Did you know??? Previous issues of the FORUM are available on LOIS CCTTLLAAForum January-March 2004 www.cttriallawyers.org Volume 22, Number 1 Published by: The Connecticut Trial Lawyers Association

From The Review of 2002 & 2003 Tort Cases: President’s Notebook Supreme and Appellate Court By Kathleen L. Nastri

s I write this column, I do not By Dale P. Faulkner know whether or not Governor A Rowland will follow through on his promise to the doctors to veto House Dale Faulkner, a former editor of the tions. It does not protect notices where Bill 5669, an “Act Concerning Medical Forum, practices in New London with the location element of the notice was Malpractice Insurance Reform.” There Faulkner & Boyce, PC, 216 Broad Street, entirely absent. Here, the location of are, however, some New London. Silvermine Road lacked usefulness, but things that I do the location is not entirely absent from know. I know that A. CLAIMS AGAINST GOVERNMENT the notice. Thus, the savings clause throughout the de- 1. should have applied. bate on medical mal- COMMENT: A squeaker. practice reform, the CITATION: Salemme v. Seymour, 262 2. trial lawyers took the Conn. 787 (2003). high road. We care- FACTS: CITATION: Spears v. Garcia, 263 fully researched the Conn. 22 (2003). facts. We never made (1) The plaintiff sued the town under up a story or twisted the facts in order to the highway defect statute, § 13a-149, for FACTS: appeal to sympathies or panic the public. an accident alleged to have occurred on (1) The plaintiff was struck by a car We relied on studies published by the 10/27/97. when she was pushed out onto the street U.S. Government, independent insur- (2) Attached to the complaint was the by a high pressure stream of water from ance research organizations, professors notice, provided in a letter dated an illegally opened fire hydrant. of insurance law, judicial department 11/25/97, which said that an accident (2) Suit was brought against the city statistics, the Office of Legislative occurred at “approximately 5:10 p.m., and its fire department. Research, and others. When we testified, October 27, 1997.” It said that the acci- (3) The trial court granted the defen- we were careful to never state a fact that dent occurred on Silvermine Road, and dants’ motion for summary judgment on was not true or provide a legal opinion that it was caused by “the extremely slip- the grounds that (1) the complaint did continued on page 7 pery conditions of the road caused by wet not contain a reference to a statute con- leaves and pine needles.” taining a waiver of governmental immu- (3) On 12/30/99, the defendant moved nity; and (2) § 52-557n does not permit In this Issue to strike the complaint on the ground a direct cause of action against the that the notice failed to give sufficient defendants. Dale Faulkner’s Review of Tort Cases notice of the details of his claim. (4) The Appellate Court reversed (2002 and 2003) ...... 1 (4) On 2/25/00, the plaintiff sent an holding that the defendants had notice of Commonweal’s Report on the Attack amended notice to the defendant describing the plaintiff’s reliance on the statute on Trial Lawyers and the locus as “Silvermine Road, Seymour, because it was referred to in the papers Tort Law ...... 8 Connecticut, at its intersection with in opposition to the motion and that § 52- Rethinking Notice Maple Avenue, Seymour, Connecticut.” 557n abrogates governmental immunity, (in premises liability cases) (5) The trial court granted the motion allowing that the defendants be sued in An Editorial ...... 41 to strike which decision was affirmed by negligence. 66 Conn. App. 669 (2001). Proposed New Rules re Pleading, the Appellate Court, which also held that ISSUE: (On the defendants’ petition Depositions and Discovery...... 43 the statute’s savings clause did not for cert.) Does § 52-557n permit a plain- Studies on Medical Errors ...... 54 extend the time for delivery of the notice. tiff to bring a direct cause of action in Consumer Study Shows Insurers 67 Conn. App. 464 (2001). negligence against a municipality? Price-Gouging Doctors ...... 55 ISSUE: Whether the savings clause of RULE: The language of the statute the statute applied to the notice? clearly and expressly abrogates the rule of Sunshine in Litigation in Connecticut RULE: The savings clause operates — The Time Has Come...... 56 governmental immunity. § 52-557n(a)(1) to protect plaintiffs from having their provides in relevant part: Great West Life v. Knudson: § 13a-149 claims barred by vague, indefi- “Except as otherwise provided by law, A Health Insurer’s Right to nite or inaccurate notice of accident loca- Reimbursement Redux ...... 58 continued on page 3 January/February/March 2004 — 22 Forum 1 CTLA Connecticut Trial Lawyers Association CCTTLLAAForum 100 Wells Street January/February/March 2004 Hartford, CT 06103-2920 (860) 522-4345 (860) 522-1027 Fax http://www.ct-tla.org Officers & Governors C O N T E N T S Executive Director Pages Neil H. Ferstand Board of Governors President’s Notebook ...... 1 2004-2005 Kathleen L. Nastri President 2002-2003 Review of Tort Cases ...... 1 Richard L. Newman Dale C. Faulkner President Elect CTLA FORUM Ernest F. Teitell The Attack on Trial Lawyers and Tort Law ...... 8 Published bi-monthly by Vice President A Commonweal Institute Report the Connecticut Trial Carl D. Anderson Lawyers Association Treasurer CTLA Law Reporter ...... 31 100 Wells Street Hartford, Connecticut Joseph R. Mirrione Kathleen L. Nastri 06103-2920 Secretary (203) 522-4345 Workers’ Compensation ...... 36 Mary Ann Connors Staff & Board Parliamentarian Robert F. Carter Editor Humbert J. Polito, Jr. William F. Gallagher Joseph Keefe, CTLA Past President, RIP ...... 38 Assistant Editor Immediate Past President Editorial: Rethinking Notice Cynthia C. Bott Kathleen L. Nastri (in premises liability cases) ...... 41 Associate Editors Governors Robert B. Adelman William F. Gallagher Robert B. Adelman Robert F. Carter Matthew E. Auger Michael C. Jainchill Peter J. Bartinik Proposed Rules Regarding Pleading ...... 42 James D. Bartolini Kathryn Calibey Christoper D. Bernard Proposed Rules Regarding Deposition and Discovery . . .45 Kathleen L. Nastri Roger B. Calistro Mary Ann Connors Thomas A. Cloutier Book Review: “An Air That Kills” ...... 51 Louis R. Pepe David W. Cooney Steven D. Ecker Michael A. D’Amico New Studies on Medical Errors and Inadequate Care; Kerin M. Woods William R. Davis Reducing Errors Will Save Lives, Decrease Costs Steven D. Ecker Editorial Board Kathryn Emmett & Lower Insurance Premiums ...... 53 William F. Gallagher, Editor Steven J. Errante Center for Justice & Democracy Cynthia C. Bott, Assistant William F. Gallagher Joseph D. Garrison Editor Shelley L. Graves New Consumer Study Shows Insurers Robert B. Adelman Price-Gouging Doctors Without Basis ...... 54 Andrew S. Groher Frank A. Bailey Ira B. Grudberg Americans for Insurance Reform Christopher D. Bernard R. Bartley Halloran Robert F. Carter Joram Hirsch Making the Most of the CTLA List Serve ...... 54 Steven D. Ecker John J. Houlihan, Jr. Douglas W. Hammond Douglas W. Hammond Stephen Jacques Michael C. Jainchill Michael C. Jainchill John J. Kennedy, Jr. Sunshine In Litigation in Connecticut — Michael P. Koskoff Kenneth J. Laska The Time Has Come ...... 55 Kathleen L. Nastri Douglas P. Mahoney Robert I. Reardon, Jr. Anthony A. Piazza Paul J. McQuillan David N. Rosen Lucia M. Mercurio Great-West Life v. Knudson: A Health Insurer’s Matthew Shafner Ralph J. Monaco Right to Reimbursement Redux ...... 57 Garrett M. Moore The Forum is published bi-monthly Gregory E. O’Brien F. Jerome O’Malley by the Connecticut Trial Lawyers Anthony A. Piazza Association, 100 Wells St., Hartford, Charles B. Price, Jr. CTLA Law Letters ...... 58 CT 06103-2920 (tel: 1-860-522-4345). Cindy L. Robinson Neil Ferstand Inquiries regarding advertising rates David T. Ryan and specifications should be made to Anastasios Savvaides the CTLA office. Articles and features CTLA Miscellany ...... 64 should be sent to William F. Gallagher, Matthew Shafner Editor, The Forum, The Gallagher Law Robert R. Sheldon Firm, 1377 Boulevard, P.O. Box 1925, Richard A. Silver CTLA Code of Conduct ...... 73 New Haven, CT 06509. Settlement/ Michael A. Stratton verdict reports should be sent to Eugene K. Swain The American Jury ...... 74 Kathleen L. Nastri, Koskoff, Koskoff William J. Sweeney, Jr. & Bieder PC, 350 Fairfield Ave., Jason E. Tremont Justice William O. Douglas Bridgeport, CT 06604. Statements and opinions in editori- Michael J. Walsh Tips on Influencing the Influential ...... 75 als or articles reflect the views of the James Wu individual authors and are not neces- ATLA State Governors sarily those of CTLA. Publication of Richard A. Bieder CTLA Membership has its Privileges ...... 76 advertising does not imply endorse- Robert I. Reardon, Jr. ment. All advertising is subject to ATLA State Delegates CLE Calendar ...... 77 approval of the Connecticut Trial Lawyers Association. Stewart M. Casper ©2004 The Connecticut Trial Law- Steven F. Meo CTLA Club Members (date to date) ...... 78 yers Association, Inc. Contents may ATLA Minority Delegate not be reproduced without written W. Martyn Philpot, Jr. permission. 2 22 Forum — January/February/March 2004 Review of 2002 & 2003 Tort Cases: to the highway as to expose travelers to that the place of occurrence was Supreme and Appellate Court dangers? the “State of Connecticut Rest Area, continued from page 1 (2) Was the description of injuries in Middletown, Connecticut, between exits the notice sufficient so as to satisfy the 19 and 20 on Interstate 91 (rear lot).” a political subdivision of the state shall test of reasonable definiteness? (3) Other documentation developed be liable for damages to person or prop- RULE: in the case, for example, the plaintiff's erty caused by: (A) The negligent acts or (1) Whether a condition in a highway deposition, indicated that the fall omissions of such political subdivision or constitutes a defect must be determined occurred on a handicapped sidewalk any employee, officer or agent thereof in each case on its own particular cir- ramp within the rest area. acting within the scope of his employ- cumstances. Even though the rocks and (4) The trial court granted the defen- ment or official duties. . . .” debris are not part of the roadway, they dant's motion for summary judgment The statute is independent and exclu- can cause the highway to be defective concluding that the notice was patently sive of § 7-308 and § 7-465. because they are likely to dislodge and defective as a matter of law because it COMMENT: An excellent result. roll onto the road. Reasonable remedial could not find that a fall on a handi- 3. measures exist to alleviate the dangers capped sidewalk ramp is the same as a posed by falling rocks and debris. fall in the rear parking lot, and that the CITATION: Tyson v. Commissioner (2) Although the notice did not give notice failed to give sufficient informa- of Transportation, 77 Conn. App. 597 an exact medical description of the tion to permit the state to gather data (2003). injuries, such specificity is not required. about the case. FACTS: The description that the plaintiff had ISSUE: Whether the notice was (1) The plaintiff sued the state under been “violently thrown about” was suffi- patently defective as a matter of law? the highway defect statute, § 13a-144, cient to prompt the state to make its RULE: The test as to whether a notice alleging that he was injured when the investigation. is patently defective is not whether the vehicle in which he was riding was COMMENT: Remember that a notice description is exactly the same as other struck by boulders, rocks, and other stating that “plaintiff was injured,” filed evidence of the place of injury but debris that had broken loose from a rock under the municipal highway statute, whether it provides sufficient informa- ledge adjacent to the highway. was held to be insufficient as a matter of tion to permit an intelligent investiga- (2) The plaintiff’s pre-suit notice said law. Martin v. Plainville, 240 Conn. 105 tion. The notice did not direct the state to that he was “violently thrown about in (1997). Best to be as expansive as the cir- a location markedly different from that his vehicle causing him to sustain cumstances allow. indicated in the other documentation and injuries to his neck and back.” was not so indefinite as to render it 4. (3) The trial court denied the defen- patently defective. Thus, the question of dant’s motion to dismiss which was pred- CITATION: Serrano v. Burns, 70 adequacy is one for the jury. icated on the claims that the alleged Conn. App. 21 (2002). COMMENT: This was the second defects did not fall within the scope of the FACTS: appellate round for these parties and the statute and that the notice was patently (1) The plaintiff sued the state under second win for the plaintiff. In Serrano v. defective in its description of the injuries. the highway defect statute § 13a-144, for Burns, 248 Conn. 419 (1999), the defen- ISSUES: an accident alleged to have occurred at a dant’s claim that the parking lot was not (1) Are cliffs or rock ledges adjacent highway rest area. within the ambit of the highway defect to the highway so necessarily connected (2) The plaintiff's notice indicated statute was rejected. B. STATUTES OF LIMITATIONS EDITOR’S NOTE 1. The Forum needs articles on current developments in Connecticut CITATION: Taylor v. Winsted Memorial personal injury law. Hospital, 262 Conn. 797 (2003). CTLA’s membership consists of lawyers who regularly seek to FACTS: (1) On March 10, 1993, the plaintiff, a enhance the rights of accident victims. nurse anesthetist, suffering neck pain, was examined and underwent a CAT scan In carrying out that mission, the lawyers (especially young lawyers) at the defendant hospital. He was dis- research and write on many topics, be it the drafting of memos for charged and prescribed medication which their cause or against that of their opponents or just for the office. he knew was used to reduce brain swelling. Many of these efforts are of compelling interest to all of us, and (2) On March 12, 1993, he experi- could be converted into articles for publication here. enced changes in motor control functions and was admitted. Please give us the opportunity to publish your work. We have the (3) On March 16, 1993, he was told capacity to help in preparing your material for publication. So don't that he had suffered a stroke on March be reluctant to make submissions out of a concern that it doesn’t 12th. look like an article. (4) In October 1995, having read mag- azine articles regarding the treatment of Send your submissions to the Editor, William F. Gallagher, The strokes, the plaintiff engaged a lawyer. Gallagher Law Firm, P.O. Box 1925, New Haven, CT 06509, or to (5) On March 6, 1996, suit was start- Neil H. Ferstand, Executive Director, CTLA, 100 Wells Street, Suite ed, alleging that the defendant was negli- gent in failing to diagnose and properly 2H, Hartford, CT 06103. treat him for a stroke.

January/February/March 2004 — 22 Forum 3 (6) The defendant claimed that the 1. (2) The dog was owned by a tenant of action was barred by the statute of limi- the defendant and was kept in the defen- tations, § 52-584. CITATION: Craig v. Driscoll, 262 dant’s building. (7) The jury returned a verdict for Conn. 312 (2003). (3) The trial court granted the defen- the plaintiff. FACTS: dant’s motion for summary judgment on ISSUES: (1) An adult patron of the defen- the grounds that the defendant did not (1) Does § 52-584 impose on a plain- dant’s pub was allegedly served alcohol owe a duty to the plaintiff. tiff a duty to investigate a potential claim there while intoxicated. ISSUE: Whether a landlord owes a of medical malpractice? (2) Upon leaving the pub, the patron, duty, at common law, to a nontenant who, (2) Did the plaintiff, as a health care while driving, allowed his vehicle to veer while at a location away from the leased professional, have a heightened duty off the road and run over a pedestrian. premises, is bitten by a tenant’s dog? under § 52-584 to discover his claim of (3) The plaintiffs, the mother and RULE: The defendant owed no duty medical malpractice? brother of the pedestrian, arrived at the to the plaintiff under the theory of prem- RULE: scene and witnessed her injuries, which ises liability; nor under a theory requir- (1) The statute provides that a med- two days later, caused her death. ing a landlord to maintain a public side- ical malpractice action be brought “with- (4) The plaintiffs sued the defen- walk in safe condition and to prevent in two years from the date when the dants for negligent and reckless inflic- nuisances; nor under a theory that the injury is first sustained or discovered or tion of emotional distress. common law duty of a keeper of a dog be in the exercise of reasonable care should (5) The trial court granted the defen- extended. have been discovered....” dant’s motion to strike on the basis that COMMENT: Nice try by the plaintiff (2) A claim accrues once he or she negligence in selling alcohol was not a in a case of first impression. discovers or in the exercise of reasonable cause of action at common law because care should have discovered that action- the voluntary consumption is an inter- D. DAMAGES/TORT REFORM/ able harm has been sustained. vening act severing the server’s responsi- COLLATERAL SOURCES bility. The Appellate Court reversed. 64 (3) There is no affirmative duty to 1. investigate a potential claim. Conn. App. 699 (2001). (4) The statute does not require ISSUES: (On the defendants’ petition CITATION: Schroeder v. Triangulum those in health care to discover their for cert.) Associates, 259 Conn. 325 (2002). claims earlier because of that status. (1) Whether, notwithstanding the FACTS: COMMENT: Note that the action was Dram Shop Act, there is a cause of action (1) The jury returned a verdict for brought (barely) within the three year for negligent infliction of emotional dis- the plaintiff awarding no non-economic repose portion of § 52-584, which bars tress on a bystander against a purveyor damages, but awarding economic dam- suit brought more than three years from of alcohol for injuries caused by an intox- ages in excess of $750,000.00, which were the date of the offending act or omission. icated adult patron? nearly all of such damages claimed. (2) Whether the voluntary consump- 2. (2) The trial court denied the plain- tion breaks the chain of causation tiff’s motion to set aside the verdict. between the purveyor and the resulting CITATION: Tarnowsky v. Socci, 75 (3) The trial court also denied a injuries? Conn. App. 560 (2003). motion to set aside filed by the plaintiff’s RULE: employer and the second injury fund FACTS: (1) The Dram Shop Act does not pre- (1) The plaintiff, within two years of which had intervened seeking reim- clude a common law cause of action for bursement for a lump sum settlement allegedly falling on ice and snow, brought negligent infliction of emotional distress an action against the owner and tenant paid to the plaintiff pursuant to a volun- against a purveyor of alcohol. tary workers’ compensation agreement. of property on which he fell. (2) Voluntary consumption is a fore- (2) During discovery, the plaintiff (4) The trial court, following a collat- seeable intervening act that does not eral source hearing, reduced the verdict learned that the defendant had been break the chain of causation. hired to remove ice and snow. by the amount of social security benefits COMMENT: paid. (3) Almost three years after the fall, (1) This decision was overruled, sure- ISSUES: the plaintiff sued the defendant. ly at the behest of the booze industry, by (1) Whether the trial court improper- (4) The trial court granted the defen- the General Assembly’s amendment to ly denied the motion to set aside the ver- dant’s motion for summary judgment on the Dram Shop Act (Public Act No. 03-91) dict awarding no non-economic damages? the basis that the two year statute of lim- which outlawed a cause of action against a (2) Whether the second injury fund is itations period of § 52-584 had expired. seller for negligence to a person 21 or older. entitled to reimbursement for a lump ISSUE: When does the statute begin (2) Don’t disregard this decision sim- sum paid pursuant to a voluntary com- to run for a plaintiff who immediately ply because of that amendment. It’s a pensation settlement? knows the fact of his injury but later dis- substantial source of study of the law of (3) Whether social security benefits covers the identity of the tortfeasor who emotional distress, duty, causation, sub- are a collateral source? caused the injury? stantial factor, intervening and super- RULE: RULE: Actual or constructive knowl- seding cause, and public policy. edge of the identity of the tortfeasor is an (1) The trial court should have fol- essential element of actionable harm and 2. lowed the methodology adopted in an action is not barred by the two year Wichers v. Hatch, 252 Conn. 174 (2000), CITATION: Stokes v. Lyddy, 75 Conn. and, had it done so, should have set the statute until the plaintiff knows or App. 252 (2003). should know the tortfeasor’s identity. verdict aside especially in the light of the FACTS: COMMENT: Another action saved, evidence concerning the plaintiff’s spinal (1) The plaintiff was attacked and too, by the repose portions of § 52-584. fusion and permanent injury. bitten by a dog while walking on a public (2) Settlement payments made pur- C. CAUSES OF ACTION sidewalk. suant to voluntary compensation agree-

4 22 Forum — January/February/March 2004 ments are “compensation” and, thus, the (4) On June 28, 1996, the defendant barred; (b) that the continuing course employer and the second injury fund are represented the plaintiff at a deposition of conduct tolled the statute of limita- entitled to reimbursement. regarding the dissolution action. tions, and (c) that the continuous repre- (3) Social security disability benefits (5) The trial court directed a verdict sentation doctrine applied as to L and are not collateral source payments with- for the defendant concluding that the accordingly, the action against L was in § 52-225(b). action was barred by the statute of limi- filed timely. COMMENT: More guidance on the all tations (§ 52-577) by ascertaining that ISSUES: too frequent rejection by juries of non- the date of the end of the attorney-client (1) Did collateral estoppel preclude economic damages and solid resolution of relationship was that of the letter which an inquiry as to whether the action still lingering tort reform issues. the plaintiff sent to his wife. against L was timely brought? ISSUE: Whether the attorney-client (2) Did the continuing course of con- 2. relationship ended with the plaintiff’s duct doctrine toll the statute of limita- CITATION: Jones v. Kramer, 72 letter to his wife so as to prevent the tions in the claim against L? Conn. App. 789 (2002). tolling of the statute of limitations under (3) Did the continuous representa- the continuous representation rule? tion doctrine apply in the foreclosure FACTS: RULE: The act of sending a letter to action so as to make the filing against L (1) At trial, the plaintiff claimed the wife did not rise to the level of a de timely? more than $40,000.00 in economic dam- facto termination of the attorney-client RULE: ages, including more than $30,000.00 in relationship. Under the continuous rep- (1) Because the defendant was nei- medical and $10,000.00 in lost wages. resentation doctrine, tolling of the ther a party nor in privity with a party in (2) The jury’s verdict for the plaintiff statute may occur when the plaintiff can the case against L, collateral estoppel did awarded $15,000.00 in economic damages, show: (1) that the defendant continued to not apply, and the trial court in this case and $35,000.00 in non-economic dam- represent him with regard to the same was not precluded from addressing the ages. No interrogatories were given to matter, and (2) either that the plaintiff tolling issue. the jury to establish which of the claimed did not know of the alleged malpractice (2) The continuing course of conduct economic damages were awarded. or that the attorney could still mitigate doctrine requires evidence of a breach of (3) The trial court, following a collat- the alleged harm during the continued duty that remains in existence after com- eral source hearing, reduced the verdict representation period. mission of the original wrong. Such evi- by the full net amount received from the COMMENT: An affirmation of the dence did not exist here since the allega- plaintiff’s medical insurer, namely earlier Appellate Court decision in tions against L were failures to prepare $12,000.00. Rosenfield v. Rogin, Nassau, Caplan, and present evidence, not a continuing ISSUE: Whether the trial court prop- Lassman & Hirtle, LLC, 69 Conn. App. duty. Thus the trial court erred in apply- erly reduced the economic damages by 151 (2003). ing the doctrine. the total of all collateral source payments (3) The continuous representation 2. or whether only payments specifically doctrine may apply to toll the statute in included in the verdict should have been a legal malpractice action. Thus, because deducted? CITATION: Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, L continued to represent the plaintiff in RULE: The trial court properly con- connection with the appeal, into 1994, LLC, 69 Conn. App. 151 (2002). cluded that § 52-225a(a) required that the statute against L was tolled. Because the verdict be reduced by “an amount FACTS: the case against L was filed timely, the equal to the total of amounts determined (1) The plaintiff sued the defendant trial court’s granting of the defendant’s to have been paid” from collateral alleging malpractice for failing to file in a motion for summary judgment was proper. sources. timely manner an action against L, his COMMENT: COMMENT: Let’s hope that this isn’t former attorney. (1) Be patient in mastering the facts. the end of this case so that Judge (2) L had represented the plaintiff (2) This is the first appellate adop- Bishop’s dissent and its challenging rea- in a foreclosure case which a trial court tion of the continuous representation soning concerning § 52-225a and who has dismissed, orally on 12/1/92, and in doctrine. the burden of proof on collateral sources which that court issued a memorandum (3) This is one of Judge Spears’ last receive a second look. of dismissal on 12/18/92. The subsequent opinions. He’s missed. appeal, decided on 4/1/94, affirmed the E. ATTORNEYS dismissal. F. INDIAN LAW (3) The defendant served a complaint 1. CITATION: Kizis v. Morse Diesel on L on 12/15/95 alleging negligence in International, 260 Conn. 46 (2002). CITATION: DeLeo v. Nusbaum, 263 preparing and presenting evidence at the Conn. 588 (2003). trial. FACTS: (1) The plaintiff, who is not Indian, FACTS: (4) L’s motion for summary judgment fell at the Mohegan Sun Casino because (1) The plaintiff commenced his was granted on the basis that the action of an allegedly negligently placed field- action against the defendant on June 27, was barred because it had not been stone in a walkway. 1996, claiming that he had been inade- brought within the three years of the oral (2) She sued eight defendants in quately represented in a dissolution dismissal of 12/1/92, and thus was barred their capacity as employees of the action brought by his wife. by § 52-577. No appeal was taken from Mohegan tribe and the Mohegan tribal (2) All of the negligent acts and omis- that decision. gaming authority, none of whom are sions were alleged to have occurred in (5) In the present action, the trial Indian. 1992. court granted the defendant’s motion for (3) Two defendants, a building offi- (3) On June 22, 1993, the plaintiff summary judgment concluding (1) that cial employed by the tribe and the direc- sent a letter to his wife criticizing the the doctrine of collateral estoppel did not tor of facilities operation employed by the actions of the attorneys for both him and preclude the court from addressing authority, filed a motion to dismiss claim- his wife. whether the action against L was time January/February/March 2004 — 22 Forum 5 ing that as employees of sovereign enti- from the nearby shelf? I. MEDICAL MALPRACTICE ties they are entitled to immunity. RULE: (4) The trial court denied the motion (1) Applying emerging principles 1. concluding that tribal immunity arises relating to self-service stores and after CITATION: Hayes v. Decker, 263 out of the tribe’s status as a nation and, conducting a thorough review of the evi- Conn. 677 (2003). thus, belongs to the tribe and not to dence, the Appellate Court concludes employees who are not tribe members that the jury could have found that the FACTS: and who are sued as individuals. defendant was negligent in the manner (1) The plaintiff, who had suffered a ISSUE: Whether Connecticut trial in which the tables were stacked. heart attack, sued the defendant courts have subject matter jurisdiction (2) The trial court properly charged internist alleging that he failed to recog- for personal injury actions allegedly the jury that negligence could be found if nize and treat symptoms of cardiac occurring on tribal land when the plain- the jury found that the tables had been ischemia and advised the plaintiff to dis- tiff is not Indian and the defendants are stacked in an unreasonable manner continue Procardia which, the plaintiff employees of the tribe and authority? under the circumstances, including the claimed, caused an increase in the dam- RULE: The tribal court is the exclu- foreseeability that customers would age to his heart. sive forum for the adjudication of tort rearrange them and that while the defen- (2) At a hearing on the defendant’s claims against the tribe and its employ- dant, to be found negligent, must have motion in limine, the plaintiff’s expert ees because the tribe is a sovereign had general knowledge that the table dis- testified that the discontinuation of the nation and its court is the forum in which play was dangerous, it need not have medication did not cause the heart the sovereign has consented to be sued. knowledge of the actual condition of the attack, but that it did cause a rise in Thus, Connecticut courts do not have display at the time of the accident. blood pressure which resulted in more subject matter jurisdiction. (3) Removing merchandise from damage to the heart. COMMENT: It’s the 21st Century shelves is the likely act of any customer (3) His opinion was based on three and sovereign immunity is alive and in a self-service store. It cannot be said principles, namely, that (a) an increase in well. that a customer’s reaching for or remov- blood pressure causes an increase in the ing an item from a shelf amounts to heart’s demand for oxygen; (b) oxygen G. PREMISES negligence. deprivation causes heart tissue death; COMMENT: An enlightened opinion and (c) increased blood pressure during a CITATION: Meek v. Wal-Mart Stores, heart attack causes increased heart Inc., 72 Conn. App. 467 (2002). in the first years of the 21st Century. And an example of excellent creativity by the damage. FACTS: plaintiff’s lawyer. (4) The plaintiff’s expert also testi- (1) The plaintiff sued the defendant fied that he was unaware of any studies alleging that he was injured when alu- H. RELEASE IN FUTURO documenting that link. minum folding tables in boxes fell from a (5) The trial court precluded the tes- shelf immediately above a shelf to which CITATION: Hyson v. White Water timony, on the basis of Porter, because he was returning a chair. Mountain Resorts of Connecticut, there was no study concluding that the (2) The plaintiff alleged several acts Inc., 265 Conn. 636 (2003). withdrawal of the drug increased the or omissions of negligence, including that FACTS: severity of the heart attack and that the the tables were stacked on the shelf in an (1) The plaintiff claimed that she more reliable evidence was that the unsafe manner and that they were not was injured as a result of the defendant’s speed of treatment decreases the severity secure. negligence while riding a snowtube. of the attack. (3) The jury returned a plaintiff’s (2) The trial court granted the defen- (6) The jury returned a defendant’s verdict reduced by its finding of compar- dant’s motion for summary judgment verdict. The trial court denied the plain- ative negligence of 50%. because of a release signed by the plain- tiff’s motion to set aside. The Appellate (4) The trial court granted the plain- tiff, before embarking on her ride, pur- Court reversed, concluding that the testi- tiff’s motion to set aside the verdict and porting to release the defendant from lia- mony should have been admitted. 259 for an additur, concluding that there was bility even though negligence was not Conn. 928 (2002). no evidence to support the finding of expressly mentioned in the document. ISSUES: comparative negligence. ISSUE: Whether a document entitled (1) Whether the trial court misap- (5) The trial court denied the defen- “RELEASE FROM LIABILITY” signed plied the rule of Porter? dant’s motion to set aside the verdict, by the plaintiff precluded her from recov- (2) Whether Porter applied to the rejecting its claims that there was insuf- ering damages in a negligence action principles underlying the expert’s opin- ficient evidence of negligence and that even though the document did not have ion? the court’s charge on negligence was language expressly relieving the defen- RULE: improper. dant from negligence? (1) The trial court misapplied Porter ISSUES: RULE: A party cannot be released by applying it to the expert’s conclusions (1) Was there sufficient evidence to from liability for injuries resulting from rather than to the scientific evidence on support the finding of the defendant’s its future negligence in the absence of which it was based and by basing its negligence? language that expressly so provides. decision on the belief of the alternative (2) Was it proper to charge that the COMMENT: This is not the final conclusion, namely, that speedy treat- jury could find negligence if it found that word on the efficacious effect of releases ment is more likely to reduce severity. the stacking of the tables was unreason- in futuro. The Court declined to decide in (2) Porter should not have been able under all the circumstances? this case whether a release having such applied because the bases underlying the (3) Did the trial court abuse its dis- express language would be enforceable expert’s opinions were generally accepted cretion in finding that the defendants as a matter of public policy. principles of cardiology and were not the failed to prove comparative negligence type of “obscure scientific theories” that even if the plaintiff caused the tables to Porter was intended to guard against. fall by reaching for or removing an item

6 22 Forum — January/February/March 2004 COMMENT: The sorting out of Porter her watching the medical procedures per- pended. Under the lease, she was an continues. formed on her sister? authorized driver. RULE: As a matter of public policy, (3) The trial court granted the 2. no duty was owed because medical lessor’s motion for summary judgment on CITATION: Murillo v. Seymour providers should not be required to keep the grounds that the lessee had violated Ambulance Assn., Inc., 264 Conn. a watchful eye on bystanders and should the condition of the lease agreement 474 (2003). not be obligated to divert their attention requiring that she be a validly licensed FACTS: from their patients. Public policy against driver and thus she did not have lawful (1) The plaintiff accompanied her sis- increased litigation militates, also, possession of the vehicle. ter to the hospital where she observed against recognizing the duty. ISSUE: Whether a lessor may be repeated efforts to insert an IV needle in COMMENT: Good medical practice liable for the conduct of its lessee under § her sister’s arm by the defendants, an would suggest that the health care 14-154a, when the lessee was driving the EMT and nurse. providers should have come to her aid. leased vehicle with a suspended license? (2) The plaintiff then told the defen- Have a heart! RULE: The lessee, as an authorized driver, was in “lawful possession” of the dants that she felt faint and her sister G. LEASING STATUTE told the defendants that the plaintiff felt vehicle, notwithstanding any breach of as if she were going to pass out. CITATION: Fojtik v. Hunter, 265 the lease agreement by her. Thus, the (3) Neither defendant attempted to Conn. 385 (2003). lessor is liable under § 14-154a for dam- ages caused by the lessee. aid the plaintiff, who fainted and fell. FACTS: COMMENT: This important affirma- (4) The trial court granted the defen- (1) The plaintiffs sued a driver (les- tion of the extent of responsibility dants’ motions to strike on the basis that see) and the rental car company (lessor) imposed by the leasing statute puts a they did not owe a duty to the plaintiff. for damages resulting from a car accident. halt on the direction seemingly destined ISSUE: Whether the defendants owed (2) At the time of the accident, the by the rule of Pedevillano v. Bryon, 231 a duty to the plaintiff, a bystander, to lessee’s driver’s license had been sus- prevent foreseeable injury as a result of Conn. 270 (1994).

President’s Notebook thing that they could do to help me over of caps, just before midnight. continued from page 1 the last 12 months, and that they will I know that when the Senate failed to continue to do that and more. They wrote take up the caps amendment and then that was not accurate. In our discussions letters. They made phone calls. They passed the Medical Malpractice with the press, we were careful not to drafted editorials. They stood in the halls Insurance Reform Bill sometime after attack the doctors; rather, we recognized of the Capitol while we waited and wait- midnight on May 4, 2004, that we won a their problem and, to some degree, sym- ed and waited. battle in the midst of a raging war. As I pathized with their plight. I know that we have the greatest lob- write that line, it sounds both overly dra- I know that doctors are angry over the byists in Connecticut. Jay Malcynsky matic and trite. But as I listened to the situation. I know that their premiums and Bob Shea and the entire team at debate last night and repeatedly heard have increased, while their incomes have Gaffney Bennett worked their way the legislators, even those who supported remained flat or decreased. I know that through the halls of the Capitol like the us, say that this was but a “first step” many of them work hard and perform pros that they are. They never gave up on toward solving the problem, I knew that life-saving procedures. I also know that a vote and they never stopped trying to caps would be back. I know that the doc- sometimes doctors commit malpractice convince the legislators in Hartford of tors will not give up on this fight. I know and that when they do, consequences to the merits of our position. They don’t eat that the insurance companies will never the victims can be devastating. much and I’m sure they never sleep. stop trying to protect themselves. I know I have tremendous respect and admi- These guys were never better than they that the CBIA and the Chambers of ration for the victims who joined us in were on the night the House of Commerce have us in their sights. I also this fight, who helped us to educate leg- Representatives voted on the Medical know that the civil justice system works. islators, doctors and the public, about Malpractice Reform Bill. We had learned I know that victims of medical malprac- what it’s really like to be a victim of med- that there would be a caps amendment tice deserve to be compensated. I know ical malpractice. We joined with people proposed to the Bill and we knew we had that trial lawyers will continue to fight to like George Meder, whose daughter died to defeat it. As the Democrats and the protect the civil justice system and to during a routine ear operation, and Republicans caucused before the session protect those victims. Annette Ross, who remains paralyzed began, they staked out positions outside I know that it’s been a long year and after receiving an epidural during labor. the caucus rooms. They literally tackled that this has been an enormous team We joined with the Connecticut Patients’ legislators in an effort to support those effort. I also know that as the fight goes Rights Group and its fearless leader, who had supported us and to change the on, the trial lawyers and the victims, the Jean Rexford, to keep the focus on the minds of those who were opposed to us. lobbyists and the CTLA staff, continuing consequences of medical malpractice. We As the debate raged on the floor of the to work together toward a common goal endorsed taking measures to prevent the House, they planted themselves outside cannot be beaten. If Governor Rowland occurrence of malpractice. We did every- the chamber and continued their efforts. chooses to veto the Bill, we’ll be back. If thing that we could to help victims get We ran up and down the stairs from the Governor Rowland signs the Bill, we’ll be out their message that the legislators gallery to the door of the chamber, where back. No matter what the issue, no mat- should not “make the victims of medical we continued our last minute conversa- ter who our challengers are, the Trial malpractice also the victims of bad laws.” tions. When the bell rang and we knew Lawyers and its dream team will contin- I know that our CTLA staff, that the House was about to vote, we ran ue to fight for its members, its clients including Neil Ferstand, Christine to the gallery to watch the red lights and and the civil justice system. Burbank and Diana Roe, all of whom are the green lights light up on the tote true believers in our cause, did every- board as we counted our way to a defeat January/February/March 2004 — 22 Forum 7 The Attack on Trial Lawyers and Tort Law A Commonweal Institute Report

By David C. Johnson, Fellow

Commonweal Institute is located at 325 Sharon Park Drive, Table of Contents Suite 332, Menlo Park, CA 94025, tel: 650-854-9796, fax: 650- 854-8132, [email protected]. Commonweal Institute Introduction ...... 9 is a non-profit non-partisan think tank and communications organization committed to advancing a broad moderate to pro- Section 1 — Tort Reform Organizations gressive agenda based on the principles of commitment to future and the Far Right ...... 10 generations, environmental protection, a balance between busi- A Network of Seemingly-Independent Organizations ...... 10 ness and society, inclusiveness and fairness, separation of church and state, personal choice and privacy, and a comprehensive and The Funding Behind the Right-Wing Movement nuanced approach to national security. It issued this report Organizations...... 10 October 1, 2003 authored by David C. Johnson, Fellow of the Coordination and Interconnection of the Right-Wing Institute. Movement Organizations...... 10 The Ideology Underlying Tort Reform Arguments...... 11 It prefaced the report with a quote from an article captioned “Now, Trial Lawyers Could Use A Good Lawyer …” which The Political Agenda — Defunding Trial Lawyers ...... 12 appeared in the Christian Science Monitor on June 10, 2003. It Section 2 — Reaching the Public, Legislators reads: and Judges ...... 12 “With Republicans in charge of much of Washington — and Multi-Issue Think Tanks and Communications moving to put limits on litigation — the headquarters of the Organizations...... 12 Association of Trial Lawyers of America (ATLA) could be The Right's Communications Infrastructure ...... 12 described as a building under siege. [. . .] ATLA lobbyists are A Broad Campaign, Utilizing Multiple Channels ...... 13 fighting a wave of legislation aimed at capping what juries can award, curbing class-action suits, and protecting individ- Coordinated Dissemination of Ideological Messages ...... 13 ual industries from litigation. Similar bills are getting passed The Tactic of Creating Conventional Wisdom ...... 13 in states, and even attorneys themselves are piling on — filing Reaching State Legislatures...... 14 petitions to limit plaintiff lawyers’ fees. Tort Reform Organizations Work to Influence, Elect, At the offices of ATLA, chief lobbyist Linda Lipsen insists the & Appoint Supportive Politicians and Judges ...... 14 atmosphere has been hostile to their interests since Section 3 — Effectiveness of the Tort Reform Republicans took control of the House in 1994. Yet the lawyers Campaign ...... 15 Ms. Lipsen represents smell a new brand of retribution. The Right Sets the Public Agenda ...... 15 ‘If you cut the legs off the trial lawyers, then you significantly Influencing Jurors ...... 16 weaken the Democratic Party, and that's what this is all Achieving Their Goals...... 16 about,’ says Jeff Wigington, product liability lawyer from Corpus Christi, Texas, who recently won a $225 million suit Section 4 — Conclusion ...... 16 against the Ford Motor Co. Fighting Back...... 16 In the trial-lawyer headquarters at ATLA, Lipsen, the organi- zation’s chief lobbyist, points out that they have only three lob- Appendix 1 — Example Of Coordinated byists fighting for the ‘freedom’ of individual Americans from Dissemination of a Strategic Message ...... 17 limits on their rights against 80 lobbyists on the other side. Appendix 2 — An Example of Interconnectedness . . . .17 Not that a group representing the nation’s fiercest litigators minds a fight. Lipsen smiles. “We’re way up there on their Michael Krauss’ interconnectedness with other enemy’s list.”1 right-wing issues:...... 17 The full report is reprinted in this issue of the Forum, with Appendix 3 — Examples of Ridiculing and Demeaning permission of the Commonweal Institute. Members are encour- of Trial Lawyers ...... 18 aged to contribute to the Commonweal Institute. Research as reflected in the report that follows takes funding. We encourage Appendix 4 — Examples of the Involvement our members to consider sending a contribution to the and Funding of Right-Wing Organizations Commonweal Institute to support their future research and That Advocate Tort Reform ...... 18 advocacy. Donations can be sent to the Institute’s Menlo Park Heritage Foundation...... 18 address that appears above. Heartland Institute ...... 19 Americans for Tax Reform...... 19 Washington Legal Foundation ...... 20 American Legislative Exchange Council ...... 20 Federalist Society ...... 21

8 22 Forum — January/February/March 2004 National Center for Policy Analysis ...... 21 other organizations, many not directly associated with industry, Manhattan Institute’s Center for Legal Policy ...... 22 that have played a major role in promoting “tort reform.” Cato Institute ...... 23 This Commonweal Institute Report, The Attack on Trial Lawyers and Tort Law, shows that, in addition to the expected Citizens For a Sound Economy ...... 23 corporate-front organizations like the American Tort Reform George Mason University School of Law’s Law Association (ATRA) and Citizens Against Lawsuit Abuse & Economics Center...... 24 (CALA), the “tort reform” movement is ideologically associated George Mason University Foundation, Inc...... 24 with a network of organizations, such as the Washington Legal George Mason University...... 24 Foundation, the Cato Institute and the American Legislative Exchange Council, which are part of what they themselves call Appendix 5 — Examples of the Involvement of the “conservative movement.” This web of “movement” organi- Organizations That Advocate Tort Reform zations receives general operating support, project grants, and (no funding data included) ...... 25 strategic guidance from a core group of ideological far-right- Americans for Job Security ...... 25 wing foundations that has been working for nearly thirty years to alter public attitudes and move the national agenda to the The American Tort Reform Association ...... 25 right. Business Roundtable — Civil Justice Reform...... 26 This web of right-wing organizations funds and supports Citizens Against Lawsuit Abuse...... 26 many other voices that speak on behalf of tort reform and other Chamber Institute for Legal Reform...... 26 issues. The people who write the books are funded. The people Coalition for Affordable and Reliable Healthcare...... 26 who write the op-ed pieces are funded. The people who speak on Common Good...... 26 radio and cable TV shows are funded. The people speaking to public interest organizations are funded. Even the people who Health Coalition on Liability and Access ...... 26 initially write many of the templates for letters to the editor are Junk Science...... 26 funded. In addition to funding these individuals, the right-wing National Association of Manufacturers — Fair organizations provide them with institutional bases and access Litigation Action Group...... 26 to publishers and media. Overlawyered.com ...... 27 These right-wing movement organizations have a broad Power-of-Attorneys...... 27 political agenda. They advocate an anti-government ideology that promotes privatization, deregulation, Social Darwinian Sickoflawsuits.org ...... 27 competition and free markets as solutions to all social problems. Appendix 6 — Examples of State Tort Reform By pushing underlying public attitudes ever closer to their ide- Organizations ...... 27 ology, the right-wing organizations have created a political cli- mate favorable to politicians and public officials who advocate Communities Against Unethical Attorneys...... 27 tort reform. Georgia Public Policy Foundation...... 27 The right-wing movement has two major interests in tort Illinois Civil Justice League...... 27 reform: Michigan Lawsuit Abuse Watch...... 27 1. Their ideological interest is in weakening constraints on the New Yorkers for Civil Justice Reform ...... 27 conduct of corporate entities, and, Tennesseans for Legal Reform...... 27 2. Their tactical interest is in limiting the income of trial lawyers, thereby limiting the attorneys’ ability to lobby and Texans Against Lawsuit Abuse...... 27 contribute money to what they call “the left.” Notes & References ...... 28 Trial lawyers and the system of tort law that they support are losing ground. When one looks at major print and broadcast Introduction media, at public opinion polls, and at the positions taken by politicians of both major parties, it is clear that there has been “It is no secret that, for more than three decades, business a steady shift toward the Right’s and the tort-reform move- interests have invested billions of dollars to sell the public ment’s attitudes and policies. There is very little reaching major a distorted view of a legal system that is justifiably envied media that frames issues in terms that favor trial lawyers and throughout the world. They say rampant litigiousness injured parties. As a result, there is a virtual monopolization of requires tort “reform” that restricts the legal rights of the marketplace of ideas by the Right and tort reform advocates. injured people, not those of businesses suing businesses, Much of the success of the Right’s network of organizations which account for most litigation. What they seek, really, comes because they are seen as “independent voices” that are is corporate welfare-assurance that their misdeeds will be not tied to the insurance industry or other businesses that 2 paid for not by them, but by others.” benefit from the tort reforms they advocate. The independent — Richard H. Middleton, Jr., President, Association of Trial Lawyers of America, 1999-2000 voices function as a major means of “selling the public” on the purported need for tort reform. This tactic benefits special busi- Former ATLA President Richard Middleton, Jr., is correct in ness interests and conservative movement organizations, and stating that “for more than three decades, business interests has made them formidable opponents of trial lawyers. have invested billions of dollars to sell the public a distorted Trial lawyers, too, would benefit from credible independent view of a legal system.” Influencing public opinion has been a voices educating and persuading the public of the value of a key strategic aim of the business-driven campaign for so-called robust system of tort law. This report will help trial lawyers, and “tort reform,” which is designed to limit corporate liability, pre- other groups under attack by the Right, recognize the power and vent civil lawsuits against corporations, and restrict citizens’ effectiveness of the Right’s message communications infrastruc- ability to pursue recourse in the courts. ture. Further, by implication, the report shows the potential In addition to these corporate backers of tort reform, howev- benefits of funding comparable organizations to serve as inde- er, there are also politically-oriented right-wing think tanks and pendent voices in the public interest.

