C E N T E R F O R L E G A L P O L CI Y A T T H E M A N H A T T A N IN S T IT U T E C L P

No. 7, December 2008

Louisiana LITIGATORS: While People Leave the Pelican State, Attorneys Thrive

The troubled state of Louisiana has lost 200,000 squeezed by comprehensive tort reform in neighboring residents in the years since devastated states such as Texas and Mississippi. .1 But the state had been having a hard time attracting workers and others, as well as holding on to those That plaintiffs’ lawyers would find the Bayou State a good it had, even before the hurricane struck. While the national place to sue is unsurprising. In a 2008 survey conducted trend in population growth in the previous five years was 4.6 by Harris Interactive for the U.S. Chamber of Commerce percent, Louisiana grew by only 0.6 percent in that period Institute for Legal Reform, corporate litigators ranked the (see graph).2 Even so, one segment of the population—trial fairness of Louisiana’s judicial system next-to-last among the lawyers—is finding the state to be an excellent place to hang fifty states (see map).3 The state ranked among the bottom out and do business. Long a lawsuit-friendly jurisdiction, three in every category surveyed, and Louisiana was deemed Louisiana has become a magnet for mass tort lawyers the worst state in the nation in its treatment of scientific

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2 and technical evidence, its timeliness in granting or denying Louisiana’s Legal Climate Is Second-Worst summary judgment or dismissal, its discovery process, and its in the Nation judges’ competence. Orleans Parish, encompassing the city of New Orleans, has regularly been dubbed a “judicial hellhole” by the American Tort Reform Association,4 and it was ranked the ninth-worst local jurisdiction in the country.5 Oklahoma 17 Arkansas 34 Louisiana’s hospitability to litigation is an impediment to its Mississippi economic recovery: 64 percent of business leaders around 48 the country surveyed by Harris said that a state’s litigation Texas climate would affect their decision on where to locate a busi- 41 Louisiana ness.6 If Louisiana’s leaders want to resuscitate their state’s 49 fortunes, then cleaning up its system of civil justice would be a good place to start. State Legal Systems, as Ranked by Corporate Litigators

Source: Harris/ILR Survey 2008 A UNIQUE LEGAL SYSTEM language has not changed. Traditionally, the state lumped Owing to its pre-1803 history as a French colony, together as “general damages” non-pecuniary injuries such Louisiana—alone among the fifty states—has a French- as “pain and suffering.”10 While loss of enjoyment of life can derived “civil law” tradition rather than a British-derived legitimately be thought to be an aspect of “general damages,” system of “common law.”7 Consequently, all causes of action recently Louisiana’s courts have begun allowing various in Louisiana are based in the Louisiana Civil Code8; in theory, elements of general damages to be set as separate elements at least, Louisiana’s judges do not make law. Unfortunately, in a jury charge. In 2006, the state supreme court for the Louisiana’s exceptionality does not extend to European-style first time embraced a separate jury charge for a new variety constraints on litigation, such as “loser pays” fee-shifting rules of damages11—”hedonic” damages, or “loss of enjoyment of and prohibitions against contingent fees and class actions. life”—developed conceptually by economists in the 1980s.12

In contrast to judges in common-law states, who typical- The dissenting justices were undoubtedly correct that allow- ly show substantial deference to previous court decisions, ing a separate charge for these losses—in addition to “pain Louisiana’s judges are supposed to work from a “direct inter- and suffering,” which includes mental suffering—creates pretation” of the code.9 While such a legal approach would the risk that jurors will mistakenly count the same harms seem to support legislative supremacy and judicial restraint, twice.13 The state supreme court’s decision not only depart- open-ended or ambiguous statutes have invited a wider ed from its traditional interpretation of the civil code but scope of judicial interpretation and disregard for judicial also separated it from the overwhelming majority of other predecessors’ rulings. states that have considered the issue.14

A NOVEL APPROACH TO DAMAGES A HOTBED OF NEW LEGAL THEORIES

One example of how Louisiana’s unique legal approach Louisiana’s courts have permitted other novel theories of in- encourages instability in the law is the state supreme court’s jury in recent years. Take the $591 million jury verdict lev- move away from long-standing limitations on damages ied against tobacco companies in 2004 in Scott v. American recoverable in litigation, even though the underlying statutory Tobacco.15 The class action in Scott did not seek damages for

