Real Tort Reform? There may be better answers.
April 14, 2005 08:07

HOW TO FIX THE TORT SYSTEM

This should be a triumphant moment for Thomas A.
Gottschalk. As the executive vice-president for law
and public policy at General Motors Corp. (GM), he
has devoted his long career to battling plaintiffs'
lawyers. So you might think Gottschalk would be
thrilled about the recently passed Class Action
Fairness Act (CAFA). Guess again. "CAFA will not
eliminate many class actions," predicts the steely
former litigator. "It was a modest procedural step."
"The whole tort 'reform' debate in this country is
pathetic," grouses Philip K. Howard, founder of the
New York legal policy group Common Good. Plaintiffs'
lawyers, union leaders and consumer advocates accuse
Howard, Gottschalk & Co. of polluting the policy
dialogue with bogus numbers and misleading anecdotes.
They offer a radically different view of reality.
Citing Vioxx, Enron, Firestone, WorldCom and other
recent scandals, the business community's opponents
argue with equal passion that now is no time to be
loosening the restraints on executive misbehavior by eviscerating the role of the courts. "Corporate
America wants immunity from misdeeds through tort
'reform,'" charges Frederick M. Baron, ex-President
of the Association of Trial Lawyers of America (ATLA).
Is either side right? How bad is the American legal
system? What's the best way to fix it? The challenge
now is to weed out the parasites without compromising fundamental values. Here's how: 1. Pay for Performance This fix would eliminate a big chunk of the most
abusive cases. The main target would be cases like a
1996 false advertising suit against Intel Corp.,
which awarded 500,000 people the right to claim a
$50 discount off a new microprocessor. Only 150, or
0.0003%, took advantage of the offer. The plaintiffs'
lawyers, meanwhile, walked off with nearly $1.5
million.

2. Penalties That Sting

One fix: Give judges stronger tools to punish
renegade lawyers. Before 1993, it was mandatory for
judges to impose sanctions such as public censures,
fines or orders to pay for the other side's legal
expenses on lawyers who filed frivolous lawsuits. An
equally important step is for judges to rise to the
challenge and use their disciplinary powers. For too
long, a cozy, protect-the-guild mentality has
protected exploitative attorneys from serious
punishment. The tough regime should apply on both
sides of the bar. Judges have also been far too
relaxed about punishing defense attorneys who destroy
documents - a tactic that's every bit as serious as
filing frivolous cases.

3. Curb the Duplication

The third reform targets one of Corporate America's
biggest complaints: duplicative litigation. This
problem arises in a wide variety of settings. Think
of the lawsuits involving cigarettes, Vioxx or the
Windows operating system.

4. Exiting the Tort System

These three changes would solve many of the tort
system's genuine problems, but not all of them. There
are rare issues that need to be removed from the
courts - with all of their elaborate procedural
rules - and directed into specialized administrative
tribunals. One of them, clearly, is asbestos.

Mike France, Business Week, 03/14/2005
For complete story, search
http://www.businessweek.com/

MERCK SAYS PLAINTIFF IN FIRST SCHEDULED VIOXX TRIAL LIED, MOVES TO DISMISS CASEAccusing the plaintiff in the case of lying, drug manufacturer Merck & Co. asked a judge to dismiss thefirst scheduled trial over its now defunct Vioxx painreliever, which is... (Read Article)

FEDERAL JUDGE DISMISSES FEN-PHEN-RELATED

ACTION AGAINST NAPOLI LAW FIRM

Plaintiffs who charged that a New York law firm
settled fen-phen diet drug claims for lower amounts
and used pressure tactics to force settlements and
secure large fees have had their case thrown out of
federal court. Southern District of New York Judge
Laura Taylor Swain dismissed a putative class action
brought by some 5,600 plaintiffs against Napoli,
Kaiser & Bern, finding that their claims fall within
arbitration agreements.


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Mark Hamblett, New York Law Journal, Law.com,
04/14/2005. For complete story, search
http://www.law.com
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