January/February/March 2004 — 22 Forum 9 Section 1 – Tort Reform Organizations servative foundations that has been working for nearly thirty years to alter public attitudes and move the national agenda to and the Far Right the right. This core group of right-wing foundations includes the “For the last 15 years, insurance companies, manufactur- Scaife, Castle Rock (endowed by the Adolph Coors Foundation in ers of dangerous products and chemicals, the tobacco 1993), Bradley, Olin and Koch foundations. (See Appendix 4) industry and other major industries have been engaged in “Five foundations stand out from the rest: the Lynde and a nationwide assault on the civil justice system. In nearly Harry Bradley Foundation, the Koch Family foundations, every state and in Congress, corporations and their insur- the John M. Olin Foundation, the Scaife Family founda- ers have waged a relentless campaign to change the laws tions and the Adolph Coors Foundation. Each has helped that give sick and injured consumers the ability to hold fund a range of far-right programs, including some of the their offenders responsible for the injuries they cause. . . most politically charged work of the last several years.” Since 1991, ‘tort reform’ advocates have set up dozens of — “Buying a Movement,” People for the American Way Foundation6 tax-exempt groups . . . to plant their ‘lawsuit abuse’ mes- These foundations are associated with the extreme right of sage in the media and the public consciousness, and to the political spectrum. The Bradley Foundation's money comes influence legislation, the judiciary and jurors. These from Lynde Bradley, a member of the John Birch Society.7 The groups claim to speak for average Americans and repre- Coors Foundation previously financed the John Birch Society.8 sent themselves as grassroots citizens groups determined The Koch Foundations were founded by Charles and David to protect consumer interests. But their tax filings and Koch, sons of Fred Koch, founder of the John Birch Society. funding sources indicate that they actually represent David Koch, the 1980 Libertarian Party Vice Presidential can- major corporations and industries seeking to escape lia- didate, funds many libertarian organizations, and is co-founder bility for the harm they cause consumers — whether it be of the libertarian Cato Institute.9 William Simon of the Olin from defective products, medical malpractice, securities Foundation was a member of the secretive Christian-Right scams, insurance fraud, employment discrimination or Council for National Policy, and chairman of an organization set environmental pollution. These organizations hide their up by the Rev. Sun Myung Moon’s Unification Church.10 Richard pro-business agenda behind consumer-friendly names like Mellon Scaife and his foundations were the primary funders of Citizens Against Lawsuit Abuse, Stop Lawsuit Abuse, the anti-Clinton efforts of the 1990s, which included funding the Lawsuit Abuse Watch, and People for a FAIR Legal vitriolic magazine, American Spectator.11 As for today’s John System.” Birch Society, it is currently engaged in a “Get US Out!” (of the “The CALA [Citizens Against Lawsuit Abuse] Files — The Secret Campaign by Big Tobacco and Other Major Industries UN) campaign, a philosophy reflected across the right-wing to Take Away your Rights,” a report by the Center for Justice and movement.12 Democracy and Public Citizen3 There are now over 500 organizations, of which Heritage Foundation is the most influential, all receiving funding from A Network of Seemingly-Independent this core group. A 1999 study, $1 Billion for Ideas: Conservative Organizations Think Tanks in the 1990s,13 shows how well-funded these organ- Studies like the “The CALA Files”4 show that, since its incep- izations are. The study found that the top 20 of these organiza- tion in the 1980s, the industry-funded “tort reform movement” tions spent over $1 billion on their ideological campaign in the has pursued a strategy of creating and funding numerous seem- 1990s, not only on tort reform, but on a number of other issues ingly-independent advocacy organizations that push tort-reform they are advancing. arguments, work to discredit opponents, and use marketing Coordination and Interconnection of the Right- methods to change underlying public attitudes over the long Wing Movement Organizations term. Well-known tort reform organizations include the American Tort Reform Association (ATRA) — “a coalition of The right-wing funders, their organizations and associated more than 300 major corporations and trade associations,” politicians are closely linked, centrally coordinated and act in according to “The Cala Files” — and its numerous state Citizens concert — that is why they can be considered components of the Against Lawsuit Abuse (CALA) organizations, as well as sever- same movement. Since these individuals and organizations owe al state Lawsuit Abuse Watch (LAW) organizations. (For exam- some portion (if not all) of their livelihood to a very small core ples of national and state organizations that advocate tort group of funders, they cannot be expected to act independently. reform, see Appendices 4, 5 and 6) Right-wing funding patterns support lock-step coordination. Their strategy has included the use of phony “grassroots” One example of this coordination is a weekly meeting hosted by campaigns designed to give an impression of widespread public Grover Norquist, of the Scaife/Coors/Olin /Bradley (among oth- support for an issue, the circulation of false or misleading law- ers)-funded Americans for Tax Reform,14 and attended by repre- suit scare-stories, the creation of organizations and websites sentatives of the funding foundations, major right-wing organi- like “LawyersStink.com”5 that seek to defame and diminish zations like the National Rifle Association, the Christian lawyers in the public mind, and the dissemination of anti- Coalition and the Heritage Foundation, the Republican Party, lawyer jokes and cartoons. (See Appendix 3) House and Senate Republican leadership, right-wing associated Most importantly, the tort reform movement is associated media, and the White House.15 Robert Dreyfuss, in his Nation with a network of organizations, such as the Heritage article “Grover Norquist: ‘Field Marshal’ of the Bush Plan,” Foundation, the Washington Legal Foundation, the Cato writes, “ ‘The meeting functions as the weekly checklist so that Institute and the American Legislative Exchange Council. All everybody knows what’s up, what to do,’ says Kellyanne are part of the self-described “conservative movement.” Fitzpatrick, a conservative pollster who has been a regular attendee for years.”16 The Funding Behind the Right-Wing Movement A USA Today story, “Pipeline Leads to White House” says of Organizations Norquist, “To the extent that there is a conservative network, Right-wing organizations in this network all receive major Grover is at the switchboard.”17 Explaining how Norquist’s general operating support, project grants and coordinated weekly meetings are used to keep varied organizations and indi- strategic guidance from a core group of interlocking, ultra-con- viduals in line, a Guardian Limited story says:

10 22 Forum — January/February/March 2004 “While the ostensible purpose of the meeting is to share impact of lawsuits on the cost of products and insurance premi- information and coordinate strategy, they also give ums; (4) adverse impact of malpractice suits on the cost, quali- Norquist the opportunity to act as an ideological enforcer. ty, and availability of medical care; (5) adverse, “unfair” impact When one member of the Bush administration worried to on certain industries (e.g., tobacco, asbestos, fast food); and, a New York Times reporter that the administration’s plan finally, (6) the purportedly unscrupulous nature of trial attor- to repeal the estate tax would cripple charitable giving, he neys. was publicly warned by Norquist that this was ‘the first But a number of tort reform arguments rest upon a broader, betrayal of Bush’, and was gone not long afterward. When underlying ideological foundation, one built around the ideas of a conservative pundit . . . criticized a fellow conservative . personal responsibility, free markets, deregulation of business, . . she was immediately informed by Norquist to decide and privatization of government functions. For example, the ‘whether to be with us or against us’. She was no longer values of self-reliance and personal responsibility are evoked in welcome at the meetings.”18 tort reform arguments regarding the dangers of cigarette smok- David Brock, in his book Blinded By the Right, described ing and fast food. The free enterprise theme is frequently evoked from inside this “movement” how different parts of the right- in arguments for limiting punitive damages, because of the wing web and their funders interacted during the attempt to potential harm to a company or a whole industry. By promoting remove President Clinton from office. Brock writes that funding an anti-government, pro-corporate philosophy that encompass- was supplied by Richard Mellon Scaife, with Federalist Society es many issues, the Right has laid the ideological groundwork (partly funded by Scaife) lawyers and judges working behind the for public acceptance of these tort reform arguments. The prob- scenes assisting Special Prosecutor Ken Starr and supplying lem is that the right’s ideologues have warped the values they information to the (partly Scaife-funded) American Spectator claim to espouse, and the danger is that they have taken them magazine.19 to extremes. The interconnectedness of these organizations — leveraging In an article in Capitalism magazine, Joseph Kellard links the work of individuals and organizations tied to this movement tort reform to “personal responsibility,” using hyperbolic and — increases their effectiveness in disseminating messages to ideologically loaded language such as “statist” to describe those the public through seemingly independent channels. who believe in government, “looting of individuals” to describe 21 Individuals whose education was directly or indirectly funded taxes, and “physical force” to describe laws. He decries by scholarships from the core group of funders and obtained at “…the falsehood of ‘social responsibly’, i.e., [the idea] that educational institutions that receive funding from this core each individual is somehow responsible for others. This group then graduate to work at organizations that receive fund- statist idea of evading and manipulating the essence of ing from this core group, producing work that is funded by personal responsibility so as to transform its meaning to grants and fellowships from this core group. Their research cites include social interdependence, on which Medicare and other research pieces, published by others similarly receiving certain anti-tobacco crusade ‘causes’ are based, engender funding from this core group. Their books are published by pub- injustices, such as the looting of individuals to support the lishers receiving funding from or ideologically associated with lives of others. this core group, promoted by media and businesses ideological- The corollary and equally crucial distinction that statists ly associated must destroy to perpetrate these injustices is between vol- with this core group, reviewed by other individuals similarly untary, self-responsible action and the initiation of physi- associated with this core group, and sold in part through chan- cal force. If a company sells cigarettes — especially when nels ideologically associated with the goals of this core group. In warnings of their possible detrimental health effects have addition, still other organizations that receive funding from this been forcibly placed on each cigarette pack for over three core group then refer to this work to validate and give the decades, health effects of which were widely known for appearance of credibility to their own work or messaging. (See many decades prior to such warnings — and people vol- Appendix 2) untarily smoke their cigarettes and become ill from them, “The overlap among members of foundations, think tanks then such harm is not the responsibility of the tobacco and, increasingly, the Bush team, borders on the incestu- company, any more than it is McDonald’s responsibility if ous.” one often consumes their hamburgers and subsequently — “Perspective: Who funds whom?” Energy Compass20 develops heart disease. When failure of personal responsi- This interconnectedness gives their “research” an aura of bility for discovering the known dangers and conse- credibility by citing each other’s work and presenting it as con- quences of anything one voluntarily ingests are excused, ducted by independent, authoritative sources. The majority of and when laws are subsequently enacted which hold oth- the “conservative” experts and scholars writing newspaper op- ers, i.e., businessmen, responsible for initiating force for ed pieces, books and magazine articles, and even the organiza- what individuals have voluntarily indulged in, then irra- tions that generate the “talking points” and position papers tional lawsuits are filed and justice becomes impossible.” used by TV pundits and radio talk show hosts, are directly fund- Similarly, an Insurance Journal story, “What About Personal ed by, work for organizations supported by, or receive some form Responsibility,”22 declares, “People bring lawsuits against other of support from this core group of funders. (See Appendix 2) people and businesses for an almost endless variety of reasons. This pattern of concentrated, interlinking financial backing Some are legitimate, many are not. And most of the time, the and ideological interconnectedness is found in conservative claims that seem to be absurd or even downright frivolous may organizations backed by the core group of funders previously never have happened if the claimants had only used common described. A similar pattern is not found between the funders sense or had taken the responsibility for their own actions.” and organizations outside the right-wing movement. These and similar arguments have been used frequently to make a case for tort reform, but they also are the basis for right- The Ideology Underlying Tort Reform Arguments wing arguments on other issues. A restrictive notion of “person- Tort reform has been sold to the public on the bases of (1) al responsibility” also underlies the right-wing philosophy of “unreasonably” large settlements that “greedy” attorneys limiting government’s ability to help people. In “Do You Really receive: (2) silly, unworthy (“frivolous”) lawsuits; (3) adverse Believe in a Limited Government?”23 Randall R. Rader, a Federal

January/February/March 2004 — 22 Forum 11 Judge and member of the Federalist Society, writes: “If we pro- suits, often called ‘tort reform,’ usually is framed as a con- fess a philosophy of limited government, we profess in the same test between accident victims’ rights and corporations’ breath a faith in unlimited personal responsibility.” desire to be protected from unreasonably high judgments. From there, it’s not a great leap to eliminating Social Increasingly, however, the battle is deeply partisan, as Security (or, for that matter, any of the other entitlement or conservative groups try to mobilize the political right and service programs designed to help the needy). Lawrence W. cripple a key Democratic constituency, trial lawyers. . . Reed, former president of the Mackinac Center for Public Policy, ‘It’s a double kiss,’ said a key strategist involved in the 24 (which receives funding from Scaife/Bradley/Koch), argues battle taking place in Congress, state legislatures, bar that “in a free society, responsibility for one’s retirement is too associations and local judicial elections. ‘Republicans get important to relinquish to the vagaries of politicized programs. to force one of the biggest backers of Democrats to spend . . . Social Security, make no mistake about it, will ultimately be money just to survive and, at the same time, please every- privatized partially or wholly. . . . It’s time that Americans take body from the Chamber (of Commerce) to the drug com- back a responsibility they should never have trusted to govern- panies, to the Realtors, doctors, you name it.’ ment in the first place, one way or another, the sooner the bet- ter.” Ed Lazarus, a Democratic political operative who works In “Personal Responsibility: A Brief Survey,”25 David Duff ties for the American Trial Lawyers Association, said: ‘(I)t’s “personal responsibility” ideology to yet more standard conser- very clear what the program is — it is to defund the vative issues, advocating the elimination of public schools Democratic Party.’ For the GOP, he said, ‘it’s a double- (“When parents began to delegate educational responsibilities to header: more income for your side, and you take income the government, a decline soon followed.”); government assis- from the other.’ ” tance for health care and welfare (“As with other services, The above-mentioned Norquist stories make public what health care and social welfare programs are most effectively many have suspected — that the Right is not involved in advo- provided by the private sector”); government regulation of busi- cating tort reform solely due to their concern over the insurance ness (“Government intervention or redistribution, in whatever rates paid by doctors or damage awards paid by businesses. In form, hampers the accurate measure of a businessman’s effec- a coordinated effort to weaken their political opposition, they tiveness in these areas”); unemployment benefits (“allowing are similarly targeting the Labor movement through “Paycheck people to live off the state while taking an excessive amount of Protection” legislation,30 teachers unions through advocacy of time to find employment”); and taxation itself (“Taxation makes vouchers,31 aid to the urban poor, and attacking voting rights. it difficult for many citizens to meet their responsibilities. As time passes, more and more families adopt an attitude of resig- Section 2 — Reaching the Public, Legislators nation, and fall back on government aid.”) and Judges Bringing the underlying ideology of personal responsibility back to tort reform arguments, and never missing an opportu- Multi-Issue Think Tanks and Communications nity to ridicule attorneys, the Power-Of-Attorneys website26 (see Organizations Appendix 5) writes, “Personal responsibility left the building the moment personal injury lawyers took over the show and The right-wing foundations described in Section 1 fund a America is none the better for it.” coordinated network of advocacy organizations, providing gen- What all these examples of the ideology of “personal respon- eral operating support rather than funding narrowly-focused sibility” demonstrate is that attempts to refute tort reform argu- programs. At the center of this network are multi-issue, e.g., ments are likely to be effective only if they are supported by a tort reform, school privatization, pro-life, etc., think tanks that campaign that addresses the underlying ideology that the Right are marketing and communications organizations, oriented has promoted for the past 30 years. aggressively toward media relations and public communica- tions, as well as traditional scholarly idea generating institu- The Political Agenda — Defunding Trial Lawyers tions. Because they address a variety of issues from the same The alliance of the tort reform movement with the far right philosophical perspective, the think tanks are able to advance involves an agenda that goes beyond such tort-specific issues as an underlying ideological agenda. jury awards. These linked movements want more than just “We believe that ideas have consequences, but that those restricting litigants’ rights and weakening regulatory con- ideas must be promoted aggressively. So, we constantly straints on business. By working to limit jury awards, and thus try innovative ways to market our ideas.” limiting the income of plaintiffs’ attorneys, conservatives seek to — Heritage Foundation Website32 “defund the trial lawyers,” thereby undermining the attorneys’ ability to lobby effectively and to contribute money to the con- The Right’s Communications Infrastructure servatives’ political opposition. These right-wing organizations function as an infrastructure In a candid article discussing the Right’s agenda, Grover that translates the ideas and policies of ideological think tanks Norquist writes, “Modest tort reform, much of which has been into influential language, and then repeatedly disseminates actively considered by committees in both houses, would defund those messages to the general public through a variety of com- the trial lawyers, now second only to the unions — and this is munications channels. For example, the Washington Legal 27 He debatable — as the funding source of the Left in America.” Foundation, which is a leading proponent of “shaping public pol- has also written, “Modest tort reform would deprive pillar num- icy through aggressive litigation [when in favor of the Right’s ber three — greedy trial lawyers — of billions from American goals] and advocacy,” writes that their consumers. In some states trial lawyers give more to Democrats than union leaders do.”28 broad-based communications outreach program dissemi- This agenda is further illustrated in an August 10, 2003 nates our free enterprise message through print and elec- Seattle Times story, “GOP using ‘tort reform’ as powerful politi- tronic media, public education advertising campaigns, and cal club”:29 on-site seminars and briefings.33 “The drive to limit court-awarded damages in civil law- The Right’s organizations use sophisticated marketing meth-

12 22 Forum — January/February/March 2004 ods to “translate” — packaging ideas to appeal to people’s deep- ists selected by a distinguished panel of elected officials, attor- er feelings and values — and disseminate messages designed to neys, and other civic leaders.” alter underlying public opinions to be supportive of their shared “The essay,” CALA writes, “may include any of the following ideology. Even single words or phrases, selected for their effec- discussion points: tiveness, are shared by multiple voices to reinforce the right 1) Define Lawsuit Abuse. wing message. (See Appendix 1) 2) Give 2-3 examples of frivolous (abusive) lawsuits. This in turn leads to public support for their organizations 3) Discuss why some people & their lawyers file frivolous and ideology, puts public pressure on legislators to support their lawsuits. issues, and elects public officials who support their agenda and 4) Determine if jury service has any affect on stopping law appoint judges and agency officials who carry out their policies. suit abuse and/or The National Center for Policy Analysis prides itself on 5) Determine if lawsuit abuse undermines principles of 36 aggressively marketing its products for maximum impact individual responsibility.” by “targeting key political leaders and special interest In effect, such organizations are using public institutions to groups, establishing on-going ties with members of the promote and legitimize an attorney-bashing agenda, while print and electronic media, and testifying before simultaneously propagandizing a new generation. Congress, federal agencies, state lawmakers, and nation- al associations.” Coordinated Dissemination of Strategic Messagess — from National Committee for Responsive Philanthrophy’s study, The Right’s messaging infrastructure draws effectively on “The Strategic Philanthropy of Conservative Foundations” 34 communication techniques from the fields of marketing, public When it comes to tort reform, the strategy has been remark- relations, and corporate image-management. They package ably consistent. Conservative “think tanks” publish research their messages to appeal to people’s deeper feelings and values, that backs up the “tort reform” movement’s claims and develop and they have refined their communication techniques and “talking points” for distribution to speakers, pundits, writers vocabularies to motivate their potential supporters effectively. and the media. Other organizations provide trained speakers for Both the industry-sponsored “tort reform” organizations and radio and television programs. Still others publish magazine right-wing groups coordinate their messaging to increase their articles, op-ed pieces, and books based on the research from the effectiveness. (See Appendix 1) think tanks. Some organizations work to discredit opponents. The right-wing Manhattan Institute’s Center for Legal Policy Others work to disparage the legal profession in the public (CLP)’s captures perfectly the marketing and message-dissemi- mind. Yet others spread misleading stories about what they call nation capabilities of right-wing think tanks. lawsuit abuse. (See Appendix 3) All of this is designed to weak- The CLP’s mission is to communicate thoughtful ideas on en trial lawyers and liability lawsuits, while simultaneously civil justice reform to real decision-makers. The Center garnering support for tort reform. fulfills this mission by publishing general-interest books In sum, tort reform messages are amplified by the Right’s and academic volumes; white papers, reports and op-eds; communication machine. Because conservative movement and a forum series on civil justice issues. The CLP also organizations share the same basic ideology, they are able to holds conferences and seminars for policy-makers, judges validate and leverage each other’s work, creating a multiplier and journalists; CLP senior fellows make frequent radio, effect. This enables them to operate as a message amplification television and public appearances and have testified infrastructure, which has been referred to as “The Mighty before both houses of Congress; and Senior Fellow Walter Wurlitzer.”35 To the public, it appears that there are many Olson manages a website, overlawyered.com, with daily diverse voices from a number of independent organizations and updates and incisive commentary on the effects of “over- media outlets, giving the appearance of a widespread consensus lawyering” on American business and society.37 of opinion. In truth the messages come from a core group using The communication efforts of numerous state Against its network of advocacy organizations as an echo chamber, mak- Lawsuit Abuse (CALA) organizations, coordinated by the ing one voice sound like many. American Tort Reform Association (ATRA), are described in the A Broad Campaign, Utilizing Multiple Channels Center for Justice and Democracy’s report, “The CALA Files:” “Politics is about persuading large numbers of people.” The CALAs’ strategy and message has been coordinated by ATRA and its public relations consultant APCO & — Rush Limbaugh Associates, which supply the groups with strategic guid- The Right’s message amplification infrastructure has a broad ance, media training, and pre-produced radio, television, reach, repeating coordinated strategic messages through multi- print advertising and billboards designed for maximum ple communication channels: conservative talk radio, Fox News, media exposure and legislative impact. Other regional Internet sites like the Drudge Report, op-ed pieces in newspa- and national political consultants and polling firms help pers across the country, prefab letters-to-the-editor, books, pun- tailor the CALA message to local concerns.38 dits and columnists, talking points distributed to politicians and public speakers, advertisements, and newspapers like the The Tactic of Creating Conventional Wisdom Washington Times and Wall Street Journal. One key to moving public opinion has been to create “con- The result, if you listen closely, is that the same words and ventional wisdom” through the constant repetition of simple phrases magically appear in multiple media at approximately messages through multiple channels over a long period of time. the same time. Staying on message is a skill well-honed by the Two main examples are the claims that “Social Security is going proponents of tort reform. broke” and that “public schools are failing.” Both statements are The tort-reform movement even utilizes such innovative at best questionable, yet both have been firmly embedded in the messaging channels as sponsoring high-school essay contests on “public mind” by purposeful repetition in a variety of media out- lawsuits. Citizens Against Lawsuit Abuse (CALA), for example, lets and communications venues. encourages students to enter their essay contest by offering, Examples of conventional wisdom manufactured by the tort “cash prizes … in the amounts of $1000, $500 and $250 to final- reform movement include:

January/February/March 2004 — 22 Forum 13 • “Junk lawsuits” are “out of control,” “strangling our legal Ninety-eight members of Congress are former ALEC system” and “crippling businesses.” members. • “Lawsuit abuse” “extorts money” from legitimate business. Over 2,700 participants attended the meeting including • Trial lawyers are “greedy.” state and national leaders, senior business executives, • The large numbers of “frivolous lawsuits” drive up insur- leading public policy experts and members of the media. ance costs. Vice President Richard Cheney, Homeland Security These are just some of the simplistic and misleading mes- Secretary Tom Ridge, Colorado Governor Bill Owens, for- sages that the tort-reform movement has spent vast amounts of mer Congressman J.C. Watts, Jr. and Washington, DC time and money drumming into the public mind. As more and Mayor Anthony Williams headlined this annual meeting. more people come to believe in the existence of these “problems,” the “solutions” offered by right-wing politicians become increas- Over three days, twelve workshops were held on tort ingly appealing. reform, homeland security, school choice, state budgets, Shaping conventional wisdom depends on following a long- prescription drugs Medicare/Medicaid reform and envi- term plan. The National Association of Manufacturers’ Fair ronmental health. Experts discussed and in some cases Litigation Action Group’s (FLAG) website shows their under- debated these issues and presented various views for leg- standing of the value of a long-term approach: islators to consider in their states.42 …FLAG will work through the National Association of In a report titled “Corporate America’s Trojan Horse in the Manufacturers Legal Policy Issues Committee to initiate States, The Untold Story Behind the American Legislative a broad multi-year awareness campaign [emphasis Exchange Council,”43 the Natural Resources Defense Council added] among NAM members and their employees, and Defenders of Wildlife state that “ALEC is little more than a including more than 350 member associations located in tax-exempt screen for major US corporations and trade associa- all 50 states. The campaign will focus on the importance tions that use it to influence legislative activities at the state of fair liability laws and what legal reform measures are level.” The report describes how, for a two-year $50 membership needed to achieve this goal. fee, state legislators are given “junkets to prime tourist destina- — National Association of Manufacturers — tions, . . . free or heavily subsidized trips that resemble vaca- Fair Litigation Action Group (FLAG)39 tions for their spouses and children, and an assortment of other In a long-term approach, strategic messages are developed fringe benefits.” According to the report, ALEC also operates a and repeated as steps toward the final goal. For example, first Political Action Committee (ALEC-PAC) that gives contribu- stories about ridiculous-sounding lawsuits are spread. Once tions to state legislators. While ALEC describes itself as non- “everyone knows” lawsuits are “frivolous” and “out of control,” partisan, all the state legislators who serve as officers are the public is barraged with messages about how these lawsuits Republicans, as are all but one of its 29 directors. are causing doctors to leave the profession. Only then does the Tort Reform Organizations Work to Influence, movement introduce legislative “solutions.” Elect and Appoint Supportive Politicians and Reaching State Legislatures Judges The American Legislative Exchange Council (ALEC) stands The right-wing movement has also taken to treating federal judges to all-expenses-paid seminars at luxury resorts and “edu- as a compelling example of the political power that can result cating” them about economics and free markets. (See Appendix when the traditional business-oriented, single-issue organiza- 4, regarding the Law and Economics Center of George Mason tions operate in conjunction with the multi-issue organizations University.) In a July, 2000, report titled “Nothing For Free: of the Right. ALEC, founded in 1973 by Paul Weyrich, (also the How Private Judicial Seminars Are Undermining founder of the Heritage Foundation), is a major player in state Environmental Protections and Breaking the Public’s Trust,” tort reform battles. ALEC develops legislation templates for tort the Community Rights Council examines the interest groups reform laws being passed in several states.40 In a June, 2003, and right-wing foundations funding these junkets. According to commentary41 Weyrich wrote: the report, “the three organizations hosting the most trips . . . Fortunately, we have the organization that is playing a share a remarkably similar, and in some respects extreme, con- vital role in advancing the conservative agenda where it servative/libertarian ideology.”44 works best — the state and local level — and this organi- The extremist Right and the tort reform movement are also zation serves as our early radar system for detecting com- working to elect politicians who will pass their legislation and ing trends and concerns in public policy. . . judges who will ultimately rule in favor of the interests of the As an example of how the states can circumvent movement and its partners. The CALA Files report discussed Washington gridlock, Parde says the votes in the U.S. efforts to elect state judges who will rule in favor of tort-reform Senate are just not there for substantive tort reform. But advocates: approximately a dozen states have used the model legisla- A principal focus since the mid-1990s has been to ensure tion developed by ALEC to provide some kind of relief the election of pro-industry state judges . . . The tobacco from “jackpot justice,” unwarranted settlements that industry has also been involved in such elections, for are costly to consumers and businesses and medical example, in Texas, Louisiana, Mississippi and Alabama. practitioners. Such activities also became a significant focus for ATRA In a recent commentary, Rep. Frank Mazur of Vermont, in [American Tort Reform Association] and APCO [APCO & describing ALEC’s 2003 annual meeting, unwittingly reveals Associates, a “grassroots” lobbying and PR firm] as well in the strategic ideological interconnectedness of the Right: the late 1990s as more and more state courts have struck down tort law restrictions.45 In early August, I attended the annual meeting of the American Legislative Exchange Council (ALEC) in A Dayton Daily News story further illustrates these efforts to Washington, DC. ALEC is a national organization of legis- elect state judges; it reports, “The fight is no more evident than lators who are committed to the Jeffersonian principles of in the campaign contributions for two seats on the Ohio free markets, limited government, and individual liberty. Supreme Court. Whoever wins the seats Nov. 5 could be asked

14 22 Forum — January/February/March 2004 to judge whether capping jury awards in medical malpractice successfully drowns out significant opposing voices. As People cases is constitutional.”46 for the American Way Foundation’s study “Buying a Movement” In Texas, the tort reform movement (with Enron’s Ken Lay has put it: helping start “Texans for Lawsuit Reform,” one of the first tort The result of this comprehensive and yet largely invisible 47 reform organizations) was instrumental in electing George W. funding strategy is an extraordinary amplification of the Bush as governor of Texas, launching his political career. far right's views on a range of issues. . . They have . . . been The story is often told of how George W Bush came almost able to keep alive in the public debate a variety of policy out of nowhere to win the Texas governorship in 1994 from ideas long ago discredited or discarded by the main- a popular Democratic incumbent, Anne Richards. It is stream. . . The success of the right-wing efforts are seen at often explained in terms of Mr. Bush’s optimistic never- every level of government, as a vast armada of foundation- say-die nature and his easy manner with ordinary Texans. funded right-wing organizations has both fed and capital- But it had a lot to do with one campaign pledge. “Probably ized on the current swing to the right in Congress and in 52 the first and most important thing I will do when I am the state legislatures. governor of this state,” he promised, “is to insist Texas Right-wing ideological premises and arguments dominate changes the tort laws and insist we end the frivolous and the national debate, with big money using the right-wing com- junk lawsuits that threaten our producers and crowd our munications infrastructure to drown out other voices. “As one courts. investigative journalist stated years ago in a pioneering investi- — “How big money buys big votes in US race,” Guardian Unlimited48 gation of the conservative philanthropy of Richard Scaife,” Electing state judges — and now appointing federal Judges – wrote Sally Covington in her 1997 study, “The Strategic is a key component of the strategy of both the Right and the tort Philanthropy of Conservative Foundations,” “ ‘layer upon layer reform movement. This potentially renders in-court legal argu- of seminars, studies, conferences, and interviews [can] do much ments irrelevant. to push along, if not create, the issues, which then become the national agenda of debate.... By multiplying the authorities to The wins are key: In the mid-1990s, business persuaded whom the media are prepared to give a friendly hearing, [con- lawmakers in several states to limit punitive damage servative donations] have helped to create an illusion of diversi- awards, only to have the courts nullify the laws as uncon- ty where none exists. The result could be an increasing number stitutional. Sympathetic jurists would be less likely to of one-sided debates in which the challengers are far outnum- reverse legal reforms the states passed. bered, if indeed they are heard from at all.’ ” 53 — “Tort Reform: A Little Here, a Little There...” Business Week49 A May Insurance Journal article boasts: Meanwhile, the Right and the tort reform movement are going on the offensive against anyone who might question their “In my 20-plus years in this business, I don't remember a goals, including fellow conservatives. The core group that con- situation where both at the federal level, where the politi- trols the right wing movement is attacking moderate cal makeup of the House and Senate . . . were majorities for Republicans, accusing them of ideological impurity, deriding the conservative side and public sentiment have lined up them as “RINOs” (Republicans In Name Only), and even seek- at the same time,” said Joseph J. Annotti, a spokesperson ing to drive them from office and out of the party.50 for the National Association of Independent Insurers. “This For their part, pro-tort reform corporate organizations are improves the chances of getting meaningful reforms enact- pressuring states by threatening to advise investors against ed. We’ve all learned our lessons from the past. You’ve got investing in municipal bonds of states that do not limit punitive to use your political chips when you have them.” damage awards. And the chips most certainly are being played. The Meanwhile, the heavy hitters in the industry have come American Tort Reform Association has publicized the out swinging. At the Risk and Insurance Management results of a poll it financed in which the 800 respondents, Society Inc. (RIMS) conference in Chicago last month, AIG across party lines, overwhelmingly agreed there are too CEO Maurice “Hank” Greenberg came out in favor of a many lawsuits, greedy lawyers are to blame, and they’d U.S. Chamber of Commerce scheme to target jackpot jus- punish politicians who did not vote for reform by voting tice states by appealing to investors not to buy their against them.”54 municipal bonds. The combined tort campaign and right-wing message ampli- — “Tort Reform Advocates Strike While Iron is Hot.” Insurance Journal, May 5, 200351 fication approach has, unfortunately, garnered significant pub- lic and legislative support. Although trial lawyer and pro-tort organizations have made significant lobbying efforts over the Section 3 — Effectiveness of the Tort Reform years, they are losing in the court of public opinion. The Campaign Insurance Journal article reports that, “83 percent of those polled agreed there are too many lawsuits in America, and 45 The Right Sets the Public Agenda percent support tort reform as opposed to 6 percent who oppose In recent years, the Right and the tort reform movement it. More impressively, 67 percent of the respondents said they’d have enjoyed unprecedented success in influencing both federal be more likely to vote for a politician who favored tort reform and state legislation and policies by: 1) using organizations and 64 percent said they’ d be less likely to vote for a candidate perceived by the public as independent, 2) repeating the anti- who opposed it.”55 tort message as consistently as possible through multiple chan- In June, the American Osteopathic Association’s report, nels, 3) employing sophisticated communications methods, 4) “Professional Liability Reform, 2002-2003 Enacted Legislation”56 following a coherent long-term plan, and 5) coordinating both listed the following recent successes regarding tort reform: ideologically and tactically with the Right’s network of advocacy • Alaska capped punitive damages at $500,000 organizations. • Colorado enacted a $300,000 non-economic damages cap As a result, the Right’s message amplification infrastructure • Idaho enacted a $250,000 non-economic damages cap • Mississippi enacted limited punitive damages

January/February/March 2004 — 22 Forum 15 • Nevada enacted a $300,000 non-economic damages cap islative and administrative branches of the Federal govern- • Ohio barred criminal offenders from receiving tort awards, ment. With resulting appointments to the Courts, the Right and and enacted a $300,000 non-economic damages cap and the tort-reform movement are poised to achieve their ultimate sliding-scale attorney fees goal: passage of federal tort reform legislation that effectively • Oklahoma enacted a $300,000 damages cap “defunds” trial lawyers. • Texas enacted a $250,000 non-economic damages cap with a punitive damages cap at 1.4 million, and Section 4 — Conclusion • West Virginia enacted a $250,000 damages cap This report has shown that the tort reform movement is part Then, in July, 2003, the Insurance Journal reported that, of a two-pronged effort to influence public opinion and gain “This year has been the busiest for enactment of state civil jus- political power. Industry tort-reform groups utilize “independ- tice reform legislation since 1995, according to the American ent voices” — PR agencies and phony “grass-roots” front groups Tort Reform Association (ATRA). At mid-year, 20 states already that appear to be independent of the direct beneficiaries of “tort have enacted laws; 19 laws were enacted by the conclusion of reform.” Meanwhile, the Right has in place a tremendous ideo- 1995. . . . Some states have not concluded legislative sessions logical messaging infrastructure, working for the past 30 years and others have called special sessions in order to advance to influence the public’s underlying social and ideological atti- reforms.” According to the article, Texas passed far-reaching leg- tudes on issues, including tort reform. They have been disci- islation that included joint and several liability reform, limits on plined, strategic, and patient. They have focused substantial non-economic damages, medical liability reform and punitive resources on changing the underlying political and social envi- damages reform. Arkansas, Idaho and West Virginia have also ronment, rather than focusing only on single issues. passed comprehensive “reforms.” Additionally, “This year, eight Fighting Back states have enacted medical liability reforms and another 17 have considered or are still considering legislation.”57 To mount an effective opposition, it is important that trial lawyers and others understand how the right-wing opposition Influencing Jurors operates. Information about the right-wing movement should be Even where anti-tort legislation is not enacted, the pool of broadly disseminated to trial lawyers and others who are potential jurors has been inundated with tort reform messages impacted by the actions from the Right. to the point where these ideas are taken as conventional wis- Trial lawyers are not the only ones being attacked by the dom. Jurors — even when it runs against their own personal Right. Labor, public education, the environment and a wide interests as consumers — are exercising personal tort reform by range of other issues of concern are also under attack. Efforts to finding against plaintiffs. develop and/or strengthen relationships between organizations In his report “Juror Perceptions About Lawsuits and Tort representing these constituencies, for the purpose of countering Reform” Dr. Richard Waites of the firm The Advocates, reports right-wing and corporate offenses, are important. “a significant relationship between attitudes toward tort reform The Right has coordinated their efforts geographically as and verdicts,” and writes that “jurors who adhere to tort reform well as through many “independent voice” sources. The attack beliefs and will apply them to achieve a more conservative ver- on the tort system is coordinated between national organiza- dict are also more likely to believe that individuals have a great tions like ATRA and state organizations like the CALAs. The deal of responsibility for their own conduct and outcomes. Those effectiveness of this approach demonstrates the importance of jurors are also less likely to hold a corporation or anyone else close communication between national organizations like ATLA, responsible for someone’ s injuries absent clear evidence and and the numerous state organizations that favor a strong tort strong arguments.”58 system, including organizations of other than trial lawyers. The Minnesota Trial Lawyer report “Tort Reform: Perception Communication and coordination between existing organiza- Versus Reality” reaches similar conclusions:59 tions is not enough. One problem is that those responding to the Right’s attacks tend to focus on narrow, short-term issues, often The most notable consequence of the tort-reform media reaching existing supporters rather than the general public. campaign is the changed attitudes of judges and jurors. Trial lawyers, for example, have tried to explain to the public The industry’s campaign to portray the legal system as the truth about damage awards and misleading claims of law- out-of-control and plaintiffs’ lawyers as unscrupulous has suit abuse, in response to the current attacks from the tort impacted deliberations in the jury room. One study . . . reform movement and the Right. But, because so many of the concluded that 83% of jurors think that there are “far too pro-tort reform arguments rest on the Right’s ideology, the effort many frivolous lawsuits,” 57% believe that “lawsuits to combat tort reform must also work to diminish public accept- interfere with the development of new and useful prod- ance of the underlying ideology itself. Just as blackberry vines ucts,” and 51% believe that “big business . . . is adequate- in the garden reappear until the root system is removed, tort ly concerned” with safety. Juries also demonstrated a reform arguments will continue to thrive with the public until reluctance to find fault in industry practices.” the underlying ideology loses strength. Achieving Their Goals The Right’s success demonstrates the need — and provides the model — to build independent communications infrastruc- Major print and broadcast media, public opinion polls and ture organizations that reach the general public with messages the positions taken by politicians of both major parties make it that counter ideological messaging from the Right. One doesn’t clear that there has been a steady shift toward the tort-reform have to reinvent the wheel, one need only look at the Right’s suc- movement’s and the Right’s attitudes and policies. Very little cess and emulate it. Trial lawyers and other groups attacked by that reaches the major media frames issues to the advantage of the Right should begin funding multi-issue organizations with a trial lawyers and injured parties. The acceptance of the term long-term marketing/communications plan to counter the “tort reform” even by its opponents shows how effectively the Right’s ideology as well as specific tort reform arguments. right wing has managed to frame the issue. Without independent voices serving as advocates for trial The right-wing movement, in combination with corporate lawyers and the tort system, both the public and the politicians interests, has been successful not only in opposing trial lawyers, can be expected to support continued tort “reform.” but also in getting people into government office who support Funding such organizations will have additional favorable their ideology. As a result, they have gained control over the leg-

16 22 Forum — January/February/March 2004 effects. People and politicians who understand the need for trol.” Power-of-attorneys website.66 strong consumer and patient protections are also likely to be • College newspapers: “Tort law ‘out of control,’ lawyers pro-environment, pro-choice, and supportive of other issues. to blame, say legal professionals.” Michigan Daily. Similarly, pro-environment, pro-choice, etc. voters are very like- University of Michigan. October 16, 1995.67 ly to be strongly supportive of the rights of consumers and • Letters to the editor: “In the end, if reform is defeated, and patient and the interests of trial lawyers. And, owing to the the current out of control tort system is allowed to gut principle of interconnectedness, over time, a funded market- the access of patients to the physicians whose care they ing/communications infrastructure will support a growing net- need, the more important question to ask — one which work of credible individuals writing books, articles and com- every lawyer in this state should be asking himself — is: mentaries, appearing on television and radio news and issues Will my doctor be there for me?” May 13, 2003. programs, speaking to public interest groups, and using their Massachusetts Lawyers Weekly Legal Services.68 skills in many beneficial ways. The question is how one best goes about building public sup- Appendix 2 — An Example of port for an issue or perspective. The answer is simple, you sup- port independent parties who will serve as independent voices, Interconnectedness and who will make your case. This is a look at a portion of one individual’ s tort-reform work, to demonstrate how interconnectedness leverages the Appendix 1 — Example of Coordinated work of individuals and organizations tied to the right-wing Dissemination of a Strategic Message movement. Michael I. Krauss, Professor of Law, George Mason One of the tactics used by the Right is repetition of messages University is author of “Tort Reform, CATO Institute’s that are designed to resonate with the public and evoke a Handbook for 107th Congress, 2001.”69 Other tort reform publi- desired reaction. This appendix presents an example of coordi- cations at Cato include “Restoring the Boundary: Tort Law and nated use of one such strategic message, which has been repeat- the Right to Contract.”70 George Mason University is covered in ed in various media, and by various organizations and promi- detail elsewhere in this report, and receives funding from the nent individuals. In this example the strategic message is that Scaife, Bradley, Koch, Earhart, Olin and Coors foundations.71 lawyers, lawsuits, etc. are “out of control.” The unspoken, sub- Cato, also discussed elsewhere in this report, receives funding liminal implication of this phrase is that “we have to get it from Scaife, Bradley, Koch, Earhart, Olin and Coors.72 under control.” According to Professor Krauss’ biography,73 he is a Salvatori • Magazine columns: “The tort system in the United States Fellow at the Heritage Foundation, described elsewhere in this is out of control.” “The Tort Tax,” National Review.60 document, which receives funding from Scaife, Bradley, Coors • Newspaper editorials: “The editorial argued that trial and others;74 a member of the Advisory Board of Freedom lawyers are the reason civil litigation is out of control.” House, which receives funding from Scaife, Bradley and Smith Business Councils of New York State story describing Richardson;75 a member of the adjunct faculty of the Institute Buffalo News editorials.61 for Justice, which receives funding from Scaife, Bradley, Koch, • Politicians: “In this state, the lawsuit industry is devas- Olin and Coors;76 on the Board of Governors of the National tating the practice of medicine,” Bush said, drawing Association of Scholars, which receives funding from Scaife, applause. “Too many frivolous lawsuits in this state are Bradley, Olin and Coors.77 His “Past Employment and Service” being filed against doctors. That’s a fact. And too many lists the Competitive Enterprise Institute, which receives fund- jury awards are out of control.” – President Bush62 ing from Scaife, Bradley, Koch and Coors.78 79 • Books: ‘The Emmy Award-winning host of Court TV’s Krauss has made various presentations to the Federalist “Catherine Crier Live” describes an American legal sys- Society, which receives funding from Scaife, Bradley, Koch, Olin 80 tem dangerously out of control — and finds the lawyers and Coors. guilty as charged.’ Publisher’ s note for “The Case Against Krauss’ tort-reform work is cited at the anti-lawyer website 81 Lawyers: How the Lawyers, Politicians, and Bureaucrats Overlawyered.com. Have Turned the Law into an Instrument of Tyranny – and Krauss’ tort reform paper, “Federalism and Product What We as Citizens Have to Do About It” by Catherine Liability: One More Trip to the Choice-of-Law Well,” was pub- 82 Crier lished in 2002 Brigham Young University Law Review 759. Brigham Young University receives funding from the Earhart • Advertisements: “out of control lawsuit system.” Health and Olin foundations.83 Coalition on Liability and Access (HCLA) advertisement Krauss’ tort reform paper, “Tort Law, Moral Accountability 63 in Roll Call magazine. and Efficiency,” (“Most people agree that today’s Tort law dis- • Radio news programs: “Michael Horta, spokesman for a courages personal responsibility,”) was published in Markets & business-backed group pushing for tort reform says the Morality, a publication of the Acton Institute for The Study of legal process is out of control and money is not going to Religion and Liberty,84 which receives funding from Bradley, those who need it.” BBC, World Business Review, Feb. 21, Koch and Coors.85 2003.64 Krauss’ paper, “Smoke and Fire: Government Recoupment • Physicians’ associations: “Over the past several months, Suits and the Rule of Law,” was published by the Independent many ACP-ASIM members have called to express concern Institute,86 which receives funding from Koch and Olin.87 about out-of-control medical liability premiums and The Washington Legal Foundation, described elsewhere in excessive lawsuits against doctors.” American College of this report, receives funding from Scaife, Olin and Coors,88 and Physicians-American Society of Internal Medicine (ACP- published Krauss’ “Suits Against “Big Fat” Tread On Basic Tort ASIM).65 Liability Principles” in their publication, Legal Backgrounder.89 • Websites: “Lawsuit abuse is a huge problem growing out Professor Krauss also speaks at the Washington Legal of control.” Orange County CALA. “These are sure fire Foundation.90 signs of a legal system spinning completely out of con- Krauss’ paper, “Today’s Tort Suits Are Stranger Than Fiction”91