Trial Lawyers, Inc. Update No. 7, December 2008 3 MASS TORT MASTER

ouisiana’s lawyers have long been Russ Herman of the Year for his role in leading nego- Lled by an intriguing cast of charac- tiations that culminated in a $4.85 billion ters, from the late “King of Torts,” Mel- settlement between Merck, the pharma- vin Belli, and “the General,” Wendell ceutical company, and plaintiffs alleging Gauthier, who sued the manufacturers injuries that resulted from their taking its of everything from tobacco to breast prescription painkiller Vioxx.29 implants, to the flamboyant Michael St. Martin, whose nickname, “Alliga- Herman’s organizing skills, honed while tor Mick,” stems from his penchant for he served in similar leadership roles in hunting reptiles.25 Today the king of the earlier mass tort litigation, proved es- Louisiana plaintiffs’ bar is Russ Herman, sential in the Vioxx cases. He quipped: a jazz aficionado and a fan and some- “It was like each lawyer had a greased time impersonator of Harry Potter.26 football and was running like a wild 30 AP Photo/Bill Haber monkey.” But whether the deal was in Herman practices law in New Orleans the best interests of the lawyers’ clients with his son in the firm founded by his father and uncle. He is debatable. The Manhattan Institute’s Marie Gryphon has has served as president of the Louisiana Trial Lawyers Asso- criticized the Vioxx settlement as structured to pay out settle- ciation and the Association of Trial Lawyers of America.27 A ment cash to objectively weak claims while “sell[ing] out the leader in the multibillion-dollar litigation against the tobacco interests of those clients who actually have viable claims.”31 industry on behalf of the states, in 2004 Herman scored a While those “sold out” clients may have little recourse, Her- $591 million jury verdict against American Tobacco Compa- man’s deal does well by his fellow litigators, who received ny.28 Last year, Lawyers USA named Herman its 2007 Lawyer some $1.5 billion in fees.32 individuals actually harmed by smoking; in the event, it won ents.21 Big asbestos firms such as Texas’s Baron & Budd have funding of a “smoking cessation” program on behalf of class begun running ads in newspapers like The Advocate looking members.16 The 1998 $200 billion-plus Master Settlement for hearing-loss clients.22 As George Bezet, a lawyer defend- Agreement with the tobacco companies was supposed to pay ing against several such suits that have been fileden masse in for such programs,17 but the trial court actually forbade the southern Louisiana, concedes: “It’s logical that [noisy] plants defendants to present evidence of the master agreement’s ex- … would be a natural place to start looking for people who penditures for the same purpose.18 On appeal, the smoking- might have hearing loss.”23 While workers exposed to asbes- cessation efforts funded by the jury were “limited” to such tos would not know during the period of exposure either programs as “reimbursement of medications” (including that they had been exposed or that the exposure was harm- nicotine gum), “telephone quit lines,” and “intensive cessa- ful, workers exposed to deafening sound should be able to tion programs.”19 These restrictions reduced overall damages anticipate the risk to their hearing. But this key distinction to “only” $279 million20—a sum that still results in a mighty between these two kinds of harms hasn’t stopped lawyers hefty paycheck for Trial Lawyers, Inc. from filing claims embracing this new theory for hundreds of clients this year.24 Tobacco is not the only traditional lawsuit business for which Louisiana lawyers have developed new theories of li- Louisiana lawyers have also developed a growth business ability; even as asbestos lawsuits continue to fill the state’s out of suing for damages alleged to be caused by mold court dockets, creative lawyers have begun to file new law- growing in buildings—an inevitable consequence of the suits that allege loss of hearing in many of the very same cli- Pelican State’s humid climate. In 2004, New Orleans’s

