republican intransigence and TLR obstinacy are easily refuted by activities in the 2005 session of the Legislature, in which Republicans had solid majorities in both chambers and TLR led the effort to enact badly needed asbestos/silica litigation reform. TLR’s lead outside counsel represented the tort reform coalition in Senate-sponsored discussions with representatives of the personal injury plaintiffs’ bar over a two-week period. Those discussions were chaired by three Republicans: Lt. Governor David Dewhurst, Senate State Affairs Chairman Robert Duncan, and Senate bill sponsor Dr. Kyle Janek. Republican leadership in the House was kept fully informed of those discussions as they progressed. The result was passage of SB 15 (the most effective asbestos/silica litigation reform legislation ever passed in America) with a 30 to 0 vote in the Texas Senate and a voice vote without notable opposition in the House.
Contrary to Texas Monthly’s fanciful explanation, the difference between 2003 and 2005 was that the personal injury plaintiffs’ lawyers thought they could prevent passage of HB 4 in 2003 by stubborn opposition and scorched earth tactics on the floor of the House. When they lost on HB 4, they changed their tactics in the 2005 session on SB 15 and entered into meaningful and reasonable discussions with bill sponsors and TLR representatives.
What was Texas Monthly’s purpose in choosing not to discuss the important 2005 session and the asbestos/silica reform legislation, one of the most meaningful tort reforms ever advocated by TLR? One must conclude that such a discussion would have cast tort reform in too favorable a light to the readers of the magazine. Perhaps Texas Monthly did not want its readers to know of the compelling need for the asbestos/silica litigation reform and the constructive give and take between TLR and trial lawyers in the legislative process. Nor, apparently, did it want its readers to know of the enormous benefits that will flow to Texas citizens who have legitimate asbestos and silica exposure claims, to Texas workers seeking jobs, and to Texas businesses of all sizes who now no longer need to defend claims by persons who are not impaired.
Texas Monthly: “Regarding U.S. Senator Sam Brownback, of Kansas: “[H]e is just the kind of politician TLR likes: Republican, wealthy, [and] with Christian right bona fides….” (p. 254)
The Facts: This is sheer speculation. Texas Monthly never inquired of any of TLR’s leaders about their personal political preferences. TLR PAC bases its endorsements on a candidate’s views and positions on the Texas civil justice system, not on party, not on personal wealth, and not on a candidate’s positions on social issues or federal issues. Naturally, there are differences of opinion on non-civil justice policy issues among TLR’s leadership and there is wide diversity of political and policy views among the 13,700 Texas citizens who are supporters of TLR.
Texas Monthly’s implication that TLR is partisanly Republican is false. A partial list of Democratic candidates that TLR PAC supports or has supported includes: Lt. Governor Bob Bullock; Supreme Court Justice Rose Spector and Supreme Court candidate Margaret Mirabal; Third Court of Appeals Justice Jan Patterson; State Senators Ken Armbrister, Rodney Ellis, Juan Hinojosa, Eddie Lucio, Frank Madla, Mike Moncrief, John Montford, Bill Sims, John Whitmire, and Judith Zaffirini; Texas House Members and candidates for the House Clyde Alexander, Jaime Capelo, Robby Cook, Henry Cuellar, Dan Ellis, David Farabee, Charles Finnell, Timoteo Garza, Roberto Gutierrez, Mark Homer, Chuck Hopson, Todd Hunter, Rob Junell, Nelda Martinez, Tom Ramsay, Allan Ritter, Patrick Rose, Abel Ruiz, Laura Salinas, Curtis Seidlits, Mark Stiles, Mark Strama, Tom Uher, and Mike Villarreal. Political contributions are a matter of public record, easily available at the Texas Ethics Commission.
Texas Monthly: Quoting Mark Lanier, an exceedingly wealthy (although Texas Monthly does not mention his enormous wealth) mass-tort plaintiffs’ lawyer, “[TLR’s leaders are] entrepreneurial everywhere but the legal system.” (p. 169)
The Facts: This is one of the few statements in the article that TLR identifies as accurate. TLR believes in the traditional notion that the practice of law is a profession, one that should have high ethical standards, and that lawyers who represent litigants are officers of the court as well as advocates for their clients. TLR respects the many ethical Texas lawyers who take cases on behalf of plaintiffs – lawyers who sue on behalf of persons who, in fact, have been harmed and need to seek redress in the courts against persons or entities who have wrongfully caused that harm.
The personal injury plaintiffs’ lawyers with whom TLR takes issue are those who abuse the system, especially those who essentially run lawsuit manufacturing enterprises, using class actions and mass-tort lawsuits (often based on faulty or non-existent science) to extort huge “global” settlements that simply are not justified and are a terrible drag on U.S. business in this time of intense international competition.