January/February/March 2004 — 22 Forum 17 appeared in the publication Virginia Viewpoint, published by love handles.” The Center for Consumer Freedom.105 Virginia Institute for Public Policy, which receives funding from • Looney Lawsuits. A web collection of silly-sounding law- Coors, Koch,92 and managed by the former President of Cato suits. American Tort Reform Association.106 Institute. Krauss’ work is cited in a pro-tort-reform column by Walter Williams, the John M. Olin Distinguished Professor of Economics at George Mason University.93 Krauss’ work is cited in a tort reform article by Consumer Freedom (www.consumerfreedom.com), a food- and liquor- industry front-organization.94 Krauss is quoted in numerous newspaper stories95 on tort reform issues. Michael Krauss’ interconnectedness with other right- wing issues: These examples show the utility of having an infrastructure in place to support the Right’ s use of the interconnectedness effect to advance multiple issues. With a ready-to-go message amplification infrastructure in place, the right is able to utilize their many funded scholars, such as Krauss, to advance a broad range of causes, not just tort reform. Krauss authored a Washington Times column, “Loading the dice for the ruling?” opposing affirmative action and diversity.96 Krauss gave an endorsement of Foundation Francisco Marroquin,97 where he had lectured, which receives funding from Bradley.98 Krauss authored a July 23, 2003 column on conservative Fox News Online, “Just Say No To Drug Re-Importation,”99 support- ing the pharmaceutical-industry position. Krauss signed a petition, Don’t Let The President Lie With Impunity, (President Clinton, not President Bush). This petition appears in a Claremont Institute publication.100 Claremont receives funding from Scaife, Bradley, and Olin.101 Appendix 3 — Examples of Ridiculing and Demeaning of Trial Lawyers • Mallard Fillmore Comic Strip102

Reprinted with special Permission of King Features Syndicate

• Lawyers and Other Reptiles. ‘A California lawyer has filed a $100,000 libel lawsuit against GTE Directories Sales Corp., alleging that the publisher listed her name and phone number in at least one yellow pages directory under “Reptiles”.’ At Citizens Against Lawsuit Abuse web- site.103 • Laughing at Lawyers, Funny Lawyer Quotes, Jokes & Cartoons, the Lawyer Joke Exchange. Two Web collections located at a tort reform advocacy website, Power-of-attorneys.com, which also hosts Class Action Law Update, Personal Injury Lawsuits and Legal Information.104 • Lawyers Congregate To Pick Your Food (And Your Pocket). “Listen carefully when you hear professor [Richard] Daynard and his trial lawyer friends talk about fat deposits,” cautions Center for Consumer Freedom Executive Director Rick Berman in a Boston Herald op-ed. “They’re really referring to their bank accounts, not your

18 22 Forum — January/February/March 2004 An example of organizational interconnectedness, Heritage Foundation: Examples of recent major right-wing utilizing ridicule foundation funding:111 The connections in the example: Fox News, Cato Institute, Date Amount Comment Provider JunkScience.com • “Scare-Mongering Over ‘Hillybilly Heroin’ Deprives 1-1-2002 1,375,000 No comment provided SarahScaife the Rest of Us.” Published at Fox News by Steven Milloy, Foundation publisher of JunkScience.com, an adjunct scholar at the 1-1-2002 15,000 No comment provided The Carthage Cato Institute and the author of the upcoming book Junk Foundation (SCAIFE) Science Judo: Self-defense Against Health Scares and 1-1-2001 200,000 General support Castle Rock Scams (Cato Institute, 2001). Foundation (COORS) “The OxyContin controversy is a liberal’s dream come 1-1-2001 925,000 No purpose given Sarah Scaife true. Sympathetic — almost heroic — dopeheads avenged Foundation by government agencies and trial lawyers swarming all 1-1-2000 200,000 General operating Castle Rock over the greedy and malfeasant drug company.”107 support. Foundation 1-1-2000 1,500,000 No purpose given Sarah Scaife Appendix 4 — Examples of the Involvement Foundation and Funding of Right-Wing Organizations 1-1-1999 780,000 No purpose given Sarah Scaife That Advocate Tort Reform Foundation 1-1-1999 412,500 To support the The Lynde and Harry Heritage Foundation Domestic Policies Bradley Foundation, Studies Program, Inc. Website: http://www.heritage.org/ Bradley Resident Statements from the Heritage Foundation website: Fellows, and State Relations Department “Founded in 1973, The Heritage Foundation is a research and educational institute — a think tank — whose mission 1-1-1999 825,000 Continued support of The Lynde and Harry is to formulate and promote conservative public policies the Domestic Policies Bradley Foundation, based on the principles of free enterprise, limited govern- Studies Program, Inc. ment, individual freedom, traditional American values, Bradley Resident Fellows, and State Relations and a strong national defense.”108 Department “We believe that ideas have consequences, but that those 1-1-1999 200,000 General support of Castle Rock ideas must be promoted aggressively. So, we constantly think tank providing Foundation try innovative ways to market our ideas.”109 free-market answers Example of Heritage Foundation tort-reform product: to national public policy issues “The Urgent Need for Civil Justice Reform” by Edwin Meese III and Paul Rosenzweig.110 A sample from this commentary: Heartland Institute “These lawyers, with the complicity of creative judges in Website: http://www.heartland.org/ a few states, routinely create new rights and obligations where none had existed before. The tobacco cases are Example tort-reform product: merely the blueprint for a strategy of systematically Publication “Lawsuit Abuse Fortnightly,” available at web- transferring political power to a select few. [. . .] The site.112 next set of targets for predatory lawsuits has been iden- tified: With the assistance of state courts, tort lawyers Example of corporate funding source, according to Friends of the 113 next intend to reform the health-care system in Earth: America. And beyond the health-care system looms the Funding from ExxonMobil $90,000 in 2001 specter of other “creative” suits. [. . .] In short, if the trial Example of interconnectedness: lawyers can't change America through the courts, they are seeking to buy the Congress they need to enact the From Heartland’s Lawsuit Abuse Fortnightly: agendas they support. And every American, conserva- “Information on lawsuit abuse can be found on these Web tive or liberal, should fear the prospect. Because if we sites: don't fix the civil justice system, we risk all that is pre- www.heartland.org — Heartland Institute cious in the American system — democracy and self-gov- www.alec.org — American Legislative Exchange Council ernment most of all.” www.atra.org — American Tort Reform Association www.fed-soc.org — Federalist Society www.halt.org — HALT www.manhattan-institute.org — Manhattan Institute www.overlawyered.com — OverLawyered www.wlf.org — Washington Legal Foundation”

January/February/March 2004 — 22 Forum 19 Heartland Institute: Examples of recent foundation funding:114

Dat Amount Comment Provider Washington Legal Foundation (WLF) 1-1-1998 10,000 Educational Programs Claude R. Lambe Website: http://www.wlf.org/ Charitable Foundation (KOCH) Statements from the WLF website: 1-1-1997 15,000 Intellectual Ammunition John M. Olin “WLF’s broad-based communications outreach program magazine Foundation, Inc. disseminates our free enterprise message through print 1-1-1997 10,000 Educational Programs Claude R. Lambe and electronic media, public education advertising cam- Charitable Foundation paigns, and on-site seminars and briefings. WLF also pub- 1-1-1996 10,000 Educational Programs Charles G. Koch lishes its opinion editorials “In All Fairness” in The New Charitable Foundation York Times, which reaches seventy major media markets and is read by ninety percent of America’s major newspa- 5-19-1995 25,000 To support general The Lynde and Harry per editors. operations Bradley Foundation, Inc. WLF publishes timely legal studies in seven highly 1-1-1995 25,000 POLICYNETWORK Sarah Scaife regarded formats written by expert authors. Through tar- SUPPORT Foundation get marketing, our publications reach judges, federal and state legislators, executive branch officials, business lead- 1-1-1995 10,000 General Program Charles G. Koch Charitable Foundation ers, the media, students, professors, and national deci- sion-makers. To date, we have produced 1,470 publica- tions.”116 Americans for Tax Reform (ATR) “WLF is a unique institution with three essential corner- ATR is not directly tied to the tort-reform movement, but is stone programs: included here because it funds Grover Norquist, who leads the • shaping public policy through aggressive litigation and weekly right-wing coordination meetings, and who has written advocacy that the real goal of tort reform is to “defund” trial lawyers as a • publishing timely legal studies step toward defunding “the left.” • educating policy-makers and the public through extensive communications outreach”117 Web address: http://www.atr.org Example tort reform product: Some examples of recent foundation funding:115 Civil Justice Reform, Online Journal.118 Date Amount Comment Provider WLF Publishes the Legal Opinion Letter, a pro- tort 1-1-2002 100,000 No comment provided Sarah Scaife reform publication. Foundation Washington Legal Foundation: Examples of recent foundation 1-1-2001 50,000 No purpose given Sarah Scaife funding:119 Foundation 1-1-2001 50,000 Public education John M. Olin Date Amount Comment Provider efforts on cutting taxes Foundation, Inc. 1-1-2002 50,000 No comment provided The Carthage and reducing the cost Foundation (SCAIFE) of government 1-1-2001 65,000 No purpose given Sarah Scaife 1-1-2000 50,000 No purpose given Sarah Scaife Foundation Foundation 1-1-2001 100,000 General Operating Claude R. Lambe 1-1-1999 75,000 Public education John M. Olin Support Charitable efforts on reducing Foundation, Inc. Foundation (KOCH) taxes and reducing 1-1-2000 500,000 Litigation and legal John M. Olin the cost of government studies programs Foundation, Inc. 1-1-1999 50,000 No description given The Carthage 1-1-2000 100,000 WLF’s Civic John M. Olin Foundation (COORS) Communications Foundation, Inc. 1-1-1999 100,000 No purpose given Sarah Scaife Program Foundation 1-1-2000 75,000 No purpose given Sarah Scaife 1-1-1998 50,000 No description available The Carthage Foundation Foundation 1-1-1998 250,000 A bi-weekly series of John M. Olin 1-1-1997 100,000 Public education John M. Olin op-ed articles published Foundation, Inc. efforts on reducing Foundation, Inc. in the New York Times taxes and the cost 1-1-1998 250,000 Litigation and legal John M. Olin of government studies programs Foundation, Inc. 1-1-1997 75,000 PROGRAM SUPPORT The Carthage 1-1-1998 125,000 No description available The Carthage Foundation Foundation (SCAIFE) 12-10-1996 12,500 To support general The Lynde and Harry 1-1-1998 150,000 General Operating Claude R. Lambe program activities Bradley Foundation, Support Charitable Inc. Foundation KOCH 9-30-1996 12,500 To support general The Lynde and Harry program activities Bradley Foundation, Inc.

20 22 Forum — January/February/March 2004 American Legislative Exchange Council (ALEC) Federalist Society Civil Justice Task Force Website: http://www.fed-soc.org/ Website: http://www.alec.org/viewpage.cfm?pgname=5.03 Example tort reform product: “Established in 1973 by Paul Weyrich of the Free Publishes Class Action Watch.122 Congress Foundation, among others, ALEC’s purpose is to Federalist Society: Examples of recent foundation funding:123 reach out to state office holders. In the words of ALEC’s executive director, Sam Brunelli, Date Amount Comment Provider ‘ALEC’s goal is to ensure that these state legislators 1-1-2002 300,000 No comment provided Sarah Scaife are so well informed, so well armed, that they can set Foundation the terms of the public policy debate, that they can 1-1-2002 100,000 No comment provided The Carthage change the agenda, that they can lead. This is the Foundation (SCAIFE) infrastructure that will reclaim the states for our 6-6-2001 92,500 To support general The Lynde and Harry movement.’ operations ($160,000) Bradley Foundation ALEC has the financial support of more than 200 corpo- and a matching grant Inc. rations including Coors, Amway, IBM, Ford, Philip for the State Constitutions Morris, Exxon, Texaco and Shell Oil.”120 Project ($25,000) — Media Transparency description of ALEC 1-1-2001 60,000 General operating Castle Rock support Foundation (COORS) ALEC: Examples of recent foundation funding:121 1-1-2001 100,000 No purpose given Sarah Scaife Date Amount Comment Provider Foundation 1-1-2002 70,000 No comment provided Allegheny Foundation 1-1-2001 25,000 No purpose given The Carthage (SCAIFE) Foundation 1-1-2001 50,000 General support Castle Rock 1-1-2001 45,000 Student Education Charles G. Koch Foundation (COORS) Charitable Foundation 1-1-2001 75,000 General operating Charles G. Koch 1-1-2001 100,000 General Operating Claude R. Lambe support Charitable Foundation Support Charitable Foundation (KOCH) 1-1-2000 75,000 No purpose given Allegheny Foundation (SCAIFE) 1-1-2001 206,000 The administration of John M. Olin the John M. Olin Fellows Foundation, Inc. 1-1-2000 85,000 General Operating Charles G. Koch in Law program Support Charitable Foundation 1-1-2001 225,000 The John M. Olin John M. Olin 1-1-2000 50,000 General support Castle Rock Lectures in Law Series, Foundation, Inc. Foundation the Citizen-Lawyer 1-1-1999 75,000 No description given Allegheny Foundation Project and the state 1-1-1999 50,000 Provides policy leaders Castle Rock constitutions project in the 50 states with Foundation 12-14-2000 92,500 To support general The Lynde and Harry research, model operations ($160,000) Bradley Foundation, legislation general and a matching grant Inc. support for 1998/1999 for the State Constitutions 1-1-1999 50,000 Agency provides policy Castle Rock Project ($25,000) leaders in the 50 states Foundation 7-10-2000 80,000 To support general The Lynde and Harry with research and model operations Bradley Foundation, legislation. General Inc. support of 2000 activities 1-6-2000 80,000 To support general The Lynde and Harry 1-1-1999 13,000 General Operating Charles G. Koch operations Bradley Foundation, Support Charitable Foundation Inc. 1-1-2000 206,000 The administration of John M. Olin John M. Olin Fellows in Foundation, Inc. Law program 1-1-2000 20,000 The administration of John M. Olin the John M. Olin Fellows Foundation, Inc. in Law program 1-1-2000 180,000 The John M. Olin John M. Olin Lectures in Law Series, Foundation, Inc. the Citizen-Lawyer Project and a conference on tort liability 1-1-2000 200,000 No purpose given Sarah Scaife Foundation

January/February/March 2004 — 22 Forum 21 National Center for Policy Analysis (NCPA) NCPA: Examples of recent foundation funding:127

Website: http://www.ncpa.org Date Amount Comment Provider Statement from NCPA’s website: 1-1-2002 175,000 No comment provided Sarah Scaife Foundation “The NCPA’s goal is to develop and promote private alter- natives to government regulation and control, solving 12-13-2001 50,000 To support general The Lynde and Harry problems by relying on the strength of the competitive, operations Bradley Foundation, entrepreneurial private sector. Topics include reforms in Inc. health care, taxes, Social Security, welfare, criminal jus- 6-6-2001 50,000 To support general The Lynde and Harry tice, education and environmental regulation.” operations Bradley Foundation, Inc. From National Committee for Responsive Philanthropy’s study, “The Strategic Philanthropy of Conservative Foundations”: 1-1-2001 75,000 No purpose given Sarah Scaife Foundation “The NCPA’s goal is to develop and promote private alter- 1-1-2001 50,000 General Operating David H. Koch natives to government regulation and control, solving Support Charitable Foundation problems by relying on the strength of the competitive, entrepreneurial private sector. Topics include reforms in 1-1-2001 30,000 General Operating Claude R. Lambe health care, taxes, Social Security, welfare, criminal jus- Support Charitable Foundation tice, education and environmental regulation.” 12-8-2000 50,000 To support general The Lynde and Harry operations Bradley Foundation, “The National Center for Policy Analysis prides itself on Inc. aggressively marketing its products for maximum impact by “targeting key political leaders and special interest 7-10-2000 50,000 To support general The Lynde and Harry groups, establishing on-going ties with members of the operations Bradley Foundation, Inc. print and electronic media, and testifying before Congress, federal agencies, state lawmakers, and nation- 1-6-2000 50,000 To support general The Lynde and Harry al associations.”124 operations Bradley Foundation, Inc. Inc. Example tort-reform product: 1-1-2000 150,000 The Center’s research John M. Olin “Doctors Face Soaring Malpractice Premiums”125 and education programs, Foundation, Inc. Examples of corporate funding sources, from Science in the including a study on Public Interest:126 national health insurance National Center for Policy Analysis Board of Directors 1-1-2000 50,000 General Operating David H. Koch • Thomas W. Smith, Managing Partner of Prescott Support Charitable Foundation Investors, Inc. 1-1-2000 150,000 No purpose given Sarah Scaife • John C. Goodman, President, NCPA Foundation • Pete du Pont, Richards, Layton and Finger • James Cleo Thompson, Jr., Chairman of the Board, 1-1-1999 150,000 No purpose given Sarah Scaife Thompson Petroleum Corp. Foundation • Jere W. Thompson, President, The Williamsburg 1-1-1999 100,000 To support general The Lynde and Harry Corporation operations Bradley Foundation, • Dan W. Cook III, Senior Director of Goldman Sachs & Co. Inc. • Robert H. Dedman, Chairman of the Board, ClubCorp 1-1-1999 50,000 General Operating David H. Koch International Support Charitable Foundation • Virginia Manheimer, Trustee, The Hickory Foundation 1-1-1998 150,000 The Center’s research John M. Olin • Henry J. “Bud” Smith, Chairman Emeritus, and education programs Foundation, Inc. Clark/Bardes, Inc. 1-1-1998 125,000 No description given Sarah Scaife Supporting Foundations include: Foundation • DaimlerChrysler Corporation Fund 1-1-1998 75,000 No purpose given Scaife Family • El Paso Energy Foundation Foundation • ExxonMobil Foundation • Eli Lilly and Company Foundation • Lilly Endowment Inc. Manhattan Institute’s Center for Legal Policy • Procter & Gamble Fund Website: http://www.manhattan-institute.org/html/clp.htm Statement from their website: “The Center for Legal Policy (CLP) is a leading voice for reform of America’s civil justice system. Founded in 1986, hundreds of news reports have cited the CLP’s civil justice work, with The Washington Post going so far as to call Senior Fellows Peter Huber and Walter Olson the “intel- lectual gurus of tort reform.” The CLP’s mission is to communicate thoughtful ideas on civil justice reform to real decision-makers. The Center fulfills this mission by publishing general-interest books and academic volumes; white papers, reports and op-eds;

22 22 Forum — January/February/March 2004 and a forum series on civil justice issues. The CLP also Cato Institute holds conferences and seminars for policy-makers, judges and journalists; CLP senior fellows make frequent radio, Website: http://www.cato.org television and public appearances and have testified From Media Transparency’s report on the Cato Institute: before both houses of Congress; and Senior Fellow Walter “Founded in 1977 by libertarian activists, the Cato Olson manages a website, overlawyered.com, with daily Institute moved to Washington, D.C. in 1981 in a bid to updates and incisive commentary on the effects of “over- become an influential player in Washington policy circles. lawyering” on American business and society. CLP Books Today (1997), Cato is a multi-million dollar, multi-issue such as Liability and Galileo’s Revenge, written by Senior research and advocacy organization with a staff of 40-plus Fellow Peter Huber, and The Litigation Explosion and The senior managers, policy analysts, and communications Excuse Factory, written by Senior Fellow Walter Olson, specialists. It is also assisted by the work of over 75 have permanently changed the legal landscape in the field adjunct Cato scholars. Cato’s mission is to “increase the of tort.” understanding of public policies based on the principles of Example tort-reform product: limited government, free markets, individual liberty, and Walter Olson’s Book: “The Rule of Lawyers — How the New peace. The Institute will use the most effective means to Litigation Elite Threatens America’s Rule of Law.”128 originate, advocate, promote, and disseminate applicable policy proposals that create free, open, and civil societies “A Spanking for the Trial Lawyers” in the United States and throughout the world.”131 Wall Street Journal, 5-23-03129 Examples of corporate funding sources: Manhattan Institute: Examples of recent foundation funding:130 “The Cato Institute has also received funding from the Date Amount Comment Provider American Farm Bureau Federation, American Petroleum 1-1-2002 150,000 No comment provided Sarah Scaife Institute, Amoco, ARCO, the Armstrong Foundation, Foundation Association of American Railroads, Association of International Automobile Manufacturers, Coca-Cola, Eli 1-1-2002 30,000 No comment provided The Carthage Lilly Endowment, Exxon, Ford Motor Co., Golden Rule Foundation (SCAIFE) Insurance, Grover Hermann Foundation, JM Foundation, 11-8-2001 75,000 To support general The Lynde and Harry Liberty Fund, Lynde and Harry Bradley Foundation, MONTHLY operations Bradley Foundation, Monsanto Co., Pfizer Inc., Philip Morris, Phillip M. Inc. McKenna Foundation, Procter and Gamble, Sarah Scaife 8-10-2001 75,000 To support general The Lynde and Harry Foundation, Sears Roebuck and Co., Sun Refining, T. operations Bradley Foundation, Rowe Price and Assoc., and theVernon K. Krieble Inc. Foundation.”132 1-1-2001 35,000 General operating Castle Rock Example tort reform products: support Foundation (COORS) Cato’s Tort Reform issues web pages.133 1-1-2001 150,000 No purpose given Sarah Scaife Cato Handbook for Congress, on tort reform134 Foundation Cato Institute: Examples of recent foundation funding:135 1-1-2001 100,000 General Operating Claude R. Lambe Support Charitable Foundation Date Amount Comment Provider (KOCH) 1-1-2002 60,000 No comment provided Sarah Scaife 11-7-2000 62,500 To support general The Lynde and Harry Foundation MONTHLY operations Bradley Foundation, 1-1-2001 50,000 General Operating Castle Rock Inc. Support Foundation COORS 1-1-2000 15,000 No purpose given The Carthage 1-1-2001 500,000 General Operating David H. Koch Foundation (SCAIFE) Support Charitable Foundation 1-1-2000 400,000 City Journal; fellowships John M. Olin 1-1-2001 250,000 General Operating Claude R. Lambe for Heather MacDonald Foundation, Inc. Support Charitable Foundation (Heather MacDonald), Koch Tamar Jacoby and Abigail Thernstrom; and the 1-1-2000 750,000 General Operating David H. Koch Jeremiah Project directed Support Charitable Foundation by Prof. John DiIulio. 1-1-2000 250,000 General Operating Claude R. Lambe 1-1-2000 183,449 Gaining Ground? Smith Richardson Support Charitable Foundation Measuring the Impact Foundation (KOCH) of America’s Welfare 1-1-1999 125,000 No purpose given Sarah Scaife Revolution Foundation 1-1-2000 175,000 No purpose given Sarah Scaife 1-1-1999 100,000 To support the Project The Lynde and Harry Foundation on Social Security Bradley Foundation, 1-1-1985 30,000 To support a fellowship John M. Olin Privatization Inc. for Charles Murray Foundation, Inc. 1-1-1999 500,000 General Operating David H. Koch 1-1-1985 150,000 General support and The Carthage Support Charitable Foundation publication program Foundation 1-1-1999 250,000 Program Operating Claude R. Lambe 1-1-1985 150,000 General operating and Sarah Scaife Support Charitable Foundation publication support Foundation 1-1-1985 100,000 Support of Domestic The Carthage Studies Program Foundation

January/February/March 2004 — 22 Forum 23 Citizens for a Sound Economy (CSE) Website: http://www.cse.org/informed/key_template.php?issue_it=2. Statement from their website: “An elite group of greedy trial lawyers is exploiting our legal system and turning it into “jackpot justice.” Over $163 billion is paid each year in damages and lawyers’ fees related to tort lawsuits. We want to give back our legal system to honest, decent Americans. Our grassroots army has fought and won legal reforms at the federal level and the state level in Florida, Alabama, Texas, and Illinois. We educate citizens on how frivolous lawsuits affect them personally — impacting their pocketbooks, businesses, values and way of life. CSE activists are spearheading efforts to enact real tort reform across the country. What you can do: Attend our town meetings on lawsuit abuse. And tell your elected officials that you want our legal system returned to decent, honest Americans with real grievances.” From Media Transparency’s report:136 “...Based in Washington, D.C., CSE describes itself as an organization of “grassroots citizens dedicated to free mar- kets and limited government.” However, it is commonly known as what Public Relations Quarterly has called a “corporate front group.” The publication explained that “the use of such ‘front groups’ enables corporations to take part in public debates and government hearings behind a cover of community concern [in order to] oppose environ- mental regulations, and to introduce policies that enhance corporate profitability.” Example tort reform product: Lawsuit Abuse : Issue Homepage137 Examples of corporate funding sources:138 “Philip Morris (>$1 million), US West ($1 million), Hertz ($25,000), DaimlerChrysler AG ($25,000), Exxon ($175,000), U.S. Sugar Corp ($280,000), Florida Crystals (sugar industry; $280,000), Sugar Cane Growers Cooperative of Florida ($140,000), Microsoft ($380,000).” CSE: Examples of recent foundation funding:139

Date Amount Comment Provider 1-1-2002 175,000 No comment provided Sarah Scaife Foundation 1-1-2001 175,000 No purpose given Sarah Scaife Foundation 1-1-2001 450,000 General Operating Charles G. Koch Support Charitable Foundation 1-1-2001 250,000 General Operating Claude R. Lambe Support Charitable Foundation (KOCH) 1-1-2000 750,000 General Operating David H. Koch Support Charitable Foundation 1-1-2000 700,000 Educational Program Claude R. Lambe Support Charitable Foundation 1-1-2000 175,000 No purpose given Sarah Scaife Foundation 1-1-1999 75,000 No description given Scaife Family Foundation 1-1-1999 200,000 No purpose given Sarah Scaife Foundation 1-1-1999 1,000,000 General Operating David H. Koch Support Charitable Foundation 1-1-1999 600,000 General Operating Claude R. Lambe Support Charitable Foundation

24 22 Forum — January/February/March 2004 George Mason University School of Law’s Law & and Economics Center Economics Center Website: http://www.gmu.edu/departments/law/lawecon/ 1-1-1992 100,000 Law and Economic Sarah Scaife The Law & Economic Center … “treats federal judges to all- Centers founded by Foundation expenses-paid, two-week seminars held at tony resorts. At these Henry G. Manne (at the conferences, judges are drilled in advanced legal and economic University of Miami, theories that advocate a hands-off approach to the ‘free mar- Emory University, George ket.’”140 Mason University) Law “The Law and Economics Center mission is to educate and Economics Center judges in how to apply principles of economic analysis to 1-1-1991 110,000 Law and Economic Sarah Scaife the law. By 1991, the Center had provided such training Centers founded by Foundation —— with seminars held at resort locations to enhance Henry G. Manne (at the their attractiveness — to over 40 percent of the federal University of Miami, judiciary. Emory University, George Mason University) Law “Like the Center for the Study of Market Processes, the and Economics Center LEC is run independently of George Mason, with corpo- 1-1-1990 100,000 Law and Economic Sarah Scaife rate and foundation sponsors covering “all travel, lodging Centers founded by Foundation and meal expenses for the most powerful players in the Henry G. Manne (at the legal system — judges.” University of Miami, — “Moving a Public Policy Agenda,” National Committee for Responsive Emory University, George 141 Philanthropy Mason University) Law and Economics Center “Put simply, this “Center” is a right-wing propaganda mill masquerading as a purveyor of academic “economics.” The “teachers” have been Harold Demsetz and others And: from the University of Chicago and its major academic out- posts (paid at an hourly rate commensurate with the up to George Mason University Foundation, Inc. $600 per hour commanded by George Stigler and the oth- ers as antitrust “experts” in court). No opposing econo- Some examples of recent foundation funding:144 mists have ever been allowed to appear before the judges. Date Amount Comment Provider When I asked the Center’s people why they didn’t permit distinguished non-Chicago economists to share the podi- 1-1-2002 325,000 No comment provided Sarah Scaife um at these judicial teach-ins, they laughed and said, “Let Foundation them go start their OWN seminars for the judges!” 1-1-2001 400,000 No purpose given Sarah Scaife — Charles Mueller, Editor, Antitrust Law & Economics Review142 Foundation 1-1-2001 3,030,250 Educational and Charles G. Koch 143 Some examples of recent foundation funding: Research Programs Charitable Foundation Date Amount Comment Provider 1-1-2000 2,080,000 Educational and Charles G. Koch 1-1-1997 100,000 Law and Economic Sarah Scaife Research Programs Charitable Foundation Centers founded by Foundation 1-1-2000 550,000 No purpose given Sarah Scaife Henry G. Manne (at the Foundation University of Miami, 1-1-2000 10,000 Law and Economics Philip M. McKenna Emory University, George Center General Foundation, Inc. Mason University) Law Operations and Economics Center 1-1-1999 450,000 No purpose given Sarah Scaife Foundation 1-1-1996 125,000 Law and Economic Sarah Scaife Centers founded by Foundation 1-1-1999 10,000 Law and Economics Philip M. McKenna Henry G. Manne (at the Center General Foundation, Inc. University of Miami, Operations Emory University, George And: Mason University) Law and Economics Center George Mason University: 1-1-1995 125,000 Law and Economic Sarah Scaife Centers founded by Foundation Some examples of recent foundation funding:145 Henry G. Manne (at the University of Miami, Date Amount Comment Provider Emory University, George 1-1-2001 20,000 School of Law. Earhart Foundation Mason University) Law Law and Economics and Economics Center Center 1-1-1993 100,000 Law and Economic Sarah Scaife To provide support for Centers founded by Foundation the program for judges Henry G. Manne (at the and for general support University of Miami, Emory University, George Mason University) Law

January/February/March 2004 — 22 Forum 25 for educational programs during 2001 1-1-2000 200,000 School of Law. John M. Olin 1-1-2001 200,000 The programs of the John M. Olin The programs of the Foundation, Inc. Law and Economics Foundation, Inc. Law and Economics Center Center 1-1-2000 20,000 School of Law. Earhart Foundation Law and Economics Center 1-1-1999 45,455 School of Law. John M. Olin A John M. Olin Faculty Foundation, Inc. Fellowship for David E. Bernstein 1-1-1999 200,000 School of Law. John M. Olin Institutes in Law and Foundation, Inc. Economics for federal judges 1-1-1997 200,000 School of Law John M. Olin Institutes in Law and Foundation, Inc. Economics for federal judges 1-1-1996 200,000 School of Law. John M. Olin Institutes in Law and Foundation, Inc. Economics for federal judges 1-1-1995 185,000 School of Law. John M. Olin Teaching institutes in Foundation, Inc. Law and Economics for federal judges, faculty workshops and research in law and economics 1-1-1994 185,000 School of Law. John M. Olin Teaching institutes in Foundation, Inc. Law and Economics for federal judges, faculty workshops and research in law and economics 1-1-1993 150,000 School of Law. John M. Olin Teaching institutes in Foundation, Inc. Law and Economics for federal judges, faculty research and workshops in law and economics, 1993 1-1-1992 150,000 School of Law. John M. Olin To support teaching Foundation, Inc. institutes in Law and Economics for federal judges, faculty research and workshops in law and economics 1-1-1991 150,000 School of Law. John M. Olin To support teaching Foundation, Inc. institutes in Law and Economics for federal judges, faculty workshops and research in law and economics 1-1-1990 100,000 School of Law. John M. Olin To support teaching Foundation, Inc. institutes in Law and Economics for federal judges 1-1-1989 100,000 School of Law. John M. Olin To support teaching Foundation, Inc. institutes in Law and Economics for federal judges

26 22 Forum — January/February/March 2004 Website: http://www.brtable.org/issue.cfm/10 According to their website:

12-1-1988 5,000 School of Law & Law Charles G. Koch “Continue efforts for federal and state tort reform, includ- and Economics Center Charitable Foundation ing the judicial system. Work toward incremental reforms, including class action, punitive damage, and joint and sev- 10-25-1988 100,000 Economics program for The Lynde and Harry eral liability reform.” federal judges Bradley Foundation, Inc. Citizens Against Lawsuit Abuse (CALA) 6-22-1987 63,550 Support the Law and The Lynde and Harry Economics Center’s Bradley Foundation, A number of related state organizations, coordinated by ATRA. 1987 Summer Inc. Economics Institute for California Website: http://www.cala.com/. Law Professors. Example tort-reform products: 1-1-1987 100,000 Law and Economics John M. Olin Lawsuit horror stories Center. Foundation, Inc. According to the Center for Justice and Democracy report “The To support the 1987 CALA Files — a Report on Tort Reform”:150 Law and Economics Institute for Federal “They euphemistically call themselves any number of Judges names, typically: Citizens Against Lawsuit Abuse (CALA), 1-1-1986 63,000 Law and Economics John M. Olin Lawsuit Abuse Watch, Stop Lawsuit Abuse or People for a Center. Foundation, Inc. FAIR Legal System. To support the 14th While CALA groups tell the media, as well as lawmakers, Basic Economics that they are sustained by small donations from ordinary Institute for Judges citizens, the money trail from many of these groups leads directly to large corporate donors, including tobacco, insurance, oil and gas, chemical and pharmaceutical com- Appendix 5 — Examples of the Involvement panies, medical associations, and auto manufacturers. They are also funded by ATRA, as well as professional of Organizations That Advocate Tort Reform associations, local businesses and industries that also (no funding data included) wish to be shielded from consumer lawsuits. • The CALA blueprint was honed in South Texas in the early 1990s where the first group to carry the “lawsuit Americans for Job Security (no website) abuse” message ran doom and gloom television and radio ads warning that the legal system was out of AJS is a “stealth” issue-ad organization that exists to develop control, affecting the economy and the pocketbook and run “issue ads” against Democratic candidates. See the of average people. Creating a model that was duplicat- information on this organization at Campaign Finance ed nationwide, the Texas CALA groups developed a Institute.146 statewide support network that included the Texas Chamber of Commerce, the right-wing Texas Public The American Tort Reform Association (ATRA) Policy Foundation, and numerous corporations wishing and The American Tort Reform Foundation to shield themselves from consumer lawsuits.” Website: http://www.atra.org/ Chamber Institute for Legal Reform (CILR) ATRA coordinates approximately 40 state tort reform coalitions. Tort reform product example: Publishes the weekly Legislative US Chamber of Commerce. Watch and The Reformer, a monthly newsletter. Website: http://www.litigationfairness.org/who.html According to the Center for Justice and Democracy report “The Example tort-reform products: CALA Files — a Report on Tort Reform”: Stories of Outrageous Class Action Lawsuits151 “The business-led effort to take away consumers’ legal Facts & Figures152 rights (called “tort reform” by its corporate proponents; According to their website: “tort deform” by its pro-consumer opponents)* has had at “Litigation Fairness Campaign goals: its helm the American Tort Reform Association (ATRA) • Reforming the class action system to make it simpler, fairer located in Washington, D.C. In turn, ATRA has contracted and faster with APCO & Associates, one of the nation’s leading • Common-sense reforms to ensure fairness in product “grassroots” lobbying/PR firms.”147 liability suits ATRA publishes short, misleading accounts of so-called “Looney • Assuring damage awards are fair and equitable lawsuits.”148 • Elimination of frivolous lawsuits • Enforcement of legal ethics rules” ATRA is also the American Tort Reform Foundation, which receives some of its funding from Scaife’s Carthage Foundation.149 The American Tort Reform Foundation website is: http://www.atrafoundation.org/

Business Roundtable — Civil Justice Reform

January/February/March 2004 — 22 Forum 27 ID=1031& According to their website: Coalition for Affordable and Reliable Healthcare “The Fair Litigation Action Group (FLAG) will work (CARH) through the NAM Legal Policy Issues Committee to initi- Website: http://www.carh.net/ ate a broad multi-year awareness campaign among NAM members and their employees, including more than 350 According to their website: member associations located in all 50 states. The cam- “CARH is a coalition of healthcare providers, professionals, paign will focus on the importance of fair liability laws and other organizations that is dedicated to solving this and what legal reform measures are needed to achieve problem by coordinating with the Bush Administration, this goal. As a result of this heightened awareness among Congress, and the media to educate the public and see NAM members and their employees, members of Congress national legislation enacted that would result in compre- and other state and national leaders will better under- hensive medical liability reform.” stand why the legal system needs to be reformed. FLAG will identify a priority list of fair litigation issues with the Common Good — Reforming America’s Lawsuit primary goal of ultimately working for the enactment of Culture fair litigation laws.” Website: http://cgood.org/ Overlawyered.com — Chronicling the high cost of According to their website: our legal system “Fear of litigation has undermined our freedom to make A weblog published by Walter Olson. sensible decisions. Doctors, teachers, ministers, even little Interconnectedness example from Mr. Olson’s biography at league coaches, find their daily decisions hampered by the Cato Institute: legal fear. Our system of justice, long America’s greatest pride, is now considered a tool for extortion, not balance.” “A senior fellow at the Manhattan Institute, the think tank in New York City, Mr. Olson is a frequent contributor Health Coalition on Liability and Access (HCLA) to the magazine Reason, and his writing appears regu- larly in such publications as the New York Times and the Website: http://www.hcla.org/ Wall Street Journal. He has appeared numerous times According to their website: before Congress, federal agencies and state lawmakers “HCLA is a national advocacy coalition united in our and has approximately 300 broadcast appearances under strong belief that federal health liability laws are needed his belt, including “Crossfire”, “MacNeil-Lehrer”, “Oprah”, to bring greater fairness, timeliness and cost-effectiveness “Donahue”, and NPR. His website Overlawyered.com, to our system of civil justice. We also believe legal reform launched in 1999, has won wide acclaim for its mix of is the best way to protect medical progress and to ensure entertaining and serious commentary. Before joining the that affordable health care is accessible to all Americans.” Manhattan Institute in 1985 he spent five years with the American Enterprise Institute, and worked before 155 Junk Science that on Capitol Hill.” Walter Olson’s Web site has links from: Website: http://www.junkscience.com/ TownHall.com — operated by Heritage Foundation Statement from their website: Federalist Society Hudson Institute “PERSONAL INJURY LAWYERS may use junk science to Reason Magazine bamboozle juries into awarding huge verdicts. Large ver- Manhattan Institute, and their Center for Legal Policy dicts may then be used to extort even greater sums from Civil Justice Association of California (ATRA) deep-pocket businesses that may be fearful of future jury Opinion Journal (Wall Street Journal) verdicts.” Support John Stossel.org Critical description of this organization: Right Wing News “This is the page of Steven J. Milloy and is sponsored by Chamber Institute for Legal Reform the swell-sounding Citizens for the Integrity of Science, a National Association for Business Economics front organization located in Potomac, Maryland, whose Atlantic Legal Foundation WWW page directs the websurfer back to Mr. Milloy’s Illinois Civil Justice League (ATRA) Junk Science Page. This is not surprising since Mr. Milloy Common Good is the “Administrative Contact” of the front organization.” New Yorkers for Civil Justice Reform — The Skeptics Dictionary153 Michigan Lawsuit Abuse Watch JunkScience.com Steven J. Milloy is the founder and publisher of junkscience.com, an adjunct scholar at the Cato Institute, and a Power-of-Attorneys columnist for FoxNews.com.154 Website: http://www.power-of-attorneys.com/ (More Steven Milloy interconnectedness information is avail- also lawyersstink.com able in a short research piece at Clear Project, at http://www.clearproject.org/reports_milloy.html.) This is a website of lawyer-hatred. “Lawyers stink” shirts and caps are for sale. The site also offers a “Lawyer joke of the day” National Association of Manufacturers — Fair as well as other anti-lawyer vehicles. Litigation Action Group (FLAG) Website: http://www.nam.org/secondary.asp?TrackID=&Category 28 22 Forum — January/February/March 2004 This report primarily cites online sources to make it easier to expand on the included material. ______Sickoflawsuits.org — A CALA organization 1 Stern, Seth. “Now, trial lawyers could use a good lawyer — The long-maligned group faces a host of legislative moves to curb its influence.” Christian Science Website: http://sickoflawsuits.org Monitor. June 10, 2003. Viewed August 7, 2003 “Lawyers Exploiting the Mentally Ill” 2 Middleton, Jr., Richard H. “The Truth Is Out There.” ATLA. Viewed July 28, 2003 Their links include TownHall.com, which is run by the Heritage 3 Deal, Carl and Joanne Doroshow. “The CALA Files — The Secret Campaign by Foundation. Big Tobacco and Other Major Industries to Take Away Your Rights.” Center for Justice and Democracy and Public Citizen. Executive summary online at To order a copy of this report, contact the Appendix 6 — Examples of State Tort Reform Center for Justice and Democracy at 212-267-2801. Organizations 4 Deal, Carl and Joanne Doroshow. “The CALA Files — The Secret Campaign by Big Tobacco and Other Major Industries to Take Away Your Rights.” Center for Justice and Democracy and Public Citizen. Executive summary online at Communities Against Unethical Attorneys — To order a copy of this report, contact the Center for Justice and Democracy at 212-267-2801. Washington State 5 LawyersStink.com is part of the Power-of-Attorneys website. See Appendix 5. Website: http://www.caua.org/ 6 From People For the American Way Foundation’s report, “Buying a Movement.” The report is viewable online at and can be downloaded in PDF format at Georgia Public Policy Foundation 7 Bradley as member of John Birch Society, numerous references including Website: http://www.gppf.org/ PFAWF’s study, “Buying a Movement.” Viewed August 14, 2003 Illinois Civil Justice League 8 Coors and John Birch Society: “Right-Wing Message For Sale.” Public Employee. AFSCME. November/December 1996. Viewed August 14, 2003 Website: http://www.icjl.org/ Statement from their website: 9 Koch Foundations, John Birch Society, libertarian support, see Media Transparency and proponent of major tort liability reform in the Illinois 10 William Simon, member of Council for National Policy. “Vast, Right-Wing General Assembly in 1995.” Cabal? Meet the Most Powerful Conservative Group You've Never Heard Of.” ABC News. May 2, 2002. Viewed August 14, 2003 . Chair of Unification Church’s Michigan Lawsuit Abuse Watch (M-LAW) Nicaragua Freedom Fund. Among numerous references is Group Watch, Political Research Associates. 11 For information on Richard Mellon Scaife, See: Lyons, Gene and Joe Conason. Statement from their website: “Circle of Deceit.” Arkansas Times. May 5, 2000. http://www.arktimes.com/ 000505coverstory.html. See also the May, 1999 Washington Post series on Scaife, “M-LAW’s goal is to eliminate the many negative effects “Funding Father of the Right.” munities. Excessive litigation has robbed consumers of 12 The John Birch Society’s Get US Out! campaign is online at needed products and services and has added a hidden “lawsuit tax” onto countless other products and services.” 13 Callahan, David. “$1 Billion for Ideas: Conservative Think Tanks in the 1990s.” National Committee for Responsive Philanthropy. March 1999. New Yorkers for Civil Justice Reform 14 Media Transparency on Americans for Tax Reform foundation funding. Viewed Website: http://www.nycjr.org/ August 20, 2003 Statement from their website: 15 Information about Grover Norquist and the weekly coordination meetings is available at Commonweal Institute’s “Collection of links to articles, reports and “Dedicated to informing the public of the destructive and resources for learning about the right-wing movement, its history, how it is fund- costly influence of lawsuit abuse in America.” ed and how it operates,” online at . See also the June 1, 2001 USA Today story, “Norquist’s power high, profile low,” available at 16 Dreyfuss, Robert. “Grover Norquist: ‘Field Marshal’ of the Bush Plan.” The Website: http://www.tnlegalreform.com/ Nation. April 26, 2001. 17 Zuckman, Jill. “Pipeline Leads to White House” USA Today, June 9, 2003. “Tennesseans for Legal Reform (TLR) is leading the fight Viewed August 30, 2003 this year for badly needed tort reform legislation, particu- 18 Alterman, Erik. “The Right Sort.” Guardian Unlimited. December 15, 2001. larly medical malpractice legislation, but says it will also Viewed August 20, 2003 19 Brock, David. Blinded by the Right: The Conscience of an Ex-Conservative. Crown. Reviewed online at A CALA organization 20 Junnola, Jill. “Perspective: Who funds whom?” Energy Compass. October 4, 2002. Viewed August 14, 2003 Website: http://www.tala.com/ 21 Kellard, Joseph. “The Anti-Tobacco Crusade: “Addiction” vs. Personal Responsibility.” Capitalism Magazine. March 8, 1998. Viewed September 15, There are many more state organizations. 2003 22 Jones, Stephanie K. “What About Personal Responsibility?” Insurance Journal. Notes & References November 5, 2001 Viewed September 15, 2003 ture/1999/03/cov_17feature.html — Also see Lardner Jr., George. “Report Links Environmental Rulings, Judges’ Free Trips.” Washington Post. July 25, 2000. 23 Rader, Randall R. “Do You Really Believe in a Limited Government?” The Viewed September 1, 2003 politicsandcurrentevents/governmentreformitsrealrole/youreallybelieve.shtml> “At the time of the original publication, Mr. Rader was Legislative Counsel in the 45 “The CALA Files.” Center for Justice and Democracy. now a Judge on the U.S. Court of Appeals. 46 Bischoff, Laura A. “Donors weigh in on ‘tort reform’ — Doctors, lawyers battle 24 Mackinac Center funding information gathered from Media Transparency. over awards.” Dayton Daily News. September 29, 2002. Viewed August 5, 2003 Viewed September 16, 2003 search_results/info_on_any_recipient.php?recipientID=197> 47 Ken Lay helping start first tort reform organization in Texas: Doroshow, 25 Duff, David C. “Personal Responsibility: A Brief Survey.” The Freeman. The Joanne. “‘Tort Reform,’ Bush and the Enron Connection.” Center for Justice and Foundation for Economic Education. July 1989. Viewed September 15, 2003 Democracy. January 26, 2002. Viewed September 27, 2003 “Bush, Lay Shielded Errant TX Businesses From 26 Power-of-Attorneys website. 2003 27 Norquist, Grover. “Winner Take All - The 2000 elections will decide the 48 Borger, Julian and Martin Kettle. “How big money buys big votes in US race.” Democrats’ future” American Spectator. April, 1999. Viewed July 28, 2003 Guardian Unlimited. October 10, 2000. Viewed August 5, 2003 28 Norquist, Grover. “The Coming Bush Dynasty.” American Spectator. February, 49 Woellert, Lorraine. “Tort Reform: A Little Here, a Little There... Business lob- 2001. Viewed July 28, 2003 byists are pursuing smaller changes — that add up.” Business Week. January 20, 29 Edsall, Thomas B. “GOP using ‘tort reform’ as powerful political club.” 2003.Viewed August 5, 2003 Viewed August 26, 2003 Republicans as RINOs, see — Dreyfuss, Robert. Paycheck Protection Racket. Mother Jones. May, June 1998. 51 O’Reilly, Kevin B. “Tort Reform Advocates Strike While Iron is Hot.” Insurance Viewed online September 24, 2003 “The Real Story Behind ‘Paycheck Protection’ — The magazines/west/2003/05/05/features/28729.htm> Hidden Link Between Anti-Worker and Anti-Public Education Initiatives: An Anatomy of the Far Right.” National Education Association. This excellent report 52 From PFAW’s report, “Buying a Movement.” at 53 Covington, Sally. “The Strategic Philanthropy of Conservative Foundations.” 31 Voucher Veneer: The Deeper Agenda to Privatize Public Education. People National Committee for Responsive Philanthrophy. July 1997. Viewed July 28, For the American Way Foundation. July, 2003. Viewed September 24, 2003 2003 54 O’Reilly, Kevin B. “Tort Reform Advocates Strike While Iron is Hot.” Insurance 32 About Heritage Foundation, Heritage website. Viewed July 28, 2003 Journal. May 5, 2003. Viewed August 13, 2003 magazines/west/2003/05/05/features/28729.htm> 33 Washington Legal Foundation. Description from WLF at-a-glance. Viewed July 55 O’Reilly, Kevin B. “Tort Reform Advocates Strike While Iron is Hot.” Insurance 28, 2003 Journal. May 5, 2003. Viewed August 13, 2003 34 Covington, Sally. “The Strategic Philanthropy of Conservative Foundations.” National Committee for Responsive Philanthrophy. July 1997. Viewed July 28, 56 “Professional Liability Reform 2002-2003 Enacted Legislation.” American 2003 Osteopathic Association. June 2003. Viewed September 15, 2003 35 Borosage, Robert, “The Mighty Wurlitzer.” The American Prospect. May 6, 2002. Viewed July 23, 2003 57 “20 States Have Enacted Tort Reforms This Year.” Insurance Journal. July 15, 2003. Viewed August 26, 2003 58 Waites, Dr. Richard. “Juror Perceptions About Lawsuits and Tort Reform” The 37 Center for Legal Policy at the Manhattan Institute. Viewed July 28, 2003 Advocates Trial and Advocacy Sciences (a firm). 2003. Viewed September 15, 2003 reform.” 59 Tassoni, Brooke, Daniel O`Fallon and Bruce Finzen. “Tort Reform: Perception Versus Reality.” Minnesota Trial Lawyer, Winter 2003. Viewed September 15, 39 Fair Litigation Action Group (FLAG), National Association of Manufacturers. 2003 FLAG Mission Statement. Viewed July 28, 2003 40 For examples of tort reform legislation based on ALEC’s model, see “Tort 61 Business Councils of New York State story describing Buffalo News editorials. Reform Bills Signed in Arkansas, Idaho; Bills Pass in Colorado, Georgia,” May, 2003. NAMIC Online, National Association of Mutual Insurance Companies, March 28, 2003. Viewed September 16 62 “Bush plugs his tort reform plan.” AMA News in brief report of \Aug. 8, 2002 speech by President Bush, in Madison, Mississippi. Viewed July 29, 2003 41 Weyrich , Paul M. “ALEC: Representing Conservative Principles In Your State’s Legislature.” Free Congress Foundation Commentaries. June 6, 2003. 63 Roll Call magazine. July, 2003 (PDF file) Viewed July 23, 2003 Viewed September 16, 2003 030606PW.asp> 64 “US lawyers stoke corporate anger.” World Business Review, BBC, Feb. 21, 42 Mazur, Frank. “ALEC Annual Conference 2003” Rep. Frank Mazur’s Pages. 2003. August 23, 2003. Viewed September 24, 2003 ~frankmazur/ALEC_08_03.htm> 65 Doherty, Robert. “Overcoming the obstacles to medical liability reform.” ACP- 43 “Corporate America’s Trojan Horse in the States, The Untold Story Behind the ASIM Observer. American College of Physicians-American Society of Internal Americal Legislative Exchange Council.: A report from Defenders of Wildlife and Medicine. NRDC. Available online at 66 Orange County CALA website. and Power- 44 Kendall, Doug. “Nothing For Free: How Private Judicial Seminars Are of-attorneys website. Undermining Environmental Protections and Breaking the Public’s Trust.” A 67 Michigan Daily. University of Michigan. October 16, 1995. Viewed July 24, report by the Community Rights Council. July 2000. Viewed September 2003 2003 — Also see “Who’s Junketing the Judges.” Trips For Judges website. Viewed September 1, 2003. — Also see Leonard, Andrew. “Tipping the antitrust Massachusetts Lawyers Weekly. May 13, 2003. March, 1999. Viewed September 1, 2003 http://archive.salon.com/21st/fea- 69 “Tort Reform,” Handbook for 107th Congress, 2001. Cato Institute.