4 PROFESSIONAL PLAINTIFFS

ouisiana’s public-employee pension funds are notorious for of “lead plaintiffs” in securities suits. These would be those Lspurring class action suits against high-growth companies plaintiffs “most capable of adequately representing the when their share price drops. While ostensibly intended to interests of class members,” which the legislation presumed ferret out fraud, these cases often lack any evidence of real to be those having the “largest financial interest.”37 What wrongdoing and represent merely a tax on doing business. congressional reformers failed to anticipate was that securities class action attorneys would arrange to designate public- An empirical study shows that securities class actions’ settlement employee pension funds, which have large stock holdings values are unrelated to the merits of the underlying cases.33 More- and boards composed of public officials and union appointees over, shareholders in securities suits are generally as likely to be a whose motives go beyond their fiduciary duties. defendant as they are to be a plaintiff, inasmuch as the proceeds of such claims are merely transfers from one class of a company’s In Louisiana’s pension funds, Trial Lawyers, Inc. found its most shareholder to another. Some critics have described these cases accommodating and enthusiastic plaintiffs; indeed, three as “legal extortion”34; a Florida judge compared some securities Louisiana pension funds are among the five most active lead class action lawyers to “ ‘squeegee boys’ who . . . run up to a plaintiffs nationally (see box); the Teachers’ Retirement System stopped car, splash soapy water on its perfectly clean windshield of Louisiana is first.38 In denying the teachers’ fund’s efforts to and expect payment for the uninvited service of wiping it off.”35 head a class action before his court, an Ohio judge in 2004 chastised it for being a “professional plaintiff.” The judge Public-employee pension funds’ involvement in securities class remarked that the fund was already leading eight other cases action litigation stems from a congressional effort to clean up and had wastefully chosen four separate plaintiffs’ firms to these lawsuits, the 1995 Private Securities Litigation Reform handle the Ohio case.39 Two other Louisiana funds worked Act.36 Because Congress found that class action lawyers were quickly with their trial lawyers to file class actions after the controlling securities litigation with little client oversight— recent financial collapse: on October 1, 2008, the Louisiana understandably, since small shareholders have little incentive Sheriffs’ Pension and Relief Fund and the Louisiana Municipal to monitor their attorneys on behalf of their fellow class Employees’ Retirement System filed lawsuits in New York members—the reform legislation called for the designation against Citigroup and JP Morgan Chase.40

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Louisiana Actions Other Source: Cornerstone Research

Trial Lawyers, Inc. Update No. 7, December 2008 5 large Plaza Tower building offered $4.25 million to settle claims by hundreds of state office workers alleging vari- HIS LEGACY LIVES ON ous health ailments that lawyers attributed to mold.41 In May 2008, a New Orleans judge ruled that the state was liable for worker injuries in that building; the total tab for the taxpayers could run as high as $35 million.42 Such litigation, which blames respiratory ailments on the black mold species stachybotrys chartarum, has proliferated, not- AP Photo/Alex Brandon withstanding the paucity of data supporting the claims. The U.S. Centers for Disease Control acknowledge that “a causal link between the presence of the toxic mold and these conditions has not been proven.”43

Charles Foti A FLOOD OF LAWSUITS ith a political history filled with pandering popu- Perhaps the most prominent litigation in Louisiana over the Wlists like governors Huey Long and Edwin Edwards last few years has stemmed from injuries caused by Hur- and U.S. Rep. William Jefferson, Louisiana unsurprisingly ricane Katrina. The devastation from the hurricane was not features politicians who have allied themselves with Trial 47 only real but vast, and lawsuits stemming from the tragedy Lawyers, Inc. One such politician is former state attorney were to be expected. Trial Lawyers, Inc.’s response was al- general Charles Foti, whose failure to be reelected in 2007, or even to secure a spot in the runoff, did not dissuade most immediate: in October 2005, the New Orleans class him from filing a lawsuit that same November against in- action firm Bruno & Bruno posted signs on utility poles surance companies that he alleged engaged in price-fixing 44 looking for plaintiffs. While some of the resulting claims in the wake of Hurricane Katrina.48 Then, on January 14, against insurance companies were valid, many turned out to 2008—his last day in office—Foti sued the world’s larg- be inflated. For instance, in the first federal Katrina case to est biotechnology company for mounting another alleged go to trial in Louisiana, the plaintiffs withdrew their claims pricing scheme.49 Not only were the merits of the cases (and gave up any right to refile them) before the case went dubious, but so was their handling: the four private law to jury after evidence at trial suggested that damages to cover firms he hired to work with the state on the case had con- living expenses that the plaintiffs were seeking had already tributed thousands of dollars to his failed campaign.50 been paid by the insurer.45 Foti’s successor, James “Buddy” Caldwell, dropped the Many of the post-Katrina lawsuits involved challenges to biotechnology case but continued to press the claim against the insurers. Caldwell is a longtime friend of insurance companies’ denial of flood-coverage claims sub- Louisiana super-lawyer Russ Herman (see box,)51 who is mitted by policyholders who had earlier expressly declined one of the lawyers Foti picked to work with the state on flood coverage. Adjudicating each claim has required a fact- the lawsuit. Since leaving office, Foti has taken a job at specific inquiry as to the extent to which damages were Kahn Gauthier Swick, a Louisiana firm specializing in class caused by flooding as opposed to wind and rain, which action litigation.52 were typically covered by the homeowners’ policies. Forc- ing insurers to pay out on policies that did not cover flood damage would not only be unfair to them (as well as to the future. For example, when neighboring Mississippi those individuals who had expressly paid for flood cover- threatened to force insurance companies to pay for dam- age); it would destabilize the overall Louisiana insurance age not covered by contracts, some insurers ceased to write market and impair individuals’ ability to get insurance in new policies in the state.46

