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Do Tort Reformers Want Smoke To Get In Your Eyes?

Posted by Andrew J. Barovick | Nov 14, 2010 | 0 Comments

Philip Morris Int'l manufactures a poisonous product that kills its users–cigarettes. It makes scads of money doing it, and wants to continue doing it, without the bother of lawsuits or realistic warning labels, as I will discuss in a moment.  But for now, it's important to recognize Philip Morris for what it is: a leader, and perhaps the leader, in funding and propagating the movement known as tort “reform.” Tort reformers' essential belief is this.  American corporations should be free to profit as much as humanly possible, without restriction, and should not be hampered in this objective by “frivolous lawsuits”  through which they might be held accountable for negligence that injures or kills people.  In practice, that translates to using its vaults of cash to fund media campaigns denigrating plaintiffs and their lawyers, and particularly plaintiffs in personal injury, medical malpractice and class action lawsuits.  But proponents of tort reform like to ignore their own rules if doing so will provide a financial benefit.

A recent case in point involves Philip Morris. You see, they do not appreciate being forced to utilize warning labels that feature realistic and graphic portrayals of the dangers of using their product, even though many other poisons sold to American consumers have the notorious skull and crossbones prominently displayed.  So what did Philip Morris do about it?  You guessed it. They sued.  In fact, they sued Uruguay and Brazil .  And the reasoning is solid, of course. Accurate and graphic warnings on its products are “excessive.”  But what they really mean is, accurate and graphic warnings might cause a dip in worldwide sales.  Therefore, to Philip Morris, it is sales before safety, and they'll file lawsuits to make sure they get their way.  Do you see the frivolity here yet?

But “frivolous” is really too kind a word for what tort “reformers” like Philip Morris do.  Because what they are really using their unlimited funds in our courthouses for is the protection of their license to kill.  It's big business. It's their business.  And it should be allowed to continue unfettered by accurate warnings to its users.

You've really got to love these folks.  Their disinformation campaign relies on tired old saws like “rich lawyers” and “jackpot jusctice,” as if hordes of dishonest folks with no factual bases for their cases are marching into the courthouse, filing their claims, and exiting, magically,  with newfound millions.  Yet the truth occasionally hampers these efforts.  As a story in yesterday's NY Times showed, plaintiff's lawyers are having trouble funding their own cases, prompting an entirely new industry of institutions who will invest in the cases until they resolve. It is hard to compete with corporate giants who will spend whatever it takes to fend off meritorious lawsuits.  And this new way of financing cases only hurts the victim of negligence or malpractice in the end, for it is he or she who ends up paying interest on the loaned money.

But enough about victims.  Big business is good for America.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.