30 22 Forum — January/February/March 2004 CCTTLLAA Law Reporter

By Kathleen L. Nastri, Associate Editor

reconstruction was immediately conduct- October, 2001, which was timely accept- If possible, please submit your verdicts ed by Edmund Sullivan, a former ed by the defendants in the amount of and settlements on a 3.5” floppy disk in Connecticut State Police Accident $1,250,000, to be paid to the Estate; Word 97 format, together with a hard Reconstructionist. Fortunately, skid $300,000 to be paid to Cindy L. Billings copy. marks and debris were still visible when for her loss of consortium and bystander Several readers have mentioned that the plaintiffs’ expert visited the scene emotional distress; $150,000 to be paid to the verdicts and settlements reported and it was determined that, despite Mr. Nathan Billings; and $150,000 to be paid would be more helpful if we included in Billings’ alcohol consumption, he was to Matthew Billings for the bystander our report the date on which the case was entirely within the lane of travel. By ana- emotional distress each had suffered. resolved and the insurance carrier, if any. lyzing the vehicle damages, it was deter- Submitted by Robert I. Reardon, Jr., Therefore, when you send your reports mined that the plaintiffs’ decedent was Esq. of The Reardon Law Firm, P.C., New

in, please do your best to include this operating his motorcycle well within the London. REPORTER LAW information. speed limit when the defendant truck SETTLEMENT AT MEDIATION turned left directly into the plaintiffs’ decedent’s path of travel. It was apparent John Doe — $1.25 million; JUDGMENT OF $1.85 MILLION that the defendant driver had a clear Jane Doe — $300,000 Motorcycle — Truck Wrongful view of the motorcyclist for over 1,000 Motor Vehicle Accident Death Case feet before turning left into the driveway, The case of John Doe and Jane Doe v. The case of Cindy L. Billings, et al v. but apparently did not notice his pres- Sally Sister and Joe Brother, filed in the Symbol Mattress, Docket No. CV-01- ence. Judicial District of New London at 0065285-S, filed in the Judicial District Cindy L. Billings, wife of the plain- Norwich, was brought in October, 1998. of Windham at Putnam, was brought in tiffs’ decedent, arrived on the scene On July 18, 1998, the plaintiff hus- March, 2001. immediately after the accident occurred, band, John Doe, was operating his On August 4, 2000, at approximately accompanied by Nathan and Matthew Harley Davidson motorcycle south on 8:30 p.m., the plaintiffs’ decedent, Billings, the plaintiffs’ decedent’s sons. Route 117 in Ledyard, Connecticut. His Wilfred J. Billings, was operating his Collectively, they observed the plaintiffs’ wife, the plaintiff, Jane Doe, was riding 1981 Kawasaki motorcycle eastbound on decedent at the accident, lying in the as a passenger on the Harley. Neither Lake Road in Killingly, Connecticut. At roadway, bleeding profusely, and in Jane nor John Doe was wearing a hel- the same time, the defendant, Richard excruciating pain, until the plaintiffs’ met. It was a sunny day. The roads were M. Egan, was operating a 1996 Ford Box decedent eventually died. dry. As the plaintiff approached the inter- truck on Lake Road westbound. The The plaintiffs, Cindy L. Billings, section of Route 117, with a parking lot to truck was owned by the defendant’s Nathan Billings and Matthew Billings, his right, a truck owned by the defen- employer, Symbol Mattress Company. As suffered extreme mental distress and dant, Joe Brother, operated by the defen- Egan was returning to the Symbol anguish caused by witnessing the acci- dant, Sally Sister, pulled out from the Mattress warehouse on Lake Road, he dent scene immediately after the acci- parking lot, directly in front of the plain- turned the truck left across the east- dent occurred, before the conditions tiffs. The motorcycle collided with the bound lane of Lake Road, directly into changed, and by observing the painful truck in the southbound lane of Route the path of the plaintiffs’ decedent’s death of the plaintiffs’ decedent. As a 117. Both Jane and John Doe were motorcycle. There was a collision and the result of witnessing these conditions, the thrown off the motorcycle, ending up on plaintiffs’ decedent was thrown from his plaintiffs suffered recurrent nightmares, the road. motorcycle, resulting in his death. The flashbacks, depression and mental ill- The plaintiffs’ accident reconstruc- plaintiffs’ decedent suffered multiple ness for which they have received profes- tionist concluded that the truck pulled compound fractures of the face and skull sional counseling and therapy. Citing out in front of the plaintiffs when the and a brain stem injury, compound Clohessy v. Bachelor, a 1997 Connecticut plaintiffs were approximately 70 feet fractures of his extremities, multiple Supreme Court case, the decedent’s wife away from the truck. The reconstruction- cutaneous injuries, and injuries to his and two sons each made claims for their ist estimated the plaintiff-operator’s internal organs. He was pronounced “bystander emotional distress”. speed to be between 25 and 30 mph, dead at the scene. At the time of his death, Wilfred which was within the speed limit on that The plaintiff had been attending a Billings had a gross annual income of section of Route 117. summer backyard party at his home and $21,500.00, working as a warehouser. He John Doe suffered multiple traumatic had been drinking beer at the outing. He was 42 years old and had a high school injuries, including a fracture at C2; large had blood alcohol content of .08 upon education. left temporal contusion; subdural autopsy. The defendant driver was After the deposition of the defendant hematoma; multiple facial bone frac- returning from a day of delivering mat- Egan was completed, an offer of judg- tures; multiple rib fractures; right flail tresses in New York State. An accident ment was filed by the plaintiffs in chest; right pneumothorax; a fracture of

January/February/March 2004 — 22 Forum 31 CCTTLLAALaw Reporter the right fibula and lateral and medial In the case of Jacqueline Harrigan v. The defendant contended that, in both malleoli; traumatic brain injury; right William Keavy, M.D., Docket No. CV-97- of the post-operative conversations with clavicular shaft fracture; chipped teeth; 0057508-S, filed in the Superior Court for the plaintiff, he had offered to see her, malalignment of the occlusal surfaces of the Judicial District of Milford, the par- including paying a house call, which she the teeth; and depression. ties settled for $300,000.00 during jury declined. Dr. Keavy also claimed that he After an admission to a critical care selection. had no recollection of the plaintiff having hospital and a rehabilitation hospital, On January 10, 1996, 64-year-old reported burning which, according to the John Doe was able to return to his regu- Jacqueline Harrigan had thigh/lift sur- plaintiff’s expert, Nelson Goldberg, M.D. lar job about four months after the acci- gery performed by William Keavy, M.D., of Baltimore, Maryland, was a red flag dent. He was left with a 20% permanent at his clinic in New York City. At the for a potential serious complication. mental impairment, a 5% permanent time, Dr. Keavy also had an office in Defendant’s expert was Yale cosmetic partial disability of his right shoulder, an Stamford. The day after the surgery, surgeon, James Lyons, M.D. 18% permanent partial disability of the Mrs. Harrigan was discharged. She Submitted by Stephen Jacques, Esq. of cervical spine, a 10% permanent partial called Dr. Keavy 24 hours later and told Moore, O’Brien, Jacques & Yelenak, disability of his right leg, and a 10% per- him that she was having unusual pain, Cheshire. manent impairment of pulmonary func- tightness and burning in her thighs. Dr. SETTLEMENT: tion. John Doe stated during his deposi- Keavy, who had performed 12 prior cos- tion that he intends to retire early from metic surgeries on the plaintiff, informed Fall off loading dock; 53-year old his job, because he cannot handle the her that these symptoms were normal in male; 15% impairment of cervical stress of the job and his rib and ankle light of the type of surgery performed, spine and 10% impairment of pain while working. but that if she wanted to see him, he lumbar spine Jane Doe suffered a left elbow lacera- would be available for an appointment Settlement of $500,000.00 tion; right shoulder sprain; cervical the next day at his Stamford office. The In the case of Harry Ishler v. Dorcal sprain; cerebral concussion with nausea plaintiff declined because, based upon Associates Ltd. Partnership, et al, filed in and dizziness; right rotator cuff injury; her 20-year physician/patient relation- the United States District Court, Civil contusions to the face; temporomandibu- ship, she trusted Dr. Keavy’s judgment. Action No. 3:97CV1206 (JCH), the par- lar joint injury; aggravation of pre-exist- The next day, Dr. Keavy called the plain- ties settled before trial for $500,000.00. ing depression and post-traumatic stress tiff and she reported the same symptoms. The plaintiff, Harry Ishler, was a 53- disorder; a fractured tooth; bystander Dr. Keavy again reassured her and stat- year old truck driver for Produce emotional distress and loss of consor- ed that he would see her at her first post- Leasing, Inc. of Burlington, tium. Jane Doe was rendered uncon- operative appointment three days hence. Massachusetts. On July 21, 1995, he was scious at the scene. She awakened and At the January 16th post-operative making a delivery at the Waldbaum’s saw her husband, lying in the road, appointment, Dr. Keavy removed the Supermarket in Norwalk, CT. While bleeding from the head. She suffered loss bandages and it was discovered that the rolling a fully loaded pallet truck off the of consortium as a result of his change in plaintiff had sustained third degree back of his truck, Mr. Ishler inadvertent- personality due to his traumatic brain burns from pressure necrosis secondary ly stepped off the side of the loading dock, injury. She was left with a 4% disability to the circumferential bandages applied landing four feet below on the pavement of the whole person due to difficulty with immediately following the surgery. of the parking lot. mastication. She had some scars on her The plaintiff’s legs had apparently Suit was brought against Dorcal left temple and elbow resulting from her swollen within the bandages, which cut Associates Ltd. Partnership, the owner injuries. off circulation and caused her to develop of the property, and their tenant, She testified in her deposition that large areas of eschar (black, dead tissue) Waldbaum’s, alleging that the loading she had to discontinue working as an on the interior of her thighs. Dr. Keavy dock in question was too small for the ambulance attendant because she could treated the condition conservatively and type of deliveries being made thereon, no longer cope with her job duties. She referred her to a local colleague for fur- and because there were no railings did not wish to respond to traumatic sit- ther treatment. around the sides of the loading dock. The uations any longer. She testified that she In the ensuing two years, the plaintiff defense argued that there were no stan- intends to retire early from her new job consulted with several cosmetic surgeons dards or regulations that required the as a result of the effects of the accident and dermatologists, including New Haven dock to be any larger or to have a railing, on her and her husband. Reconstructive/Cosmetic Surgeon, Jeffrey or other safety measure, around the plat- The defendants requested mediation Salomon, M.D., who, in 1997, performed form’s perimeter. Instead, they contend- of this case before retired Justice two successful reconstructive surgeries ed that it was Mr. Ishler’s own careless- Speziale. The case settled at the media- on the thighs. Nevertheless, the plaintiff ness and inadvertence in stepping off the tion for $1.25 million for John Doe and experienced scarring and permanent con- loading dock that caused him to be $300,000 for Jane Doe. tractures in her groin, which remained injured. The plaintiff conceded in his Submitted by Dennis A. Ferdon, Esq. painful and inhibited her ability to deposition that he had previously been to of Anderson & Ferdon, Norwich. exercise. the loading dock and that he knew he The plaintiff claimed $19,000 in out- was very close to the edge of the dock. SETTLEMENT: of-pocket medical expenses and two As a result of this fall, Mr. Ishler suf- Thigh/Lift Surgery Medical years lost earnings, even though at the fered an injury to his cervical spine that Malpractice time of the surgery she was unemployed resulted in cervical disc surgery with Settlement of $300,000.00 and close to retirement age. fusion. He also suffered a herniated lum-

32 22 Forum — January/February/March 2004 CCTTLLAALaw Reporter bar disc, which required a lumbar that the failure of the defendant to pro- ical examinations or treatment for a peri- laminectomy. Despite the surgeries, Mr. vide Mr. LaBanca with the name of a spe- od of approximately 12 months, at which Ishler continued to suffer debilitating cific cardiologist or to perform any fur- time she complained of numbness and pain in both the neck and the lower back ther cardiac related testing was an indi- tingling down the lower extremity. An region. Besides physical therapy, he also cation that the defendant did not ade- MRI at that time determined that there required numerous epidural injections, quately advise Mr. LaBanca of the impor- was a herniated disk at L4-L5, and the as well as the use of constant pain med- tance of the abnormal EKG. plaintiff again sought treatment from Dr. ications. As a result of these injuries, the John LaBanca, a veteran of the U.S. Garver. Dr. Patrick Mastroianni subse- claimant was never able to return to Army Reserve, had worked for quently performed surgery to repair the work. The economist hired by RisCassi Bridgeport-based Swan Engraving for disc. A second surgical procedure was and Davis determined discounted lost more than 25 years prior to his death. subsequently required. income of $271,417.00. The total medical During the 15 years prior to his death, The medical specials totaled approxi- bills, all of which were paid by the work- Mr. LaBanca had suffered a number of mately $50,000.00. The plaintiff has a ers’ compensation carrier, equaled work injuries that left him significantly 15% permanent disability of the lumbar $86,630.58. The doctors determined that disabled. spine as a result of this occurrence. Mr. Ishler had a 15% permanent disabil- On June 18, 2001, the six-member The defense took the position that this ity of the cervical spine and a 10% dis- jury ruled that Mr. LaBanca’s physician, automobile collision did not cause the ability of the lumbar spine. Dr. Charles Rethy and the physician’s disc herniation, due to the fact that there The defendants contended that, Hamden Internal Medicine, were liable was an approximately one year lapse in REPORTER LAW despite his injuries, the plaintiff was able for Mr. LaBanca’s death. treatment between the time of the acci- to return to work. They received an opin- The trial, before Superior Court Judge dent and the determination that there ion from the IME physician, Dr. Aris Clarence Jones, lasted two weeks. Jurors was a disc herniation. In addition, liabil- Yannopoulos, which supported this con- deliberated a total of five hours before ity was denied due to the fact that the tention. The plaintiff’s treating physi- returning the verdict. The verdict includ- defendant maintained that this collision cians felt it was extremely unlikely that ed $300,000 for loss of earnings and $1.3 was so-called “low impact”. Mr. Ishler would ever find employment in million for loss of enjoyment of life’s With respect to the lapse of time, no the open labor market, as he would be activities and death. herniated disc was found on x-ray at the unable to find a job that he could physi- Submitted by James D. Horwitz, Esq. time of the initial evaluation and treat- cally tolerate. of Koskoff, Koskoff & Bieder, Bridgeport. ment by Dr. Garver. However, no MRI After settlement discussions with the was taken until approximately one year SETTLEMENT AT MEDIATION Honorable Joan Margolis, United States later. With respect to the “low impact” Magistrate Judge, the case was settled Motor vehicle accident question, the plaintiff took the position on the eve of trial for $500,000.00. The Settlement of $325,000.00 that this was irrelevant as no evidentiary workers’ compensation carrier agreed to In Ivon Lopez v. James Cali, et al, No. foundation could be established. The take back only two-thirds of their lien. CV-99-0360654-S, filed in the Superior plaintiff’s automobile had never been They also agreed to pay Mr. Ishler an Court for the Judicial District of repaired and had been sold. additional $23,000.00, which was not Fairfield, at Bridgeport, the parties set- Plaintiff’s treating physicians were subject to any lien recovery. tled after mediation for the sum of Eric Garver, M.D. and Patrick Submitted by David W. Cooney, Esq. of $325,000.00, $250,000.00 of which was Mastroianni, M.D., both of Bridgeport. RisCassi and Davis, P.C., Hartford. paid up front and the remainder was The mediator was Gerald Cooper, Esq. of placed into an annuity as a structured New Haven. The structured settlement JURY VERDICT: settlement. was provided by EPS Settlements Group Medical Malpractice; On April 3, 1997, the plaintiff, who at in Rhode Island. Verdict of $1.6 Million the time of the collision was 15 years old, Submitted by Mark D. Arons, Esq. of In Kittie LaBanca, Executrix, et al v. was riding in a motor vehicle operated by Millman & Arons, Westport and James Hamden Internal Medical Associates, et her mother on Interstate 95 southbound O’Rourke, Esq. of The Law Offices of al, No. CV-96-0388716-S, filed in the in Fairfield, when their car was struck in James O’Rourke, Stratford. Superior Court for the Judicial District of the rear by a truck owned by Dichello SETTLEMENT: New Haven, a jury returned a $1.6 mil- Distributors. These vehicles had been lion verdict as a result of the 1994 death stopped in traffic when the truck was Fall on board a cruise ship; of a man diagnosed with heart disease struck in the rear by an automobile oper- 61-year-old woman; comminuted five years earlier. ated by James Cali. The force of this fracture of right radius; John LaBanca was a 53-year-old mar- impact then pushed the truck into the Settlement of $45,000.00 ried father of three grown children at the rear of the plaintiff’s vehicle. In the case of Mary Mattox v. Celebrity time of his death of a heart attack on The plaintiff complained of neck and Cruises, Inc., Case No. 00-0367-CA-27, May 7, 1994. Although the medical back pain and was treated by Dr. Eric filed in the Circuit Court of the Eleventh records reflected that the plaintiff had Garver in Bridgeport for a period of three Judicial Circuit, in and for Miami-Dade been told five years earlier that his elec- weeks. She also had physical therapy for County, Florida, the parties settled for trocardiogram showed an abnormal con- a period of two weeks. Ms. Lopez was $45,000.00. dition, there was a claim that he had not then discharged from treatment. The plaintiff is a resident of been adequately advised of the impor- She and her mother thereafter moved Connecticut. She and her husband tance of the condition. The estate claimed to Florida, and she had no further med-

January/February/March 2004 — 22 Forum 33 CCTTLLAALaw Reporter boarded the cruise ship MV Century, The plaintiff was 61 years old at the placed by way of a hook and eye system. owned and operated by the defendant time she was injured. She is a retired sec- Mrs. Preisig approached the center court cruise line, which sailed from the Port of retary. Her total medical bills were display and leaned lightly against the Miami, Florida on September 9, 1998. On approximately $13,000.00. Her health guardrail, which immediately gave way. the morning of September 10, the plain- insurer, Blue Cross/Blue Shield, paid the She fell three feet to the bottom of the tiff was walking up a short outdoor ramp bills in full and retained a lien on the set- display/fountain area and injured her leading to the entrance to a restaurant tlement proceeds. shoulders. on board the ship when she slipped on Plaintiff’s counsel had concerns about The plaintiff alleged that the barrier liquid that had been spilled on the ramp. proving liability. Other factors leading to was insufficient to prevent a patron from The ramp had no handrails. settlement were the plaintiff’s potential falling into the sunken display area and The plaintiff does not know what type travel expenses in returning to Florida the defendants failed to provide adequate of liquid caused her to fall, nor how long for deposition and trial, as well as the warning against leaning on or against the dangerous condition had existed. expense of presenting medical testimony the barrier, which they knew to be inade- There were no witnesses to the fall, other at trial, in light of the fact that all of her quate to support the weight of an adult. than the plaintiff’s husband, and he was treating physicians are out of state. The defendants contended that the plain- unable to provide any details about the When a tourist is injured in Florida, the tiff should not have leaned against the defective condition. common practice among trial attorneys is barrier and should have appreciated its As a result of the fall, the plaintiff suf- to have a local physician examine the inadequacy; but, nevertheless, the barri- fered a comminuted fracture of her right plaintiff, review all medical records of er was safe for its intended use as a visu- radius. X-rays were taken in the ship’s treating physicians who are out of state, al barrier. The evidence included testi- infirmary, but no cast or splint was and then to render an opinion at trial as mony that the glass partitions had to be applied. The following day, the ship to permanent injury and causation. All of cleaned of fingerprints regularly. Thus, docked in Key West. The plaintiff was the records of the out-of-state physicians the plaintiff argued, it was foreseeable examined by an orthopaedic surgeon, are thereby introduced as part of the that one would lean on the structure, who placed her wrist in a splint and rec- local doctor’s file. because people routinely touch and lean ommended surgical correction. The Before the plaintiff retained counsel, on the rails to the point of requiring plaintiff flew home later that evening. the defendant made a settlement offer of cleaning. The following morning, the plaintiff a certificate good for $500 off a future Mrs. Preisig initially underwent treat- was examined by Dr. Joseph Wombwell, cruise. ment and left shoulder surgery for a torn who operated later that day. She was in a Submitted by Steven Meyer, Esq. of rotator cuff. Subsequently, a pre-existing cast for six weeks, which was followed by Boca Raton, Florida, counsel for the right shoulder condition worsened, which an extensive course of physical therapy. plaintiff. A member of CTLA, Meyer was her physician related to the fall. A year Because of her injuries, the plaintiff formerly associated with the Law Offices later, her right shoulder was operated on was unable to travel to her daughter’s of R. Bartley Halloran, P.C. and with as well. She underwent courses of physi- home out of state for Thanksgiving. She Hoberman & Pollack, both in Hartford. cal therapy following each surgery. She was also unable to attend church servic- is left with a 12% permanent partial JURY VERDICT: es for several weeks, and she could not impairment to each shoulder and drive for approximately four months. Fall through barrier; Torn rotator incurred $42,000 in medical expenses. Cruise ship tickets typically reduce cuffs; 73 –year-old female; There were no lost wages. the statute of limitations to one year fol- Verdict of $418,517 Reduced by 5% On January 26, 2001, the jury lowing the date of an injury to a passen- for Comparative Negligence returned a verdict of $418,517 against ger aboard ship. Courts in Florida and Offer of Judgment Interest both defendants, less 5% comparative elsewhere have upheld these provisions, In Eleanor Preisig vs. Danbury Mall negligence. Offer of judgment interest deeming the ticket to be a contract Assoc. Ltd. Partnership and Genesee and costs were taxed in the amount of between the cruise line and the passen- Management, Inc., No. CV-98-0334027-S, $31,157. It is believed that the defen- ger, which shortens the statute of limita- filed in Danbury Superior Court, the jury dants were self insured for the initial tions. Such tickets also have a provision returned a plaintiff’s verdict against $50,000. According to their discovery for sole venue in a state court in the both defendants in the amount of responses, the primary insurer over that county in Florida in which the cruise $418,517, reduced by 5% for comparative amount was Acceptance Insurance line’s corporate offices are located. The negligence. Company of Mt. Laurel, NJ. The judg- ticket in this case did contain the one On December 23, 1996, Eleanor ment has been satisfied. year limitation period for filing suit, and Preisig was shopping at the Danbury Plaintiff’s expert witnesses were Craig established venue in the Miami-Dade Fair Mall, owned by the defendant Foster, MD of Danbury, her orthopedic County Circuit Court. Danbury Mall Associates and managed surgeon, and Richard Ziegler, PE, as to Florida law permits the parties to by Genesee. The mall has a center court the inadequacy of the guardrail system agree to extend the one year statute of area that is usually used as a fountain, limitations, since this is a modification of but is drained of water for seasonal deco- Submitted by D. Randall DiBella, Esq. the contract. The parties agreed to ration. At Christmastime, this sunken and John D. Tower, Esq. both of Cramer extend the statute of limitations for four center court area is decorated with a & Anderson, New Milford. months in order to pursue settlement. variety of displays and surrounded at JURY VERDICT: This was unsuccessful and suit was filed corridor level by a barrier of stanchions in January, 2000. into which four-foot plexiglas panels are Rear-end Collision; 23-year-old female; 8% impairment of lumbar 34 22 Forum — January/February/March 2004 CCTTLLAALaw Reporter

spine; Verdict of $70,000.00, for the lumbar fracture was 8%. no-fault coverage. Plus Offer of Judgment Interest The case was tried before the Because there is no requirement for In the case of Diana Prepetit v. Kim Honorable Thomas Corradino. On bodily injury coverage, many Florida Coscia, Docket No. CV-00-0554542-S, September 20, 2001, the jury returned a vehicles do not carry it. This means that filed in the Superior Court for the verdict of $3,221.13 economic and an at-fault driver may have no coverage Judicial District of New London, at $66,778.87 non-economic for a total for injury he causes to your client. If a New London, the jury returned a verdict amount of $70,000.00. The Allstate policy driver does carry this optional coverage, of $70,000.00. The plaintiff filed an offer is only $50,000.00, and a bad faith action the minimum amount is $10,000, which of judgment for the policy limit of may be filed. is insufficient to pay the fair value of $50,000.00. The defendant’s insurance Submitted by Stephen M. Reck of damages incurred in many collisions. company was Allstate and they made a Trebisacci & Reck, LLC, of Pawcatuck. Consequently, uninsured/underinsured motorist coverage is very important. top offer of $7,500.00. Article By Steven Meyer The plaintiff was a passenger in the Each driver must ensure that he has suf- Many Connecticut residents spend back seat of a vehicle, which was rear- ficient coverage to protect himself and part of the year in Florida. Florida’s ended by the defendant. The defendant his family. motor vehicle insurance laws differ from claimed she was only going 10-15 mph at If a Connecticut resident is in Florida those of Connecticut in some important the time of the collision; however, the on a more temporary basis, he will likely respects. photo of the rear-ended vehicle showed rent a car. Under Florida law, a renter’s Florida law requires only two cover- REPORTER LAW extensive damage to the bumper and insurance coverage is primary. This ages — property damage liability and no- frame. means that the insurance policy on any fault. If the insured causes damage to The plaintiff was taken to Lawrence vehicle owned by the renter or on which another vehicle, the former pays for that and Memorial Hospital complaining of the renter is a named insured will be damage. Coverage is issued in the mini- back and neck pain. X-rays of the neck responsible initially for paying any dam- mum amount of $10,000 with no were negative. A week later she went to ages to a person or property caused by deductible. Backus Hospital and x-rays of the lum- the renter. If the damages exceed the cov- No-fault pays a percentage of medical bar spine were taken. erage limits on the renter’s own policy, bills and lost wages an insured suffers as The radiologist at Backus diagnosed then the rental company will be on the a result of operation of the vehicle, irre- Ms. Prepetit with a small chip fracture at hook for the excess. spective of who is at fault in causing the L-4. She then followed up with an ortho- Rental companies do not provide loss. Florida remains one of only a hand- pedic surgeon, Michael Halperin, who uninsured/underinsured motorist cover- ful of states that mandate this coverage. stated there was a small fracture, which age unless one specifically purchases this The minimum coverage allowed is likely healed, and there was no neurolog- extra coverage at the time the rental con- $10,000, with a $2,000 deductible. ical impairment. The plaintiff then treat- tract is signed. Renters need to be aware Any vehicle registered in another ed with Michael Thomas. She only treat- of this fact and ensure that the coverage state that is in Florida for at least ninety ed for two months and discontinued fur- on their own policy is adequate to protect days out of any 365 day period must ther treatment against the doctor’s wish- themselves and their families. Many bad obtain no-fault coverage. If, for example, es. She continues to have occasional low drivers do not carry any bodily injury a Connecticut resident spends December back pain. The total medical bills were coverage, so a renter may find them- through March in Florida and brings his $3,221.13. selves in a collision in which the at-fault own car registered in Connecticut, he The defendant hired radiologist Mark driver is uninsured. must add no-fault coverage to his insur- Glickstein, MD, who testified via video Many credit card issuers do provide ance policy. It may be necessary to obtain deposition that Ms. Prepetit did not this coverage if the card is used to rent a temporary binder with this coverage receive a fracture at L4 and her condition the vehicle. A renter would be well- through an insurance agent in Florida. was a naturally occurring ossification of served to familiarize himself with the A Connecticut driver may not be con- her spine called a limbus vertebrae. terms of his own auto insurance policy cerned about having no-fault pay his own Under cross-examination, Dr. Glickstein and his credit card agreement before lost wages or medical bills in the event of admitted that he has provided hundreds relying on this. a collision. However, if he fails to obtain of IMEs for various insurance companies If a passenger in a rental car must the required no-fault coverage and a pas- and attorneys. In 2000, he made make an uninsured motorist claim, the senger in his vehicle is injured, the pas- $94,000.00 on IMEs, and he previously law of the state(s) in which the passenger senger may have a claim against him performed at least two IMEs, where he and driver’s automobile policy was issued personally. Because of the number of sea- had determined that the claimant had a governs. A typical fact pattern might sonal residents, a typical fact pattern limbus vertebrae and not a fracture. He have two friends, one from Connecticut involves a collision between two vehicles, did state it was possible the x-ray and one from New York, on vacation in both registered in states other than revealed a fracture, but it was unlikely. Florida. The New Yorker rents a car, Florida. An injured passenger in either The plaintiff relied on the medical which is rear-ended by an uninsured vehicle may have a claim against one or records of the radiologist and the ortho- Florida driver, injuring the Connecticut both owners for failure to secure no-fault pedic surgeon and the testimony of the resident who is a passenger. Whether the coverage, irrespective of fault. If the pas- chiropractor, Michael Thomas, who pre- UM coverage of the driver or passenger is senger’s health insurer pays medical sented a detailed explanation of the spine primary depends upon the language in bills, it may try to subrogate the claim and the x-rays. He stated that, under the each policy and the law of those two against the driver, who failed to secure 5th Edition AMA Guidelines, her rating states. Some states do not allow inter-

January/February/March 2004 — 22 Forum 35 CCTTLLAALaw Reporter policy stacking or limit the total UM recovery from both policies to an amount equal to the greater of the two coverages. Many foreign tourists are operating rental cars on Florida roads, too. If they cause a collision in which an American citizen is injured, it may be very difficult to pursue a claim against the at-fault driver or his insurer. Once again, having adequate UM coverage is paramount to protecting oneself and one’s family in the event of an unfortunate collision.

Workers’ Compensation November 22, 2003 to February 17, 2004 By Robert F. Carter, Associate Editor

SUPREME COURT We cannot import into the conception believes that the work is more stressful of occupational disease under our law than average; that similarly stressful Heart disease claim barred as not an the element that the disease must be a work would cause heart disease in other occupational disease usual or generally recognized incident police officers or criminal investigators Coronary artery disease was not of the employment. Compensation as well as the claimant; and that this shown to be an occupational disease in under our law is not to be denied condition is therefore an occupational the case of a state policeman and crimi- because the injury would not have disease. nal investigator, and the claim was thus occurred except for the peculiar sus- The Malchik Court did imply, howev- barred as untimely. The claimant pre- ceptibility of the individual worker. er, that where the heart disease claim is sented evidence that the stress of his Id. at 504. Epidemiology should not be filed within one year of the last date of work caused his heart disease, but he did the stressful work, it would be timely. not offer sufficient evidence that his required to prove an occupational dis- ease; it certainly was not in Lelenko. The This is marginally encouraging, in light heart disease was an occupational dis- of some cases which have held that a ease. Since he did not prove that it was law in Connecticut has been for decades, in Justice Maltbie’s words: claim is untimely unless filed within a an occupational disease, he did not qual- year of the first manifestation of the ify for the more lenient statute of non- If...a disease is the natural result of conditions which are inherent in the heart condition, even when the work con- claim. Malchik v. Division of Criminal tinues thereafter to contribute to the con- Justice, 266 Conn. 728 (Dec. 9, 2003). employment and which attach to that employment a risk of incurring it in dition, and even when the condition is One hopes that the Court will not for- undiagnosed at the time of first manifes- get its own history. In Lelenko v. Wilson excess of that attending employment in general, an award of compensation is not tation. Pearce v. New Haven, 4385 CRB- H. Lee Co., 128 Conn. 499 (1942), one of 03-01-5 (March 28, 2002). In a recent Chief Justice Maltbie’s great opinions, precluded because the risk is one which has not become generally recognized or CRB decision on whether a heart and the claimant’s antimony poisoning was hypertension claim was timely, the CRB the first case of antimony dermatitis in a because only employees unusually sus- ceptible will suffer from the disease. recited its version of the rule, that notice large number of linotype operators in a of claim must be filed within a year from large facility over many years; and none Id. at 505. One hopes that the Court an accidental injury or from the last of the doctors in the case had any experi- will not impose a newly restrictive defi- repetitive trauma. But the analysis of the ence with such a case of antimony der- nition of occupational disease merely to CRB focussed not on the duration of matitis, though it was a reaction known bar claims as untimely, while ignoring exposure to stressful work, but on when to occur in a few hypersensitive individu- Justice Maltbie’s fair and time-honored the claimant knew he had hypertension. als. Nevertheless, the Court firmly held approach to the problem. However, Hunt v. Naugatuck, 4607 CRB-5-02-12 that this was an occupational disease, claimants these days would be advised to (Feb. 9, 2004). Scienter, however, plays without an exclusionary analysis. The include some medical or other testimony no part in the statute of non claim, Lelenko Court stated: that, for example in this case, the doctor unless the condition is an occupational

36 22 Forum — January/February/March 2004 disease. dependents be required to file separate and medical benefits after indemnity If justice counts, what is obviously claims; suffice it to say, however, that payments have ceased do not trigger any needed is a discovery statute for all this battle is lost, and that filing a sepa- rights to continued health insurance or claims, where the statute of nonclaim rate widow’s claim is crucial, as well as other benefits under Sec. 31-284b. Wilson does not start running until the condition terribly easy to forget. v. Stamford, 81 Conn. App. 339 (Feb. 3, is or should have reasonably have been Policeman’s mysterious accident 2004). The decision is interesting for a discovered. Legislatures have enacted held non-compensable concurrence by Justice Berdon, who such discovery statutes in many other points out that the holding makes no jurisdictions; and Connecticut law In a case shrouded in mystery, the sense given the plain language of the already reduces benefits if the employer Court restored the trial commissioner’s statute, that compensation under the Act is prejudiced by delay in filing the claim. denial of benefits to a Naugatuck police- includes medical benefits; but that the The Court in Malchik also held that man who, during his shift, drove off the issue has been foreclosed by the Supreme road and had an automobile accident. the numerous presumptions of compens- Court: Weinberg v. ARA Vending Co., 223 The commissioner, in denying benefits, ability for heart conditions in various Conn. 336 (1992). recited the inconsistencies in the state and municipal employees which the claimant’s testimony as the basis for COMPENSATION legislature has enacted had no effect on denying the claim. Clearly something REVIEW BOARD the issue of whether the claimant’s heart seemed fishy. The Appellate Court had condition was an occupational disease. Town constable not covered by Sec. held that the accident was compensable 7-433c Hours of household employment since the policeman was on duty, driving Even though the claimant was one of defined around town in the police car, when it several full-time salaried uniformed In deciding whether a domestic work- happened. Daubert v. Naugatuck, 71 police officers working for East Lyme, the er works more than twenty six hours a Conn. App. 600 (Aug. 20, 2002). The CRB held that he was not eligible for week, and hence qualifies as an employ- Supreme Court reversed, on the ground heart and hypertension benefits under ee eligible for workers’ compensation that the claimant failed to prove that his Sec. 7-433c, on the ground that he was a benefits, the calculation is whether the accident occurred while he was fulfilling town constable rather than a “regular claimant was regularly employed for the duties of his employment or doing member of a paid municipal police more than twenty six hours during the something incidental to it. Based on the department.” Like many towns, East majority of the fifty two weeks prior to testimony, the commissioner was free to Lyme has a resident state trooper the date of injury, interpreting Sec. 31- believe that the claimant was not acting assigned to the town, plus policemen 275(9)(B). Smith v. Yurkovsky, 265 Conn. in the course of his employment when the paid by the town who do regular policing 816 (Sept. 23, 2003). The Court fashioned accident occurred. Daubert v. Naugatuck, duties. The CRB had to strain pretty a reasonable and almost-clear rule: fifty 267 Conn. 583 (Feb. 17, 2004). hard to exclude the claimant from the two weeks is the number to use, and the APPELLATE COURT statutory coverage of Sec. 7-433c: he sure majority of weeks of more or less than looks like a regular member of a paid twenty six hours, rather than an averag- Commissioner may find causation municipal police department, full time, ing of hours per week, is determinative. based on common sense uniformed, driving a police car, whether What I couldn’t figure out from the opin- In addressing a frivolous appeal or not there is a resident state trooper ion is whether the Court really meant to which challenged the compensability of a who does some of the work. Genesky v. use fifty two weeks in all cases, rather back injury from lifting heavy wood and East Lyme, 4600 CRB-8-02-12 (Dec. 8, than the number of weeks regularly brush, the Appellate Court pointed out 2003). Jerry Stevens, bless his heart, worked. If so, the rule would bar a house- that the commissioner did not need med- must be turning over. The decision is on hold employee who started an essentially ical evidence to find causation, where it appeal. full time job, and worked thirty five is within common knowledge that lifting hours a week for twenty five weeks, until heavy objects can cause back injury. Only Medical history in physician’s report he or she got hurt. Surely the Court did- when the theory of cause and effect is admissible n’t aim to bar the claim of such an involves complex medical issues outside Respondents’ attorneys are still argu- employee, who clearly should be consid- common knowledge is expert testimony ing that medical history in a physician’s ered to have been regularly employed for required. Sprague v. Lindon Tree Service, report is inadmissible hearsay. Of course more than twenty six hours a week. Inc., 80 Conn. App. 670 (Dec. 30, 2003). the history is admissible in a report of a Widow’s claim barred for failure to There was adequate medical testimony treating physician, and has been for file a separate notice of claim on causation here anyway, but the decades. It must be embarrassing to have reminder is useful: commissioners are to argue such nonsense, and the CRB Where the widow failed to file a sepa- rarely required to have a doctor vouch for properly rejected the argument, affirm- rate notice of claim in addition to the causation, and can make the call them- ing the award of benefits for conjunctivi- timely notice of claim filed by her hus- selves where the facts and common sense tis in a school teacher. Walker v. band before he died, her claim for surviv- indicate an injury, whatever the techni- Hartford, 4605 CRB-1-03-1 (12/30/03). ing spouse benefits was dismissed. This cal defects of the medical record. This The respondents, with equal effrontery, so, even where the employer and insurer authority is sometimes necessary when a also argued that the injury was not com- in fact had timely notice of the death timid doctor declines to give an opinion pensable because the date of the injury claim and intervened in the third-party on causation on the ground that he didn’t could not be pinpointed exactly and with civil action to recover workers’ compensa- witness the accident. certainty. This issue has been settled at tion benefits which it never paid. Kuehl v. least since 1934: Stier v. Derby, 119 Conn. Z-Loda Systems Engineering, Inc., 265 Medical benefits do not trigger Sec. 44 (1934). Life would be a lot nicer if Conn. 525 (Sept. 2, 2003). It is pointless 284b benefits lawyers would cut the crap. to reiterate the old case law which sug- The Appellate Court confirmed that gests that the statute did not intend that continued receipt of medical treatment

