A Response to 'End Open-Ended Litigation'

By Jon Haber
Special to washingtonpost.com's Think Tank Town
Saturday, October 21, 2006; 12:00 AM

It comes as no surprise that Ted Frank ("End Open-Ended Litigation") would propose destroying the nation's civil justice system to benefit the insurance industry, drug companies and other corporate powers. He has, after all, represented one of the nation's largest pharmaceutical manufacturers against consumers injured by one of its products and now works for an outfit, the American Enterprise Institute for Public Policy Research, that expresses little regard for the nation's courts.

While defending large corporations should be expected, his suggestion that consumers would benefit by limiting their access to the nation's courts is too preposterous to let go unchallenged.

The claim that the civil justice system is overrun by lawsuits that may transform the nation into a "banana republic,'' as Frank implies without irony or facts, is just plain laughable.

For one thing, the Bush administration, no friend to the civil justice system, reports the number of federal tort trials has plummeted almost 80 percent since 1985, while Justice Department statistics indicate the number of tort trials at the state level has decreased as well. So much for clogging the courts.

What's more, a report by the Federal Judicial Center -- the research and education arm of the federal court system -- finds that 70 percent of the federal district judges surveyed felt that "groundless litigation" was either a "small problem'' or a "very small problem,'' while 15 percent said it was no problem at all.

Yet Frank decides to criticize victims of Hurricane Katrina for pressuring insurance companies to pay what they feel is owed under their homeowners policy. Gulf Coast residents certainly have a legitimate claim when they say damage to their homes was caused by the storm, covered under their policies, rather than flooding, which is not. Frank sounds like he'd have them ejected from the courthouse.

And then Frank defends Merck, his former client, which sold an anti-inflammation drug called Vioxx, all while hiding from doctors the fact that the drug was unsafe. Even though one FDA official said Vioxx led to as many as 55,000 deaths, Frank wants to limit the right of Americans to hold liable wrong-doers like Merck.

Mixed into this thin soup is Frank's dismissal of the decision reached by the Association of Trial Lawyers of America to change its name to the American Association for Justice, a move that will take effect sometime in the coming months. The change is intended to let one and all know what's at stake in the ongoing debate over the civil justice system and whose side we are on. Somehow, Frank finds the fight for justice trivial.

The purpose of the civil justice system is clear: When corporations and their CEOs act irresponsibly by delaying or refusing to pay fair and just insurance claims, producing unsafe products, polluting the environment or swindling their employees, the last resort for Americans to hold them accountable is in a court of law.

The role of a trial attorney is to make sure any person who is injured by the misconduct and negligence of others can get justice in the courtroom, even when taking on the most powerful interests. The civil justice system provides a level playing field for all, and baseless claims, like the ones Frank make, are nothing more than an attack on the Constitution of the United States.

Jon Haber is CEO of the Association of Trial Lawyers of America (ATLA).

© 2006 The Washington Post Company