A prime example of abusive mass-tort lawsuits are the silica cases that recently came to the attention of Federal District Judge Janis Jack in Corpus Christi, and which Texas Monthly ignores. The judge held months of evidentiary hearings, and concluded that many of those silica claims were “manufactured for money.” Judge Jack observed: “These diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants.” She specifically said about John O’Quinn’s mass-tort law firm: “The clear motivation for O’Quinn’s micro management of the diagnostic process was to inflate the number of plaintiffs and overwhelm the defendants and the judicial system.”
Texas Monthly is aware of the highly-publicized silica proceedings in Judge Jack’s court but chose not to discuss them in its tort reform article. Those proceedings reflect badly on several Texas mass-tort plaintiffs’ lawyers, which may be why the article avoided discussing Judge Jack and her rulings.
Texas Monthly: “They [Weekley, Linbeck, Trabulsi and Kelly] were wealthy, and that wealth has been accumulated in businesses – from construction to alcohol – profoundly threatened by lawsuits.” (p. 168)
The Facts: : The article asserts that the TLR co-founders are motivated by personal fear of lawsuits, yet the article primarily complains about the cap on non-economic damages in medical liability lawsuits. How is it lost on the magazine that none of the four TLR leaders discussed in its article is a doctor, nurse, hospital or nursing home owner, or administrator? Not one of them will benefit from the caps, except in the way all Texans will – by having more accessible and affordable health care.
The whole thrust of the article is that all tort reform in Texas is the result of the efforts of just four men – which itself is a ridiculous assertion and an arrogant slap in the face to government leaders, legislators, and the thousands of people and scores of organizations that work for civil justice reform. The efforts of those four men, implies Texas Monthly, are motivated by greed and a fear of lawsuits. Yet, the magazine’s assertion that TLR’s co-founders are motivated by personal fear of lawsuits cannot explain why they would be interested in caps on non-economic damages in medical lawsuits or in asbestos/silica litigation reform, to name just two examples of civil justice reforms that have no direct financial impact on TLR’s leaders.
It does not occur to the magazine that TLR supported the caps for sound public policy reasons – the same reasons that convinced the Legislature to pass HB 4 by overwhelming bi-partisan majorities and a majority of Texans to adopt the enabling constitutional amendment. The Legislature balanced competing public interests, which were, on the one hand, solving the health care crisis and providing affordable and accessible health care to Texans throughout our state or, on the other hand, continuing to allow juries unfettered discretion to award highly volatile non-economic damages. After careful consideration, two-thirds of each chamber of the Legislature and a majority of Texans voting on Proposition 12 (the constitutional amendment) chose in favor of affordable and accessible health care for Texans. They were not being callous to persons who, in the future, would face a cap on subjective and speculative non-economic damages. Rather, they believed, as TLR does, that the greater good for Texas citizens required that the caps be enacted.
While Texas Monthly gives TLR full credit for the caps (or the full blame, in its view), it knows that health care providers of all kinds formed a coalition called the Texas Association for Patient Access (TAPA). It was TAPA, not TLR, which crafted the medical liability provisions; TAPA lawyers and lobbyists led the legislative advocacy and worked with the bill’s sponsors; and TAPA spearheaded the effort to pass Prop 12 in the popular election.
Of the many serious omissions in the article, perhaps the most baffling is that, despite its focus on the caps on non-economic damages in medical liability cases, the article contains no interviews of doctors, nurses, hospital administrators, or nursing home owners. How can the magazine claim fairness and balance in an article complaining about the impact of HB 4 on medical liability cases without discussing the views of the members of the health care community?
Texas Monthly: Discussing Proposition 12, the constitutional amendment allowing caps on non-economic damages in medical liability lawsuits, “The amendment authorized a $250,000 cap on non-economic damages in malpractice cases ‘and other actions’, three words that sent opponents of the proposition into a fury because they allowed the Legislature to cap damages not just on malpractice cases but on every personal-injury lawsuit, whether it involved drunk drivers or corporate polluters. Trabulsi suggested that no one in his right mind would take that possibility seriously….” (p. 234)
The Facts: The opponents of Proposition 12 misled the electorate by misrepresenting that a vote in favor of the constitutional amendment was a vote for imposing caps on all damages in all lawsuits, which Texas Monthly does not reveal to its readers. The Anti-Prop 12 propaganda did not distinguish between economic and non-economic damages and implied that the cap would apply to all lawsuits instead of only medical liability lawsuits – a position adopted by the magazine, as reflected in the quote above.
Mr. Trabulsi explained to the reporter that the constitutional amendment combined with HB 4 imposes caps only on non-economic damages and only in medical liability lawsuits. The amendment also gives the Legislature flexibility in the future to enact limits on non-economic damages in other cases if it decides to do so – but only if the Legislature passes any such limits with a three-fifths vote (a “super-majority”) in each chamber. Mr. Trabulsi explained all of this to the reporter, which she distilled down to the dismissive and inaccurate statement: “Trabulsi suggested that no one in his right mind would take that possibility seriously….” Fair reporting?
