When state attorneys general joined up with private personal injury lawyers to go after Big Tobacco, their partnership and the billions it produced for state coffers were hailed in many circles. Critics were dismissed as alarmist.
Queries about "who's next?" were greeted with the pat response, "No one." The state attorneys general and their newfound allies repeated the mantra that tobacco was "the only product that, if used as intended, could be fatal." They ignored cheeseburgers, which can slowly kill you if you eat too many. The attorneys general also said it was a temporary partnership, not a path for future regulation and taxation through litigation.
Since tobacco, however, municipalities have bonded with wealthy personal-injury lawyers to go after the gun industry, and Rhode Island has marched in against the manufacturers of lead paint, although the product has not been sold for decades. One could argue that lead and guns fit into the tobacco paradigm. But how about latex and automobiles?
Sheldon Whitehouse, Rhode Island's attorney general, has written his colleagues across the country: "I have read in recent medical publications that 10 percent and more of the health care workforce is now latex allergic." He suggests "[g]oing after the latex rubber industry." What for? To put "a couple of billion dollars into a foundation to raise awareness and do research."
Based on information from prominent plaintiffs' lawyers, a future target may be automobile manufacturers. After all, cars can go well over 100 mph, and speed kills. With a simple device, apparently sold in at least one major Arab country, automobile manufacturers can limit automobile speed and ensure that no teenager drives a car over the limit. Every injury at high speed is a serious one, bringing crushing costs for state Medicaid. Shouldn't the attorneys general, state Medicaid organizations and personal injury lawyers have a piece of this action too?
Now we know for sure that the lucrative attorney general-personal injury lawyer partnership is not just about tobacco. Moreover, the contracts between attorneys general and personal injury lawyers are privately made, with no public scrutiny. This has led to fraud and abuse.
Last year Texas and North Dakota addressed the problem with the enactment of the Private Attorney Retention Sunshine Act, which shines light on this behind-the-mahogany-doors contracting. It requires open competitive bidding on contracts between state attorneys general and personal injury lawyers. It helps ensure that when personal injury lawyers are hired by the state, their fees are based on the true challenges of the claim and the amount of work they did.
Kansas has also adopted the Sunshine Act, but in Maryland it was buried at night, despite the fact that all the testimony received about the bill supported it.
Putting sunlight on attorney general-personal injury lawyer contracts is only one safeguard to protect the public interest. More is needed.
First, for governmental entities to win such cases, either judges or legislatures have to make radical changes in our laws. They give the states super powers, well beyond those of an ordinary person who is injured by a product.
With regard to tobacco, a few lower courts ruled that defenses used against smokers by tobacco companies could not be used against the state. If applied against other industries, that principle could threaten the manufacturers of firearms, latex, lead paint, automobiles, liquor and even fast food. Such decisions fly in the face of basic fairness. States should not have greater rights to sue than their own citizens.
A second concern is the public's perception of these lawsuits. So far, the public has either been indifferent or viewed them as a painless alternative to taxes. But the suits are not cost-free. The public ends up paying for them through increases in product prices or the removal of products from the marketplace. The money is not used for the purpose it was sought for. Most "tobacco" money has not been used to promote public health. More important, since in general the judges, not the legislatures, make the new rules, the public has no real way to curtail their activity at the polls.
If no rational brakes are applied to the attorney general-personal injury lawyer alliance, public health and safety questions may no longer be debated and settled by elected officials beholden to the will of the people. Instead, personal injury lawyers, motivated by profit, joined by selective attorneys general and judges who want to make, not interpret, the law, will fill that role.
The writer is a Washington lawyer and general counsel to the American Tort Reform Association.