January/February/March 2004 — 22 Forum 37 SUPERIOR COURT Joseph F. Keefe Deposition preparation is part of cost of deposition 8/6/46 to 12/18/03 An expert’s time in preparing for a deposition is properly a part of the cost of Joseph F. Keefe, of Torrington, a past the deposition to the deposing party president of CTLA, died December 18, under Sec. 13-4(3). The Court points out, 2003 at the age of 61. He graduated from however, that there is a split of authority Fairfield University cum laude in 1964, in the Superior Court decisions. Brought and the University of Connecticut School v. Batson, CV02-0347176S (Danbury, of Law in 1967. He practiced in Hartford Dec. 17, 2003), 36 Conn. L. Rptr. No. 5, for three years, and then returned to 189 (Feb. 2, 2004). Presumably the com- Litchfield County and practiced for the missioners will follow the courts. remainder of his life in Torrington. He Attaching copy of statute is practiced in the areas of criminal defense, insufficient warning in notice of personal injury and commercial litiga- third party action tion. He was a founding member of the Connecticut Criminal Defense Lawyers Where the plaintiff notified the Association, and served as its president. employer of the pendency of the civil He also served on the Board of Directors action, merely attaching a copy of Sec. of the National Association of Criminal 31-293 was insufficient to provide the Defense Lawyers, and was a fellow of the required notice: that failure of the American Academy of Forensic Science. employer to intervene within thirty days He was a highly respected trial lawyer will result in the loss of the employer’s and good friend. He will be missed. right to bring a reimbursement action. sense of being right about almost any Thus the employer could intervene and Judge Anne Dranginis of the Connecticut issue or person… seek reimbursement of compensation Appellate Court gave the eulogy for Joe at He told them to experience the “rich tap- paid. Gregory v. Wainwright, CV562732 his funeral Mass at St. Anthony of Padua estry of life,” to see the good and the bad (New London JD, Sept. 5, 2003), 35 Church in Litchfield. She has given per- as part of the journey. And he stressed Conn. L. Rptr. No. 11, 411 (Oct. 13 2003). mission to the Forum to reprint here her that as important as faith and religion eulogy. Should we care? We still don’t know were to one’s sense of wellbeing, more whether an employer’s failure timely to It is my sorrow-filled privilege to remem- important was the day-to-day help of intervene, causing the employer’s right of ber Attorney Joseph F. Keefe, Jr., and to family and friends…loyal friends made action against the third party to “abate,” celebrate the full and complex journey over the course of the years. He said it all bars recovery, in cases arising after the that was his life, on behalf of our entire to them…and, as we all are here to con- separate lien provision was added to Sec. community, but especially on behalf of firm…he also lived it. 293 in 1993. I finally filed a motion for the legal community of the state of He was born and raised in Litchfield, at summary judgment the other day on this Connecticut. Joe was a “local boy made Keefe stables, which when I was a little issue, but the case settled; so far as I good”, but ever so much more than that. girl, was as close to heaven as any lucky know, the issue still hasn’t been litigated. All of us in the legal community who fill person could get. He loved animals, this church cannot believe that we will as you all know. It was his job at not have his wise counsel as we work Christmastime to set up the nativity on… scene in the Keefe household. He called it “Away in a Manger” as a little boy… We have lost both a legend and a giant. hence the recessional hymn. He collected But as I again watched and listened to the pieces with the help of his dear Joe’s speech at the 2002 Litchfield High mother. School graduation, which I attended, where he noted that it had been 42 years He was a charmer from the start; a skill since his similar graduation, it was clear set that would be put to considerable use that he had already defined himself in in his adulthood! But each time he very different terms. behaved badly, he would run up to Murphy’s Pharmacy and buy a “mushy” He told the graduating class that as time card for his mother and all would be for- went on, they would be very different given. Ruth and Mr. Keefe called him people than they were at that moment. “Mom’s precious pet”, and he would be in He cautioned them that they would ulti- the clear again. He had great tactical mately measure themselves, not by skill even then. material possessions, whether they had a hot car or a pool in their manicured back He was allergic to cats…but started yards, but by how they treated other peo- adopting them at an early age. When ple, what they did for other people, what trail riding in White’s Woods, he came they had accomplished in some way to home with “Tally Ho”. It was simply too make the world a better place in which to cold to leave the abandoned kitten in the live. He told them that they would lose woods. their current “sense of certainty” about Then he had a horse from Colorado he their ideas, their beliefs…that age trained and sold to pay for his first year brought more than grey hairs, but a at Fairfield…its treat was sugar that fuzziness of the edges of their strong Joe’s mother kept at the house. When he

38 22 Forum — January/February/March 2004 arrived at the back door, his mother was He certainly was the best trial lawyer in would have the reward of seeing them not there, so he stepped into the kitchen, this part of the state, and recognized become productive adults. Joey, Martina, holding the reigns, and naturally the everywhere for his competence and his and Rosemary…. He was so proud of you. horse followed him in!! Knowing what civility. He took on a criminal case for a He knew he was not a perfect parent, if havoc could result if the horse startled, young man whose father was himself a there is such a thing, especially in the he calmly tried to back the horse out of legal giant, succeeded in suppressing evi- eyes of the child, but he spoke to us all of the kitchen. The stirrup caught in the dence, and succeeded in protecting the your accomplishments. Joey, his soldier doorknob, breaking it, and the window. future of a young person who is now a boy…even though he may not have His mother put a towel over the window productive and successful member of his known of your imminent departure for and explained to Mr. Keefe the next community. When a defendant at Iraq, he was proud of your service and morning that “the doorknob” broke the Litchfield Superior Court decided to “get your sense of duty to us all. Godspeed to window. Mr. Keefe never knew. a real lawyer” Joe agreed to take the case you on your perilous journey. We will After graduating from Fairfield University only after telling the trial judge that in pray for peace. Rosemary, he was happy in 1964, Joe joined the class of 1967 at fact our then public defender, who later about your being involved in the law as a the University of Connecticut School of became a judge, was “better than me”, paralegal, but mostly about your beauti- Law. I remember my mother, who taught which they both knew wasn’t correct. But ful baby and what a wonderful home you in Litchfield, telling me how smart he Joe recognized the importance of the pub- have created. Martina, his Phi Beta was and how wonderful it was that he lic defender’s office, and the respect Kappa environmental scientist daughter was going to law school. He became a between attorneys, which can be so lack- continued a tradition of both your fami- mentor, whether he knew it or not, for ing today. He despaired when I went lies in a love of learning and contribution many young college students in this area. “over to the dark side.” I never got to try for a better world. While in law school, he adopted “Miss a case against Joe, even though I tried Many of you know that Ruth referred to Tuffy Cat” who was thought to be a kit- cases against his big time lawyer friends. Joe as “brother” (well, after calling him ten, but who promptly produced a litter As with other young lawyers, there was Butch until he became a lawyer!). How Some allergy! always that quiet phone call to advise if appropriate. He was not only a dear something was amiss and could be easily brother to her…and how she has dearly He married and had 3 beautiful children corrected. Or the phone call about what (more on that later) while working at loved him, but he has been a brother in was really going on… “when to hold them, the most significant spiritual way to so Regnier, Moller and Taylor in Hartford and when to fold them.” He protected for three years. Then the lure of the many…to the clients he respected, and to us…he advocated for us…and his ability whom he restored their humanity…their Litchfield Hills beckoned, and he joined to read the cards and play them was like Jess and Paul Smith. Linc Cornell and hope. To the “brothers” (in of course the no one other and will create a vacuum for gender-neutral essence of the term) at John Mettling were members of the firm, many of us who relied on him. He had as was Marcia Smith. A number of young the bar…for his civility and compe- Irish charm, for sure, but he also had that tence…to his many loyal friends, like lawyers followed, all nurtured by Joe and knowing eye, and nose and wit for han- his partners; Carlo Forzani, Larry Peck, Michael Gay, who helped him in the bad dling problems or cases in ways that got times in the tapestry of his life…who Bill Conti, Al Mencuccini, and ultimately his clients or his friends, the best possible David Moraghan and Tom Waterfall… laughed and played with him during the result under the circumstances, with the good times…who stood by him during his David and Tom were dedicated to him to least amount of fuss or damage. A brilliant the end, and returned that nurture to final illness…and now during his tactician. A lawyer’s lawyer, whose first untimely passing…a number of you him in so many ways. David and Tom, his license plate out of law school was family thanks you for your many kind- insisted on visiting, and Ruth hopes that JKKL…Joe Keefe King Lawyer, whose all on this list is complete but cannot be nesses extended to him during his final boat was “Reasonable Doubt” …another illness. sure and does not want anyone who plate “AQUIT” …Kid Shaleen… might be omitted to be hurt…John His reputation as a trial lawyer was But enough of the lawyer…as he said Fitzgerald, Bart Halloran, Hugh Keefe, widely acknowledged. His practice himself, the measure of the man is in Austin McGuigan, Walter Sedor, Ed included all the state courts, and federal family and friends. Ruth reiterated his Metesky, Jess and Marcia Smith, Lynn courts. He loved the study of the law, but lack of materialism…he called Wittenbrink, Charlie Thompston, Carlo the arena of the courtroom was his first Nordstrom’s “Ruth’s satellite office” and Forzani, Al Mencuccini, Gary Constant, love. He worked to improve the stature of told Juanita, a maintenance person at Bernie Soldate, Larry Peck… he was also the law, and his dedication to prepara- Hartford Hospital who wanted his a brother to his fallen friends, Ed Peters tion and care of his clients brought not cats…that she could have his Corvette and Shanahan, whose loss was keenly only him respect, but gave respect to the before she could have Sundance, Dakota, felt by Joe. process of the rule of law. His work on a and Scarlet! Patty is taking good care of As a brother to all he shared his love and national basis for the American Trial them…Joe would be happy. Patty, the Lawyers Association, and the National his boundless humor…he was capable of family recognized your daily advocacy laughing at himself, and realized that Association of Criminal Defense Lawyers for Joe in the hospital, and is grateful. gave him the opportunity to contribute to today’s sense of certainty would easily the advancement of the profession he The Schmiedel cousins came to see yield to a more mellow tomorrow. Joe held so dear. He was recognized as a him…some came last night from Keefe was a man with vision…of the law, teacher of law to practicing attorneys all Boston…he must know that he has been of the importance of family, friends and over the country…and he was respected surrounded by family and friends…loyal fun…his intelligence, wit, and practical by the various judges, especially those friends to the end. judgment enhanced that, but did not resident judges in the Judicial District of At Litchfield High School, Joe told the define him. Litchfield, Justice Speziale, Judges class of 2002 that the good in the tapes- We join with Joey, Martina, Rosemary, Pickett, Moraghan, Gill, DiPentima. He try of life came from meaningful relation- and Ruth, and all of us who are his made and protected “the record” and did ships with others, and that there would friends, in mourning his loss, but also in not lead us into error. be joy in the birth and nurture of chil- celebrating his completed tapestry. God He was the consummate lawyers’ lawyer. dren. Watching and guiding children is being entertained as we speak.

January/February/March 2004 — 22 Forum 39

Editorial

RETHINKING NOTICE (in premises liability cases) By William F. Gallagher

The plaintiff, to prove how the substance got and the other being the invited an elderly there, most plaintiffs resort to customer, the burden to prove woman in circumstantial evidence to estab- the cause of an unsafe condition excellent lish notice by establishing that on the premises should be on the health, was there were footprints through it, one with the duty to prevent it. walking or shopping cart tracks through It makes little sense to impose down an it, or other debris in or near it – the burden on the injured cus- aisle of a just a few of the ways to estab- tomer to prove how the foreign local Super lish circumstantially that the liq- substance came to be on the Stop & Shop when she slipped uid had been there for a while – floor, or how long it had been and fell on a “clear, thick, slip- long enough for the store to have there. pery liquid” in the middle of the discovered it and cleaned it up. aisle. She did not see it, as her Usually without evidence of Simply imposing a rebuttable attention was on the merchan- notice, the plaintiff loses, and presumption that shifts the bur- dise displayed, but she felt it this is unfair. But there is a very den from proving notice on the after the fall as it was on her simple answer. It is burden- part of the customer to proving clothes and hands and arms. Try shifting, the rationale for which the absence of negligence on the as he might, by interviews with already exists in our case law. part of the merchant solves the witnesses, store personnel, the problem. In other words, the police and personal inspection of First, however, consider the bene- business owner has the burden the store, and later depositions fits to the merchant of the method of proving the absence of negli- of all involved, her attorney of operation known as “self-serv- gence because he is the one who could not develop evidence of ice retail.” This method encour- invited the injured customer to notice to establish that the liquid ages the business’s patrons to his business premises in the first was there long enough for Stop & obtain for themselves from place, and he is the one with the Shop to have cleaned it up, nor shelves and containers the items duty. could he establish that it was on they want to purchase, and to the floor as a result of negligence move them from one part of the This approach is no big deal. of Stop & Shop employees. store to another in shopping carts The basis for it already has been or baskets as they continue to recognized by our own appellate Sound familiar? Guess what a shop for other items. At the same courts. Consider the following judge would do in Connecticut on time, this method increases the from Judge Lavery’s unanimous this evidence? The burden risk of spillage. Modern merchan- Appellate Court decision in requires the plaintiff in this type dising techniques used by self- Meek v. WalMart Stores, Inc., 72 of case to plead and prove, service retail stores are specifical- Conn. App. 467, 478 (2002)(a among other things, that the ly designed to attract a customer’s case involving the negligent proprietor or his employees attention to the merchandise on stacking of tables that fell and either caused the foreign sub- the shelves and thus away from injured a customer): stance to be on the floor or, in the the hazards on the floor. exercise of reasonable care, had We realize that a negli- notice of it, that is, he could have As between two innocent parties, gent activity theory, as discovered it and either removed one the business proprietor hav- opposed to a premises it or warned of its presence ing a duty to maintain the prem- defect theory, “usually before the accident occurred. ises in a reasonably safe condi- requires that the store- Since it is invariably impossible tion for the use of his customers, owner, its agents, or

January/February/March 2004 — 22 Forum 41 employees actually create The burden-shifting approach how a foreign substance was the condition or defect was recently used by the caused to be on the floor or how that results in an injury Kentucky Supreme Court in long it had been there. to a patron. There is no Lanier v. Wal-Mart Stores, Inc., logical distinction, howev- 99 S.W. 3d 431 (2003). This case The case is worthy of study. er, between a situation in involved a foreign substance on Judge Lavery has provided the which the storeowner the floor that the plaintiff fell on analytical underpinnings for the directly creates the condi- and was injured. The court held adoption of such a rule: tion or defect, and where that when the plaintiff proves the storeowner’s method the existence of a foreign sub- There is no logical dis- of operation creates a situ- stance on the floor, there is a tinction ... between a situ- ation where it is reason- rebuttable presumption that the ation in which the store- ably foreseeable that the premises owner did not maintain owner directly creates a expectable acts of third the premises in a reasonably safe condition or defect, and parties will create a dan- condition. The trial court had where the storeowner’s gerous condition or defect. granted summary judgment, and method of operation cre- See DeWeese v. J.C. the intermediate appellate court ates a situation where it Penney Co., 5 Utah 2d affirmed, finding that the plain- is reasonably foreseeable 116, 121, 297 P.2d 898, tiff could not prove how the liq- that the expectable acts of 901 (1956)(“a negligent uid got there or whether Wal third parties will create a act may be one which ‘cre- Mart employees had actual or dangerous condition or ates a situation which constructive notice that it was defect. involves an unreasonable there. The court overruled this risk to another because of earlier approach, which placed Stated another way, a proprietor the expectable action of the entire burden on the plain- of a self-service retail store is as the other or a third per- tiff. The court observed that a matter of law on notice that son’” (quoting 2 realities of self-service stores merchandise will spill or fall, Restatement of Torts where customers select their thus relieving the plaintiff of ß302(b) (1934).” (empha- own merchandise and carry it proving this element of a premis- sis added) Canfield v. from point to point increases the es liability cause of action Albertsons, Inc., supra, risk that products will be against a self-service retail store. 841 P.2d at 1226. dropped or spilled. It held that it would be unreasonable to (emphasis added) require the customer to prove

The American Jury

A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of twelve, who are drawn to hear a case, makes the decision and melts away. It is not present that next day to be criticized. It is the one gov- ernmental agency that has no ambition. It is as human as the people who make it up. It is some- times the victim of passion. But it also takes the sharp edges off the law and uses conscience to ame- liorate a hardship. Since it is of and from the community, it gives the law an acceptance which ver- dicts of judges could never do.

Justice William O. Douglas The Anatomy of Liberty (1954)

42 22 Forum — January/February/March 2004 Proposed Rules Regarding Pleading

What follows is a general revision of Connecticut’s rules Burns v. Koellmer, 11 Conn. App. 375, 385-86 (1987) regarding pleading in civil cases. The rules arose out of a study (contract and quasi-contract). A “legal theory” is the by CBA’s Committee on the Courts, chaired by Edward M. Sheehy name by which any particular legal claim is common- of Williams, Cooney & Sheehy in Shelton concerning the possible ly known, e.g., breach of contract, quantum meruit, adoption of notice pleading. Rather than a wholesale adoption of common law negligence, negligence per se, breach of the federal rules, the consensus of the Committee was that a revi- fiduciary duty, fraud, etc. By requiring an explicit sion of the fact pleading rules was warranted. After a year of identification of the “legal theory” relied upon in each study, the Committee proposed to the Chief Justice’s Civil count, this rule change will eliminate confusion Commission the adoption of the proposed rules. The Chief engendered by pleadings, especially those involving Justice’s Civil Commission, after carefully reviewing the propos- multiple counts and multiple parties, without such al, voted unanimously to forward the proposal to the Rules specification Committee. What the Rules Committee will do with the proposal §10-2 is uncertain. The purpose of reprinting the proposal in this issue of the COMMENTARY Forum is to give the bar as much advance notice of the proposed This section is deleted as unnecessary. No substantive changes, and an opportunity to comment. It may be that the change in the pleading rules is intended. Rules Committee does not adopt or endorse the proposal. If it does, however, there is a relatively short time frame between pub- § 10-3. Allegations Based on Statutory Grounds; Foreign lication of the proposal and public hearing. We have, according- Law ly, decided to publish the proposed rules in this issue of the (a) When any claim made in a pleading is grounded on a Forum, as the proposal does involve substantial change in civil statute, the statute shall be specifically identified by its number. practice. It is intended that the rules apply to all cases upon their (b) A party to an action who intends to raise an issue con- effective date. cerning the law of any jurisdiction or governmental unit thereof outside this state shall give notice in his or her pleadings or § 10-1. General Rules For Pleading other reasonable written notice. Each pleading setting forth a claim for relief, whether an original claim, counter-claim, cross-claim or third-party claim, COMMENTARY shall contain a plain and concise statement of (a) the material For clarity. No substantive change is intended. facts on which the pleader relies to establish the claim for relief therein, (b) the legal theory on which the pleader relies to estab- § 10-6. Pleadings Allowed and Their Order lish the claim for relief therein, and (c) the party by whom and The order of pleading shall be as follows: against whom each such claim is brought. Each pleading shall (1) The plaintiff’s complaint. be set forth in separate counts and separate paragraphs in the (2) The defendant’s motion directed at the plaintiff’s manner provided by § 10-26. If in the opinion of the judicial pleadings. authority the pleadings do not sufficiently define the issues in (3) The defendant’s answer (including any special dispute, it may direct the parties to prepare other issues, and defenses) to the complaint. such issues shall, if the parties differ, be settled by the judicial (4) The plaintiff’s motion directed at the defendant’s authority. pleadings. (5) The plaintiff’s reply to any special defenses. COMMENTARY COMMENTARY These changes are meant to clarify the requirements governing the essential contents of a pleading, as part These changes are auxiliary to the central revision of the overall revision of the rules of pleading. The proposed herein, which eliminates the three stages of changes are not intended to switch from a “fact plead- motions practice (motion to dismiss, request to revise, ing” to a “notice pleading” system. However, the plead- motion to strike) and replaces them with a single ing requirement should be focused on the facts mate- “motion directed at the pleadings.” See Commentary rial to the claim asserted rather than any and all facts to § 10-29A. that may be relevant to the dispute between the par- § 10-8. Time to Plead ties. This minor change retains the fact-pleading sys- Each defendant shall file an answer or motion direct- tem while striving to eliminate unnecessary demands ed at the pleadings within sixty days of the return date for pleading revisions seeking the type of information of the writ, summons and complaint. Any subsequent plead- that should be obtained through discovery. The ings and motions shall advance at least one step within each change also makes clear that the pleader must explic- successive period of thirty days from the preceding pleading or itly identify the “legal theory” being relied upon in the filing of the decision of the judicial authority thereon if one each count as well as the party or parties by whom is required, except that in summary process actions the time and against whom each claim is asserted. The term period shall be three days and in actions to foreclose a mortgage “legal theory” rather than “cause of action” is used to on real estate the initial time period shall be fifteen days. The describe this requirement (and the requirements in filing of interrogatories or requests for discovery shall not sus- Section 10-26, governing separate counts) because pend the time requirements of this section unless upon motion “cause of action” has been interpreted in some cases to of either party the judicial authority shall find that there is good permit more than one legal claim to be stated under a cause to suspend such time requirements. single count. See, e.g., Hill v. Williams, 74 Conn. App. 654, 661 (2003) (negligence and breach of contract);

January/February/March 2004 — 22 Forum 43 COMMENTARY ments implicit in the former provision governing the This change is intended to establish a more realistic request to revise, § 10-35. time-frame for filing the “motion directed at the plead- § 10-29A [NEW] Motion Directed at the Pleadings ings” contemplated by these revisions. Although sixty (a) Any party wishing to challenge a pleading based on the days is a lengthy period, it is not excessive if the uni- ground (1) that the court is without subject-matter jurisdiction, fied motion achieves the efficiencies sought to be real- (2) that the court is without jurisdiction over the person, (3) that ized. The reference to “requests” is deleted because venue is improper, (4) that process was insufficient, (5) that the request to revise has been eliminated. service of process was insufficient, (6) that the pleading fails to § 10-9 comply with the pleading rules set forth in §§10-1, 10-20 and/or 10-26, (7) that there has been misjoinder or nonjoinder of par- COMMENTARY ties, (8) that there has been joinder of two or more causes of This section is deleted as unnecessary. No substantive action that cannot properly be united in one complaint, or (9) change in the pleading rules is intended. that any claim, prayer for relief or defense contained in the pleading is legally insufficient, may do so by filing a motion § 10-20. Contents of Complaint. directed at the pleadings under this section. The first pleading on the part of the plaintiff shall be known (b) A motion under this section directed at the original com- as the complaint. It shall be organized and contain the informa- plaint shall be filed within sixty days after the return date tion required by § 10-1 and, on a separate page of the complaint, unless a different deadline is established by the parties or court a demand for relief which shall be a statement of the remedy or under subsection (d) hereof. Except as otherwise provided in remedies sought under each count of the complaint. When subsection (f) hereof, a motion under this section directed at any money damages are sought in the demand for relief, the demand other pleading shall be filed within thirty days after filing of for relief shall include the information required by General that pleading. These time limitations may be extended by agree- Statutes § 52-91. ment of the parties or by the court as the interests of justice may COMMENTARY require. The purpose of this change is to include an express (c) Except as provided in subsection (d) hereof, all grounds reference to the practice book provision setting forth for any motion under this section shall be separately identified the general rules of pleading. No substantive changes in a single motion. A memorandum in support of the motion are intended. The change also makes it clear that the shall argue each ground set forth in the motion under separate demand for relief shall identify the relief being sought argument headings to the extent practicable. Any party oppos- by each count of the complaint. ing a motion brought under this section shall file and serve a memorandum in opposition to the motion at least five days § 10-26. Separate Counts and Paragraphs. before the motion is considered on the short calendar. Each complaint and other pleading shall be organized using (d) A party may not file a motion under this section directed separate, consecutively numbered paragraphs for each separate at another party’s pleading unless (i) the initial motion seeks allegation. Each legal theory upon which any relief is sought dismissal based only on the grounds(s) enumerated in subsec- contained in the same pleading shall be separately identified tions (a) (1) and/or (a) (2) hereof, (ii) the court permits more than and set forth in a separate count, which shall also be identified one such motion, for good cause shown, or (iii) the parties agree by number (First Count, Second Court, etc.) and each such that more than one such motion is appropriate under the cir- Count shall begin with paragraph 1. The party or parties by cumstances of the case. Except as provided in subsection (h) whom and against whom each such count is brought shall also hereof, or as otherwise provided by law, claims not raised by be identified. Pleadings shall not contain unnecessary repeti- motion as provided in this section are deemed waived. tious, scandalous, impertinent, immaterial or otherwise improp- (e) Whenever a motion brought under subsection (a)(6), er allegations. (a)(7), (a)(8) or (a)(9) hereof is granted, in whole or part, the judi- COMMENTARY cial authority, in rendering the decision thereon, shall state orally or in writing the grounds upon which that decision is The requirements of this provision are harmonized based with sufficient particularity to permit the matter to pro- with the requirements of ‘ 10-1 setting forth the gener- ceed efficiently under subsection (f) of this section. al pleading rules. Each legal theory upon which relief (f) If a motion brought under this section is granted, in whole is sought should be set forth in a separate count. The or in part, it normally shall be granted with leave to replead phrase “legal theory” is used instead of “cause of within thirty days of issuance of notice, unless the judge grant- action” for the same reason explained in the ing the motion expressly finds either (i) that leave to replead Commentary to Section 10-1. The rules require each would be futile, or (ii) the pleader already has been given suffi- specific legal claim to be identified explicitly and set cient opportunity to cure the defect(s) at issue and has failed to forth distinctly in a separate count, so that the legal do so such that the interests of justice are not impinged by sufficiency of the allegations can be tested, discovery denial of leave to replead. If a revised pleading is permitted and and other pre-trial matters can be managed, and trial is filed by the pleader, a motion under this section directed to can be litigated by the parties and adjudicated by the the new pleading may be filed within thirty days thereafter, but court without confusion or uncertainty about the any such motion must be limited to a claim that the pleader has underlying legal claims at issue. Each count must also failed to comply with the court’s prior ruling, or that the moving identify the party or parties against whom the legal party could not reasonably have been expected to raise previ- claim in that count is made. For example, a two-count ously due to a defect or deficiency in the prior pleading. complaint alleging negligence and breach of contract (g) If a motion brought under this section is denied, then the might contain these headings: “First Count party filing the unsuccessful motion shall file a responsive (Negligence against Defendants John Doe and Doe pleading within thirty days of issuance of notice by the court, Corporation)” and “Second Count (Breach of Contract unless that time limit is extended by agreement of the parties or against Defendant Doe Corporation”). The changes order of the court. are also intended to incorporate the pleading require-

44 22 Forum — January/February/March 2004 (h) The motion to dismiss, request to revise and motion to process is not intended to be inflexible. For example, strike are abolished as separate procedural devices, except that where jurisdictional issues are implicated, a defen- (i) lack of subject matter jurisdiction may be raised at any time dant should not be required to raise other pleading- in accordance with existing law, and (ii) a challenge to the legal related claims until those threshold issues have been sufficiency of a claim may be raised by any mechanism permit- resolved. Additionally, there may be relatively unusu- ted by existing law other than a motion to strike. al circumstances where the moving party cannot fair- ly be expected to raise all issues simultaneously (a COMMENTARY complaint may be so poorly drafted that the moving These changes are intended to significantly revise party cannot effectively challenge its legal sufficiency motions practice concerning the adequacy of the without first obtaining clarification through a revised pleadings. The central objective of the changes is to pleading), then the moving party can ask the judicial eliminate the three stages of motions practice (motion authority to bifurcate consideration of the motion and to dismiss, request to revise, motion to strike) and permit further consideration of the legal sufficiency replace that process with a process involving a single issue after the required revision is submitted. The motion accomplishing the same purpose. The three- idea is to promote resolution of all pleading-related stage process is usually inefficient and time-consum- issues by a single judge in an efficient manner, so that ing in numerous respects, especially if different the pleadings are put in proper form and closed with- judges consider the various motions over a substantial out undue delay. period of time. The single-motion process implement- ed here consolidates all issues relating to the adequa- COMMENTARY cy of a pleading — jurisdictional, service, venue, form See commentary to § 10-29A. and content, and legal sufficiency — into a unified §§ 10-30 through 10-45 deleted process for resolution in a single adjudication. The

January/February/March 2004 — 22 Forum 45 Proposed Rules Regarding Depositions and Discovery

The Civil Division Task Force chaired by Judge John promptly and, in any event, at or before the time for compliance Langenbach has proposed to the Rules Committee an amend- specified in a subpoena authorized by subsection (b) of this sec- ment to §13-28 and §13-30 concerning depositions, and proposed tion, (1) quash or modify the subpoena if it is unreasonable and changes to the standard discovery in motor vehicle cases. These oppressive or if it seeks the production of materials not subject proposals follows. to production under the provisions of subsection (c) of this sec- tion, or (2) condition denial of the motion upon the advancement § 13-28. Depositions — Persons before Whom Deposition by the party who requested the subpoena of the reasonable cost Taken; Subpoenas of producing the materials being sought. (a) Within this state, depositions shall be taken before a (f) If any person to whom a lawful subpoena is issued under judge or clerk of any court, notary public or commissioner of the any provision of this section fails without just excuse to comply superior court. In any other state or country, depositions for use with any of its terms, the court before which the cause is pend- in a civil action, probate proceeding or administrative appeal ing, or any judge thereof, or, if the cause is pending in a foreign within this state shall be taken before a notary public, of such court, the court in the judicial district wherein the subpoenaed state or country, a commissioner appointed by the governor of person resides, may issue a capias and cause the person to be this state, any magistrate having power to administer oaths in brought before that court or judge, as the case may be, and, if such state or country, or a person commissioned by the court the person subpoenaed refuses to comply with the subpoena, the before which such action or proceeding is pending, or when such court or judge may commit the person to jail until he or she sig- court is not in session, by any judge thereof. Any person so com- nifies a willingness to comply with it. missioned shall have the power by virtue of his or her commis- (g) Deposition of witnesses living in this state may be taken sion to administer any necessary oaths and to take testimony. in like manner to be used as evidence in a civil action or probate Additionally, if a deposition is to be taken out of the United proceeding pending in any court of the United States or of any States, it may be taken before any foreign minister, secretary of other state of the United States or of any foreign country, a legation, consul or vice- consul appointed by the United States on application of any party to such civil action or probate or any person by him or her appointed for the purpose and hav- proceeding. ing authority under the laws of the country where the deposition is to be taken; and the official character of any such person may § 13-30. Depositions — Deposition Procedure be proved by a certificate from the secretary of state of the (a) Examination and cross-examination of deponents may United States. proceed as permitted at trial. The officer before whom the depo- (b) Each judge or clerk of any court, notary public or com- sition is to be taken shall put the deponent on oath and shall missioner of the superior court, in this state, may issue a sub- personally, or by someone acting under the officer’s direction, poena, upon request, for the appearance of any witness before record the testimony of the deponent. The testimony shall be an officer authorized to administer oaths within this state to taken stenographically or recorded by any other means author- give testimony at a deposition subject to the provisions of ized in accordance with Section 13-27(f). If the testimony is Sections 13-2 through 13-5, if the party seeking to take such taken stenographically, it shall be transcribed at the request of person's deposition has complied with the provisions of Sections one of the parties. 13-26 and 13-27. (b) All objections made at time of the examination to the (c) A subpoena issued for the taking of a deposition may qualifications of the officer taking the deposition, or to the man- command the person to whom it is directed to produce and per- ner of taking it, or to the evidence presented, or to the conduct mit inspection and copying of designated books, papers, docu- of any party, and any other objection to the proceedings, shall be ments or tangible things which constitute or contain matters noted by the officer upon the deposition. Evidence objected to within the scope of the examination permitted by Sections 13-2 shall be taken subject to the objections. Any objection during a through 13-5. Unless otherwise ordered by the court or agreed deposition must be stated concisely and in a non-argumentative upon in writing by the parties, any subpoena issued by a party manner. A person may instruct a deponent not to answer only commanding the production of documents or other tangible when necessary to preserve a privilege, to enforce a limitation things at a deposition shall not direct compliance within less directed by the court, or to present a motion under Section 13- than fifteen days from the date of service thereof. 30(c). In lieu of participating in the oral examination, parties (d) The person to whom a subpoena is directed may, within may serve written questions in a sealed envelope on the party fifteen days after the service thereof or within such time as oth- taking the deposition and the party shall transmit the questions erwise ordered by the court or agreed upon in writing by the to the officer, who shall propound them to the witness and parties, or or before the time specified in the subpoena for com- record the answers verbatim. pliance if that time is less than fifteen days after service, serve (c) At any time during the taking of the deposition, on upon the issuing authority designated in the subpoena written motion of a party or of the deponent and upon a showing that objection to the inspection or copying of any or all of the desig- the examination is being conducted in bad faith or in such man- nated materials. If objection is made, the party at whose request ner as unreasonably to annoy, embarrass, or oppress the depon- the subpoena was issued shall not be entitled to inspect and ent or party, the court in which the action is pending may order copy the disputed materials except pursuant to an order of the the officer conducting the examination forthwith to cease taking court in which the cause is pending. The party who requested the deposition, or may limit the scope and manner of the taking the subpoena may, if objection has been made, move, upon of the deposition as provided in Section 13-5. If the order made notice to the deponent, for an order at any time before or during terminates the examination, it shall be resumed thereafter only the taking of the deposition. upon the order of the court in which the action is pending. (e) The court in which the cause is pending, or, if the cause (d) If requested by the deponent or any party, when the tes- is pending in a foreign court, the court in the judicial district timony is fully transcribed the deposition shall be submitted to wherein the subpoenaed person resides, may, upon motion made the deponent for examination and shall be read to or by the

46 22 Forum — January/February/March 2004 deponent. Any changes in form or substance which the deponent have been known; desires to make shall be entered upon the deposition by the offi- b. Your date of birth; cer with a statement of the reasons given by the deponent for c. Your motor vehicle operators license number; making them. The deposition shall then be signed by the depon- d. Your home address; ent, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposi- e. Your business address; tion is not signed by the deponent within thirty days after its ANSWER: submission to the deponent, the officer shall sign it and state on 2. Have you made any statements, as defined in the the record the fact of the waiver or of the illness or absence of Connecticut Practice Book Rule 13-1 to any person the deponent or the fact of the refusal or failure to sign togeth- regarding any of the incidents alleged in the Complaint? er with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to COMMENT: This interrogatory is intended to include party suppress under Section 13-31(c)(4) the judicial authority holds statements made to a representative of an insurance company that the reasons given for the refusal or failure to sign require prior to involvement of defense counsel. rejection of the deposition in whole or in part. ANSWER: (e) The person recording the testimony shall certify on the 3. If the answer to Interrogatory #2 is affirmative, state: deposition that the witness was duly sworn by the person, that a) the name and address of the person or persons to the deposition is a true record of the testimony given by the whom such statements were made; deponent, whether each adverse party or his agent was present, and whether each adverse party or his agent was notified, and b) the date on which such statements were made; such person shall also certify the reason for taking the deposi- c) the form of the statement (i.e. whether written, made tion. The person shall then securely seal the deposition in an by recording device or recorded by stenographer, etc.); envelope endorsed with the title of the action, the address of the d) the name and address of each person having custody, or court where it is to be used and marked “Deposition of (here a copy or copies of each statement. insert the name of the deponent),” shall then promptly deliver it ANSWER: to the party at whose request it was taken and give to all other parties a notice that the deposition has been transcribed and so 4. State the names and addresses of all persons known to delivered. The party at whose request the deposition was taken you who were present at the time of the incident alleged shall file the sealed deposition with the court at the time of trial. in the Complaint or who observed or witnessed all or part (f) Documents and things produced for inspection during of the incident. the examination of the deponent, shall, upon the request of a ANSWER: party, be marked for identification and annexed to and returned 5. As to each individual named in response to Interrogatory with the deposition, and may be inspected and copied by any #4, state whether to your knowledge, or the knowledge of party, except that (1) the person producing the materials may your attorney, such individual has given any statement or substitute copies to be marked for identification, if the person statements as defined in the Connecticut Practice Book affords to all parties fair opportunity to verify the copies by com- Rule 13-1 concerning the subject matter of the Complaint parison with the originals, and (2) if the person producing the in this lawsuit. If your answer to this Interrogatory is materials requests their return, the officer shall mark them, affirmative, state also: give each party an opportunity to inspect and copy them, and a) the date on which the statement or statements were return them to the person producing them, and the materials taken; may then be used in the same manner as if annexed to and returned with the deposition to the court, pending final disposi- b) the names and addresses of the person or persons who tion of the case. took such statement or statements; (g) The party on whose behalf a deposition is taken shall at c) the names and addresses of any person present when such party’s expense provide a copy of the deposition to each such statement or statements were taken; adverse party. d) whether such statement or statements were written, made by recording device or taken by court reporter or PROPOSED REVISIONS TO STANDARD stenographer; INTERROGATORIES e) the names and addresses of each person having Proposed revisions to standard interrogatories directed by custody or a copy or copies of such statement or plaintiffs to defendants in motor vehicle accidents. statements; PLAINTIFFS INTERROGATORIES ANSWER: The undersigned, on behalf of the Plaintiff, hereby propounds 6. Are you aware of any photographs depicting the accident the following interrogatories to be answered by the Defendant, scene, any vehicle involved in the incident alleged in the under oath, within thirty (30) days of the filing hereof insofar as complaint, or any condition or injury alleged to have been the disclosure sought will be of assistance in the prosecution of caused by the incident alleged in the complaint? If so, for this action and can be provided by the Defendant with substan- each set of photographs taken of each such subject by each tially greater facility than could otherwise be obtained. photographer, please state: [NEW:] Definition: “You” shall mean the defendant to whom a. the name and address of the photographer, other than these interrogatories are directed except that if that defendant an expert who will not testify at trial; has been sued as the representative of the estate of a decedent, b. the dates on which such photographs were taken; ward, or incapable person, “you” shall also refer to the defen- c. the subject (e.g. plaintiffs vehicle, scene, etc.); dant’s decedent. ward or incapable person unless the context of an interrogatory clearly indicates otherwise. d. the number of photographs. 1. State the following: ANSWER: a. Your full name, and any other name(s) by which you 7. If, at the time of the incident alleged in the Complaint,

January/February/March 2004 — 22 Forum 47 you were covered by an insurance policy under which an b. the date and time: insurer may be liable to satisfy part or all of a judgment c. the results. or reimburse you for payments to satisfy part or all of a ANSWER: judgment, state the following: [REVISED. NOT AGREED:] 18. Within the time required a) the name(s) and address(es) of the insured(s); by Rule 13-4(4) of the Rules of Practice, please disclose, pur- b) the amount of coverage under each insurance policy; suant to Rule 13-4(4), the names and addresses of all experts c) the name(s) and address(es) of said insurer (s). whom you expect to call as expert witnesses at trial and 8. If, at the time of the incident, which is the subject of this state, as to each: lawsuit, you were protected against the type of risk which a. the subject matter on which each expert witness is is the subject of this lawsuit by excess umbrella insur- expected to testify; ance, or any other insurance, state: b. the substance of the facts and opinions to which each a) the name(s) and address(es) of the named insured; expert witness is expected to testify; b) the amount of coverage effective at this time; c. a summary of the grounds for each opinion. c) the name(s) and address(es) of said insurer(s). ANSWER: ANSWER: The committee questions whether an Interrogatory is the 9. State whether any insurer, as described in Interrogatories appropriate discovery vehicle to use to disclose experts. It is the 7 and 8 above, has disclaimed/reserved its duty to indemni- recommendation of the committee that any revisions to this fy any insured or any other person protected by said policy. Interrogatory be deferred, pending the results of the subcommit- tee considering revisions to expert disclosure rules. ANSWER: 10. If applicable, describe in detail the damage to your vehi- PLAINTIFFS REOUESTS FOR PRODUCTION cle. The Plaintiff(s) hereby request(s) that the Defendant provide ANSWER: counsel for the Plaintiff(s) with copies of the documents 11. If applicable, please state the name and address of an described in the following requests for production, or afford appraiser or firm which appraised or repaired the damage counsel for said Plaintiff(s) the opportunity or, if necessary, suf- to the vehicle owned or operated by you. ficient written authorization, to inspect, copy, photograph or ANSWER: otherwise reproduce said documents. The production of such 12. If any of the Defendants are deceased, please state the documents, copies or written authorization shall take place at date and place of death, whether an estate has been cre- the offices of — on [day], [date] at [time]. ated, and the name and address of the legal representa- The definition of “you” provided in the corresponding tive thereof. Interrogatories shall also pertain here. 1) A copy of the appraisal or bill for repairs as identified in ANSWER: response to Interrogatory #11. 13. If any of the defendants is a business entity that has changed its name or status as a business entity (whether 2) A copy of the declaration page(s) of each insurance policy by dissolution, merger, acquisition, name change, or in identified in response to Interrogatory #7 and/or #8. any other manner) since the date of the incident alleged in 3) If the answer to interrogatory 9 is in the affirmative, a the complaint, please identify such defendant, state the copy of the complete policy contents of each insurance pol- date of the change, and describe the change. icy identified in response to Interrogatory #7 and/or #8. ANSWER: 4) A copy of any photographs identified in response to Interrogatory #6. 14. If you were the operator of any motor vehicle involved in the incident that is the subject of this action, please state 5) A copy of any non-privileged statement, as defined in whether, at the time of the incident, you were operating Practice Book Section 13-1, of any party in this lawsuit that vehicle in the course of your employment with any concerning this action or its subject matter. person or legal entity not named as a party to this lawsuit, 6) A copy of all lease agreements pertaining to any motor and, if so, state the full name and address of that person vehicle involved in the incident which is the subject of this or entity. action, which was owned or operated by you or your employee, and all documents referenced or incorporated ANSWER: therein. 15. If you were the operator of any motor vehicle involved in 8) A copy of all records of blood alcohol testing or drug the incident that is the subject of this action, please state screens referred to in answer to Interrogatory 17, or a suf- whether you consumed or used any alcoholic beverages, ficient signed authorization to obtain the same. drugs, or medications within the eight (8) hours next pre- ceding the time of the incident alleged in the complaint and, if so, indicate what you used or consumed, how much DEFENDANTS INTERROGATORIES you consumed, and when. The undersigned, on behalf of the Defendant, hereby pro- ANSWER: pounds the following interrogatories to be answered by the Plaintiff, , under oath, within thirty (30) days of the service 16. Please state whether, within eight (8) hours after the inci- hereof insofar as the disclosure sought will be of assistance in dent alleged in the complaint, any testing was performed the defense of this action and can be provided by the Plaintiff to determine the presence of alcohol, drugs or other med- with substantially greater facility than could otherwise be ications in your blood, and, if so, state: obtained. a. the name and address of the hospital, person or entity Definition: “You” shall mean the plaintiff to whom these performing such test or screen: interrogatories are directed except that if suit has been insti-