Texas Monthly: Regarding Alvin Berry, a retired worker whose doctor allegedly failed to diagnose his cancer in a reasonably timely manner: “[A]nd if he won the case, Alvin would take home substantially less than the maximum of $250,000 the State of Texas had decided an injury like his could be worth.” (p. 167) The article also advances this hypothetical: “If your child is blinded at birth because of medical malpractice, there is a good chance that her only remedy is to receive a few hundred dollars a month for the rest of her life.” (p. 168)
The Facts: These statements are divorced from reality. They also are irresponsible in that they may lead the magazine’s readers to make unwise decisions about seeking legal redress in certain circumstances.
By enacting HB 4, the Texas Legislature has not made a determination that an injury like Mr. Berry’s could only be worth a maximum of $250,000, nor does HB 4 limit a blinded baby’s recovery to a few hundred dollars a month. Rather, the caps in HB 4 only apply to non-economic damages, which are inherently subjective and often speculative, and those caps can go as high as $750,000 when three or more defendants are sued (which is not uncommon). Texas Monthly, however, fails to fairly discuss that HB 4 places no limit on the recovery of economic damages, including past and future medical expenses, expenses related to physical therapy and rehabilitation, expenses related to long-term nursing care, expenses related to medication and necessary medical equipment, lost income, and lost future earning power resulting from the injuries, plus interest on those damages.
Importantly, even plaintiffs who are unemployed at the time of their injury can recover lost future earning power resulting from the injuries because lost future earning power is measured by the lost capacity to earn money and not the loss of actual earnings. Moreover, in the case of a child with serious and permanent injuries (such as blindness), courts have presumed that the child will have diminished earning capacity, which increases the probability that the jury will award such damages. Diminished earning capacity and other forms of economic damages can, and do, often run into the hundreds of thousands of dollars, or in some cases, millions of dollars. In the case of a blind or seriously disabled baby or child, substantial lost income would most probably result in millions of dollars of economic damages.
In sum, substantial economic damages, not capped in any way by statute or constitutional law, are available to claimants of every age. The magazine alleges an inhumane and callous outcome in Alvin’s case and the blind baby hypothetical, but that is an error that is inexcusable because it so badly misses the impact of economic damages in such cases.
Texas Monthly: “Malpractice insurance reductions have been less than 1.5 percent since 2003, and the hoped-for return of doctors to underserved areas has not taken place.” (p. 258)
The Facts: Of all the errors of fact and law contained in the article, this failure to accurately report the favorable public policy impact of the medical liability provisions of HB 4 is one of the most disturbing because it is so wrong and could so easily have been fact-checked by the magazine.
As expected by the Texas Legislature when these reforms were enacted, the combined rate cuts of all insurers of Texas physicians since HB 4 was enacted have been significant – more than 11%, as shown in fact sheets and other data from the Texas Department of Insurance. The Texas Medical Liability Trust (TMLT), a self-insurance pool that is the largest insurer of doctors, cut their doctors’ liability premium rates by 12% immediately upon passage of HB 4 in 2003 and reduced rates an additional 5% in 2004. This year, TMLT announced a $27.9 million premium reduction in a combination of rate cuts, dividends, and discounts for good claims experience, which will take effect January 1, 2006. The Joint Underwriting Association (JUA), the insurer of last resort, has reduced premiums 10% for doctors and 15% for nursing homes. These reductions after HB 4 are in stark contrast to steeply rising rates in the years prior to passage of HB 4.
Additionally, since HB 4 became effective, we have had a net gain of doctors practicing in Texas. The historically underserved Rio Grande Valley has added 128 physicians, including 10 pediatricians and 7 general surgeons. Jefferson, Nueces, and Victoria counties have posted impressive gains in physician growth after experiencing a net loss of physicians in the 18 months prior to the passage of HB 4. Statewide, the ranks of heart surgeons, pediatric heart surgeons, neurosurgeons, and neurologists had declined or shown no increase in the five years preceding the passage of HB 4, but since enactment, each sub-specialty has shown healthy gains. Texas experienced a net loss of nine orthopedic surgeons and fourteen obstetricians in the three years before passage of HB 4. Since enactment, however, Texas has had a net gain of 93 orthopedic surgeons and 81 obstetricians. It is difficult to examine this objective data and understand how Texas Monthly can credibly claim that the return of doctors to our Texas medical markets has not taken place.
Texas Monthly: “If you go to an emergency room with a heart attack and the ER doctor misreads your EKG, you must prove, in order to prevail in a lawsuit, that he was both ‘wantonly and willfully negligent.’” (p. 168)
The Facts: HB 4 heightened the standard of negligence that must be proven in certain cases involving medical emergencies. This reform was necessary to reflect the realities of emergency room medicine: that doctors must often make split-second decisions regarding a wide variety of injuries and illnesses with limited information about the patient. The ordinary standard of negligence generally applicable to doctors and health care providers in non-emergency situations did not fairly protect a doctor practicing medicine under true emergency circumstances.
