Civil Justice Prosecutor's response to defense attorney on plaintiff rights
Bexis ( co-author of drug and device law blog)
I am sorry this response took so long. (Click here to see response from Bexis). My life just does not have enough fun things like responding to your great blog post.
First things first: For those of you not following my intellectually astute commenter, Shay’s Rebellion was the post-revolutionary (1787 or so) clash between the farmer and merchants in the New England states. It was the first test of our new Democratic Republic and the system passed muster with high marks. The point of this was to note, that we cannot rely on the government to save us from corporate profiteering at human expense. I only wish I were such an extremist. Extremists get loads of press and people are naturally drawn to them. But, let's put the whole anarchist thing to bed. Nothing could be further from the truth. I love our system of Government. I think government serves a legitimate purpose. I am just a natural Republican. When possible, I believe government should be smaller rather then bigger. I would prefer to see government not intervene when not necessary. This is especially true of the federal government. In a contest between the federal government and the state government on who should be passing legislation, I would prefer to leave most things in the hands of the states. I am, however, (tell Mark Hermann I used however properly again) not an extremist. I realize the federal government has a legitimate role and a great responsibility to protect the national public from dangerous products. This is a typical Republican position. It is not the anarchist position.
What I do NOT believe is that the FDA has the ability to insure that the public is safe from dangerous drugs. I do not believe that by passing the lowest threshold of government oversight that any company should be released of their responsibility to the end user of their products. I do not believe that the government can be trusted or expected to guarantee product safety. This holds true for our prescription drugs, our food supply and our water. Government is the first line of defense. It is not the exclusive remedy when a corporation harms its customer(s).
You say that 90% of products are not sued because of a defect. I don't believe this, but let's pretend it's true. What about the 10% of defects that you admit cause death, dismemberment or other injuries? What about those people? Why should they be prohibited from suing the business that harmed them because the dangerous product was Ok’d by some minimum wage government inspector? Why, as a taxpayer, do I have to bear the burden of the injured person's medical bills because the business that caused the injury is off the proverbial hook? Why should I, as a taxpayer, have to bear the burden of the injured person’s unemployment compensation when they can't return to work because of this injury? Do you think the injured person is going to feel like the American Justice System did the right thing when they are told that there is no case because the FDA or some other government agency simply failed to catch a dangerous defect? Is it fair that the injured person will have no legal remedy against the offending company? Of course, all of the above is patently unfair and anti-American. We are not Russia. We hold people and businesses accountable for the harm they do, to individuals and to society. To create an exception for drug companies or any other business is simply wrong.
You also state that I make this statement with 100% self interest in mind. You say, "trial lawyers do this for money." Well, I tip my hat to you. You caught them. Hundreds, even thousands of lawyers are actually working to make money. I am curious. What do you work for? I am betting that you can come up with all sorts of self-laudatory ideas about how you are principled and only do this out of the true desire to help the human race. But I am also pretty sure; in fact, I am 100% convinced, that you actually want to be paid. Not paid in good will and kind thoughts but paid in MONEY. In fact, I am betting that every person who reads this blog (all 6 of them) will agree that they work for money. I will also bet you make more money than the average personal injury lawyer. Typically, Plaintiff lawyers (excluding the few scumbags in the profession) who represent good people that have been seriously wronged, sleep well at night, knowing they are doing a really good thing for their client and for society.
The beauty of the entire system is that trial lawyers are forced to invest huge sums of money and huge amounts of time in their cases. They work on a contingency fee basis. If they don't win then they are not paid. You may assert that the poor drug companies settle all those cases, but it isn't true. Last year we heard about a very long and expensive Vioxx case that was lost by a Plaintiff lawyer in New Jersey, the land of drug case trials. The fact is that the average person could NEVER afford to fight against a drug company. The drug company can pay their (like you guys) trial lawyers $500 per hour for 10 lawyers to work all day and all night every day of the week. The average person cannot afford to hire a lawyer for $150 per hour, 3 hours per week. Without the contingency fee arrangement, the average Joe would never get justice.
Your most curious position was that government is simply more efficient than private industry at regulating the behavior of business. This is a counter-intuitive statement. Most people have the general feeling that government is inefficient and that if any business ran like government runs they would be bankrupt in a week. However, I will only address your rationale as to why business likes government oversight better then being held accountable by Plaintiff lawyers. Business prefers government oversight instead of personal responsibility because business knows that government simply cannot keep up. Government has limited resources. Those resources are politically distributed. In other words: if you have the right friends in the right places, like George W. Bush in the White House, then government regulatory agencies can lose their funding, lose their staffing and lose their ability to keep up with any industry George W. Bush decides to protect. Business has the money, the staff and the political lobbyists to subvert the good work of the government. I don't trust business without the balance of personal injury lawsuits.
Finally, on a personal note, to call plaintiff lawyers parasites at the same time as defending and protecting greedy corporations who put even nominal profits above human health and wellbeing is a twist of reality that only the most self loathing trial lawyers can try to rationalize to make them sleep better at night. The public is certainly suspicious and bright enough to see through frivolous cases. Plaintiff's lawyers are not Svengali's who hypnotize juries into giving money without reason. I would hope your ego is strong enough to agree that the defense bar attorneys are equal in talent to the Plaintiff's bar. If not, well then maybe you are right, the real problem is that business just needs better attorneys and since they don't seem to find them big business is hoping Uncle Sam will save them from the big bad Plaintiff's attorney.
Have a great day.
Brian F. LaBovick
Civil Justice Prosecutor
Those guys write a great blog, I'm gratful for their analysis. I certainly think they are to the right of even the Bush administration with respect to the obigations drug companies have to the American people and they absolutely refuse to acknowledge what plaintiffs' lawyers have done to keep drug companies a little in check (we have not done a great job).
What an excellent post, and beautifully said.
I do marketing communications for plaintiff attorneys and I consider it an honor and a privelege to work with these folks. They are the "Top Guns" of the legal world, who still believe in "Truth, Justice and the American Way," though many would never admit to the idealism.
Working with the various attorneys I represent, I often have opportunities to talk to their clients whose entire lives. . .and the lives of their families. . .have been upended due to needless damage by corporate wrongdoers who put profits over people. Their stories and their disbelief that this can happen can rip your heart out.
The only thing worse is to listen to the pain and pleading by those who are victims of medical malpractice and who, because of the med mal caps here in California, can not find an attorney to take their cases because no attorney can afford to take a case that doesn't have the chance to pay for itself.
Big Business and insurance companies have done an excellent job of perverting American thought and making it acceptable to blame the victim. Thankfully, the pendulum is swinging back (granted, it's slow, but it's happening), to putting blame where it belongs, on the wrongdoers.
To all plaintiff attorneys, don't stop being "Big and Bad."