6 In April 2008, the Louisiana Supreme Court unanimously procedure should help remove “junk science” from the held that homeowners lacking flood insurance whose homes state’s courtrooms. were destroyed by post-Katrina flooding could not collect from insurers.53 Thousands of lawsuits stemming from Ka- Still, trial lawyers in Louisiana have been busy in their own trina remain unsettled, and more lawsuits have been filed in behalf. Their allies in the legislature introduced a bill this the wake of subsequent hurricanes such as Gustav.54 How- year that would have exempted some damages from the ever, the Louisiana Supreme Court’s decision to resist politi- state’s medical-malpractice cap, thus driving up insurance cal pressure and enforce clear contractual language is a very premiums for doctors.58 Another bill threatened to double positive development for the rule of law. the length of time that a plaintiff would have to file a suit, increasing litigation risks to all businesses.59

AN UNCERTAIN FUTURE Rather than opening up the state to still more litigation, Loui- siana should go further in reducing fraud in its courts, partic- In addition to maintaining the rule of law in Katrina-relat- ularly in the area of asbestos and silica litigation. Some 10,000 ed litigation, the Louisiana Supreme Court deserves praise claims against dozens of defendants are pending there,60 yet for its decision in 2007 to reverse an activist lower-court 90 percent or more of plaintiffs have not actually been in- decision that would have overturned the state’s long-stand- jured.61 Louisiana’s legislature considered a bill in 2008 that ing cap on damages in medical-malpractice cases.55 While would have given priority to the claims of the genuinely ill as Louisiana’s litigation climate is heavily pro-plaintiff, medi- well as improved transparency in the processing of claims by cal-malpractice insurance rates there remain lower than they bankruptcy trusts set up to handle asbestos claims.62 are in much of the rest of the nation,56 largely because of the cap, which was enacted in 1975. Passing such legislation is important to Louisiana’s future. As the state rebuilds itself, it must avoid the man-made disaster Last summer, the legislature took another important of lawsuit abuse and its impact on the economy. The state step forward when it passed a law designed to improve remains in many respects a lawyer’s paradise, but the su- Louisiana courts’ ability to handle expert witnesses.57 The preme court’s handling of Katrina cases and the legislature’s new law, which takes effect on January 1, 2009, requires passage of evidentiary reforms may indicate a realization by judges to hold pretrial hearings on the admissibility of the state’s leadership that the rebuilding process requires re- expert testimony at least thirty days before a trial. This straining Trial Lawyers, Inc.