Significantly, the heightened negligence standard in HB 4 applies only in situations involving real emergencies. It does not apply in situations where a patient is stabilized and capable of receiving care on a non-emergency basis. Thus, in the article’s example, if the patient was stabilized and the emergency room doctor misread the EKG, then the heightened standard of negligence would likely not apply.
HB 4’s reform in the standard of negligence was originally proposed by the health care community under the direction of the Texas Association for Patient Access, and it was supported by TLR. We believe the reform will help emergency rooms attract and maintain the services of highly qualified doctors who are otherwise reluctant to practice emergency room medicine due to the extraordinary risks of liability.
Texas Monthly: “If you took a drug that was later recalled after studies proved it could cause fatal complications, the manufacturer can escape liability for your serious injury or death if the instructions inside the package were approved by the FDA [United States Food & Drug Administration] when you took the medicine.” (p. 168)
The Facts: Texas Monthly’s simplistic statement of a complex statute is badly misleading. The magazine fails to disclose that the pharmaceutical product liability provisions of HB 4, which are the apparent target of the above assertion, apply only to “failure to warn” causes of action, which are discussed below. The statute does not affect a case in which the allegation is that the drug was defectively designed or manufactured. Thus, if the drug was defective, as the article’s hypothetical implies, then Texas Monthly’s statement is simply false.
If a person harmed by an FDA-approved drug files a lawsuit in a Texas court claiming that the drug manufacturer failed to adequately warn about dangers of the drug, HB 4 establishes a rebuttable presumption that the manufacturer of a drug is not liable in such a “marketing defect” case if: (1) the warnings or information that accompanied the product in its distribution were those approved by the FDA, or (2) the warnings provided were those stated in monographs developed by the FDA for pharmaceutical products that may be distributed without an approved new drug application. Notably, however, the presumption does not apply: (1) to a claim that the drug had a design or manufacturing defect; or (2) where the manufacturer withheld from or misrepresented to the FDA information about the performance of the drug in order to obtain approval of the warnings or information that accompanied the drug.
The Legislature, in enacting this provision, balanced the need for effective and affordable drugs with the needs to discourage improper behavior and to fairly compensate injured citizens. The FDA drug-approval process is rigorous, but it is not and never will be perfect. Sometimes, drugs that are extremely beneficial to a great majority of the population can cause harm to a few people. And sometimes the FDA’s rigorous review process does not discover every complication that might be caused by a drug. The Legislature is well within good policy boundaries to determine that a drug company will not be liable under a failure-to-warn theory for unforeseen complications of a beneficial FDA-approved drug so long as the drug company did not mislead the FDA in order to obtain approval of the warnings or instructions that accompany the drug.
Texas Monthly: “If a driver hits your old Ford Pinto from behind and burns you beyond recognition, Ford will almost certainly be able to shift the blame from its defective product to the driver of the other car.” (p. 168)
The Facts: That statement is so far from the truth that it is difficult to even guess how the magazine arrived at it. We assume that the reporter is complaining of the well established legal doctrine of proportionate responsibility, although she reflects a grossly inadequate understanding of the concept and how it works. The key to understanding the doctrine of proportionate responsibility is the common-sense notion that the finder of fact (judge or jury) should be allowed to assign fault to all parties actually at fault and that a defendant should be required to pay the share of damages attributable to him or her. This has been the law since before TLR was even formed.
Presumably, the magazine is alleging that if Ford is found to be only partly at fault and the driver of the car that hit the Pinto is found to be mostly at fault, the doctrine of proportionate responsibility would assign most of the damages to the driver of the car that collided with the Pinto. But the magazine erroneously claims that when a Ford Pinto owner is burned to death in a rear end collision, “Ford will almost certainly be able to shift the blame for its defective product to the driver of the other car.” The allocation of fault is up to the jury, which must decide the allocation based on the evidence. It is perfectly possible that Ford would be held 100 percent liable – especially, for example, if the accident occurred at a low rate of speed. On the other hand, Ford would probably have a strong defense if the rear impact speed was very high – which might ignite any gas tank (however well designed or manufactured) even if the driver survived such a tremendous initial impact.
Motor vehicle collisions occur in many ways, which means that any categorical claim that current law means that Ford “will almost certainly” escape liability is unsupportable on its face. Our opponents like to complain that TLR’s litigation reforms deprive plaintiffs the right to a jury trial, which is one of the plaintiff lawyer themes adopted by Texas Monthly. Actually, the rule of proportionate responsibility empowers the jury to consider all of the evidence and to allocate responsibility accordingly.
