Trial lawyers in glass houses shouldn't throw stones

By DARREN McKINNEY

WASHINGTON -- Last week in this space, Bernie Layne -- the leader of West Virginia’s personal injury lawyers’ lobby -- had the hypocritical audacity to attack certain civil justice reform groups, including mine, for, among other things, being funded by “major corporations and industries” and supposedly limiting attendance to our various gatherings to folks who “already espouse [o]ur talking points.”

Leaving aside the fact the American Tort Reform Association and its affiliated Citizens Against Lawsuit Abuse groups in the states gratefully receive funding from many of America’s large employers, respected nonprofits such as the American Medical Association and the National Federation of Independent Business as well as a number of counties and municipalities that are tired of being sued every time a clumsy kid falls off a swing at the playground, let me point out that rich personal injury lawyers like Mr. Layne and their state and national trade associations routinely fund self-described “consumer advocacy” groups.

In many cases, personal injury lawyers are the principal or even exclusive funding source for such groups, which come in very handy when Mr. Layne and his gang decide they want to target a particular deep-pocket company or whole industry. A consumer advocacy group will first, on cue, publish a breathless “report” that alleges some type of health, safety or financial risk that a given product or service purportedly poses. Friendly lawmakers in Congress and statehouses hold “hearings” about the report’s “findings.” The media exaggerate the report, and the public is led to believe the defendant is liable long before anyone may be called for jury duty.

This well-worn racket makes it much easier for Mr. Layne and his ilk to coerce lucrative pre-trial settlements from corporate defendants without ever having to prove anything to a jury. Nice work if you can get it.

With respect to limiting meeting and conference attendance to those willing to sing from the same hymn book, no one takes this practice to the extreme taken by personal injury lawyers. Their national trade group, the American Association for Justice, was embarrassed a few years back when a conniving strategy to enlist the Obama administration’s help in further putting the screws to lawsuit defendants was leaked to the media from an annual conference.

Since then, would-be attendees of the AAJ’s confabs have been obligated to sign confidentiality agreements that subject them to civil liability if they disclose the secrets discussed behind closed doors.

Bear in mind, I’m not arguing that the personal injury lawyers don’t have every right in the world to fund consumer advocacy front groups or swear their conference attendees to absolute secrecy. But I would like to know why Bernie Layne is attacking his adversaries with arguments to which he and his own crowd of slip-and-fall cronies are just as susceptible, if not more so. Does he think people are stupid? Has no one ever told him that folks in glass houses shouldn’t throw stones?

In any case, Mr. Layne offers up his hypocritical attacks on tort reformers as a backhanded means of arguing that West Virginia’s generally plaintiff-friendly courts do not comprise ajudicial hellhole. Pretending once again that personal injury lawyers are champions of “the little guy,” Layne has to reach all the way back to the 2006 Eagle Research Corporation case to suggest somehow that Mountain State judges and plaintiffs’ attorneys are looking out for small businesses.

But like a good magician distracting his audience’s attention away from the real sleight of hand, Mr. Layne ignores more recent cases that went against small businesses. Take for example last year’s Supreme Court of Appeals 3-2 reversal of a commonsense trial court decision in Hersch v. E.T. Enterprises.

Justice Allen H. Loughry’s stinging dissent said it all, asserting that the majority had “saddled property owners with the impossible burden of making their premises ‘injury proof’ for persons who either refuse or are inexplicably incapable of taking personal responsibility for their own safety. ... Ordinary homeowners will pay the highest price for the majority’s pandering to persons who ignore the risk associated with open and obvious hazards that ordinary, hard-working citizens encounter every day and invariably utilize their common sense and good judgment to avoid. ... It is decisions like this that have given this state the unfortunate reputation of being a judicial hellhole.”

Or how about the patently absurd $90 million trial court verdict in 2011 against a nursing home operator, blaming the operator for the death of an 87-year-old woman with dementia and other serious health problems? How long did the plaintiff realistically believe his aging and ailing mother was going to live? (Most of us would be pretty happy to make it to 87.) And how in the world did the trial judge let the award for $80 million in punitive damages stand in the face of state medical liability law that limits such damages?

An appeal of the nursing home case is still pending before the state’s high court. And while rational West Virginians worry about the effect the case may have on the costs of caring for their own elderly and disabled loved ones in the future, Bernie Layne and his Mountain State Marauders shamelessly root for jackpot justice in the here and now.

McKinney is director of communications for the American Tort Reform Association and editor of the annual Judicial Hellholes report.