Endnotes

1 See U.S. Census Bureau, Annual Population Estimates 2000-2007, 11 See McGee v. A C and S, Inc., 933 So.2d 770, 780 (La. 2006). available at http://www.census.gov/popest/states/NST-ann-est.html. 12 See Victor E. Schwartz and Cary Silverman, Hedonic Damages: The Rapidly 2 See id. Bubbling Cauldron, 69 BROOKLYN L. REV. 1037, 1040-1041 (2004). 3 See U.S. Chamber of Commerce, Institute for Legal Reform, Lawsuit 13 See 933 So.2d at 783 (Victory, J., dissenting) (attributing to the majority’s Climate 2008, available at http://www.instituteforlegalreform.com/ ruling “the inequitable outcome of the injured party securing a ‘double states/lawsuitclimate2008/pdf/LawsuitClimateReport.pdf. recovery’ for a single element of harm”), 785 (Weimar, J., dissenting) 4 See American Tort Reform Foundation, Judicial Hellholes 2004, 2003, (“In the terms of a jury verdict that makes specific awards for pain and 2002, available at http://www.atra.org/reports/hellholes/. suffering and loss of enjoyment of life, the injured party is potentially 5 See U.S. Chamber of Commerce, supra note 3. compensated for the same deprivation twice.”). 6 See id. 14 See id. at 781, n.2 (Victory, J., dissenting) (collecting cases). 7 See Daniel Engber, Louisiana’s Napoleon Complex, SLATE.COM, Sept. 15 See Scott v. Amer. Tobacco Co., 949 So.2d 1266, 1272 (La. App. 4th Cir. 12, 2005, at http://www.slate.com/id/2126126/. 2007), writ denied 973 So.2d 740 (La. 2008), cert. denied 128 S.Ct. 8 See generally LA. CIV. CODE (2008). 2908 (2008). 9 Engstrom, supra note 7. 16 See id. at 1271. 10 Boswell v. Roy O. Martin Lumber Company, Inc., 363 So.2d 506 17 See Master Settlement Agreement at II(f)(4) (establishing Foundation to, (La.1978) (affirming a general damages award which included damages inter alia, develop “effective cessation programs”), available at http:// for mental pain and anguish over the loss of timber on plaintiff’s land). ag.ca.gov/tobacco/pdf/1msa.pdf.