Texas Monthly: “If you live in an apartment complex that lays off security guards and fails to maintain its locks and you are raped as a result, the apartment owner can still avoid liability.” (p. 168)
The Facts: Again, the magazine simplistically states a complex matter in a way that distorts the truth. HB 4 most certainly does not provide that an apartment owner can “avoid liability” under these circumstances. If the apartment owner is negligent and its negligence harms a tenant, that owner could be held liable before enactment of HB 4 and can be held liable today.
Before HB 4, the jury could allocate responsibility only among responsible persons who could be made parties to the lawsuit. The problem was that sometimes a person who had some (or even most) of the responsibility for the plaintiff’s injury (like the rapist in the article’s example) could not be found and, consequently, could not be added to the lawsuit. In those circumstances, the jury was forced to allocate all responsibility only among the persons who could be added to the lawsuit (like the apartment owner in the article’s example), even the share of responsibility which was attributable to the absent parties. In such cases, the jury’s allocation did not reflect the true situation. After HB 4, the jury is allowed to assign fault to any one who is actually responsible for the plaintiff’s injury, which, in the example cited in the article, might include both the apartment owner and the rapist, even if the rapist cannot be found. This accommodation of various public interests by the Legislature strikes most people as sensible and fair.
Texas Monthly: “[I]n the past, if a jury found that the defendant was more liable than the plaintiff, the defendant could be held liable for the entire amount of the judgment. After 1995, a defendant was on the hook for only his share of the responsibility, a concept defined by TLR as ‘proportionate liability.’ The effect was that if, say, an uninsured driver who rear-ended a poorly designed car was found to be 40 percent responsible for the resulting explosion, then the injured plaintiff would have to ‘eat’ that 40 percent – the Legislature having chosen to protect the negligent automaker instead of the innocent victim.” (p. 222)
The Facts: The magazine’s statement that the Legislature chose “to protect the negligent automaker instead of the innocent victim” is dead wrong. Texas Monthly again visits the doctrine of proportionate responsibility and with no more clarity or accuracy than it does elsewhere in its article. In the magazine’s hypothetical of a lawsuit involving an “innocent” plaintiff, a “negligent” automaker, and an uninsured driver who is found 40 percent responsible, an automaker that the jury finds liable for the remaining 60 percent of responsibility would, in fact, be jointly and severally liable for all of the damages recoverable by the plaintiff. To understand the magazine’s mistake, a little explanation is required (an explanation that TLR gave to the article’s author during her interview with TLR’s general counsel and lead outside counsel).
Texas Monthly’s claim that after the 1995 reforms a defendant can only be “on the hook…for his share of the responsibility….,” is not an accurate statement of the law. In fact, even after the 1995 reforms, the concept of joint and several liability continues to apply with full force to defendants whose percentage of responsibility exceeds 50 percent – that concept was also present in the pre-1995 law, but triggered by findings between 10 to 20 percent (rather than 50 percent), depending on the case. Under the present version of the proportionate responsibility statute, a defendant who is attributed a percentage of responsibility “greater than 50 percent” continues to be jointly and severally liable for all damages recoverable by the plaintiff – meaning that the defendant can be required to pay not only its own share of damages but also the damages attributed to other parties that are unable to pay.
Returning then to Texas Monthly’s hypothetical of a lawsuit involving an “innocent” plaintiff, a “negligent” automaker, and an uninsured driver who is found 40 percent responsible, Texas Monthly should know that under the pre-1995 law, post-1995 law, and current law, an automaker found liable for the remaining 60 percent of responsibility would be “on the hook” for 100 percent of the plaintiff’s judgment because it would be jointly and severally liable for all of the damages recoverable by the plaintiff.
Texas Monthly: “During the tort reform frenzy of 2003 that TLR helped stir up, the Legislature…created the Texas Residential Construction Commission (TRCC).” (p. 224-25) Regarding the residential construction contract between Brian Zaltsberg and KB Home, “Why, you may wonder, didn’t Brian sue KB? Because his contract prohibited him from doing so. It required him to seek binding arbitration instead of redressing the civil courts…. Like victims of medical malpractice, homeowners have seen their access to the courthouse curtailed.” (p. 224)
The Facts: TLR created no “tort reform frenzy” in 2003 or any other time. If the magazine had bothered to visit with a representative sample of the thousands of TLR supporters, or to talk to several of the numerous organizations that are part of the tort reform coalition, or to speak with the countless Texans who have suffered from lawsuit abuse (including doctors and small business owners), it could have only concluded that tort reform in Texas emanates from the people, with TLR merely providing an effective vehicle to give voice to a grassroots movement.
