Lawyers Put Profits Above Lives

By Lester Brickman
Trial lawyers have long maintained that they are motivated by concerns for public safety rather than private gain. That claim was exploded by the recent story of a group of Texas lawyers and their consultant who in 1996 were planning to sue Bridgestone/Firestone Inc. over the failure of Firestone ATX tires on Ford Explorer sport-utility vehicles: They purposely withheld information about the failures from federal safety regulators.

Dr. Ricardo Martinez, National Highway Traffic Safety Administration head in the late '90s, was appalled to learn of this: If he'd been given the information the lawyers had in 1996, he said, he would have ordered an immediate investigation. That might have saved lives: 190 of the 213 reported tire-related deaths came after 1996. Indeed, when data on the pattern of ATX/Explorer deaths finally did become public, it led soon to a recall.

Who did report the information? The State Farm Insurance Company. State Farm notified NHTSA of the increasing number of ATX/Explorer claims, thus probably saving hundreds of lives - as well as saving itself tens of millions of dollars, in policies it would have honored had the deaths occurred.

Contrary to the myth propagated by tort lawyers, making travel safer is good for insurance companies - because it increases profits - and bad for lawyers.

The lawyers and their consultant have justified their withholding of the information as being in the interests of their clients. They did not want the evidence of the tire failures to go into the public record, they said, for fear that NHTSA would launch an investigation and then conclude that there was no defect - thus, they claim, hurting their clients' cases.

But did these lawyers simply place profits above public safety, as they have frequently accused corporate defendants of doing?' Yes - but not in the way it was recently reported on the front page of The New York Times.

Both common sense and common knowledge tell us that it was not their clients' interests that these lawyers were protecting. It was their own - at the possible expense of their clients.

Most of the time, to up the pressure on manufacturers to settle claims, tort lawyers actively seek government agency intervention to bolster their cases. Why then did these lawyers not do so in this instance? The most obvious explanantion is that they didn't want to alert other lawyers to the chance for profit.

In today's tort world, when lawyers come across a new set of product-liability claims that promises to be extremely lucrative, their first act is to keep that knowledge secret, safe from other lawyers' prying eyes. Fewer lawyers to divide up the fees means bigger pieces of the pie for those lawyers who form the initial joint venture to prosecute the claims and divide up the profits.

Fees that translate into $5,000 to $10,000 an hour are commonplace in such litigations; they can run as high as $100,000 an hour and more in aggregated proceedings, such as class actions.

Moreover, whatever the lawyers learn through depositions and discovery becomes their proprietary information - it can be sold to other lawyers for a profit. Disclosing that information to NHTSA, and thus making it generally available to the public, would have devalued the price of that proprietary information.

That these lawyers acted in their self-interest knowing that more deaths were likely as a consequence probably surprises no one. Even that such actions violated no rules of legal ethics may not shock us - opinion polls indicate that the only occupational group the public esteems less than lawyers is used-car salespersons.

Here's the real significance of this rare glimpse into the secret world of tort lawyers: Placing public power in lawyers' hands constitutes a clear and present danger to the public interest.

Yet it is being done with ever-greater frequency: State attorneys-general have partnered with tort lawyers to sue tobacco companies or gun manufacturers. And Congress is even now considering giving lawyers free rein to sue the managed-health-care industry for unlimited amounts of money.

When tort lawyers are empowered to use the full resources of the state to further their own financial interests, the outcome, not surprisingly serves lawyers' private interests at the expense of the public's interest - just as occurred when the Texas tort lawyers and their consultant pursued private gain at the cost of public safety.

Lester Brickman, an expert on lawyers' ethics and tort reform, is a professor of law at the Benjamin N. Cardozo School of Law of Yeshiva University.

Click here to read "Sacrificing Safety," Fort Worth Star-Telegram, June 29, 2001

Click here for "Lawyers' Silence: Civic duty should allow reporting of deadly dangers", Houston Chronicle, July 1, 2001

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