48 22 Forum — January/February/March 2004 tuted by the representative of the estate of a decedent, ward, or please answer the following: incapable person, “you” shall also refer to the plaintiffs dece- a. list the parts of your body which are disabled; dent, ward or incapable person unless the context of an inter- b. list the motions, activities or use of your body which rogatory clearly indicates otherwise. you have lost or which you are unable to perform; c. state the percentage of loss of use claimed as to each 1. Please state the following: part of your body; a. your full name and any other name(s) which you have d. state the name and address of the person who made been known; the prognosis for permanent disability and the per- b. your date of birth; centage of loss of use; c. your motor vehicle operators number; e. list the date for each such prognosis. d. your home address; ANSWER: e. your business address; 15. If you were confined to your home or to your bed as a ANSWER: result of injuries or conditions sustained as a result of the 2. Identify and list each injury you claim to have sustained incident alleged in your Complaint, state the dates as a result of the incidents alleged in the Complaint. between which you were so confined. ANSWER: ANSWER: 3. When, where and from whom did you first receive treat- [NOTE THAT THIS COMBINES TWO INTERROGA- ment for said injuries? TORIES FROM THE CURRENT SET OF STANDARD DISCOVERY] ANSWER: 16. List each medical report received by you or your attorney 4. If you were treated at a hospital for injuries sustained in relating to your alleged injuries or conditions by stating the alleged incident, state the name and location of each the name and address of the treating doctor or other hospital and the dates of such treatment and confinement health care provider, and of any doctor or health care per- therein. son you anticipate calling as a trial witness, who provided ANSWER: each such report and the date thereof. 5. State the name and address of each physician, therapist ANSWER: or other source of treatment for the conditions or injuries 17. List each item of expense which you claim to have you sustained as a result of the incident alleged in your incurred as a result of the incident alleged in your Complaint. Complaint, the amount thereof and state the name and ANSWER: address of the person or organization to who each item 6. When and from whom did you last receive any medical has been paid or is payable. attention for injuries alleged to have been sustained as a ANSWER: result of the incident alleged in your Complaint. 18. For each item of expense identified in response to ANSWER: Interrogatory 17, if any such expense, or portion thereof, 7. On what date were you fully recovered from the injuries has been paid or reimbursed or is reimbursable by an or conditions alleged in your Complaint? insurer, state, as to each such item of expense the name of the insurer that made such payment or reimbursement or ANSWER: which is responsible for such reimbursement. 8. If you claim you are not fully recovered, state precisely from what injuries or conditions you are presently ANSWER: suffering? 19. If, during the ten year period prior to the date of the inci- dent alleged in the Complaint, were you under a doctor’s ANSWER: care for any conditions which were in any way similar or 9. Are you presently under the care of any doctor or other related to those identified and listed in your response to health care provider for the treatment of injuries alleged Interrogatory #2, state the nature of said conditions, the to have been sustained as a result of the incident alleged dates on which treatment was received, and the name of in your Complaint? the doctor or health care provider. ANSWER: ANSWER: 10. If the answer to interrogatory #9 is in the affirmative, 20. It during the ten year period prior to the date of the inci- state the name and address of each physician or other dent alleged in your Complaint, you were involved in any health care provider who is treating you. incident in which you received personal injuries similar or ANSWER: related to those identified and listed in your response to 11. Do you claim any present disability resulting from Interrogatory #2, please answer the following with respect injuries or conditions allegedly sustained as a result of the to each such earlier incident: incident alleged in your Complaint? a. on what date and in what manner did you sustain such injuries? ANSWER: b. did you make a claim against anyone as a result of 12. If so, state the nature of the disability claimed. said accident? ANSWER: c. if so, provide the name and address of the person or 13. Do you claim any permanent disability resulting from said persons against whom a claim was made; incident? d. if suit was brought, state the name and location of ANSWER: the court, the return date of the suit, and the docket 14. If the answer to Interrogatory #13 is in the affirmative, number;

January/February/March 2004 — 22 Forum 49 e. state the nature of the injuries received in said accident. f. state the name and address of each physician who treated you for said injuries; g. state the dates on which you were so treated; h. state the nature of the treatment received on each such date; i. if you are presently or permanently disabled as a result of said injuries, please state the nature of such disabili- ty, the name and address of each physician who diag- nosed said disability and the date of each such diagno- sis. ANSWER: 21. If you were involved in any incident in which you received personal injuries since the date of the incident alleged in the Complaint, please answer the following: a. on what date and in what manner did you sustain said injuries? b. did you make a claim against anyone as a result of said accident? c. if so, provide the name and address of the person or persons against whom a claim was made; d. if suit was brought, state the name and location of the court, the return date of the suit, and the docket num- ber; e. state the nature of the injuries received in said accident; f. state the name and address of each physician who treated you for said injuries; g. state the dates on which you were so treated; h. state the nature of the treatment received on each such date; i. if you are presently or permanently disabled as a result of said injuries, please state the nature of such disabili- ty, the name and address of each physician who diag- nosed said disability and the date of each such diagno- sis. ANSWER: 22. Please state the name and address of any medical service provider who has rendered an opinion in writing or through testimony that you have sustained a permanent disability to any body part other than those listed in response to Interrogatories 13, 14, 20, or 21, and: a. list each such part of your body that has been assessed a permanent disability: b. state the percentage of loss of use assessed as to each part of your body; c. state the date on which each such assessment was made. ANSWER: 23. If you claim that as a result of the incident alleged in your Complaint you were prevented from following your usual occupation, or otherwise lost time from work, please pro- vide the following information: a. the name and address of your employer on the date alleged in the Complaint; b. the nature of your occupation and a precise descrip- tion of your job responsibilities with said employer on the date of the incident alleged in the Complaint; c. your average, weekly earnings, salary, or employment for the year preceding the date Complaint;

50 22 Forum — January/February/March 2004 d. the date following the date of the incident alleged in c. the names and addresses of any persons present when the Complaint on which you resumed the duties of such statement or statements were taken; said employment; d. whether such statement or statements were written, e. what loss of income do you claim as a result of the made by recording device, or taken by court reporter incident alleged in your Complaint and how is said or stenographer; loss computed? e. the name and address of each person having custody or f. the dates on which you were unable to perform the a copy or copies of such statement or statements. duties of your occupation and lost time from work as a ANSWER: result of injuries or conditions claimed to have been sustained as a result of the incident alleged in your 32. Are you aware of any photographs depicting the accident Complaint. scene, any vehicle involved in the incident alleged in the complaint, or any condition of injury alleged to have been g. The names and addresses of each employer for whom caused by the incident alleged in the complaint? If so, for you worked for three years prior to the date of the each set of photographs taken of each such subject by each incident alleged in your Complaint. photographer, please state: ANSWER: a. the name and address of the photographer, other than 24. Do you claim an impairment of earning capacity? an expert who will not testify at trial ANSWER: b. the dates on which such photographs were taken; 25. List any other expenses or loss and the amount thereof c. the subject (e.g. “plaintiffs vehicle”, “scene”, etc.); not already set forth and which you claim to have incurred d. the number of photographs. as a result of the incident alleged in your Complaint. 33. Within the time required by Rule 134(4) of the Rules of ANSWER: Practice, please disclose, pursuant to Rule 13-4(4), the 26. If you have signed a covenant not to sue, a release or dis- names and addresses of all experts whom you expect to charge of any claim you had, have or may have against call as expert witnesses at trial and state, as to each: any person, corporation, or other entity, as a result of the a. the subject matter on which each expert witness is incident alleged in your Complaint, please state in whose expected to testify; favor it was given, the date thereof, and the consideration b. the substance of the facts and opinions to which each paid to you for giving it. expert witness is expected to testify; ANSWER: c. a summary of the grounds for each opinion. 27. If you or anyone on your behalf agreed or made an agree- ANSWER: ment with any person, corporation or other entity to limit The committee questions whether an Interrogatory is the in any way the liability of such person, corporation or appropriate discovery vehicle to use to disclose experts. It is the other entity as a result of any claim you have or may have recommendation of the committee that any revisions to this as a result of the incident alleged in your Complaint, Interrogatory be deferred, pending the results of the subcommit- please state in whose favor it was given, the date thereof, tee considering revisions to expert disclosure rules. and the consideration paid to you for giving it. 34. If you were the operator of any motor vehicle involved in ANSWER: the incident that is the subject of this action, please state 28. If, since the date of the incident alleged in your whether you consumed or used any alcoholic beverages, Complaint, you have made any claims for Workers drugs or medications within the eight (8) hours next pre- Compensation benefits, state the nature of such claims ceding the time of the incident alleged in the complaint and the dates on which they were made. and, if so, indicate what you consumed, how much you ANSWER: consumed, and when. 29. Have you made any statements, as defined in the ANSWER: Connecticut Practice Book Rule 13-1, to any person 35. Please state whether, within eight (8) hours after the inci- regarding any of the events or happenings alleged in your dent alleged in the complaint, any testing was performed Complaint? to determine the presence of alcohol or other drugs in your ANSWER: blood, and: 30. State the names and addresses of all persons known to a. the name and address of the hospital, person or entity you who were present with you at the time of the incident performing such test or screen: alleged in your Complaint or who observed or witnessed h. the date and time: all or part of the accident. c. the results. ANSWER: ANSWER: 31. As to each individual named in response to Interrogatory #30, state whether to your knowledge or to the knowledge DEFENDANTS REOUESTS FOR PRODUCTION of your attorney, such individual has given any statement The Defendant(s) hereby request(s) that the Plaintiff provide or statements as defined in the Connecticut Practice Book counsel for the Defendant(s) with copies of the documents concerning the subject matter of your complaint or alleged described in the following requests for production, or afford injuries. If your answer to this Interrogatory is affirma- counsel for said Defendant(s) the opportunity or, where request- tive, state also: ed, sufficient written authorization, to inspect, copy, photograph a. the date on which statement or statements were or otherwise reproduce said documents. The production of such taken; documents, copies and written authorizations shall take place b. the names and addresses of the person or persons who at the offices of ______not later than thirty days took such statement or statements; after the service of this Request for Production.

January/February/March 2004 — 22 Forum 51 An Air That Kills

A Book Review by Rick Base

Andrew Schneider, the Post-Dispatch’s asbestosis, gotten from working in the either died of the disease, have been deputy assistant managing editor for vermiculite mine, due in part to the diagnosed, or remain at high risk.” ) investigations, is the co-author — with ultra-fine nature of the tremolite form of Benefield allowed sicker miners to David McCumber, managing editor of the asbestos mined there. The product take her place in the judicial system time Seattle Post-Intelligencer — of “An Air responsible for the majority of the poison and again, so they could try to settle That Kills,” a new book on asbestos poi- was Zonolite attic insulation, which con- their claims against a stalling Grace soning in Libby, Mont., and its national tained the deadly vermiculite. A 1980 before they died. She passed up a large ramifications. report “buried” deep within EPA files out-of-court settlement to force Grace The Post-Dispatch asked Rick Bass — gave clear evidence, authors Andrew into a guilty verdict, even as she knew winner of both the O. Henry and Pushcart Schneider and David McCumber report, that doing so would result in her being short-story prizes and the author of 18 that “vermiculite from Libby is loaded “awarded” — a cruelly inaccurate word books of fiction and nonfiction — to with tremolite asbestos and the lives of — a much smaller final settlement. review the book. Bass lives near Libby in the miners and everyone else who han- The physical descriptions of victims northwest Montana’s Yaak Valley. This dles it down the line are at risk.” with the disease are graphic and wrench- review was published in the St. Louis The Grace mill — facing lawsuits as ing. Victims of the disease struggle to Post – Dispatch on January 23, 2004 and the small-town miners of Libby began find breath to walk out the door, to go get is reprinted here with permission. dying in droves, followed by their family the paper in the morning or to shop for In the middle of one of the most beau- members who breathed in the secondary groceries. Near the end of the disease’s tiful velvet green forests I’ve ever seen, dust from their work clothes — evaded brutal progression, they must carry oxy- in the northwestern corner of Montana, those suits for a while. As the problem gen bottles on wheels behind them and not far from my home, there is a moun- became too visible and the first lawsuits finally can no longer walk, even with the tain with its top sawed off, like some cra- finally began to appear — in part oxygen bottle’s assistance. nial operation gone horribly wrong. So because of the journalistic efforts of As a resident of the county, I was sick toxic was the material beneath the Schneider, McCumber and others — and angry to read this book, ashamed of mountain — vermiculite ore, associated Grace, in that most American of corpo- the force and power of money that rules with asbestos — that nothing grows on rate traditions, sequestered billions of our government. It makes it hard for me the sawn-off mountaintop. dollars of assets in unreachable spinoff to believe assurances that all is well now, Seen from the air, the ex-mountain subsidiaries that could never be touched or will be well soon, and I’m worried, too, appears as a chancrous sore, with toxic by the dead and the dying, before filing when honest officials say, “We don’t funnel eroding all flanks of the gouged- for bankruptcy, leaving taxpayers to pay know.” out caldera, remnants of where one com- for the cleanup of the nation’s single It can be a real challenge to deeply pany, W.R. Grace, clawed out millions of worst Superfund site. engage a reader in the narrative of such tons of asbestos, spraying the deadly It’s a task that won’t be completed for a profoundly horrific and dispiriting sub- dust onto its workers and into the com- decades, if ever. ject, but the authors frame the story- munity and the forest, while knowing (as Heroes and the horror telling structure in a way that helps tem- per or attenuate the horror and disbelief, did the U.S. government) that the dust Schneider broke the story in allowing us to engage more fully with would kill people graveyard-dead. November 1999 in the Seattle Post each chapter. “An Air That Kills” is the story of the Intelligencer: The asbestos mill in Libby Beginning chronologically with a decades of larceny, death and deceit had been killing workers and townspeo- description of the discovery of the Libby waged by an American corporation in ple for decades - the original report said vermiculite mine early in the 20th centu- small-town America and of our govern- the mine had killed 192 people and left at ry (along with some worldwide historic ment’s role in keeping those crimes least 375 with fatal diseases — and the perspectives on the ills of asbestos, dat- secret and protected. The tale contains EPA had documents proving the expo- ing back centuries), Schneider and villains every bit as evil as any dressed sures were deadly but had done nothing McCumber skillfully establish the major up in fairy tales, and underdog heroes, about this knowledge. individuals in the story through detailed too, whose only goal was to serve virtue As in Andrea Peacock’s earlier book on characterizations, and then gradually and truth, and to perform their jobs with the subject, “Libby, Montana,” Schneider begin to work in the outrageous docu- integrity: heroes in the medical profes- and McCumber’s book wades into the ment analyses, in layperson’s terms, in sion and heroes within the government. town’s plight with respect and sensitivi- which the lawyers and activists prove These public servants, although loyal ty, always mindful of the dignity of the beyond a shadow of a doubt the chilling to their agency — the Environmental victims. truths of who knew what and when: in Protection Agency — nonetheless, or Chief among these is the first miner to government, in industry and, lastly and because of that loyalty, chose to tell the win a case against Grace, Les most tragically, in the community — the hard and at first unbelievable truth: that Skramsted, and the Erin Brockovich-like victims themselves. W.R. Grace was killing its American Gayla Benefield, who at first almost sin- And then, with the tragedy in Libby workers through the 1990s and into the gle-handedly fought W.R. Grace after los- fully detailed, the authors widen the present, simply because it was better for ing her father and mother to the disease scope of horror — the rest of the iceberg its profits to do so. and contracting it along with her hus- — to the rest of the country, and any Grace’s workers suffered from the band. (Schneider and McCumber report place where asbestos has ever been used, debilitating and incurable disease of that 62 members of her family “have mined or processed.

52 22 Forum — January/February/March 2004 “Get someone on this” business.” dead-ends by opposing the White House, Amid the tales of devastation, tragedy From Libby to 9-11 and refused to sign the document. Schneider and McCumber stayed and cover-up, so much loss of utterly The book also makes clear that innocent life, I try to focus on the war- after the story, filing for Freedom of asbestos reaches much farther than Information Act information. riors such as Benefield and Skramsted; Libby: Thousands of other victims can be their local lawyers, Roger Sullivan and “On May 8, 2003,” they write, “EPA found around the country. The Post- finally released its warning to the mil- Jon Heberling, who threw their all into Intelligencer’s investigation found that fighting W.R. Grace; and the EPA’s on- lions of people that may have Zonolite crayons, garden products, kitty litter and Attic Insulation in their homes and busi- site recovery coordinator, Paul Peronard, brake parts still possessed asbestos, who gave the townspeople of Libby what nesses. ... courtesy of a congressional overturn of “Unfortunately for those who needed they needed most: his promise that he the ban that had once existed and that would always tell the truth, that they the information, the same morning that most people, including health officials, the insulation announcement was to be would not be lied to again. Working with still believe exists. Peronard were several equally trustwor- made, (EPA administrator Christine “An Air That Kills” documents the Todd) Whitman decided to tell the world thy and committed agency personnel. mortalities associated with this product Included in the book also are the stories that she was quitting EPA. Little or no at other mines and processing facilities media attention was paid to cancer- of heroes in the medical profession. all around the country, too. Near the end Particularly hard to read, however, causing insulation that day. By August, of the book, it reveals the sickeningly no sign could be found of EPA fulfilling are descriptions of the machinations of ironic fact that asbestos from Libby was W.R. Grace’s lawyers, and the company its promise to widely publicize the dan- used in the construction of the World gers from the insulation and hand out memos that scuttled back and forth Trade Center: a hundred tons of it sent across the decades, such as one by N.F. warnings at home improvement and suddenly adrift on Sept. 11, 2001. Using hardware stores across the country.” Bushell (a Grace manager in Vancouver), antiquated detection methods that had who wrote to headquarters about a work- failed to detect asbestos in Libby until Danger is everywhere er in their Winnipeg plant who had the more sophisticated transmission Sometimes I wonder how many asbestosis. electron microscopy (TEM) technology Libbys — how many Lincoln Counties — “There is asbestos in the ore that we was utilized, it was reported that it will take to awaken a sleeping and receive from Libby,” he wrote in 1968. insignificant asbestos fibers were found complacent nation, with regard to poi- “I’m afraid that we may still be exposing in Manhattan. soning of our nests and ourselves. A hun- our employees to an unnecessary health “While EPA may not have wanted to dred? A thousand? Even one — or one hazard. ... Get someone on this subject admit the need for a thorough federal more — is too many, and, as “An Air That before we get closed down or slapped cleanup of the entire affected area, it did Kills” shows us, asbestos is everywhere. with some pretty large claims from think enough of the hazard to make sure The authors tell us that the 30 percent employees or their heirs. It won’t take its own offices in lower Manhattan were exposure rate in Libby and the 200-plus many more biopsy reports before we get thoroughly decontaminated,” write the dead miners and their families in the fingered.” authors. “Asbestos levels in those offices area may be revealed in coming years to One of the most upsetting revelations were tested not with the decades-old be but the tip of a very big national ice- in the book tells how J. Peter Grace, chief PLM technology but with newer, more berg. The old contaminations of Libby executive officer of W.R. Grace in the accurate TEM analysis.” and nearby communities are being 1980s, was named by the Reagan admin- Libby’s problems didn’t only affect cleaned up because of funding demands istration to head the President’s Private New York City. Investigations revealed by Sen. Max Baucus, D-Mont., for those Sector Survey on Cost Control, known as that as many as 35 million homes around projects, but, again, the poison exists far the Grace Commission. Grace created the country may be insulated with beyond the borders of Lincoln County. numerous task forces, which presented Zonolite — the product from Libby – a “An Air That Kills,” although an various deregulation schemes to the situation in which, according to the EPA, exceedingly difficult read, emotionally — administration. “actual risks may be even greater than in the tradition of Rachel Carson’s Reporting on the puzzle that Peronard estimated.” A decision was made within “Silent Spring” and Bill McKibben’s “The and others pursued — why, if EPA knew the EPA to alert the nation to the wide- End of Nature” or “Enough” — is a book 20 years earlier that asbestos was so spread problem. of highest service and integrity. Its mes- deadly, didn’t it warn anyone? — On Dec. 29, 2002, however, the St. sage is brutal but integral to the lives Schneider and McCumber write, Louis Post-Dispatch, for which Schneider and times of a nation facing great “Nobody official leveled with him now works, published a story that the change, turmoil and, all too often, (Peronard), but some of the old-timers in Bush administration’s Office of destruction from within. headquarters told him the follow-up was Management and Budget had decided to “An Air That Kills: How the never pursued because of the recommen- cancel the decision to label asbestos a Asbestos Poisoning of Libby, dations that J. Peter Grace gave public health emergency. EPA officials Montana, Uncovered a National President Ronald Reagan on reducing around the country went ballistic, even Scandal” By Andrew Schneider and government interference in industry’s while consigning their careers to certain David McCumber. Published by Putnam,

January/February/March 2004 — 22 Forum 53 New Studies on Medical Errors and Inadequate Care; Reducing Errors Will Save Lives, Decrease Costs, and Lower Insurance Premiums

This article appeared on the website The federal government’s Agency for technology, they provide better for the Center for Justice & Democracy, Healthcare Research and Quality care with greater consistency, and http://centerjd.org. recently found that 18 categories of their insurance rates can drop. medical errors, such as postoperative Soon after the NCQA report was 1. The Problem: Deaths and infections, accidental reopening of sur- released, another newspaper story de- Costs ...... gical wounds, and medical objects left tailed how a handful of hospitals are of Medical Malpractice inside patients, result in 32,500 hospi- using technology to make prenatal care New studies find that up to tal deaths, cost $9.3 billion in addition- and delivery safer. These hospitals are 150,000 people die each year from al hospital charges, and lead to over using computer software that improves medical mistakes and inadequate 2.4 million extra days spent in hospi- monitoring and treatment by remind- care in hospitals. tals. (Julie Bell, “Study of Medical ing staff of steps to take, stopping them Errors Puts Tentative Price Tag on from doing something wrong, and The National Committee for Quality Impact: Hospital Charges Alone avoiding problems with illegible hand- Assurance (NCQA), a non-profit organ- Boosted $9.3 Billion a Year,” Baltimore writing. ization that monitors health care, has Sun, Oct. 8, 2003.) The study, pub- The software helps avoid medical found that 57,000 Americans die each lished in the Journal of the American errors and, according to the director of year because they are not given ade- Medical Association, found that even women and infant services at the first quate health care. (National these figures greatly underestimate hospital to install the software, three Committee for Quality Assurance, The the problem since many medical com- years ago, “the program has already State of Health Care Quality 2003 6, plications were not analyzed for this saved lives.” Maimonides Medical 2003.) “These deaths should not be con- study. (Lindsey Tanner, Associated Center in Brooklyn, where the pro- fused with those attributable to med- Press, “Preventable Complications gram was purchased two years ago, ical errors or lack of access to health Cost More Than $9 Billion,” Deseret already has negotiated a $300,000 dis- care,” says NCQA. In 1999, the News, Oct. 8, 2003.) count on its annual malpractice premi- Institute of Medicine (IOM), part of the Dr. Chunliu Zhan, the study’s lead um. (Margaret Ramirez, “System National Academy of Sciences, found researcher, said, “The message here is Checks Steps in Care,” Newsday, Oct. that medical errors cause as many as that medical injuries can have a devas- 7, 2003.) 98,000 deaths each year. (Institute of tating impact on the health care sys- Medicine, To Err is Human: Building a Other simple improvements to tem.” (Press Release, Agency for Safer Health System, 1999.) medical practice are also crucial. Healthcare Research and Quality, NCQA finds that Americans are not While technology is one way to Injuries in Hospitals Pose a Significant getting the care they need because the reduce the prevalence of medical errors Threat to Patients and a Substantial health care industry has failed to adopt and avoidable complications, other Increase in Health Care Costs, Oct. 7, needed technology, doctors inconsis- steps are much simpler and easier to 2003, http://www.ahrq.gov/ tently deliver appropriate care, and the news/press/pr2003/injurypr.htm.) implement. According to Dr. Zhan, lead health care system fails to measure researcher for the Agency for and report on performance, among 2. The Solutions Healthcare Research and Quality other reasons. study, “Improved medical practices, Higher-quality health care Medical errors and inadequate including an emphasis on better hand- providers and plans would save washing, might help reduce the rates.” health care costs Americans bil- lives and the enormous costs asso- lions of dollars each year. In 1995, Dr. Wayne Cohen, who was ciated with these deaths. then medical director of Bronx The NCQA finds that inadequate The NCQA found that if health care Municipal Hospital, said, “The city was care costs over $1.6 billion in avoidable providers and plans nationwide spending so much money defending hospital bills and costs U.S. businesses matched the quality of care already obstetrics suits, they just made a deci- $11.5 billion due to almost 41 million provided by the top 10 percent of sion that it would be cheaper to hire lost work days. These costs are in addi- health care providers and plans, people who knew what they were tion to the huge costs of medical errors 57,000 lives each year and billions of doing.” (Dean Baquet and Jane found by the IOM in 1999. IOM esti- dollars would be saved. Fritsch, “New York’s Public Hospitals mated the total national costs (lost NCQA recommends: investment in Fail, and Babies Are the Victims,” New income, lost household production, dis- technology and systems to support evi- York Times, March 5, 1995.) ability and health care costs) of med- dence-based care; increased collabora- ical errors as between $17 billion and tion between health care professionals; $29 billion each year, of which health payment systems that reward excel- care costs represent over one-half. lence; more consumer engagement in A recent government study of 18 provider selection and care decisions; specific types of medical errors and greater transparency, to allow con- finds that they cause tens of thou- sumers and others to see and compare sands of deaths and cost billions quality information. of dollars each year. When hospitals adopt available

54 22 Forum — January/February/March 2004 New Consumer Study Shows Making the Most of the Insurers Price-Gouging CTLA List Serve Doctors Without Basis By Douglas W. Hammond

This article was released by the Americans for Insurance Bill Gallagher just asked me to prepare another issue of this Reform on November 20, 2003, and may be found at its website, column, as soon as possible. Not having had a column underway, www.insurance-reform.org. I will defer, until the next issue, a review of the most recent mes- Americans for Insurance Reform (AIR), a coalition of over sages. Instead, I offer some general comments on the breakdown 100 consumer and public interest groups representing more of messages, the attachment of briefs and memoranda, and the than 50 million people, announced today the release of a com- need to verify advice. prehensive study of medical malpractice based on new insur- ance data through 2002. The study finds that the years 2001 What can you learn about? and 2002 saw no sudden upsurge in medical malpractice insur- A Quick Survey of Message Subjects er payouts or costs to justify the abrupt rate hikes that many Still not a subscriber to the CTLA list serve? Perhaps, you'd doctors have experienced over the last two years. In fact, pay- like to know what types of messages get posted to it. I made a outs per doctor (in constant dollars) dropped from 2001 to 2002. quick, unscientific survey over a recent four-day period and (The entire study is available at www.insurance-reform.org). found that the subjects of the posted messages break down According to AIR co-founder and spokesperson Joanne approximately as follows: Doroshow, Executive Director of the Center for Justice & ● Legal Issues in Civil, Non-family Cases — 30% Democracy, “this study completely refutes the insurance indus- ● Case Strategy and Investigation in Civil, Non-family try’s explanation for skyrocketing medical malpractice rates cases — 12% and undermines industry claims that a medical malpractice ● Opinions re: doctors (IME, WC, and treating) — 12% ‘crisis’ for insurers exists. Medical malpractice insurance premi- ● Expert Witnesses: Recommendations & Opinions — 10% ums rose much faster in 2002 than was justified by insurance ● Referral Requests and Replies in Civil, Non-family cases payouts, which actually dropped. The insurance industry is — 8% engaged in a pricing scheme designed to gouge doctors and the ● Criminal Law: Legal Issues and Referrals — 4% rest of the American people based on a premise that lacks any ● Local Courthouse Practices and Venue Issues — 5% basis in fact.” ● Other (family law, judges, political, general & miscellany) AIR also found that over the last 30 years, medical malprac- — 19% tice payouts have largely tracked the rate of medical inflation If communicating with your colleagues about these issues is and have been essentially flat since the mid-1980s. What’s important to your practice, consider joining the CTLA list serve. more, over the same period, insurance premium rates have not tracked payouts at all (e.g. jury verdicts, settlements, etc.), but Limitations of Attachments and Message Size instead directly follow the ups and downs of the economy. When Some members have inquired about what briefs or memoran- the economy is strong and the insurance industry’s market da can be attached to messages to the CTLA list serve. According investments are gaining, medical malpractice rates decrease. to CTLA’s Diana Roe, the size limit for messages sent to the On the other hand, when the economy is weak, as it has been CTLA lists is 1 MB. Any message over this size will be automat- since the second half of 2000, with the insurance industry’s ically rejected. There is no limit on the number or size of attach- market investments down, medical malpractice insurance rates ments, as long as the total message size (including any attach- increase. These findings suggest that the real reason medical ments) does not exceed 1 MB. malpractice insurance rates fluctuate is market forces — not, as Generally, Ms. Roe noted, CTLA encourages list members to the insurance industry claims, because of a sudden massive limit the size of messages as much as possible. Some list mem- increase in medical malpractice jury awards. bers have size limits smaller than 1 MB. Thus, the smaller the “These data together constitute a ‘smoking gun,’ which message the larger the likelihood that everyone will receive it should, once and for all end the debate about the cause of these successfully. Those of us who store thousands of old messages periodic medical malpractice crises,” said the author of the also appreciate it when the size of individual messages is kept study, J. Robert Hunter, Director of Insurance for the Consumer down. Scrolling through documents with large attachments Federation of America, former Texas Insurance Commissioner seems to slow the e-mail application down considerably, at least and AIR co-founder. “Insurers, whose own investment actions on our system. have created a ‘crisis’ in insurance affordability and availabili- The size limitation of the CTLA list serve should still allow ty, are blaming others for their own mismanagement. For the attorney to post motions, memoranda or briefs to the list serve, next year or two, insurers will reap huge profits on the high pre- when they would be of general interest to membership. (Where miums the doctors are now enduring.” they would be of interest only to a particular inquirer, it is The findings of AIR’s study come at a crucial time, as the preferable to e-mail them directly). nation’s insurance companies are in the process of advancing a One of the better ways to disseminate memoranda or similar legislative agenda to limit liability for doctors, hospitals, HMOs, attachments may be as plain text pasted into the body of an e- nursing homes and drug companies that cause injury. mail message. This cut-and-paste approach usually makes for a Insurance companies are blaming high rates on the supposed smaller message than if the memorandum had been attached. It increase in claims by patients, rising verdicts and exploding tort also allows readers hesitant about opening attachments to see system costs when in reality, it is the insurance industry’s your memorandum. efforts to make up for their economy-driven, market-based As an illustration, I took a memorandum that I recently investment losses that are the cause. received as an e-mail attachment, in Microsoft Word document format. With a Microsoft Outlook new mail message already

January/February/March 2004 — 22 Forum 55 open in another window, I went into the Word document and Limitations of List Serve Advice typed

Sunshine in Litigation in Connecticut — The Time Has Come

By Robert I. Reardon, Jr.

From cases involving defective tires, 3. That the interests in limiting public (c) all settlement agreements in any exploding gas tanks and child sexual access outweigh the publics’ need to matter before any civil court, whether or molestation by clergy, to doctors continu- know for health or safety reasons; not they are filed with or submitted to the ing to practice medicine after repeatedly and court. committing malpractice, the sealing of 4. No less restrictive means will ade- Section 2. Standard of Overcoming court records and confidential agreements quately protect the interest of those Presumption of Public Access. No court regarding discovery and settlement have seeking secrecy. may enter an order having the purpose or become more and more commonplace. We need your help to successfully enact effect of limiting public access to any of Litigation secrecy has become so common- the information or documents referred to place that at least fifteen states enacted this bill into law by writing your state leg- islators and your local media outlets to call in Section 1 of this subtitle unless it finds some form of legislation or court rule to attention to its importance. Below is the that the person seeking to limit public prohibit these practices. Secrecy in our entire text of the bill. Any suggestions for access has met its burden of proving, with courts undermines everyone’s right to improvement before submission would be clear and convincing evidence, that: know, denies us vital health and safety greatly appreciated. Please direct sugges- (a) there is a specific, serious and sub- information and leads to needless injuries tions for improvement to Robert I. Reardon, stantial interest in limiting public access and deaths. Jr., at [email protected]. to the information or documents; In 1994, CTLA first proposed model (b) the information or documents con- legislation known as the “Sunshine in PROPOSED ACT: stitute private facts concerning a natural Litigation Act” to address this problem. person or trade secret or other confiden- SUNSHINE IN LITIGATION ACT Each year since then, CTLA has lobbied tial research, development or commercially for its passage at the Connecticut AN ACT CONCERNING UNNECES- secret data; Legislature, and we will even more SARY SECRECY IN OUR COURTS (c) the interest in limiting public aggressively do so again this year. Be it enacted by the Senate and House access to the information or documents In short, the Sunshine in Litigation Act of Representatives in General Assembly clearly outweighs both the presumption of requires all information submitted to a convened: public access and any adverse effect that civil court, all civil discovery produced and limiting public access might have on any- Section 1. Civil Justice System Presumed all settlement agreements to be presumed one’s safety or health; and Open. The operations of the civil justice open to the public. To overcome this pre- (d) no less restrictive means that lim- system, including the following informa- sumption, the court must find that the per- iting public access will adequately and tion and documents concerning matters son seeking confidentiality must sustain effectively protect the interest asserted in before the civil courts, are presumed to be its burden of proving, by clear and convinc- secrecy. ing evidence, four separate requirements: open to the public: (a) all information and documents of Section 3. Access of Government Officials 1. That there is a substantial interest any nature filed with, submitted to, or and Similarly Situated Litigants. No court in limiting public access to the infor- issued by any civil court in connection may enter an order having the purpose or mation; with any matters before it; effect of limiting the access of the follow- 2. That the information contains pri- (b) all discovery in any matter before ing persons to information or documents vate facts concerning a natural per- any civil court, whether or not the discov- referred to in Section 1 of this subtitle, son or trade secrets; ery is filed with or submitted to the court; even when the standard set forth in and Section 2 of this subtitled has been met, if

56 22 Forum — January/February/March 2004 those persons voluntarily submit them- Section 5. Hearing on Motion to Overcome reasons for finding and concluding selves to the jurisdiction of the court for Presumption of Public Access. A public whether or not the showing required by the purpose of permitting enforcement of hearing shall be held in open court on all Section 2 of this subtitle has been made, the provisions of the court’s order limit- motions seeking to limit public access as and, if it finds and concludes that such a ing public access; soon as practicable, but not less than showing has been made, the specific (a) a federal, state or local govern- fourteen days after the motion is filed information and documents which are to ment official with regulatory, investiga- and notice or, where applicable, revised be closed to the public, and the time peri- tive, administrative, legislative, judicial, notice is posted and served. Any person od for which they are to be so closed. Any law enforcement, or other responsibility may appear, intervene, and be heard as a such order limiting public access shall be in regard to which the information or matter of right on any matter relevant to carefully tailored to ensure that it does documents is relevant; and the motion. not limit public access to any information (b) a litigant or an attorney for a liti- Section 6. In Camera Review and or documents in regard to which the gant in a case or potential case in regard Temporary Order Limiting Public Access. showing required by Section 2 of this to which the information or documents is Notwithstanding any of the foregoing, in subtitle has not been made. relevant. order to facilitate a determination of Section 8. Appeal of Order on Motion to Section 4. Notice of Motion to Overcome whether certain information and docu- Overcome Presumption of Public Access. Presumption of Public Access. An order ments are open to the public: Any order or portion thereof ruling on a limiting public access in accordance with (a) a court may receive and review motion to limit public access or any other Section 2 of this subtitle may only be information and documents in camera request to limit a person’s access to infor- entered upon a written motion, which either to determine whether they are dis- mation or documents referred to in shall be open to public inspection. Upon coverable or to determine whether a Section 1 of this subtitle shall be imme- filing the motion, or upon learning that motion to limit public access to them diately appealable by any person who any of the information contained in a should be granted; participated in the hearing preceding notice previously issued pursuant to this (b) upon a written motion and with issuance of the order. section is incorrect, the movant shall: notice to all parties in the case, a court Section 9. Intervention. Any person may (a) determine the time and place of may enter one temporary and non- intervene as a matter of right in any civil the hearing on the motion, pursuant to renewable order limiting public access to action at any time before or after judg- procedures to be established by the clerk specific information or documents for not ment to seek to obtain, modify, or vacate of the court; more than 30 calendar days so that a any order limiting public access to infor- (b) post a notice, in a public place to hearing can be held and a ruling entered mation and documents relevant to the be designated by the clerk of the court, on a motion to limit public access, if: case. Any person meeting the require- stating: the style and number of the case; (1) the movant demonstrates a com- ments of Section 3 of this subtitle may the identity of the movant; that a hearing pelling need for it by proving, through also intervene as a matter of right in any will be held in open court on a motion to affidavit or verified petition, specific civil action at any time before or after limit public access in the case; a brief but facts which establish that immediate and judgment to seek to obtain access to specific description of both the nature of irreparable injury will result in a specific information or documents pursuant to the case and the information or documents interest of the movant before notice can the provisions of that section. in regard to which secrecy is sought; the be given and a hearing held in accor- specific time and place of the hearing; that dance with the provisions of this subtitle; Section 10. Continuing Jurisdiction, any person may appear, intervene, and be (2) the order establishes the time Enforcement, and Modification. A court heard on matters relevant to the motion; and place of the hearing on the motion to that enters an order limiting public and the names, addresses, and phone limit public access and requires the party access retains continuing jurisdiction to numbers of the attorneys for the parties; seeking it to immediately provide the enforce, alter or vacate that order. (c) send a copy of the notice by first notice of the hearing required by this Motions to enforce, alter or vacate such class mail or speedier means, to all mem- subdue, unless such a hearing has previ- orders shall be subject to all of the provi- bers of the public, including all members ously been scheduled and such notice has sions of this subtitle, including the notice of the news media, who, in accordance previously been given; and and hearing provisions or Sections 4 and 5, with procedures to be established by the (3) the order explicitly provides that respectively. All orders properly entered clerk of the court, have filed a standing it may be withdrawn or modified upon in accordance with all of the provisions of request to receive notice of motions seek- the motion of any person, with notice to this subtitle shall not be reconsidered at ing to limit public access; and the parties and hearing conducted as the request of the party or intervenor (d) file a verified copy of the notice, soon as practicable, and shall not reduce who has actual notice of the hearing pre- along with proof of its posting and serv- in any way the burden of the person ceding issuance of the order unless the ice, with the clerk of the court for inclu- seeking to limit public access at the hear- party or intervenor shows that some rel- sion in the case file and the Clerk of the ing. evant circumstances, not necessarily Supreme Court for inclusion in the pub- related to the case in which the order was Section 7. Order on Motion to Overcome entered, has changed. No challenged or licly open file to be established to enable Presumption of Public Access. A motion the State/Commonwealth and its citizens reconsidered order limiting public access to limit public access shall be decided by shall remain in effect unless the stan- to monitor the extent to which motions to a written order, open to the public, that limit public access are being filed. dard set forth in Section 2 of this subtitle rules solely on the motion and states the is met at the time at which the order is style and number of the case, the specific challenged or reconsidered.

January/February/March 2004 — 22 Forum 57 Great-West Life v. Knudson: A health insurer’s right to reimbursement redux By F. Jerome O’Malley

Attorney O'Malley is a member of law and in equity,6 the Court ruled that Tobin, Carberry, O'Malley, Riley & ERISA only permitted actions that Selinger, P.C. of New London, were traditionally equitable in nature. Connecticut. Since the claim for reimbursement was In 1990, the U.S. Supreme Court premised upon a contractual obligation affirmed an ERISA plan's direct claim to pay money, it was “quintessentially against its beneficiary for the reim- an action at law” and, therefore, bursement of medical benefits. Despite unavailable.7 In effect, then, a direct a Pennsylvania law prohibiting subro- action against a beneficiary for reim- gation claims, the court ruled in FMC bursement of medical benefits can no Corp. v. Holliday1 that ERISA2 pre- longer be pursued under ERISA, even empted its application and authorized though Holliday had affirmed this reimbursement from the claimant’s tort exclusive remedy only a decade before.8 recovery. This right of recovery was Consequently, it appears that an substantially limited, if not effectively insurer has no remedy in Connecticut eliminated, in the recent decision of to secure reimbursement from a plan Great-West Life Insurance Co. v. beneficiary, since relief is also unavail- Knudson.3 able in Superior Court. Section 52-225c In Knudson, as in Holliday, medical expressly prohibits the recovery of expenses were paid an injured employ- medical benefits from a tort settlement ee under her company health plan. or judgment.9 And apart from our anti- Both plans contained subrogation subrogation statute, state common law clauses, requiring the repayment of claims for reimbursement, whether benefits from any subsequent tort premised on tort or contract theories, recovery; both beneficiaries refused have also been declared preempted by demands for full reimbursement; and ERISA.10 As either constitutes an both plan insurers then brought claims action at law, however, both are now under ERISA in reliance upon the deemed unauthorized by ERISA. employee’s contractual obligations. The Finally, fashioning an equitable claim similarities between Holliday and for restitution is also unavailing to an Knudson sharply diverge in their insurer. The Knudson court reasoned results, however, as reimbursement that restitution is a legal remedy when was denied in Knudson. premised on a contractual claim that In Holliday, the employee asserted seeks to impose personal liability on a that a state antisubrogation law, simi- plan beneficiary; it is, therefore, also lar to Connecticut’s Section 52-225c4, unauthorized by ERISA.11 precluded the plan from exercising its Unfortunately, Knudson does not subrogation rights against her tort unequivocally foreclose claims against recovery. The Supreme Court, however, a plaintiff’s counsel in possession of a noting the expansive language of client’s tort proceeds. While the Court ERISA,5 ruled that ERISA preempted clearly ruled that plan beneficiaries application of the Pennsylvania anti- were immune from reimbursement subrogation law and permitted the claims under ERISA, it suggested the reimbursement claim. Similarly, in possibility of equitable claims against Knudson, the plan insurer sought fiduciaries in possession of third party recovery of $411,000 in medical bene- proceeds. But as a scathing dissent fits from a $650,000 tort recovery. A points out,12 claims for a constructive state court had approved a settlement trust or equitable lien are unenforce- that allocated approximately $257,000 able once the tort proceeds have been to a special needs trust and Great-West distributed. Given the majority’s rul- filed an ERISA action in federal court, ing, counsel would have no obligation contesting the settlement’s failure to to refrain from distributing the pro- provide full reimbursement to the plan. ceeds absent a court order. And a plan But while acknowledging that ERISA insurer would need advance knowledge governed the insurer’s contractual of a settlement or judgment to obtain claim of reimbursement, the Court injunctive relief while the proceeds nonetheless denied recovery. In a were in counsel’s possession. An injunc- unique analysis that resurrected his- tion could not direct payment of com- torical distinctions between actions at pensatory or punitive damages allocat-

58 22 Forum — January/February/March 2004 ed in the settlement or judgment,13 as they are inarguably forms of legal CTLA Law Letters relief, and the imposition of a construc- tive trust is unlikely in a personal injury case since Connecticut has an established public policy against subro- Neil Ferstand, CTLA Executive Director, The proponents of tort reform are not gation claims prescribed in Section 52- has authored several Law Letters to the particularly interested in empirical reali- 225c. A court would therefore have no membership. We have included the most ty. Neither are they interested in truth identifiable basis for concluding that it recent letters in this column. telling, but their daily obfuscation and was unconscionable for plaintiff’s coun- misdirection is certainly getting a work- sel to distribute settlement proceeds to The Memory Hole out in the Connecticut daily press and in an injured client, as required for the Neil H. Ferstand, Executive Director what seem like weekly communications imposition of a trust.14 Finally, in the to legislators. As we move closer to the unlikely event that an equitable lien or “Sunlight is said to be the best of dis- February 4th start of the 2004 legislative constructive trust were created by a infectants: Electric light the most effi- session, their communication has become federal court order, equitable subroga- cient policeman.” relentless. Justice Louis D.Brandeis tion could be imposed only against tort The “Memory Hole” is, of course, a proceeds which fully compensate the Circa July 1986, the headline on the document disposal system in George insured’s loss.15 Thus, an insurer would front page of one of Connecticut’s best Orwell’s famous novel, 1984. The candi- not automatically receive full reim- known and respected newspapers report- dates for this incineration system were bursement of medical benefits, despite ed drastic changes to the legal system generally documents or pieces of infor- its contractual entitlement. In sum, that were designed to give relief to physi- mation whose continued existence would since no practical remedy exists for cians struggling with rapidly escalating very likely undermine the legitimacy of insurers in Connecticut after Knudson, malpractice premiums. But by 1987, one the state. The items were erased from liv- plaintiffs and their counsel can appro- state lawmaker was noted as saying, ing memory. Such is the living history of priately refuse medical reimbursement “The insurance industry now says those the efficacy of tort reform. claims as unenforceable. measures will have no effect on insur- But it doesn’t necessarily have to be _____ ance rates. We have been disappointed by that way. In fact, there’s a good chance 1 498 U.S. 52 (1990). See “FMC v. Holliday: A the response of the insurance industry. Health Insurer’s Right to Reimbursement some legislators with long memories or Revisited.” CTLA Forum, Vol. 9, No 2 (1991). The reforms we passed should have led to an interest in delving into our past will 2 Employees Retirement Income Security Act, 29 rate reductions because we made it more discover the fallacious promises made to U.S.C. §1001 et seq. difficult to recover, or set limits on recov- their predecessors in the 1970’s, 1980’s 3 534 U.S. 204 (2002). ery. But this hasn’t happened.” and 1990’s. 4 In pertinent part: “Unless otherwise provided by Fast forward to February of 2003. Let’s make sure you help us remind law, no insurer or any other person providing col- Jerome Harleston, Senior Attorney for legislators of the existence of the Memory lateral source benefits as defined in section 52- the Connecticut Office of Legislative 225b shall be entitled to recover the amount of Hole. In fact, why not call your state leg- any such benefits from the defendant or any other Research in a research paper entitled islators today and remind them. We’ll be person or entity as a result of any claim or action National Cap on Non-Economic Damages happy to help you. Call CTLA at (860) for damages for personal injury or wrongful death states, “The data are inconclusive as to regardless of whether such claim or action is 522-4345. resolved by settlement or judgment. the efficacy of tort reform as a remedy for periodic crises in the cost of malpractice 5 The “preemption clause is conspicuous for its You’d Think They’d Learn insurance. Previous rounds of tort reform breadth. It establishes as an area of exclusive fed- Neil H. Ferstand, Executive Director eral concern the subject of every state law that have not prevented such crises and tort relates to an employee benefit plan governed by reform does not address the issue of The current wide perception of a crisis ERISA.” Holliday, supra, 56. patient safety.” in both the availability and cost of liabil- 6 Characterized by the dissent as “. . . reeking unduly of the study, if not of the museum.” Quoting a report from the U.S. ity insurance echoes the “crises” of the Knudson, supra, 234. Healthcare Financing Administration mid 70s, early 80s and 90s. Then, as now, 7 Knudson, supra, 209. (HCFA), the National Association of all types of liability lines were effected, 8 Remarkably, Holliday is never cited, let alone Attorneys General, in a 1986 report, including the cost of insurance for munic- distinguished by the Court. entitled Cause of the Current Crisis of ipal governments. Interest rates and 9 Pajor v. Town of Wallingford, 47 Conn. App. 365 Unavailability and Affordability of insurance industry business practices (1997). Liability Insurance, states “Almost all were proven largely to blame, but 10 Ingersoll-Rand Company v. McClendon, 498 states enacted legislation in response to inevitably the tort system came under U.S. 133 (1990). the rapid rise in malpractice insurance heavy attack as the sole presumed culprit. 11 Knudson, supra, 213. premiums which occurred during the Then as now, insurance, business, 12 Id., supra, 227-229. mid-1970’s. The empirical results give no medical and manufacturing interests 13 Mertens v Hewitt Assoc., 508 U.S. 248, 256 clamored for limitations on lawsuits and (1993). indication that state legislative actions taken collectively, had their intended damages. Certain elements in govern- 14 Knudson, supra, 215. effects on premiums.” ment and a lazy press picked up on these 15 See 44 Am Jur. 2d §§1805, 1815, 1820; Berlinski v. Ouellette, 164 Conn. 482, 489 (1973). Am I missing something here, or are claims, fueling the controversy by pub- we down at the bottom of a Memory Hole lishing highly selective and misleading looking up at the insurance and organ- accounts of large verdicts that seemed to ized medical and business community lend truth to the criticisms. about to make another attempt to relieve Times have hardly changed. themselves onto the civil justice system? If tort reformers would just admit that their current agenda is an effort to assist