The article acknowledges that TLR did not lobby or endorse the bill regarding the Texas Residential Construction Commission (“TRCC”). Nonetheless, it implicitly assigns blame for enforceability of arbitration provisions in residential construction contracts to TLR’s “tort reform frenzy.” This is simply untrue. Arbitration agreements in contracts have been enforceable in the U.S. dating back to the passage of a federal law in 1925. Since that time arbitration agreements – even in contracts involving consumers – have been widely enforced.
Moreover, the dispute resolution process in the TRCC bill is not attributable to TLR. TLR never lobbied or endorsed the legislation concerning the creation of the TRCC. Instead, the TRCC is the latest aspect of a long legislative history concerning residential construction disputes. Almost twenty years ago, the Texas Legislature enacted the Residential Construction Liability Act (“RCLA”) that began regulating the liability of contractors in residential construction. The regulations and policies that resulted in the TRCC began with this legislation and recent amendments to the RCLA. This effort began years before TLR advocated for civil justice reform in Texas, and TLR has played no role. To have presented a fair and balanced story, the reporter should have interviewed the people and groups who were engaged in crafting and passing the TRCC bill.
Texas Monthly: In discussing Dueñez v. F.F.P. Operating Partners, a case concerning the legal doctrine of proportionate responsibility currently before the Texas Supreme Court, the article states, “Justice Priscilla Owen, whom TLR had helped elect, had conceded in her dissent ….” (p. 256)
The Facts: By this passage, Texas Monthly clearly hopes the reader will decide that Justice Priscilla Owen (who now sits on the United States Court of Appeals for the Fifth Circuit and who received the American Bar Association’s highest qualification rating in her confirmation process) is beholden to TLR because of its support of her in past election campaigns, and as a result, she conformed her dissenting opinion in Dueñez to satisfy TLR’s position on that case. However, Justice Owen’s dissenting opinion was written and published before TLR filed its friend-of-the-court brief in Dueñez – in fact, before TLR itself was even aware of the Dueñez case.
Additionally, the article fails to disclose that four of the five Justices who decided the majority opinion (which states a position on HB 4’s proportionate responsibility provisions that TLR disagrees with) in Dueñez have also been supported by TLR. What was Texas Monthly’s purpose in choosing not to mention that “TLR had helped elect” those judges as well as the judges who wrote the dissent?
Texas Monthly: Quoting the lawyer for the plaintiffs in the Dueñez case: “‘They [presumably referring to TLR’s brief] are asking the court to take a Magic Marker and put a big black mark through the Legislature’s description of its own laws.’ The assertion that legislators didn’t know what they were saying … was ‘sophistry.’” (p. 256)
The Facts: That statement is disingenuous, at best. The magazine knows that the issue in Dueñez is not only what the Dram Shop Act itself says but also what is mandated by a statute with conflicting language that was enacted subsequent to the Dram Shop Act. The Texas Supreme Court has to decide, in Dueñez, how conflicting language in two different statutes should be read, reconciled, and applied. This is what high appellate courts are frequently required to do. The differences between the majority opinion in Dueñez and the dissent are largely differences in how to apply judicial doctrines in resolving conflicting statutory language, and TLR believes the dissenters’ views better reflect appropriate judicial doctrine.
The Dram Shop Act’s language conflicts with the later-enacted proportionate responsibility provisions of HB 4. That statute’s proportionate responsibility provisions specifically excepted certain statutes from those provisions, but the Dram Shop Act was not among those excepted. TLR believes that Justice Owen’s dissenting opinion in Dueñez is better reasoned than the majority opinion, and TLR and others have filed friend-of-court briefs urging the Court to adopt the position of the original dissent in order to give effect to the Legislature’s proportionate responsibility provisions in HB 4. If the Legislature had wanted to exclude the Dram Shop Act from the proportionate responsibility provisions of HB 4, it would have done so explicitly, as it did other statutes.
Texas Monthly: Also, in discussing the Dueñez case, Texas Monthly writes, “Mothers Against Drunk Driving, which believes that a company that profits from the illegal sale of alcohol should also bear the burden when injuries occur, had supported this law. [Justice Priscilla] Owen didn’t see it that way, and neither did TLR, especially Trabulsi, who opened himself to conflict-of-interest criticism as the owner of Richard’s Liquors and Fine Wines.” (p. 256)
The Facts: In connection with the preparation of the article, Texas Monthly told TLR that it would be given the opportunity to answer any criticism of TLR or its four co-founders, including Mr. Trabulsi. Yet the magazine never inquired of TLR or of Mr. Trabulsi about TLR’s decision-making process in filing a friend-of-the-court brief in the Dueñez case or about Mr. Trabulsi’s role in that process; nor did Texas Monthly ever inform TLR that it would make a conflict-of-interest accusation.