Trial Lawyers, Inc. Update No. 7, December 2008 7 18 See American Tort Reform Foundation, 2004, supra note 4, at 27. 43 Questions and Answers on Stachybotrys Chartarum and Other Molds, 19 949 So.2d at 1287. CDC’s Nat’l Center for Envtl. Health, available at http://www.cdc.gov/nceh/ 20 See id. airpollution/mold/stachy.htm. 21 See David Jacobs, Loud and Clear, 25 GREATER BATON ROUGE BUS. RPT. 44 See Laura Parker, After Katrina, Courts Flooded by Lawsuits, USA TODAY, 102 (July 15, 2008). Jan. 15, 2006, available at http://usatoday.com/news/nation/2006-01-15- 22 See id. katrina-suits_x.htm. 23 Id. 45 See Michael Kunzelman, Couple Drops Suit Against Allstate Over Katrina 24 See id. Damage, AP, Feb. 16, 2007, available at http://www.law.com/. 25 See Matt Labash, Lawyers, Guns, and Money, WKLY. STD., Feb. 1, 1999, 46 See Ted Frank, Mississippi Fails to Learn from History, THE AMERICAN, Feb. at 25. 16, 2007, available at http://www.american.com/archive/2007/february- 26 See Emily DeSanctis, Top Lawyers-The First Post—Katrina List, N. ORLEANS 0207/mississippi-fails-to-learn-from-history. MAG., Oct. 25, 2006, available at http://www.neworleansmagazine.com/ 47 In questioning the merits and legal staffing of the cases filed by the a/news/top-lawyers-the-first-post-katrina-list-1480.html. outgoing state attorney general, to the extent continued by his successor, 27 See Firm Bio at http://www.hhkc.com/Attorneys/apg_a9_Russ_M_Herman. the Manhattan Institute does not intend to imply official wrongdoing, aspx. only to present its view that the legacy of lawsuit abuse, with which the 28 See Scott, 949 So.2d at 1272. Institute strongly disagrees on policy grounds, unfortunately still continues 29 See Firm Bio, supra note 3. in the State of Louisiana. 30 See Andrew Longstreth, $4.85 Billion Vioxx Settlement Validates Merck’s 48 See Sean P. Carr, Judge Orders Louisiana Price-Fixing Lawsuit to Stay in Courthouse Strategy, AM. LAWYER, Nov. 12, 2007, available at Federal Court, BESTWIRE, July 21, 2008. http://www.law.com/. 49 See Chris Rizo, Louisiana AG Drops Amgen Anti-trust Lawsuit, 31 See Marie Gryphon, Unjust Deserters, CITYJOURNAL.COM, Jan. 28, 2008, LEGALNEWSLINE.COM, Apr. 10, 2008, at http://www.legalnewsline.com/ at http://www.city-journal.org/2008/eon0128mg.html. news/210727-louisiana-ag-drops-amgen-anti-trust-lawsuit. 32 See Kirstin Maguire, Vioxx Judge Caps Plaintiffs Fees, AM. L. LITIG. DAILY, 50 See Michael Kunzelman, La. Attorney General Inherits “Curious” Cases Aug. 29, 1008, at http://amlawdaily.typepad.com/amlawdaily/2008/08/ from Predecessor, AP, Fe. 28, 2008. the-am-law-l-20.html. 51 See id. 33 See Janet Cooper Alexander, Do the Merits Matter? A Study of 52 See id. Settlements in Securities Class Actions, 43 STAN. L. REV. 497 (1991) 53 See Sher v. Lafayette Ins. Co., 988 So.2d 186 (La. 2008). (concluding that settlement value in securities fraud cases is not a function 54 See Chad Hemenway, Despite Katrina Rulings, Attorneys Expected to Get of merit). Creative Following Recent Storms, BESTWIRE, Sept. 15, 2008. 34 H. Rep. 104-50, Part I (1995), available at 55 See Louisiana Supreme Court Vacates Decision on State Cap in Medical http://thomas.loc.gov/bss/d104/d104laws.html. Malpractice Lawsuits, MEDICAL NEWS TODAY, Feb. 13, 2007, at 35 Judge Compares Milberg Weiss Case to the Squeegee Man, NEW YORK http://www.medicalnewstoday.com/articles/62779.php. LAW., Apr. 18, 2002, available at http://www.nylawyer.com/news/02/04/ 56 See Alexander Tabarrok & Amanda Agan, Medical Malpractice Awards, 041802e.html. Insurance, and Negligence: Which Are Related?, No. 10 CIV. JUSTICE RPT. 36 Private Securities Litigation Reform Act, Pub. L. No. 104-67, 109 Stat. 4 (Manhattan Inst. Center for Legal Pol’y, May 2006), available at 737 (1995). http://www.manhattan-institute.org/html/cjr_10.htm. 37 See id. at § 27(a)(3)(B)(iii)(I)(bb). 57 See S.B. 308, 2008 Sess. (La. 2008). 38 See Laura E. Simmons and Ellen M. Ryan, Securities Class Action 58 See H.B. 189, 2008 Sess. (La. 2008). Settlements: 2006 Review and Analysis, CORNERSTONE RESEARCH 11 fig. 59 See S.B. 186, 2008 Sess. (La. 2008). 10 (2006). 60 See Coalition for Common Sense, Facts: Asbestos and Silica Reform, at 39 Editorial, Pension Fund Shenanigans, WALL ST. J., Aug. 20, 2004, at A12. http://www.coalitionforcommonsense.com/.\ 40 See Louisiana Sheriffs’ Pension and Relief Fund v. Citigroup, Inc., 08 Civ. 61 See, e.g., Joseph N. Gitlin et al., Comparison of “B” Readers’ 9522 (Nov. 5, 2008). Interpretations of Chest Radiographs for Asbestos Related Changes, 11 41 See Greg Thomas, Sick-Building Claims to Net $4.25 Million, NEW Acad. Radiol. 243 (2004). ORLEANS TIMES-PICAYUNE, Mar. 30, 2004, Money at 1. 62 See H.B. 484, 2008 Sess. (La. 2008). 42 See Greg Thomas, Faulty Tower?, GAMBIT WKLY., May 20, 2008.

Project Director Managing Editor James R. Copland Erin A. Crotty Director, Center for Legal Policy, Manhattan Institute Managing Editor, Manhattan Institute

Executive Editor Production Design Ben Gerson Elaine Ren Editorial Director, Manhattan Institute Graphic Designer, Manhattan Institute www.TrialLawyersInc.com

C L P CENTER FOR LEGAL POLICY AT THE MANHATTAN INSTITUTE