January/February/March 2004 — 22 Forum 59 the insurance industry in managing its access to health care.” own risks, it just might be less offensive. The Doc’s “Yellow Cake Uranium” This comment concerning the evi- But that candor could cause a further Neil H. Ferstand, Executive Director dence about the effects of restricting mal- negative impact on the industry’s reputa- “Few people realize” said David C. practice liability awards was the most tion, if that’s possible. The general public Johnson, Fellow at the Northern priceless statement in the seven-page would tend to look with even more suspi- California based think tank, issue brief: cion on an industry that purports to man- Commonweal Institute, “…that the criti- “By themselves however, such age everyone else’s risk when it can’t cisms of lawyers in our society are not changes do not affect economic efficiency; even manage its own. just the spontaneous expression of public they modify the distribution of gains and Now, as then, the industry with the ill will. They are part of a larger cam- losses to individuals and groups but do problem isn’t the medical community, nor paign both to protect corporate interests not create benefits or costs for society as is it the law. Again, it’s the insurance and to undermine the public status of a whole. The evidence for indirect effects industry, and again the problem has been trial attorneys and thereby deprive them on efficiency through changes in defen- self-inflicted. It’s certainly apparent, of political power. Even lawyer jokes’ and sive medicine, the availability of medical though, that the doctors are salivating cartoons are part of a campaign to por- care or the extent of malpractice — is at over the fact that limiting verdicts and tray trial lawyers in an unfavorable best ambiguous.” other tort reforms may greatly diminish light.” Anyone thinking “yellow cake their chances of being sued. Of course, it The American Tort Reform Association uranium?” certainly won’t help those they’ve griev- (ATRA) in a press release dated January ously harmed. 20, 2004, praised the president’s remarks Weapons of Mass Deception “Lawmakers could do more to reduce during the state of the union address to Neil H. Ferstand, Executive Director premiums by improving the structure of end lawsuit abuse as a critical barrier to the insurance marketplace, said Frank economic growth. ATRA went on to state “The things that will destroy us are: A. Sloan, an economics professor at Duke that the president’s comments on ending politics without principle; pleasure with- University who specializes in health pol- “frivolous and wasteful lawsuits” against out conscience; wealth without work; icy and management. Medical malprac- doctors would help to curb the rising cost knowledge without character; business tice “…is the most cyclical health policy of healthcare and that medical liability without morality and science without there is,” Professor Sloan said, adding, reform has been proven to keep access to humanity.” Mohandas K. Gandhi “There are periods of time when premi- healthcare affordable and accessible. Dr. Sara McBee is one of the “victim- ums stop going up, and then nobody’s One major problem. It’s not true. That ized” physicians President Bush cited in interested, then again we get a crisis and is if you believe the non-partisan his speech in Little Rock, Arkansas this everybody says juries are terrible.” Congressional Budget Office who, not past week. In describing this “…good Richard A. Oppel Jr., New York Times, two weeks ago, released an Economic and soul, who loves life to the point of where 1/17/03 Budget Issue Brief, dated January 6, she’s willing to take her talents and This is the fourth “crisis” in thirty 2004, entitled “Limiting Tort Liability for deliver babies,” the president used her to years. Again, there are the frenetic calls Medical Malpractice.” represent what he says is a civil justice for tort reform. When will proponents The brief reviews some of the reasons system out of control. and their legislative allies grow tired of why malpractice premiums have risen and Apparently, Mr. Bush believes no this charade? Anytime soon is doubtful. the effects on victims of restricting mal- wrong, regardless of its effect on victims So if tort reform passes, who benefits? practice liability for doctors. The authors and surviving family members deserves Certainly not the doctors. They may be go on to dissect the overused argument any modicum of justice. lucky to see a temporary fluctuation in made by the medical community that Perhaps the president can explain their rates. Now, as then, the insurance fear of lawsuits cause doctors to practice this to Linda and Roger Capper. Linda industry will clearly be the biggest defensive medicine and thereby drive up was one of Dr. McBee’s obstetrical beneficiary. the overall costs of medical care. In their patients. Their four year old son Levi This nationwide campaign was care- findings, CBO states, “Proponents of lim- now has a life expectancy of about 18 fully orchestrated with the doctors out iting malpractice liability have argued years. He will never advance functional- front. I suspect that the insurance indus- that much greater savings in healthcare ly beyond the age of 6 months. During try mesmerized the doctors with the costs would be possible through reduc- Levi’s delivery, according to the Capper’s promise of immunity. Why else would tions in the practice of defensive medi- lawyer, Fayetteville attorney Tim these caregivers use scare tactics against cine. However, some so-called defensive Brooks, and his two obstetrical experts, the public? They succeeded in passing medicine may be motivated less by liabil- “Dr. McBee did so many things wrong tort reform in several states, but as we ity concerns than by the income it gener- that it was hard for them to know where have seen the doctors did not benefit. ates for physicians or by the positive to begin their criticism.” As we approach the February 4th (albeit small) benefits to patients. On the “Her premiums continue to rise,” says start date of this legislative session, now basis of existing studies and its own Mr. Bush, “…and Dr. McBee has stopped would be a good time to contact your research CBO believes that savings from delivering babies, as a direct result of state representatives and remind them of reducing defensive medicine would be frivolous and junk lawsuits.” the history of the last 30 years. It’s cer- very small.” As to Dr. McBee’s new career move, I tainly time for these games of charades And what about the “physicians leav- would hope that the women of to be revealed as the lies they have ing the practice” threat posed by the Fayetteville consider themselves lucky. always been. Let’s not be fooled a fourth organized medical community? The CBO With the costs of healthcare skyrock- time. finds “…many reported reductions in eting, the Bush administration and its supply by health care providers could not allies within Congress — Chambers of be substantiated or did not widely affect Commerce, conservative think tanks and

60 22 Forum — January/February/March 2004 particularly insurance companies — are and legislative reach. after. eager to shift blame onto trial lawyers. How have they succeeded? Well, they In the tort reform debate, manipula- And doctors, who enjoy great credibility are students of history. They know better tion and lies are the all too common tactics and trust among voters are the key to than we that juries were purposely of the wagers of the war on civil justice. advancing this deception. Anyone who designed to thwart the exercise of limit- As in any good marketing scheme, the might suggest otherwise is either less power, be it executive, legislative, goal is instant message penetration, pre- deluding themselves or not paying much judicial or corporate. Most Americans senting a legal system gone mad. They attention. would be shocked to learn that in have accomplished that goal. Tort reform issues should be argued Congress and many state legislatures, One of the architects of the Newsweek dispassionately with respect for the corporate funded think tanks and their scheme is Philip K. Howard, a legal truth. That’s not happening because the flaks – not elected legislators have actu- reformer who has made a crusade of facts are not on the side of those advocat- ally written many of the state and feder- attacking the civil justice system through ing reform. They have to resort to the al laws under which we live and work. a series of books such as the “Death of Weapons of Mass Deception: myth, dis- Today, nearly a century after Teddy Common Sense” and “The Collapse of tortion and scare tactics. Roosevelt’s warning there is an eerie Common Good.” Coincidentally, The Weapons of Civil Justice — Truth sense of urgency in the air. The American “Common Good” is the name of Howard’s and Reason — can trump this deception. political system is awash in a tidal wave civil justice tort reforming think tank As we approach the 2004 legislative of corporate and foundation money all and public relations vehicle. session, here in Connecticut trial lawyers earmarked to manipulate the machinery The composition of the “Common face the increasing challenge of protect- of government. Good” Board of Trustees and Advisory ing their clients not only in the court- America’s corporate titans were not Board reveals this organization’s agenda. room, but also in the halls of the legisla- pleased with Roosevelt’s comments. Steel The organization is heavily weighted ture. Equal access to the courthouse, in magnate Henry Frick complaining of with major corporate interests that have many areas of tort law, is once again Roosevelt said “ . . . we bought the son of much to gain by limiting the rights of under threat. If we all wish to protect the a bitch and he didn’t stay bought.” Today, injured victims. A virtual “Who’s Who” in legal system we must all act. It will only Teddy Roosevelt is doing 360’s in his the land of tort reform. happen with your help. grave and probably wondering who will Three of the seven members of step forward to regain that “effective con- Common Good’s Board of Trustees, includ- Teddy’s Doing 360’s trol” of abusive corporations. ing its Chair and Founder (Howard), are Neil H. Ferstand, Executive Director Trial lawyers hold the key to regain- partners in the law firm of Covington ing some of that “effective control” today. and Burling. C&B has long represented “The citizens of the United States There’s an old adage in the marketing and advised the tobacco industry. The must effectively control the mighty com- business, “First you tell them. Then you firm has lobbied in Washington and state mercial forces which they themselves tell them what you told them. Then you capitols for Philip Morris, Brown & called into being. There can be no effec- tell them again.” The civil justice system Williamson, and Lorillard along with tive control of corporations while their and trial lawyers are the great levelers. representing the U.S. Tobacco Institute. political activity remains.” President Let’s not forget to tell whoever will listen Another Trustee is Judyth Pendell, a Theodore Roosevelt, 1910. what trial lawyers stand for. senior fellow at the conservative Corporate America long ago recog- Manhattan Institute and former Board nized that the civil justice system, with member of the American Tort Reform its citizen jury, challenges corporate Common Good Neil H. Ferstand, Executive Director Association. power. So it is certainly understandable, Their Advisory Board and Public though hardly justifiable, that powerful “Victims must have unlimited access Policy “think tank” members represent a interests have successfully orchestrated to the courts, because they have unlimit- litany of right-wing conservative ideo- a movement to denigrate the very system ed access to pain.” logues such as Robert Bork, Lynne Rev. Jesse Jackson, 1987 designed to offer the American people the Cheney, Irving and Bill Kristol and many necessary checks and balances on corpo- By now you surely have either seen, other prominent conservatives. Not sur- rate abuse. read or heard about the polemic pub- prisingly, Common Good’s hospital mem- To accomplish their goals they have lished this past week in Newsweek bership is lead by Dr. Thomas Frist, amassed vast financial and ideological Magazine entitled “Law Suit Wars.” whose brother, Majority Leader and U.S. assets (think tanks) funded by $200 mil- The series is devoid of facts and largely Senator Bill Frist, has lead the charge on lion in grants every year. Year after year. based on descriptions of decades of dis- medical malpractice reform in Groups such as the Heritage Foundation, credited arguments. It portrays an out- Washington. The Frist family owns The American Enterprise Institute, Hudson of-control legal system populated by Hospital Corporation of America, one of Institute, Manhattan Institute, Cato avaricious lawyers who take advantage the largest chains of for-profit hospitals. Institute, and Citizens for a Sound of soft-headed judges and fuzzy thinking Newsweek expended zero ink describ- Economy are a few of the most visible. juries — a system designed to extract ing the background of this group and These and nearly 500 more draw on $2.3 huge unrealistic awards from blameless the purpose behind their crusade. But billion dollars in assets from approxi- defendants for the sole benefit of lawyers under the rubric of “know thy enemy” mately 10 major conservative founda- and their mendacious clients. every lawyer should read it and send a tions such as Olin, Koch and Scaife. The This largely anecdotal series might be rebuttal. grants often take the form of large gener- convincing were it not for its failure to al operating grants that have all but produce facts to legitimize its claims. But allowed these groups to maintain and facts, or even a modicum of truth for that expand their infrastructure and public matter, are not what the designers were

January/February/March 2004 — 22 Forum 61 city of Waterbury is the center of the uni- believe that “big business…is adequately verse. There are many problems with concerned” with safety. Juries also Lawyer$ this statement, not the least of which is demonstrated a reluctance to find fault Neil H. Ferstand, Executive Director that the city’s flagship newspaper exists in industry practices. Most of the jurors The admonition is as potent now as it in a universe not shared with the rest of polled in the Hans and Lofquist study was when I first heard it 31 years ago in us. We should all tell the Waterbury made fewer comments denigrating busi- a political science class: “Never pick a Republican American editors to come ness compared to the more frequent neg- fight with anyone who buys ink by the down to earth and discuss their opinions ative evaluation of plaintiffs who seem to barrel.” in an open and intelligent manner. This almost always have mercenary motives. The professor’s warning seems partic- will garner more results than a disgust- Scholars have attributed these juror ularly apropos when considering the edi- ing display of arrogance. positions to pro-tort reform propaganda torial pages of the Waterbury Republican Address all comments to: Editor, that has occupied such a prominent role American newspaper. Someone, decades Waterbury Republican American, 389 in writings, commentary and everyday ago, and most assuredly a lawyer, Meadow Street, Waterbury, CT 06722 — discourse. UCLA professor Theodore must’ve picked a fight with the paper’s [email protected] Eisenburg noted that a “promising expla- editors. Ever since, the civil justice nation of the pro-defendant trend rests system and trial lawyers in particular Raising the Threat Level on the efforts of tort reformers not only to have borne the brunt of their corrosive Neil H. Ferstand, Executive Director secure passage of reform legislation, but commentary. also to change public perception and pol- One of their latest examples of invec- “It’s almost like fighting the war on icymaker opinion on the tort system.” tive is entitled “Lasso The Lawyer$.” The terrorists,” AIG CEO Hank Greenberg Using sometimes-graphic language spelling is correct right down to the final told a group in Boston recently. “I call the Greenberg railed against the American “$” which appears throughout the edito- plaintiff’s bar terrorists.” I suppose we tort system. “Our legal system is out of rial when discussing both “lawyer$” and should be grateful he didn’t wrap himself control,” he said “it’s a blight on the coun- their “plaintiff$” in the flag and call us “traitors” as well. try.” With the influence Greenberg and Readers are invited to feast on a That term seems to have gained some his ilk have accumulated in Washington panorama of dissembling and disputed currency lately, usually reserved for during the last three years, perhaps he facts and urged to consider them as those who disagree with aggressive and can prevail upon the Homeland Security gospel. Not just in the area of medical dangerous policies. Department to elevate the threat level. negligence, either. Plaintiffs and their Should we be surprised at Greenberg’s In matters of “tort reform” we know lawyers are portrayed as being ever invective? Some of us maybe. But those the threat to the civil justice system is “…ready with an anecdotal tear-jerk who have been watching and listening already “Severe.” story involving some ‘innocent victim’ closely know the intent of his message. whose infirmities were caused by one or Those who have sought to “reform” the When Hacks Rule, Policies Drool more of the despised industries — judicial and regulatory system often- Neil H. Ferstand, Executive Director automakers, pharmaceutical companies, times find themselves stymied when Big Tobacco, etc…” something as trivial as Constitutional “In order to make sure we’re able to According to the paper the “…vast rights and reason intrudes onto the create jobs at home, and to prevent jobs majority of malpractice cases are filed by debate. Thus, the frustration expressed from going overseas, this country must plaintiffs seeking to play lawsuit lottery” by Greenberg, who likens the reasoned have tort reform. Frivolous lawsuits, or and have nothing to do with negligence process of legislative checks and balances the threat of a frivolous lawsuit, creates or physician incompetence. regarding class-action litigation reform, an environment that is not conducive to The tone of the editorial is not new for to the “war on terror.” job creation and job expansion. Tort the Waterbury Republican, nor are the Some of our on-going battle here is not reform will help make it easier to keep words and rhetoric used to describe the against reality, but contrived perception. jobs here at home.” civil justice system — always in the poor- Corporate interests have clearly gained George W. Bush, Akron, Ohio, March 2004 est light and meant to sway the public ground influencing the public. Witness Am I missing something? Didn’t we away from holding wrongdoers account- the U.S. Chamber of Commerce and their have the same tort system in the 1990’s able. The repeating theme is that the recent announcement to spend up to $15 as we have today? You remember that wrongdoers will never get a fair shake as million for TV ad’s that highlight the decade — record economic growth and an long as lawyers and their whining plain- “hidden costs” of alleged plaintiff-driven outstanding increase in stock and portfo- tiffs are allowed to tell their story to litigation. lio values. Even without factoring the juries who can’t decide an outcome with- In this ever-escalating misinforma- “technology bubble,” there was record out passion or prejudice. tion campaign the most notable conse- employment and consumer confidence What is new and what should be quence for trial lawyers is the changing throughout the country. Correct me if I’m appalling to all lawyers, judges, legisla- attitudes of juries. Corporate America’s wrong, but wasn’t the 1990’s when we tors and the general public is the dis- effort to paint the legal system as out-of- had something resembling fiscal sanity gusting use of non-verbal symbols to control has certainly impacted delibera- at the federal level and an administra- blatantly denigrate one of the most pow- tions in the jury room. tion that took responsibility, with a few erful tools the people of this country have One study conducted by University of notable exceptions, for it’s actions. at their command. It is destructive and Delaware professors Valerie Hans and That was a time when we took the ugly. The editorial staff, which has used William Lofquist concluded that 83% of idea of being guardians of our seniors, these symbols more than once, should jurors think that there are "far to many and our children’s education and finan- not go unchallenged or the usage unno- frivolous lawsuits,” 57% believe that cial future seriously, not to mention our ticed. “lawsuits interfere with the development own financial future. There was talk of We’ve all heard many times that the of new and useful products.” And 51% “lock boxes.” Now the federal treasury is

62 22 Forum — January/February/March 2004 treated as a prize to be conquered with before they even enter the courthouse. devastation that tort reform would have the booty distributed to friends, corpo- Once again, in the name of tort reform, on our civil justice system. rate associates and political allies. And the propaganda front lines have extend- Vince Lombardi said, “The achieve- I’m not just talking about Connecticut. ed from the Courthouse to the Capitol. ments of an organization are the results But we were talking about the tort The fabricated “medical malpractice of the combined effort of each individual.” system weren’t we? crisis” is at the forefront of the “tort We need all our members to get involved reform” campaign in Connecticut and in this fight. We — You — can not Doesn’t today’s tort system force man- across the nation. I recognize that the afford the luxury of inactivity. ufacturers from other countries who majority of CTLA’s members repre- Please call me — there are things you want access to the U.S. market to meet sent injury victims of automobile col- can do to help. safety standards? Doesn’t this serve the lisions on a regular basis, and do not twin values of making American products represent victims of medical negli- more competitive, while also keeping our Who’s Driving Policy gence or do so infrequently. I suspect society safer from reckless cost cutting by Neil H. Ferstand, Executive Director that there is a feeling among many of manufacturers? these lawyers that current tort reform How is it possible that such a large Doesn’t tort law force Mexican truck- efforts will not have a significant impact problem as the so-called medical mal- ing companies, granted access to our on the rights of their clients or their prac- practice crisis has been on the radar highways by NAFTA, to inspect brakes tices. screen for thirty years without once and steering systems? American busi- These unsuspecting lawyers could not being the subject of a genuinely compre- ness publications said this was impor- be more naïve, nor be more wrong. The hensive study? It makes one think that tant to avoid “liability.” Actually, don’t present and ongoing attack on the the major player in this drama, the these trucking companies do it because Connecticut civil justice system is clear insurance industry, really doesn’t want tort law enforces safety standards (what and convincing evidence of an attack on one. Now why would that be? NHTSA is unable to do) and “liability” all injury victims, not just those who suf- Given the supposedly critical nature would only come from a horrible accident fer at the hands of doctors and hospitals. of the problem and the broad solutions caused by faulty brakes and poor or non- Last year, the trial lawyers of being proposed, it’s inexplicable that existent maintenance? American tort law Mississippi failed in their attempt to Congress hasn’t started requiring record is keeping Texas cross border highway dis- block “caps” on non-economic damages in keeping that would provide researchers asters from happening. Isn’t that ironic? medical malpractice cases. Last week, with reliable raw data. As we speak, tort law is a bone (or is it back for more, tort reformers in that Perhaps, as we all know, it’s easier a pretzel) stuck in the throat of corporate state claimed two more victories as the and certainly more profitable to blame it America. It’s the only place where average state Senate voted to cap noneconomic on the trial lawyers. And that’s some- American’s can go to battle the powerful damages for all civil justice cases and thing that would be easy for Grover on a nearly level playing field. the state Supreme court adopted new Norquist, who would like nothing better George W. Bush didn’t invent tort rules for handling mass litigation. than to cripple the trial lawyers and, by reform, but its promoters and political Mississippi Governor Haley Barbour has extension, the Democratic Party. The hacks have been and remain his most made tort reform a prime objective. “Tort Trial Bar is the major barrier standing important political sponsors. When he reform is the gateway to both more and between Norquist and the accomplish- became Governor of Texas in 1995, he better jobs as well as a healthy ment of his ultimate far-right goal — emerged from a meeting with tort Mississippi,” Barbour said. Variations on “shrinking government so small that it reformers and declared “reforming our this theme are being played out in could be drowned in the bathtub.” civil justice system” is a legislative Maryland, Missouri, New Hampshire, “Democrats used to anger him,” emergency. Governor Bush weighed-in, Georgia, Virginia, Vermont, Wisconsin, Norquist said recently. He’s past angry publicly denouncing “junk lawsuits” sup- Wyoming, Washington. The list goes on. now. “Do you get mad at cancer? We’ll posedly clogging Texas courts and hin- In Congress the House Judiciary defeat and crush their institutions, and dering business. Even though, at the Committee Chair is James F. the trial lawyers will go sell pizza.” G. time, the number of tort cases was quite Sensenbrenner, R-Wis. During an Norquist Profile — January 13, 2004 unremarkable by national standards. address last week to the National Grover Norquist, is, of course, the This all sounds familiar? Association President of Americans for Tax Reform A political hack has nothing with of Manufacturers (NAM) he stated, (ATR). An organization so powerful in which to promote a vacuous policy “Employers must persuade workers that Washington that his usual Wednesday except politics. The American people civil justice reform is in their best inter- morning invitation-only meetings draw almost always vote for policies that work. est if pro-tort reform forces hope to pre- congressmen, lobbyists, senior White There aren’t enough hacks, even at the vail.” Michael Baroody, NAM’s Executive House and Senate staffers, industry White House, to sell policies that don’t. VP, said that NAM is “committed” to hav- group leaders and right-wing policy ing its members engage manufacturing wonks. “When the White House sits Achievements of an Organization workers more effectively on tort reform down and says, ‘We want to get the word Neil H. Ferstand, Executive Director issues. out on something,’ the top of the list is Grover,” said conservative activist Peter We all know the challenges automo- CTLA, through its leadership and lob- Ferrara, a frequent meeting attendee. bile personal injury claims present. byists, has been diligent and aggressive ATR describes itself as a “non-parti- Persuading juries to award damages for in the campaign against all manner of san coalition of taxpayers” who oppose all pain and suffering, especially in the con- tort reform in Connecticut, not just med- ical malpractice. Yet, as these battles federal and state tax increases. Here’s a nective tissue case, is never easy. Years of little non-partisan quip for you. In a propaganda have made it even more dif- continue, particularly in the area of med- ical malpractice, many of our members press release describing the 2002 passage ficult. Juries are suspicious of plaintiffs of HR 2341 the Class Action reform meas- and prejudiced against their claims remain apathetic about the potential

January/February/March 2004 — 22 Forum 63 ure in the US House of Representatives, busy, challenging period, is not the day- who participate in one of our “Club ATR had this to say about the bill: to-day business operations of a profes- Memberships.” Where contributions go “Tort reform passage is a victory for sional organization. These things are directly toward our legislative advocacy, consumers and taxpayers alike,” said tax- important and fills up a good portion of experts, research and effort into making payer advocate Grover Norquist, who our days - but what makes it really chal- CTLA legislatively effective. heads Americans for Tax Reform in lenging is the recognition of what each of Now for the good news. Washington.” And when it becomes law it you must do in order to continue to effec- will mean the end of trial lawyers who tively represent your clients and to the Thankfully, there are many dedicat- seek to profit off of both productive enter- enormity of what we are called upon to ed, talented individuals in this organiza- prise and the many innocent plaintiffs do politically to survive. tion who work uncompensated and who are duped into being pawns for the It has been clear for many years that untiringly to do what needs to be done. greedy little bastards.” CTLA can not operate as a non-political They give of themselves, their staff their When considering how I would end membership organization, and it occurs money. They come to Hartford to testify this issue of CTLA’s Law Letter — it to me that many of our members (and before the legislature. They come to seemed only fitting that I suggest you many more lawyers who don’t even both- Board and Committee meetings to dis- take the time necessary to look more er to pay for membership) still just don’t cuss how in the world we can possibly closely at the center of power in get it. There are many that refuse to accomplish everything that we must in Washington, D.C. acknowledge the important work that order to prevent the slow erosion of You can not help but become this Association does. There are those the civil justice system. They leave intensely motivated with the realiza- who still do not understand that in their practices to go to organized phone tion that there are people like Grover Connecticut we are the only organization banks where they are asked to do the Norquist providing counsel and driv- that provides the first and last barrier worst of the worst —ask their peers to ing policy. before legal rights are legislated out of give money to support our lobbying existence. This is not some chimera or effort or simply renew their member- ship. Many of them have their calls Seeing Yourself in the Big Picture fantastical notion without substance. refused or their messages go unan- Neil H. Ferstand, Executive Director But there are those who believe that swered. This, despite the fact, that The last eighteen months have been none of this really matters. these attorney volunteers are giving extremely busy at the Connecticut Trial If they did there would be many more their time and money to help the very Lawyers Association. What has made it a than 295 out of nearly 1,500 members people who refuse them. We all must view what we do as a calling in order to begin to change the landscape of a threatened civil justice system. It can no longer be enough to work at justice one client or one case at a time behind the closed doors of your office. We all have no clear choice but to care about the big picture. We must continue to hold those with little regard for the injured, weak and power- less accountable. No one who disregards the ideals of this calling or the plight of injured clients should get a free pass — no one.

64 22 Forum — January/February/March 2004 CCTTLLAA Miscellany

or gross disfigurement or coma or retar- ever reason, are dissuaded from mammo- Newsworthy items of general interest dation is worth $250,000 — a fraction of grams or biopsies and have to learn to any insurance company CEO’s yearly live with a death sentence because our compensation. cancers were found too late. * * * * * In his talk, the president bent the But perhaps the worst evidence of the truth more than once, talking about hos- system’s disregard for malpractice hap- Distorting Facts in pitals no longer delivering babies. True, pens when several among us have suf- Malpractice Debate in September 2003, Southwest Region fered at the hands of the same doctor Medical Center in Little Rock stopped encounter one another. We wonder how By Jean Rexford delivering babies — but for reasons many more of us are out there and won- Jean Rexford is executive director of having nothing to do with medical mal- der why the medical societies and the the Connecticut Patient’s Rights Group, practice insurance costs. The hospital state health departments don’t remove an organization of some 160 people averaged only 12 deliveries per month. bad doctors who produce all the junk the formed in 2003. This essay appeared on Charles Smith, medical director of the president wants to eliminate. the Op-Ed page of the Hartford Courant University of Arkansas for Medical on February 2, 2004. Sciences, a medical center, said that * * * * * President Bush spoke a week ago in women prefer hospitals with the large Little Rock, Ark., about “junk” lawsuits. staff, technology and equipment to deal Statement of Joanne He said that “one of the reasons people with complications. Doroshow, Executive are finding their premiums are up, and The location President Bush chose to Director, Center for it’s hard to find a doc these days, is talk about “junk” lawsuits was Baptist because frivolous and junk lawsuits are Health Medical Center. Baptist Health Justice & Democracy, on threatening medicine across the coun- was the most profitable hospital in the Newsweek Cover try.” Arkansas in 2000, with $18 million in net Story of December 15, What he said was a blatant misrepre- income. Its profits increased by more sentation of facts. than $4 million in 2001. Baptist Health 2003, “Lawsuit Hell” This month, the Congressional paid its president $570,000-plus in In the December 15, 2003 issue of Budget Office found that malpractice salary and benefits in 2001 — more than Newsweek there was a feature article cap- costs account for less than 2 percent of double the lifetime limit on the non- tioned “Lawsuit Hell.” The Center for [national health care] spending.” CBO economic damages that George W. Bush Justice & Democracy responded with a found that caps would make essentially wants to impose on all victims of medical press release issued December 7, 2003, a no difference in health care costs or malpractice. Several other administra- few days after the December 15 issue of health insurance premiums. A bill with tors and physicians were also paid Newsweek hit the newsstands. The caps on permanent disabilities or quality- $250,000-plus in 2001 — more than the Center’s response corrects the record. The of-life damages and a ban on punitive lifetime cap proposed for malpractice vic- Newsweek article feeds into a false and damages, as advocated by Bush, “would tims. These figures may underestimate dangerous perception that the civil justice lower health care costs by only 0.4 per- their income, because they reflect only system is overflowing with frivolous law- cent to 0.5 percent, and the likely effect salary and benefits paid to them by suits. This is not the case, and the on health insurance premiums would be Baptist Health, not income from private response of the Center for Justice & comparably small.” practice or other income. Democracy, authored by its director Far from doing any good, the presi- The president implied that there are Joanne Doroshow, is an excellent analysis dent’s plan would broadly restrict the loads of “junk” medical malpractice suits. of the problems with the Newsweek constitutional rights of all American citi- Last year, there were 327 medical mal- article. practice lawsuits in Connecticut — about zens to go to court. And it would weaken In the Newsweek article, the argu- the same number each year for the last the system’s incentive to prevent medical ment is made primarily based on anec- ten years. There’s no explosion of such mistakes — the root cause of the costs dotes that are often not cited by name or lawsuits. associated with medical error. It will do even by date so they can be checked for Members of my organization, the nothing to help doctors who are being accuracy. Our experience has been when Connecticut Patients’ Rights Group, price-gouged by insurance companies. journalists or researchers have tracked know what it’s like to be treated like To the contrary, it will disproportion- down anecdotes in similar articles, they junk. As when one of our family members ately hurt the most severely injured find in virtually every situation that goes to the hospital for minor surgery Americans, including quadriplegics, brain- these cases have been misreported, exag- and ends up dead or in a coma. Or when damaged children, severe burn victims, gerated, described improperly or incom- our children die from illnesses and condi- people in nursing homes — anyone pletely or otherwise misused to make a tions that should easily have been recog- whose money losses are minimal, but point. This research will take some time, nized, but whose symptoms were ignored. whose quality of life is devastated. The although we do note right off that many president says their lifetime of paralysis Or when the women among us, for what-

January/February/March 2004 — 22 Forum 65 CCTTLLAAMiscellany so-called “cases” cited by Newsweek to independent researchers in this area, Civil Jury & Corporate Responsibility. support its opinion were never even filed. “Concerns of legal liability arising from Business on Trial: The Civil Jury & In the meantime, to assist readers try- failure to meet the recommended guide- Corporate Responsibility, New Haven and ing to interpret this article, here is what lines of the CPSC have lead to a wide- London: Yale University Press (2000). we do know: spread upgrading of playgrounds The Newsweek article includes a The Newsweek article fails to dis- in schools, public parks, and day-care number of wild exaggerations— cuss statistics on litigation, which centers.” In many situations, insurers largely discredited—about costs of actually show overall that tort (per- have played a large role in forcing the legal system and “defensive” sonal injury) litigation is decreasing compliance with CPSC standards and medicine. The article states that the in this country. Far from “exploding,” other safety changes. Wallach, Frances, legal system’s “costs to society” are an tort lawsuit filings have decreased 9 per- found at The World Playground Park estimated $200 billion a year, but fails to cent since 1992, according to the coun- & Recreation, Products and Services explain that this widely-discredited fig- try's most accurate and comprehensive Web Directory, http://www.world-play ure includes all insurance premiums, as overview of state court litigation ground.com/Article.htm. Gilchrist, Julie, well as the immense costs of operating statistics. (Examining the Work of State Schieber, Richard A. & David A. Sleet, the incredibly wasteful and inefficient Courts, 2002, a joint project of the “Legislative and Regulatory Strategies to insurance industry, or that most of the Conference of State Court Administrators, Reduce Childhood Unintentional costs of the system are the result of cor- the Bureau of Justice Statistics and the Injuries,” 10 Unintentional Injuries In porate wrongdoing causing injury, or that National Center for State Courts' Court Childhood 111, (Spring/Summer 2000). such numbers fail to factor in the cost Statistics projects.) The Newsweek article calls juries savings, particularly to the taxpayer, of The Newsweek article contains no overly sympathetic, emotional, and compensation and product safety. As actual data to support its opinion unable to handle complex issues, but Ralph Nader noted in congressional testi- that Americans today are “sue- close observers of the jury system, mony, “If consumer advocates came to happy” — in fact, the data shows the including judges, believe the oppo- Congress asking for a complete overhaul exact opposite is true. Each year, one site. Judges, who have more intimate of the nation’s regulatory laws based on in six Americans sustains an injury seri- knowledge of the system than anyone, made up and mischaracterized numbers ous enough to cause some economic loss. have “a high level of day-to-day confi- like these, we would rightfully be laughed Yet for the typical injury, “the injured dence in the jury system.… Only 1 per- out the door.” Committee on Commerce, person does not even consider the notion cent of the judges who responded [to a Science and Transportation, Sept. 19, of seeking compensation from some other 2000 survey of the entire federal judici- 1991. The U.S. General Accounting Office person or entity...” Only 10 percent ever ary] gave the jury system low has also criticized evidence used to sup- file a claim, which includes informal marks.…Ninety-one percent believe the port the notion that the tort system demands and insurance claims. Only system is in good condition needing, at encourages unnecessary defensive medi- two percent file a lawsuit.” The study best, only minor work.… Overwhelmingly cine, including the U.S. Department of concludes that these statistics are at …judges said they have great faith in Human Services (HHS) for publishing a odds with any notion that we live in an juries to solve complicated issues.… wildly inflated estimate, based on an overly litigious society. Compensation for Ninety-six percent said they agree with improper methodology, of potential sav- Accidental Injuries in the United States, jury verdicts most or all of the time. And ings from defensive medicine. GAO notes Rand Institute for Civil Justice (1991). nine of 10 judges responding said jurors that some defensive medicine is good The Newsweek article argues show considerable understanding of legal medicine, managed care discourages bad throughout that Little League issues involved in the cases they hear.” defensive medicine, and doctors do defen- coaches may be sued at the slightest Allen Pusey, “Judges rule in favor of sive medicine because they make money provocation, apparently unaware juries: Surveys by Morning News, SMU from defensive medicine. Analysis of that in 1997, Congress passed a law law school find overwhelming support for Medical Malpractice: Implications of that immunizes Little League coach- citizens’ role in court system,” Dallas Rising Premiums on Access to Health es from negligence lawsuits. Under Morning News, May 7, 2000.) Virtually Care, General Accounting Office, GAO- the Volunteer Protection Act of 1997, vol- every independent jury scholar has 03-836, August 2003. unteers for non-profit organizations or expressed the same confidence in the Newsweek supports placing all government programs around the coun- jury system. Stephen Daniels and medical malpractice cases into an try — even those dealing with children — Joanne Martin, authors of an exhaustive heavily bureaucratic administrative can no longer be held responsible for analysis of juries, found there to be “little tribunal run by medical profession- their negligence. orals, yet the article fails to make any The Newsweek article alleges that no empirical information available reference to past failures with such legal liability has led to more unsafe regarding many of the claims made by systems. The Virginia Birth-Related playgrounds; this is completely the reformers about juries and the civil Neurological Injury Compensation untrue. In 1991, the Consumer Product justice system.” Civil Juries and the Program, similar to this proposal and in Safety Commission (CPSC) issued its Politics of Reform, Evanston: Northwestern place for 15 years, has hurt patients, has “Handbook for Public Playground Safety,” University Press (1994). Similar findings done nothing to help doctors with their which has become “the state-of-the-art were made by Professor Valerie Hans in insurance problems and has allowed the source for accident claims.” According to her recent book, Business on Trial: The state to become a safe harbor for negli-

66 22 Forum — January/February/March 2004 CCTTLLAAMiscellany gent and reckless doctors who should not hikes that many doctors are experi- the President of the United States be practicing medicine at all, according to encing; there is a wealth of evidence focused on proven solutions such as class series of investigations in the Richmond demonstrating that the reason rates size.” Telephone interview with Becky Dispatch. Virginia’s Joint Legislative are rising has nothing to do with the Felischauer, NEA Senior Professional Audit and Review Commission has now legal system. Volcanic eruptions in Associate, January 2, 2001, confirming suggested “abandoning or overhauling ” insurance premiums for doctors have quotation cited by Burns, Jim, “Bush the program and “ridding the board of its occurred three times in the last 30 years wants Congress to pass teacher protection heavy presence of medical professionals.” — in the mid 1970s, again in the mid- act,” October 18, 2000, CNSNews.com, Bill McKelway, “Brain Injuries Spur No 1980s, and now today. The cause is found at http://childrenfirstamerica.org/ Action; Case Review, Required by Law, Is always the same: a severe drop in invest- DailyNews/00Oct/10180011.html. Jamie Not Being Done, Va. Study Found,” ment income for insurers compounded by Horowitz, spokesperson for the American Richmond Times Dispatch, Jan. 14, 2003; underpricing in prior years. Each time, Federation of Teachers, said, “I question Bill McKelway, “Study Faults Program insurers have tried to cover up their mis- how much of an issue this really is.... Not for Brain-Injured; Shortcomings Found managed underwriting by blaming only do we provide our members with in Care for Children,” Richmond Times lawyers and the legal system. Americans million dollar liability insurance, but Dispatch, Nov. 13, 2002; Liz Szabo & for Insurance Reform’s study, Stable also the school districts provide them Elizabeth Simpson, “Birth Injuries Get Losses/Unstable Rates, shows that since with liability coverage, generally....Even ‘Minimal Review; State Report Says 1975, medical malpractice paid claims though we provide our members with Board Must Hold Doctors Accountable,” per doctor in this country have tracked million dollar coverage, we’ve never had Virginian-Pilot, Nov. 15, 2002. Bill medical inflation very closely (slightly a million dollar client. I don’t think fear McKelway, “Brain-Injury Program’s higher than inflation from 1975 to 1985 of lawsuits is keeping teachers from Outlook Dim; Cost Savings for Doctors and flat since). In other words, payouts doing their jobs, and so I question the Meant Less for Children,” Richmond have risen almost precisely in sync with extent of the problem" Telephone inter- Times Dispatch, Nov. 16, 2002. Bill medical inflation. Moreover, contrary to view with Jamie Horowitz, January 2, McKelway, “Danville Has High Birth- what the insurance and medical lobbies 2001, confirming quotation cited by Injury Rate; Critics Say Virginia Law have alleged, the years 2001 and 2002 Burns, Jim, "Bush wants Congress to Shields Doctors from Lawsuits,” News saw no “explosion” in medical malprac- pass teacher protection act," October 18, Virginian, June 1, 2003.There are many tice insurer payouts or costs to justify 2000, CNSNews.com, found at http://chil- other reasons why such systems are unfair sudden rate hikes. In fact, rather than drenfirstamerica.org/DailyNews/00Oct/1 to patients and will lead to more medical exploding, inflation-adjusted payouts per 0180011.html. errors. See, e.g., http://centerjd.org/ doctor dropped from 2001 to 2002. These The Newsweek article mentions MassTestimonyF.pdf data confirm that neither jury verdicts almost nothing about the critical The Newsweek article blames liti- nor any other factor affecting total claims benefits of our civil justice system. gation for the “culture of secrecy” paid by insurance companies that write Society benefits in countless ways as a that exists in hospitals, yet history medical malpractice insurance have had result of lawsuits: they prevent future shows that when you remove litiga- much impact on the system’s overall injuries by removing dangerous products tion as a factor, secrecy still exists. costs over time. See, http://www.insur- and practices from the marketplace and In Massachusetts, for example, where ance-spurring safety innovation; they educate nearly all hospitals fall under the state’s reform.org. the public to unnecessary and unaccept- charitable immunity laws that cap their The Newsweek article states that able risks associated with some products liability at $20,000, hospitals are still teachers are not discliplining stu- and services through disclosure of “vastly underreporting their mistakes to dents for fear of litigation; it fails to facts discovered during trial; and they regulators and the public.” According to include statements by teachers who provide authoritative judicial forums Boston Magazine, “doctors, either out of do not support this view. In a state- for the ethical growth of law. See CJ&D’s shame, a fear of being sued or disci- ment responding to President Bush’s pro- study, Lifesavers, http://centerjd.org/free/ plined, or anxiety about their reputa- posal to provide some immunity to teach- Lifesavers.pdf. The power and authority tions, rarely talk openly about their ers who hit children — a law which did of juries represents an important coun- errors.…The biggest challenge is finding pass — Bob Chase, President of the terweight to the dominance of organized a way to break the culture of silence in National Education Association, said, moneyed interests elsewhere in our gov- hospital corridors that has long crippled “Our members tell us the single thing ernment. Newsweek ignored all of this in efforts to cut medical errors, just as the that they would like, to restore discipline its article. It also ignored observations by blue wall of silence has stifled police and order to classrooms, is to lower class doctors like Dr. Wayne Cohen, who in investigations.” Doug Most, “The Silent size. That’s the proven way to improve 1995 was medical director of Bronx Treatment,” Boston Magazine, Feb. 2003. discipline and learning. Governor Bush’s Municipal Hospital, who said, “The city The Newsweek article blames liti- proposal is simply a call for another was spending so much money defending gation for the astronomical rate piece of federal legislation. We’d rather obstetrics suits, they just made a deci-