Had the magazine bothered to contact TLR about the brief, it would have learned that, in fact, it was TLR’s outside counsel who first called attention to this issue after the original Dueñez decision had been handed down by the Supreme Court. TLR’s counsel was concerned about the potentially erosive impact of the decision on HB 4’s proportionate responsibility provisions. Prior to that time neither Mr. Trabulsi nor the rest of TLR leadership had been aware of the matter. TLR has a history of filing friend-of-court briefs on important issues of law, like those involved in the Dueñez case.
It is notable that Texas Monthly chose not to mention that Mr. Trabulsi’s wine and spirits retail business, founded by his father in 1950, has had a reputation as a good corporate citizen for fifty-five years and that his family business has never been sued for violating the statutes, rules, or regulations that cover the alcohol beverage industry. That information does not fit the article’s theme line of demonizing the four founders of TLR.
Texas Monthly: “Should [the plaintiff] by some slim chance win [in the trial court] and the defendant appeals, [the plaintiff’s] odds of ultimately prevailing on appeal are 12 percent as of 2004 – the paltry rate at which the Texas Supreme Court, which has also been subject to the influence of the tort reformers, has found for the plaintiff in cases involving harm to persons or property, according to Court Watch, an Austin-based public-interests organization.” (p. 168)
The Facts: First, TLR has been unable to verify the “12 percent” statistic that Texas Monthly attributes to Court Watch. Further, the nature of Court Watch’s reports and press releases suggest that it is either funded by personal injury plaintiffs’ lawyers or has a similar agenda concerning tort reform. Certainly, its comments about the Texas judiciary reveal that it is not an impartial observer of the Texas justice system.
Second, the Texas Supreme Court has discretion to determine which appeals it will or will not review. Thus, in cases where the plaintiff wins and the defendant appeals to the Texas Supreme Court, the plaintiff can prevail on the appeal by either: (a) convincing the Court not to review the case; or (b) convincing the Court to affirm the judgment. The 12 percent statistic cited by Texas Monthly, if it has validity at all, only relates to the latter situation in which the Court decides to hear the appeal. The critical statistic that the article omits, however, is that the Texas Supreme Court refuses to hear about 90% of the cases appealed to it – a refusal to hear the appeal is an affirmation of the lower court’s ruling. Once this critical fact is considered, it is clear that Texas Monthly’s simplistic statistical logic grossly underestimates a winning plaintiff’s odds of withstanding a defendant’s appeal to the Texas Supreme Court.
Finally, TLR was a key supporter of the Judicial Campaign Finance Act sponsored by Senator Rodney Ellis (D-Houston) in 1995, which limits campaign contributions to judicial candidates and imposes greater transparency on contributions to judicial candidates.
Texas Monthly: “There are other areas of the law that TLR would like to see ‘reformed’. Along with prohibiting contingency fees for lawyers hired by government agencies, TLR wants to restrict who can serve on juries, which, after all, are unpredictable.” (p. 256)
The Facts: First, TLR has never advocated, and does not advocate, “prohibiting” contingency fees for lawyers hired by government agencies. On what does the magazine base its claim that TLR advocates “prohibiting” contingency fees? TLR’s work on government officers hiring outside lawyers on contingent fees flows from the outrageous activities of former Attorney General Dan Morales in entering into a contingency fee arrangement that allowed for a payout of $3.3 billion to five lawyers as part of the tobacco settlement.
The sorely needed TLR-inspired reform was sponsored in 1999 by then-Rep. Rob Junell (D-San Angelo), a legislator rightly admired by Texas Monthly. The statute places reasonable checks and balances on a State officer in making contingency fee arrangements with lawyers. Among other provisions, lawyers hired by the State under these arrangements will receive the lesser of the agreed-upon contingency fee or a “lodestar” computed fee that may result in a fee award of up to $4,000 per hour. The statute most certainly does not “prohibit contingency fees,” as carelessly alleged by Texas Monthly. Instead, the statute merely codifies for use with State contingency fee arrangements the venerable “lodestar” method of determining reasonable legal fees, which has long been used by state and federal courts. Again we ask, why would a journal that seeks respectability not undertake sufficient fact review to assure accuracy?
Second, the magazine asserts that “TLR wants to restrict who can serve on juries.…” Wrong again. TLR wants to make the entire jury experience more fair, efficient, and useful. That is why TLR supported the juror pay bill in the 2005 legislative session, which raised juror pay to $40 per day. Far from restricting who can serve on juries, this reform makes serving on a jury less of a burden on working Texans. Additionally, TLR thinks it is unfortunate that, for example, a disturbingly small percentage of the people summoned to jury service in Harris County actually show up. A recent report aired on Houston Public Radio suggests that only five to seven percent of minorities who are summoned in Harris County are showing up for jury service. TLR believes that reforms designed to increase such percentages, along with other ideas to improve jury service being explored by judges, lawyers, and academics, such as allowing jurors to ask questions during the trial, certainly merit further consideration. One would think that even Texas Monthly would be hard-pressed to accurately portray any of these ideas as “restrict[ing] who can serve….”