January/February/March 2004 — 22 Forum 67 CCTTLLAAMiscellany sion that it would be cheaper to hire peo- plaintiff is the message, instead of corpo- their conduct.” ple who knew what they were doing.” rate responsibility. Hmmmmn. Mr. Wenner tells us these Dean Baquet and Jane Fritsch, “New A plaintiff’s attorney has a duty to passages have been distorted: All he’s York’s Public Hospitals Fail, and Babies exclude jurors who hold attitudes so trying to do is ensure a fair trial for Are the Victims,” New York Times, March extreme they cannot decide the case plaintiffs. But what does it tell you about 5, 1995. based on evidence. Both sides must have the current state of our legal system that The Newsweek article fails to pro- a fair and impartial jury. That’s not an the same virtues that would be an asset vide readers with any background anti-religious or anti-personal-responsi- in a friend or spouse or employee are information on the law firm that bility message. On the contrary, I advo- deemed a liability in a jury of one’s peers? Phil Howard, head of the group cate impaneling jurors who are willing to “Common Good,” represents, so apply the personal-responsibility bias * * * * * readers can make a more informed equally to both sides. That is called opinion as to his proposals to elimi- fairness. Statement by David S. nate the jury system. Howard repre- More than 200 years ago, Chief Casey, Jr., ATLA sents the law firm of Covington & Justice John Marshall wrote, “The main Burling. Covington & Burling is not sim- reason the jury system is respected is the President, in Response ply a firm that has represented some of public expects a juror to be unbiased.” I to President Bush’s our country’s most unsafe industries, like suppose tort reformers would have dis- Assault on the Legal tobacco and chemical. It is actually one of missed Justice Marshall as a former trial the of the principal architects of the so- lawyer. Corporate America doesn’t want Rights of American called “tort reform” movement, seeking juries that apply standards of personal Families in His State of to immunize industries by taking power responsibility fairly to both sides — that the Union Address away from juries and replacing it with would result in accountability. “President Bush tonight blamed administrative systems over which David A. Wenner, J.D. America’s economic problems on the politicians — and special interest money Phoenix, Ariz. lawyers who represent consumers and — have more control. Throughout the workers who make our economy run. He 1990s, Covington served as a funnel for ‘Personal Responsibility Bias’ said it is in America’s economic interest tobacco money to so-called “tort reform” We’ve all heard of race bias, gender to take away the legal rights of American groups, both at the national and state bias, class bias, sexual orientation bias, families. level, and sometimes helped to set up et cetera. But maybe only a psychothera- “It won’t create jobs or help our econo- those groups. Center for Justice & pist turned trial lawyer could come up my to penalize those who suffer perma- Democracy and Public Citizen, The with something called “personal respon- nent, life-altering injuries as a result of CALA Files (1999). sibility bias.” Apparently this affliction is medical malpractice, families defrauded especially pronounced among strange by wrongdoing corporations, and those * * * * * people with “traditional family values” poisoned by asbestos companies who- Opinion: Companies and “strong religious beliefs.” with their insurers-knew and covered up That, at least, is the view offered by the lethal dangers of asbestos for on Trial Play Blame-the- David A. Wenner in an $800 handbook decades. Plaintiff Card offered by the American Trial Lawyers “The sad fact is that those who want The following opinions appeared in Association. Entitled ATLA’s Litigating to reward corporate abuse at the expense the Wall Street Journal on Janary 20, Tort Cases, the book is advertised as of the legal rights our Founders believed 2004 and January 12, 2004, respectively. “essential to every trial lawyer’s library!” essential to our democracy don’t trust the As a recent dispatch by CNSNews.com American people. They don’t trust the Your Jan. 12 editorial “Personal reports, in a chapter on juries Mr. men and women — our friends, neigh- Editorial Bias” stated that I advised trial Wenner suggests that Americans with a bors, and co-workers — who serve on attorneys representing injured workers keen sense of personal responsibility are juries and listen to all the facts of a spe- and patients to exclude from juries peo- just not the type of people with whom you cific case. They trust politicians and ple who have strong beliefs about religion want to try to play the “blame game” -- corporate executives, not citizen juries. or personal responsibility. especially “if the plaintiff was in the best Victims of medical malpractice, con- In fact, I wrote that years of research position to avoid the injury.” sumer scams, and toxic pollution deserve suggest individuals who hold extreme “The personal responsibility juror,” better. opinions about personal responsibility writes Mr. Wenner, who served as co- “Limiting the compensation a jury can often cannot be fair to either side. By chair of ATLA’s Blue Ribbon Commission offer a child paralyzed by a negligent doc- “extreme,” I mean people who believe on Juror Bias, “tends to see the world tor or a parent abused in a nursing home, that no matter what the circumstances, with bright line rules on how people restricting legitimate class action law- those who seek redress in court for should act.... People should be self- suits, and bailing out asbestos companies injuries or death are somehow to blame. reliant, responsible, and self-disciplined. — these are not ‘reforms.’ They are pay- They should be able to foresee and avoid When people act irresponsibly and are offs to the insurance, tobacco, drug, every danger, even when big business not self-disciplined, there are conse- chemical, and other special interests that was the only one that could foresee and quences. People must be accountable for have spent billions of dollars to avoid prevent the risk and injury. Blame-the-

68 22 Forum — January/February/March 2004 CCTTLLAAMiscellany being held accountable for their actions.” But the early signs are not encourag- This article appeared in the New York ing, said Dan Lambe, executive director Times on January 24, 2004. * * * * * of the nonprofit consumer group that led Scientists have found more evidence opposition to the amendment. for a possible link between non-Hodgkin’s Insurers Raise Political “Promises were made, legal rights lymphoma and long-term use of dark Profile With Campaign were sacrificed, the Texas Constitution hair dye. A study of more than 1,300 Contributions was rewritten to appease the insurance women in Connecticut shows that those industry ... and someone has to answer who began coloring their hair before 1980 For the complete story see Bestwire on why we’re not seeing relief,” Lambe told A.M. Best’s website, http://www.ambest.com increased their chance of developing the the Austin American-Statesman for a disease by 40 percent. (Subscription necessary). Sunday story. So far in the 2004 election cycle, And among those who used perma- Some of the companies that have not nent rather than nonpermanent dyes, insurers have given $9,729,800 to nation- lowered their rates blamed a surge of al-level candidates, according to an arti- who chose dark colors — browns, reds lawsuits filed before the law took effect. and black — and who dyed their hair fre- cle in the January 19 issue of BestWeek, Although official statistics are unavail- and the industry now ranks as the sixth- quently (eight times a year or more) for able, the law’s supporters say malprac- at least 25 years, the risk doubled, said largest group of donors to political cam- tice claims increased by as much as 300 paigns. According to Federal Election Dr. Tongzhang Zheng, a Yale epidemiolo- percent in the months before Proposition gist who led the study. The results are Commission data released in early 12 passed. December, more than two-thirds of that published in the current issue of the “It’s going to take a while for the dust American Journal of Epidemiology. money, 68%, has gone to Republicans. to settle and for us to see the world Those donations are in line with insur- “For those who used light colors, there through this new reality,” Insurance was no such increase in risk,’’ Dr. Zheng ers’ giving patterns during the 2002 elec- Department spokesman Jim Hurley said. tion cycle, when they gave 69% of their noted. Other companies said they could not Nor was there significantly increased money to Republicans. The increased giv- lower their rates because the cap will ing, relative to other industries, comes as risk among women who used nonperma- save them very little money. nent dyes. The difference between per- several issues crucial to insurers’ finan- The Joint Underwriting Association, a cial health are looming again: class- manent and nonpermanent dyes is that state-run pool that serves as a safety net permanent ones are mixed with an oxi- action lawsuit reform; changes to med- for doctors who can’t find affordable ical-malpractice liability and multibil- dizing agent. In that process, new chem- insurance elsewhere, asked state regula- icals are created, some of which may be lion- dollar asbestos suits in state and tors for a 35 percent rate increase after federal courts. carcinogenic, Dr. Zheng said. the amendment passed. Non-Hodgkin’s lymphoma is a form of The cap on damages would not affect cancer that begins in the body’s lymph * * * * * its rates, the association said, because system. The average American woman Malpractice Insurance most of its policies are for less than the has a 1-in-57 chance of developing the cap. disease in her lifetime, according to the Rate Still High Despite The Insurance Department turned American Cancer Society. For a man, the Amendment down the request. The association, which chance is 1 in 48. insures about 2,500 doctors, is trying to This article appeared in the Dallas- Suspicions that hair dyes might determine what it will do next, General increase cancer risk have been around Forth Worth Star Telegram on January Manager Joe Chilton said. 25, 2004. since the 1970’s, said Dr. Eugenia Calle, Two other major carriers, the Doctors the cancer society’s director of analytic A controversial amendment to the Co. and American Physician Insurance epidemiology, but studies over the years state’s constitution was supposed to Exchange, have not lowered rates or have found no connection between the lower medical malpractice insurance requested increases. dyes and most forms of cancer. costs for doctors, but few have seen their “We’re eager to show that we’re The Yale researchers and the National rates go down in the four months since responding to the (new laws), but we Cancer Institute are now looking into voters narrowly approved it. have a fiduciary responsibility to the whether there are any genetic influences The state’s largest malpractice insur- company to make sure our rates are well that might make certain women more er, the Texas Medical Liability Trust, has thought out,” Insurance Exchange likely to develop lymphoma after expo- lowered rates 12 percent for about 11,000 President Maury Magids said. sure to dye. of the state’s 38,000 doctors. Other com- If the new caps seem to be working, Because all the studies done so far, panies are either holding rates steady or Insurance Exchange may start lowering including the latest one, have been obser- have requested rate increases as high as rates this summer, Magids said. vational rather than clinical, their find- 35 percent from the state Department of ings do not provide evidence that hair Insurance. * * * * * dye causes lymphoma, said Gerald Supporters of Proposition 12, which McEwen, vice president for science at placed a $250,000 cap on noneconomic Study Links Some Hair the Cosmetic, Toiletry and Fragrance damage awards such as pain and suffer- Dyes to Kind of Cancer Association, a trade group in Washington. ing in medical lawsuits, say it’s too early By Mary Duenwald “There’s no smoking gun here,” Mr. to judge the law. McEwen said, “no causal relationship.”

January/February/March 2004 — 22 Forum 69 CCTTLLAAMiscellany

In this study, the researchers found no (GAO) report “Medical Malpractice: report is yet another piece of evidence increase in cancer risk among women Implication of Rising Premiums on which proves how meritless the tort who started dying their hair after 1980, Access to Health Care”, dealt a devastat- reformers’ arguments are. It should help no matter how frequently they did so or ing blow to the sponsors of so-called “tort all of us who believe fervently in the civil what color they used. In the late 1970’s, reform”. The report finds that medical justice system and the rights of the hair dye makers stopped using certain malpractice insurance problems have injured to stand firm in our commitment coal-tar ingredients that had been found had little impact on patients’ access to to protect patients and let juries decide. to cause cancer when fed to laboratory health care, and where access issues An insurance crisis demands an rats and mice. exist (as in certain rural areas), they are insurance solution. To do otherwise is to “This is the first study that’s been able the result of numerous preexisting fac- balance insurance companies’ books on to look at the time period after 1980,” tors unrelated to the legal system. the backs of innocent victims. said Dr. Shelia Hoar Zahm, deputy direc- The findings of the report so clearly tor of cancer epidemiology and genetics suggest that the AMA has provided mis- * * * * * at the National Cancer Institute, who leading information to legislators, to the collaborated on the study. “It suggests public, and even to their own members, Reject Gun Lawsuit that the later formulations are safer. If that national and local consumer groups, Immunity the risk is limited to those people who have demanded that the AMA retract This editorial appeared in the started use before 1980, it means we’re this false information. Hartford Courant on February 23, 2004. really in better shape now.” Interestingly, the GAO report was Another possibility, however, is that originally requested by Republican Senate action is imminent on an out- women have not had time to use the new House Chairs James Sensenbrenner, Jr., rageous bill that would give the gun products long enough for them to have W.J. “Billy” Tauzin, and Steve Chabot. industry broad immunity from civil law- any adverse effect, Dr. Zheng said. “It’s Before issuing its final report the GAO suits — a privilege no other industry very hard for us to say that now the prod- provided a draft to the AMA. The AMA enjoys. ucts are safe,” he said. asked the GAO to withhold release of the Called the Protection of Lawful Previous studies on the association report and tried to convince the GAO to Commerce in Firearms Act, the special- between hair dye and non-Hodgkin’s revise its findings. Despite this, the GAO interest measure would bar most civil lymphoma have been mixed. A few have stuck by its findings. A copy of the com- lawsuits against gun makers, importers shown no association, but two, one done plete GAO report can be found online at and dealers. The bill would be retroac- in 1988 and one in 1992, have suggested http://www.gao.gov/cgi-bin/getrpt?GAO- tive, requiring the dismissal of all pend- that there may be a link. 03-836. Here are some of the pertinent ing lawsuits. One example is the lawsuit If hair dye does play some role in lym- conclusions to be drawn from the report: filed by victims of the Greater phoma, Dr. Calle said, it would make 1. GAO found claims of a widespread Washington, D.C., sniper shootings sense that the darker colors, which have health care access crisis to be false or against the store and the factory that greater concentrations of ingredients, wildly exaggerated, and where access were the sources of the assault rifle used would have the strongest effect. issues exist, there are multiple other in the slayings. Another case involves a reasons. lawsuit against a pawnshop filed by two * * * * * 2. Claims that the tort system encour- New Jersey police officers who were ages unnecessary defensive practice of wounded by a burglary suspect. He fired New GAO Report medicine are unsupported. a gun that was part of a batch of weapons Destroys Tort Reformers’ 3. On a per capita basis, medical mal- purchased from the pawnshop under sus- practice claims payments have grown picious circumstances. Arguments: Consumer slower than inflation from 1996 to 2002, The National Rifle Association has Groups Ask AMA to whether damage caps were in place or made lawsuit immunity a top priority Retract False Statements not. this year. Too many members of Congress 4. Factors other than caps on non- seem willing to bow before the gun lobby. to Lawmakers economic damages affect malpractice Last year, the measure easily passed the By Matthew G. Knopp premiums and claims payment trends House. Matthew Knopp is a principal in the (for example, state laws on premium rate The Senate has a chance to block this firm of Peterson, Young, Putra, Fletcher, regulation and insurance company unprecedented surrender of the right of Zeder, Massong & Knopp, P.S. in Seattle, investment decisions). plaintiffs to seek redress in court when Washington. He is vice-president of the 5. Surveys on which the AMA has gun dealers or manufacturers are negli- Washington State Trial Lawyers based its claims are unreliable. gent or reckless. Association Public Affairs Committee. 6. The AMA and certain state medical If the NRA measure becomes law, gun This article appeared in the November societies have intentionally walked out makers will have little incentive to vol- 2003 issue of Trial News, a publication of on their patients and closed clinics on untarily add safety features to weapons. WSTLA. occasion - not because they lost coverage, Already, they are exempt from regulation but as a political strategy to pressure for under the 1972 law that created the The findings of the latest (August damages caps. Consumer Product Safety Commission. 2003) US General Accounting Office The bottom line is that this GAO Gun proponents claim they want to

70 22 Forum — January/February/March 2004 CCTTLLAAMiscellany stem frivolous lawsuits. They also argue his message and Mr. Bush was promising position. Tellingly, however, neither Mr. that victims of gun violence ought to sue to be a uniter, not a divider. Both men Bush’s friends nor the White House those who misuse weapons, not those knew from their polling that victory denied that any of the incidents listed in who manufacture them. would belong to the one who captured the the report — all had been reported before But the gun industry already is pro- affections of a small number of wavering in newspapers, trade magazines and sci- tected from frivolous lawsuits because voters in a few states, and both tried des- entific journals — had occurred. The best plaintiffs must prove negligence or reck- perately to come up with the fuzzy, cen- they could muster was a lame rejoinder less behavior, just as in any other con- trist message to win them over. from Dr. John Marburger III, Mr. Bush’s sumer product case. It’s not surprising that in 2000 many science adviser, who said that these were Denying victims a basic right would people thought they could afford to disconnected episodes reflecting normal be a travesty. The Senate ought to defeat express their irritation with a vote for bureaucratic disagreements, none of this giveaway to the gun lobby. Mr. Nader. If they did that again this them adding up to a “a pattern’’ of distor- November, it would be a repudiation of tion or disrespect for science. * * * * * the Democratic nominee so thorough We respectfully urge Dr. Marburger to that the party would certainly have big- look again. On global warming alone, the Ralph Nader Does ger problems than third-party candi- administration belittled, misrepresented, it Again dates to worry about. altered or quashed multiple reports sug- The most regrettable thing about Mr. gesting a clear link between greenhouse This editorial appeared in the New Nader’s new candidacy is not how it is gas emissions and the burning of fossil York Times on February 23, 2004. likely to affect the election, but how it fuels like coal and oil. A study detailing Four years ago, when people told will affect Mr. Nader’s own legacy. Ralph the impact of mercury emissions from Ralph Nader that his Green Party candi- Nader has been one of the giants of the power plants was sanitized to industry dacy might split the Democratic vote and American reform movement. His cru- specifications. Another study suggesting elect George W. Bush president, Mr. sades for consumer rights and product that a Congressional clean-air bill would Nader said Al Gore and Mr. Bush were so safety alone should earn him a place in achieve greater pollution reductions than much alike that it didn’t really matter history. But he has always been an out- Mr. Bush’s own plan, at approximately who won. The worst that could happen, sider, and his candidacy in 2000 seemed the same cost, was withheld. It does not he sometimes added, was that Mr. Bush fueled by bitterness at the way he had take much effort to find a pattern of sup- would turn out to be far more conserva- been marginalized in Democratic poli- pressing inconvenient facts that might tive than expected. That would then tics. His anger is understandable, but it force Mr. Bush’s friends in the oil, gas mobilize Democrats and create a healthy would be a tragedy if Mr. Nader allowed and coal industries to spend more on pol- new sense of urgency about progressive it to give the story of his career a sad and lution control. issues. bitter ending. The report details similar shenani- Well, four years later the Democrats gans involving other agencies, including are nothing if not mobilized. Yet Mr. Agriculture, Interior and even, on repro- Nader isn’t satisfied. He’s running again, * * * * * ductive health issues, the Centers for this time as an independent, to the hor- Uses and Abuses Disease Control. It also criticizes the ror of both friends and critics. It was Mr. administration for stacking advisory Nader, they say, who drained votes away of Science committees with industry representa- from Mr. Gore in critical states like This editorial appeared in the New tives and disbanding panels that provid- Florida and New Hampshire, throwing York Times on February 23, 2004. ed unwanted advice. Collected in one the White House to Mr. Bush. The idea Although the Bush administration is place, this material gives a portrait that he’s prepared to do it again has hardly the first to politicize science, no of governmentwide insensitivity to scien- made them both terrified and furious. administration in recent memory has so tific standards that, unless corrected, Their concern seems overblown. If Mr. shamelessly distorted scientific findings will further undermine the administra- Nader didn’t learn anything from the for policy reasons or suppressed them tion’s credibility and the morale of its 2000 election, the voters certainly did. when they conflict with political goals. scientists. People might have voted for him once This is the nub of an indictment deliv- under the impression that sending a ered last week by more than 60 prominent * * * * * message was more important than pick- scientists, including 20 Nobel laureates. ing the next president. We doubt very Their statement was accompanied by Please Oppose Arbitrary much that they will make the same mis- a report published by the Union of Caps take twice. Concerned Scientists, listing cases where So much has happened in the last four the administration has manipulated sci- The Connecticut Trial Lawyers years that it’s hard to remember how low ence on environmental and other issues. Association respectfully urges you to the stakes seemed when Mr. Gore and President Bush’s supporters promptly oppose an arbitrary cap on noneconomic Mr. Bush were running. The country was denounced the statement and the report damages in medical malpractice cases. at peace and prosperous. The big issue in as an overdrawn and politically motivat- ● Putting a legislative cap on noneco- Washington was what to do with the ed work issued in an election year by an nomic damages is a strong statement budget surplus. Mr. Gore kept changing advocacy group known for its liberal dis- that juries of regular citizens are not able

January/February/March 2004 — 22 Forum 71 CCTTLLAAMiscellany to––and should not be able to––make periodic malpractice insurance An overwhelming amount of what we reasonable decisions about the amount of crises. Previous rounds of tort reform know about the human body and its dis- noneconomic damages that an injured have not prevented periodic mal- eases was discovered by means of autop- person is entitled to receive. For roughly practice insurance crises. Tort sies. X-rays and M.R.I.’s may create the 200 years, juries have been making these reform does not address the issue of illusion that the human body is now, important decisions, and juries have also patient safety.” somehow, translucent, more open to the been making important decisions about Please do not change the jury system scientific eye, but the fact remains that criminal convictions and penalties. The with an arbitrary cap (that doesn’t even in many ways, we are still as opaque as jury system works fairly and should not help with insurance rates). Thank you. we ever were. Hospitals can discover how be restricted. well they’re doing not only by the number ● An arbitrary cap on noneconomic * * * * * of people they cure, but also by closely damages often penalizes certain injured examining a reasonable percentage of victims (children, women and senior What the Body Knows those they don’t cure. To assume that a citizens) who often times cannot show This editorial appeared in the New patient has died of a diagnosed disease significant economic losses, including York Times on March 4, 2004. is, too often, to assume too much. lost wages or lost earning capacity, as a It’s hard for most of us to think of an result of their injuries. autopsy as an essential part of normal * * * * * ● Arbitrary caps of different shapes medical practice. It seems, somehow, so and sizes have been enacted in several Sweat the Cheesy Stuff after the fact. In the past few decades, other states, but insurance rate data the rate at which hospitals conduct This editorial appeared in the New from these states clearly show that the autopsies has plummeted, to perhaps 5 York Times on March 28, 2004. caps are doing little or nothing to help percent of hospital deaths today, from 41 As Sheldon Silver, the New York insurance rates. A January 31, 2003 CT percent in 1961. No one knows the exact Assembly speaker, learned recently, OLR report shows the 2002 estimated number because the National Center for whatever happens in Vegas does not average premium increases in states that Health Statistics stopped collecting always stay in Vegas. Mr. Silver and his have caps. The following is a sampling of autopsy numbers after 1994, when the wife went there on vacation two years these states: rate stood at 9.4 percent. ago. They hit the jackpot as soon as they Virginia: 101.5% increase But autopsies have not declined checked into the Paris Las Vegas Hotel. Ohio: 34.6% increase because they’re useless. In fact, most The Silvers were upgraded to a $1,500-a- studies confirm that autopsies regularly night suite usually reserved for high Mississippi: 43.7% increase turn up surprises, including mistaken rollers. Never mind that he was paying a Florida: 43.5% increase diagnoses, undiscovered conditions and, $109 government rate; these things hap- New Mexico: 42.2% increase in a small but steady number of cases, pen, and Mr. Silver would have you diagnosis and treatment errors that may believe it had nothing to do with the fact Indiana: 29% increase have led to death. The numbers are not that Caesars Entertainment Inc., the Texas: 22.0% increase trivial. One study examined 1,000 autop- hotel’s owner, is hoping to get a slice of sies between 1983 and 1988 and found the casino action in New York State. Montana: 19% increase that there were “ ‘major discrepancies’ Presumably Caesars lobbyists invite all ● Oklahoma also recently enacted a between the autopsy findings and the visitors to Las Vegas out to dinner, as $300,000 cap (that can be lifted by a clinical diagnosis” in 317 cases. they invited the Silvers. judge in limited circumstances), and the Autopsies have dwindled for a number Mr. Silver has insisted that he has recent news from Oklahoma is that: of reasons. Hospitals were once required done nothing wrong. Similarly Gov. Malpractice Insurance Premiums may to perform them to be accredited, but George Pataki has protested that there double for Oklahoma doctors. that requirement ended in 1971. was nothing wrong with flying to St. ● Here in Connecticut, the rates will Insurance companies do not pay for Barts on a private jet provided by a also increase if an arbitrary cap is enact- autopsies. But the problem really lies in developer — a developer who has busi- ed. Insurance industry representatives our attitude toward them. In recent ness with the Port Authority — and the testified as recently as last week that years, families have become increasingly state’s weak-kneed Ethics Commission rates will still increase (albeit by a reluctant to authorize autopsies, and agreed. reduced amount) if an arbitrary $250,000 doctors too often believe that modern Plenty of elected officials need cap is enacted. diagnostic tools like CAT scans and reminding that they were elected to ● Another CT OLR Report (2-24-03) M.R.I.’s have made them obsolete. Yet serve, not be served. They were not elect- cites a 2002 Robert Wood Johnson underlying these reasons is another, ed to have their swimming pools built or Foundation funded report, The Medical more pervasive one: the risk of malprac- the roads to their houses repaired, cour- Malpractice Insurance Crisis: Opportunity tice suits. An autopsy that uncovers an tesy of the state. Government service is for State Action, where the author states: error in treatment also uncovers the not meant to be a lifestyle enhancer. “the data are inconclusive as to the potential for litigation. Never mind that Too many politicians figure they can efficacy of tort reform as a remedy for it may improve subsequent diagnoses. get away with little things because

72 22 Forum — January/February/March 2004 CCTTLLAAMiscellany everyone knows you can’t be bought for a branch, and it will set precedent for any public flogging of those who would assert free dinner or a plane ride. That’s how it future impeachment hearings. It should- their rights. starts. In Connecticut, Gov. John n’t be beyond the ability of political Moreover, how can those called before Rowland’s career began unraveling over actors to rein in their hyperbole and the committee be interviewed if the com- such vacation-home accouterments as a grandstanding for a few weeks to insure mittee has yet to decide what standard hot tub. that our constitution is upheld. it’s going to use to determine if impeach- Former Gov. George Ryan of Illinois, The legislature got off to a good start. ment is warranted? In what other forum renowned for his death-penalty moratori- In December, when Rowland parboiled do we ask the accused to defend himself um, now faces charges ranging from himself by lying about accepting gifts first but learn the charge against him racketeering to tax fraud. Within the and repair work at his cottage in only after testimony is concluded? pages of a very long indictment, which Litchfield, legislative leaders insisted on The hubris of the committee is also Mr. Ryan has vowed to fight, there are a cooling-off period over the holidays telling. Connecticut has rules laying out accusations of trips to Jamaica and Palm before deciding on a course of action. The who can and can’t practice law in this Springs, courtesy of an associate who had U.S. attorney’s office in New Haven is state. The committee is trying to skirt a knack for landing state contracts. probing corruption in state government. those regulations – even though most of Petty, cheesy morsels of corruption The legislature had neither the skills nor the committee members are attorneys are like the proverbial “broken windows” inclination to duplicate that effort. An and know the seriousness of their action. of violent crime. If we all shrug our inquiry committee needed only to deter- The committee hired as chief counsel a shoulders and look the other way, the mine if the governor’s actions warranted New York attorney unadmitted in consequences can be dire. a recommendation of impeachment. That Connecticut. At first, committee chair- is why House Speaker Moira Lyons, upon men denied they had broken the law (but * * * * * forming the committee in early February, threatened retaliation against the state gave it a short, mid-April target date to bar if anyone defied that assertion). Then Impeachment Lynch Mob conclude its work. they asked the Judicial Department for a This essay appeared in the Hartford In the federal probe, the life and liber- special waiver that looked suspiciously Courant on March 21, 2004. Vincent ty of dozens maybe at stake. The legisla- illegal. As soon as that waiver was chal- Michael Valvo is publisher and editor of tive investigation concerns whether one lenged in court the entire legislature the Connecticut Law Tribune. man’s brazen actions constitute a breach tried to cover its tracks with special of public trust so great he should lose his enabling legislation. This is a committee At the State capitol these days, the job. The Select Committee, unfortunate- that isn’t letting rules and regulations House Select Committee of Inquiry ly, can’t seem to get this straight. They’ve stand in its way. should be a shining beacon of righteous- subpoenaed thousands of pages of docu- Nor are lawmakers letting the pre- ness and purity. Its mission, after all, is ments from the governor alone, with tens sumption of innocence impede their not just to investigate whether actions by of thousands more from supposed march to judgment Comments from the Gov. John G. Rowland warrant a recom- cronies. They want witnesses facing fed- committee make it clear that a vote rec- mendation of impeachment, but also to eral criminal investigation to step up to ommending impeachment is likely. Even demonstrate that our government is not their committee and give testimony that State Senate President Pro Tempore hopelessly mired in the compost of cor- might incriminate them in the criminal Kevin Sullivan last week commented ruption and self-dealing. probe. on “the probable impeachment of the Yet it is hard to see how that faith in Its not surprising that many of the governor.” state government can be sustained, given people receiving the committee’s subpoe- If the outcome is preordained, why all that the inquiry committee has degener- nas don’t want to cooperate. But to the the hullabaloo about subpoenaed docu- ated into a ruthless, bullying, lawless Special Committee, any rebuff, any asser- ments? Why even go through this exercise? lynch mob interested only in the facade tion of basic rights, is tantamount to pro- Because the hallmark of any inquisition of justice. Investigating alleged abuse of fessing evil. is the pain and suffering a tribunal puts power, it is itself grossly abusing its own Lawlor called efforts to fight the com- defendants through on the way to the authority, turning what should be a seri- mittee’s subpoenas “stonewalling.” Select inevitable guilty verdict ous investigation into a sinister political Committee Democratic Chairman John The Select Committee is working not inquisition. Wayne Fox said that those who want to at finding the truth, but at putting on a State Rep. Michael Lawlor, a Select plead their Fifth Amendment rights show for the public, apolitical prosecu- Committee member and chairman of the must do so in the most public manner tion with a political aim: the toppling of General Assembly’s Judiciary Committee, possible. “They’re going to come to us in a the governor. Perhaps the governor has a new mantra: The impeachment of public forum and not hide behind their needs to be removed. But we cannot right the governor is “a political decision. This lawyers,” he told reporters. corruption in state government via a tri- is not a legal decision.” Lawlor is wrong. Yet Fox has been a leading proponent bunal that lacks impartiality, fairness, This is not a judicial action, but it is of conducting much of the Select humility or respect for the laws of our most certainly a legal one: It will deter- Committee’s activities behind closed land. mine the fate of an elected official, it will doors. It’s astonishing that a committee affect the stability of the executive that yearns to meet in secret calls for

January/February/March 2004 — 22 Forum 73 CTLA Code of Conduct Adopted by the Board of Governors of the Connecticut Trial Lawyers Association on January 17, 2004

1. No CTLA member shall personally, 4. No CTLA member shall personally, tion. However, no CTLA member or through a representative, contact or through an associate attorney, should refrain from urging or argu- any party, or an aggrieved survivor file a complaint with a specific ad ing any suit, issue or position that in an attempt to solicit a potential damnum amount unless required he believes in good faith to have client when there has been no by the rules of that court. If such merit. request for such contact from the amount is stated, it shall be based injured party, an aggrieved sur- upon good faith evaluation of facts 8. The CTLA Board of Governors has vivor, or a relative of either, or the which the member can demon- condemned attorneys or legal clinics injured parties’ union representa- strate. who advertise for clients in personal tive. injury cases and who have no inten- 5. No CTLA member shall personally, tion of handling the cases them- 2. No CTLA member shall go to the or through a representative, make selves, but do so for the sole purpose scene of an event which caused representations of trial experience of brokering the case to other attor- injury unless requested to do so by or past results of litigation either of neys. Any CTLA member who an interested party, an aggrieved which is in any way false or mis- enters a contract of representation survivor, a relative of either, or by an leading. on behalf of a claimant shall, at the attorney representing an injured time of retention, fully advise the 6. No CTLA member shall personally, party or survivor. client, in writing, of all relation- or through a representative, initiate ships with other attorneys who will 3. No CTLA member shall initiate a personal contact with a potential be involved in the presentation, the television appearance or initiate client (who is not a client, former role each attorney shall play, and any comment to any news media client, relative or close personal the proposed division of fees among concerning an event causing injury friend of the attorney) for the pur- them. The client shall also be within 10 days of the event unless pose of advising that individual of promptly advised of all changes the member forgoes any financial the possibility of an unrecognized affecting the representation. return from the compensation of legal claim for damages unless the those injured or killed, provided, member forgoes any financial inter- 9. No CTLA member shall knowingly however, that an individual desig- est in the compensation of the accept a referral from a person, nated by a bar association to state injured party. whether a CTLA member or not, the official position of such bar asso- who obtained the representation by 7. No CTLA member shall file or main- ciation may initiate such media con- conduct which this code prohibits. tact to communicate such position. tain a frivolous suit, issue, or posi-

74 22 Forum — January/February/March 2004 TIPS ON INFLUENCING THE INFLUENTIAL

During the legislative session, CTLA will be sending weekly updates to members regard- ing the status of key pieces of legislation. Members should use the CTLA weekly updates as background information when contacting legislators. Letters from clients to legislators are also very helpful. Your direct involvement with Connecticut Lawmakers can make a difference in improving the administration of justice in Connecticut! Most issues are settled in the committees. Focus your contact on legislators from your district and on members of the particular committees handling the bills that concern you. How to Write to Your Legislators: Legislators want to hear from their constituents. Letters should be to the point. Follow these guidelines to get your message across: 1. Always identify the bill number and subject matter. 2. Write when the bills are being considered in committee or in the week before a floor vote. 3. State why you support or oppose the legislation, and how it would affect you, your employees, clients, and your business. 4. Write in your own words; do not copy someone else’s letter or just sign your name to a printed letter. 5. Please do not send copies of CTLA Alerts. 6. Be constructive; do not make threats. 7. If a legislator does something that you appreciate, let him or her know. 8. Send a copy of correspondence to the CTLA office. 9. Write to the Governor as well as legislators. 10. Only write about one subject per letter. Use the proper form of address when writing: The Honorable (Full Name) Salutation: Connecticut State Legislature Dear Senator (last name) or Legislative Office Building Dear Representative (last name) Hartford, CT 06106\

When writing to a committee, address the letter to: “The Honorable (full name), Chairman, and members of the (name) Committee.” During the legislative session, always send your correspondence to the capitol address. Otherwise use the home address. How to Phone Your Legislator: Use these numbers to leave a message for your legislator. You can also get bill information, find out the status of measures, committee schedules, session times, or other information. During the session, call these numbers: Senate Ds—800-842-1420; Senate Rs—800-842- 1421; House Ds—800-842-1902; House Rs—800-842-1423. How to Write Your Legislator—Electronically The legislators can be reached via the Internet. Some of the legislators have their own addresses but all correspondence can be sent to the legislature’s home page and it will be forwarded. General information about the legislature, legislators’ addresses, committee schedules, copies of bills, etc. are also available on the legislature’s home page at www.cga.state.ct.us.

January/February/March 2004 — 22 Forum 75 76 22 Forum — January/February/March 2004 January/February/March 2004 — 22 Forum 77 Club Members —— As of July 2004 The CTLA Legislative Program is supported in large part by the major contributors listed below. There are, in addition, several donors who wish to remain anonymous. Congratulations and thanks are due to these individuals whose dedication to the civil justice system is demonstrated clearly by their participation in the Clubs, CTLA’s Major Donor Program. We thank them for their support.

MEMBERS OF THE 1200 CLUB James M. Marinelli New Britain David H. Herrmann Hartford Jonathan M. Abels West Hartford Martin J. McQuillan New Britain Stephen D. Jacobs Meriden Christopher P. Anderson Norwich Richard T. Meehan, Jr. Bridgeport Jonathan Katz New Haven John F. X. Androski Ansonia Robert C. Messey North Haven Frank A. Leone East Hartford Jon A. August Bridgeport Vincent L. Noce, Jr. Bridgeport Christopher M. Licari New Haven Susan H. Bartholomew New Haven Charles K. Norris Norwich Lindalea Ludwick New Haven Bruce S. Beck Manchester Joseph A. O’Brien West Hartford Thomas M. McNamara New Haven Daniel A. Benjamin Stamford F. Jerome O’Malley New London John N. Montalbano Middletown Jon D. Berman South Windsor F. Patrick O’Sullivan Bristol John F. Naizby Branford Richard A. Bershtein Hamden John D. Palermo West Hartford Timothy L. O’Keefe Hartford Jon D. Biller Hamden Jacques J. Parenteau New London Charles E. Oman, III Waterbury Melvin L. Bloomenthal Stamford Brian W. Prucker Vernon Thomas P. Parrino Westport Fanol Bojka Waterbury Steven C. Reade Hartford Bernard Poliner Middletown Anthony S. Bonadies Hamden Robert J. Reeve Unionville Stephen M. Reck Pawcatuck Morris R. Borea Hartford Thomas J. Riley New London Richard P. Renehan Waterbury Christopher W. Bromson Windsor Locks Martin M. Rutchik Norwich Randolph E. Richardson, II Woodbury Michael E. Burt New Haven Anastasios Savvaides Stamford John D. Ritson Hartford Michael W. Cahill New Haven Peter W. Shafran Stamford Wilfred J. Rodie Stratford Scott S. Centrella Stamford Donald B. Sherer Stamford Saul A. Rothman Stamford Francis P. Cipriano Hamden John P. Sponheimer Ansonia Vincent F. Sabatini Newington Michael G. Clear Stamford Robert D. Tobin New London David Sauer New Britain Leeland J. Cole-Chu New London Patrick Tomasiewicz West Hartford Howard B. Schiller Willimantic Tracy M. Collins New London Griffith H. Trow Stamford William P. Tocchi New York City Bruce J. Corrigan, Jr. Westport Jan P. Van Der Werff West Hartford Jeremy G. Vishno New Haven Michael R. Corsello Norwalk Donald G. Walsh, Jr. New Haven William P. Yelenak Cheshire Steven J. DeFrank New Haven Robert F. Weber, Jr. New Britain Peter J. Zagorsky Plainville Michael P. Deneen Windsor Richard L. Zayas Hartford John R. Donovan Cromwell MEMBERS OF THE 1500 CLUB Eddi Z. Zyko Middlebury Kathleen Eldergill Manchester Diane Benevides Orange Sydney W. Elkin West Hartford George W. Boath, Jr. Stratford MEMBERS OF THE 1800 CLUB John J. Esposito, Jr. New Haven Edward C. Burt, Jr. Hamden Charles T. Alfano, Jr. Suffield David F. Falvey Groton Scott D. Camassar New London Peter M. Appleton Hartford Dennis A. Ferdon Norwich Christopher Carrozzella Wallingford Peter Bartinik, Jr. Groton Robert M. Fitzgerald Willimantic Robert F. Carter Woodbridge Donald W. Celotto, Jr. New Haven George W. Ganim, Jr. Bridgeport Richard E. Castiglioni Stamford Gerald A. DelPiano Hartford James J. Giulietti North Haven Edmund Q. Collier Milford Anthony J. DePanfilis Norwalk L. Morris Glucksman Stamford Susan A. Connors West Hartford Mark C. Durkin Stamford Mark Grater Groton Edward F. Czepiga, II Bridgeport Leonard A. Fasano New Haven Paul M. Guernsey Niantic Michael Denison New Haven Michael A. Fasano Waterbury James E. Hartley, Jr. Waterbury Vincent R. Falcone West Haven Jeffrey A. Friedler New Haven Mark A. Healey West Haven Joan I. Farcus Bridgeport Joseph Gillis New Haven John R. Hyde Hartford Paul E. Farren, Jr. New Haven Kimball Haines Hunt Hartford Adele R. Jacobs Fairfield Victor M. Ferrante Bridgeport Paul Iannaccone Hartford Richard L. Jacobs New Haven Patrick J. Filan Westport Jefferson D. Jelly West Hartford Douglas P. Karp Stamford Michael P. Foley, Jr. Cheshire Michael E. Jewell Norwich Michael R. Kaufman Danbury Joseph P. Friedler New Haven Mark F. Katz Stamford David E. Koskoff Plainville Aaron L. Gersten Hartford Kenneth J. Levine Farmington David R. Kritzman Manchester Dennis W. Gillooly New Haven Dana Paul Lonergan Trumbull Jerome J. Larracuente Bridgeport Charles C. Goetsch New Haven Wesley M. Malowitz Stamford John L. Laudati Hartford Jonathan L. Gould Hartford Joseph V. Meaney, Jr. Hartford Brenden P. Leydon Stamford Robert J. Gorman, Jr. Hartford Michael Moher Ansonia Daniel A. Lyons Jr. West Haven Mark F. Griffin Watertown Ralph J. Monaco New London Douglas K. Manion Vernon Paul C. Gusmano Orange John R. O’Donnell New Haven I. David Marder Vernon Margaret M. Hayes Bristol Paul J. Pacifico Westport

78 22 Forum — January/February/March 2004 Club Members —— As of July 2004 The CTLA Legislative Program is supported in large part by the major contributors listed below. There are, in addition, several donors who wish to remain anonymous. Congratulations and thanks are due to these individuals whose dedication to the civil justice system is demonstrated clearly by their participation in the Clubs, CTLA’s Major Donor Program. We thank them for their support.

Frederick D. Paoletti, Jr. Bridgeport MEMBERS OF THE 3600 CLUB Ronald T. Scott Hartford Jeffrey L. Polinsky Hartford Albert R. Annunziata New Haven Matthew Shafner Groton Robert S. Reger Hamden Matthew E. Auger New London Barry J. Sinoway North Haven Harold L. Rosnick Bridgeport Mark A. Balaban Middletown William J. St. John, Jr. Waterbury Joseph P. Secola Brookfield Peter J. Bartinik Groton William J. Sweeney, Jr. New Britain Lawrence C. Sgrignari Hamden John F. Buckley, Jr. New Haven Jason E. Tremont Bridgeport Daniel D. Skuret Ansonia Thomas P. Cadden Meriden Frederic S. Ury Fairfield Edward R. Smoragiewicz Hartford Roger B. Calistro New Haven Nicholas E. Wocl Stamford Jonathan E. Spodnick Trumbull Frank L. Cirillo New Haven James Wu Danbury M. John Strafaci New London Thomas A. Cloutier Old Saybrook Joseph G. Walsh Danbury John A. Collins, III New London MEMBERS OF THE 4800 CLUB Mary Ann Connors Bridgeport Robert B. Adelman Bridgeport MEMBERS OF THE 2400 CLUB Michael A. D’Amico Watertown Carl D. Anderson Norwich Andrew Apicella Milford Joseph J. DeLucia Bridgeport Russell J. Berkowitz Stamford David Arron Fairfield Joseph S. Dobrowolski New Haven Christopher D. Bernard Bridgeport Frank A. Bailey Bridgeport Edward T. Dodd, Jr. Cheshire Stewart M. Casper Stamford David L. Belt New Haven J. Patrick Dwyer Glastonbury David W. Cooney Hartford James P. Berryman New London James F. Early New Haven Joel Faxon New Haven Richard S. Conti Manchester Steven D. Ecker Hartford Andrew S. Groher Hartford John J. D’Elia New Haven Kathryn Emmett Stamford Michael C. Jainchill Hartford Mario DiNatale Stamford Steven J. Errante New Haven John J. Kennedy, Jr. New Haven Timothy W. Donahue Wallingford Joseph D. Garrison New Haven Joshua D. Koskoff Bridgeport William F. Dow, III New Haven Gary R. Gold Hartford Joseph R. Mirrione New Haven Stephen C. Embry Groton David S. Golub Stamford Anthony A. Piazza Stamford Chester W. Fairlie New London Shelley L. Graves New London Robert R. Sheldon Bridgeport Stephen A. Finn Stamford Dennis G. Hersh Hartford Eugene K. Swain Hartford John P. Fracassini Monroe Joram Hirsch Bridgeport Michael J. Walsh Hartford John M. Gasidlo Westport John J. Houlihan, Jr. Hartford Daniel J. Horgan New London Stephen Jacques Cheshire MEMBERS OF THE 5400 CLUB James D. Horwitz Bridgeport David H. Johnson New Haven James D. Bartolini Hartford John D. Jessep Bridgeport Lawrence M. Lapine Stamford William F. Gallagher New Haven John D. Josel Stamford Kenneth J. Laska Plainville Howard A. Jacobs New Haven Richard J. Kenny Hartford Donald E. Leone, Jr. Norwich Ernest F. Teitell Stamford Samuel J. Lazinger Bridgeport Michael W. Levy Hartford Robert A. Maresca Bridgeport Joel H. Lichtenstein Bridgeport MEMBERS OF THE 7200 CLUB Gary A. Mastronardi Bridgeport Douglas P. Mahoney Bridgeport Richard A. Bieder Bridgeport Lawrence J. Merly Bridgeport Gerard McEnery North Haven William R. Davis Hartford David P. Mester Hartford Paul J. McQuillan New Britain Ira B. Grudberg New Haven Ronald T. Murphy New Britain Steven F. Meo Hartford R. Bartley Halloran Farmington Robert Nastri, Jr. Waterbury Lucia M. Mercurio New London Michael P. Koskoff Bridgeport Peter G. Perakos, II Hartford Kenneth P. Namnoum, Jr. Hartford Garrett M. Moore Cheshire Carey B. Reilly Bridgeport Kathleen L. Nastri Waterbury Robert I. Reardon, Jr. New London Agostinho J. Ribeiro Danbury Richard L. Newman Bridgeport Richard A. Silver Stamford Paul N. Shapera Hartford Gregory E. O’Brien Cheshire Michael A. Stratton New Haven Dominick J. Thomas, Jr. Derby Humbert J. Polito, Jr. Waterford Raymond T. Trebisacci Pawcatuck Charles B. Price, Jr. New Haven Alexander J. Trembicki Westport Cindy L. Robinson Bridgeport John F. Wynne, Jr. New Haven David N. Rosen New Haven Terence Zemetis Wallingford David Thomas Ryan Hartford Angelo A. Ziotas Stamford Christian G. Sarantopoulos Danielson

TO LEARN MORE ABOUT CTLA CLUB MEMBERSHIP, CONTACT DIANA ROE AT 860-522-4345

January/February/March 2004 — 22 Forum 79 Talk to hundreds of CTLA attorneys and get answers to all your legal questions on . . . THE CTLA LISTSERVE Members can now access the best legal resources in Connecticut Your Fellow CTLA Attorneys! • Post legal questions and get answers fast! • Talk strategy, case law, experts, IMEs, and more! • You get the expertise of hundreds of CT’s finest attorneys—free! It’s EASY! Simply send your e-mail to: [email protected] Your message automatically gets sent to all CTLA ListServe Subscribers. Or If your’re not on the CTLA ListServe and would like to be. go to the members area at www.cttriallawyers.org and click on “Join the CTLA Listserve” Contact Diana Roe at (860) 522-4345, or email [email protected]

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80 22 Forum — January/February/March 2004