Texas Monthly: “With the courts closed and the Legislature supine, the good people of TLR will have remade the world in their image.…” (p. 258)
The Facts: It is bizarre that in support of Texas Monthly’s overall indictment of TLR, it decided to focus on two aspects of tort reform – the caps for non-economic damages in medical liability lawsuits and the TRCC bill – that were remote or even entirely removed from TLR’s legislative activities. TLR supported, but did not lead, the effort to enact the medical malpractice reforms sponsored by various organizations representing the many health care professionals in Texas. Additionally, TLR played no role in the passage of the TRCC bill.
TLR believes that if Texas Monthly honestly wanted to present a balanced and fair discussion of TLR and the tort reforms that its advances, it would have judged TLR on its own legislative initiatives, aspirations, and achievements, and not on those primarily or solely advocated by others.
To the extent that Texas Monthly chose to discuss TLR-supported reforms, such as the cap on non-economic damages in health care cases, it should have discussed the entire universe of TLR-initiated, TLR-advocated, and TLR-supported reforms. A story that purports to be a definitive look at civil justice reforms but then ignores most of the reforms cannot be described as definitive, fair, or balanced. Perhaps the reason that Texas Monthly chose to ignore many of these reforms was to avoid contradicting the article’s erroneous theme that TLR exists to protect business entities from accountability.
In addition to the statutes discussed in Sections 7 and 8 above and elsewhere in this piece, just a few of the TLR-advocated reforms that Texas Monthly might have mentioned in its article are these: (1) Requires class action lawyers who settle for coupons for their clients also to take their fee in coupons (the brainchild of Senator Bill Ratliff). (2) Allows jurors to hear evidence on whether an automobile driver or passenger was wearing a seat belt at the time of an accident. (3) Establishes a statewide multi-district litigation system in Texas to add efficiency in mass-tort litigation. (4) Expands protection for teachers against non-meritorious litigation related to actions taken by the teacher at school. (5) Expands the liability protection afforded to public servants to include public servants who are health care providers. (6) Provides certain liability protection for volunteers of charitable organizations and for volunteer firefighters.
Texas Monthly: “Now the pendulum has swung too far in the opposite direction – so far that the Legislature has usurped the lawmaking powers of the courts, and meaningful access to justice has been eliminated….” (p. 258)
The Facts: You cannot have too much good health and you cannot have too much good law. A fair and balanced civil justice system is not a pendulum; it is a laudable societal goal. The Legislature has not denied Texans access to their courts; it has made the courts, and the law the courts administer, more sensible and fair.
If one looks at the huge majorities in the Texas Senate and House that voted in favor of the various TLR-backed tort reforms over the last decade, it is evident that Texas Monthly and the personal injury plaintiffs’ bar are seriously out of step with the people of Texas about the appropriate role of litigation in society.
Texas Monthly’s plaintiff-lawyer driven argument is that the contingency fee system demands that only the highest-value cases will be taken by competent plaintiff lawyers. If true, that is a terrible indictment of the contingency-fee driven litigation system. The clear implication of the arguments made by Texas Monthly and the personal injury lawyers quoted in the article is that only claims involving many hundreds of thousands (or millions?) of dollars will attract a “competent” plaintiff’s lawyer. So much for plaintiff lawyers being “advocates for the common man”, as stated in regard to mass-tort lawyer Mark Lanier in the article.
The article also quotes Mr. Lanier as complaining that TLR is composed of “rich snots” (all 13,700 of us?). One wonders whether anyone at Texas Monthly has ever attended Mr. Lanier’s annual Christmas Party, which features headliners such as Bill Cosby and Dolly Parton, and has drawn the attention of even The New York Times (12/13/03 Sec. C) (“Mr. Lanier…said the whole thing would cost more than $600,000.”) Furthermore, the five mass-tort plaintiff lawyers who obtained the ill-considered contingency-fee deal from former Texas Attorney General Dan Morales to bring litigation against tobacco companies share a $3.3 billion fee (most of which should have gone to the citizens of Texas).
Finally, it is worth noting the many colorful quotes by plaintiffs’ lawyers in the article. During the writing of the article, Texas Monthly informed TLR that the trial lawyers were giving it “quotable” quotes but TLR was not. TLR admits that the plaintiff lawyers are better – much better – than TLR at delivering flashy quotes. But TLR’s quotes do have the old-fashioned advantage of being factual.
Texas Monthly: “With the courts closed and the Legislature supine, the good people of TLR will have remade the world in their image, one in which there is no recourse for wrongdoing, one in which the powerful simply get their way.” (p. 258)
The Facts: The statement is categorically wrong. Giving Texas Monthly the benefit of the doubt, we assume it made the statement because of its failures in fact checking, its obvious ignorance of the law, and its general state of confusion about the numerous complex issues it sought to cover in the article.