Wave of litigation sweeps states, big cities over lead, tobacco, guns
WASHINGTON - The Missouri Legislature's final days this week could be worth $100 million or more to a handful of politically well-connected attorneys who represented the state in talks that led to the settlement with the tobacco industry in 1998.
In St. Louis, the city is proceeding apace with its own tobacco suit and a similar one against the lead-paint industry. It also has joined 32 other municipalities around the nation in suing gun makers.
The suits are part of a wave of litigation that is centered less now in Washington than in state capitals and big-city governments.
Proponents hail the new trend as a win-win situation, giving local and state governments the legal and financial clout to take on big business. But many specialists argue that judges are increasingly dictating social policies that were once hashed out by regulatory and legislative bodies in settings better equipped than courts of law to fine-tune public and private responsibilities.
President George W. Bush has repeatedly voiced skepticism about class-action litigation. Some believe Attorney General John Ashcroft will soon drop the Justice Department's $100 billion suit against the tobacco industry - a case that has been crippled by court rulings that left standing only a claim that allegedly false statements by tobacco companies had violated the Racketeer Influenced and Corrupt Organizations Act.
Critics say the suits are an invitation to intimidation and abuse of the legal process.
"Never mind that the suits are baseless," says Robert A. Levy of the Cato Institute in a critique released within the past week. "We're dealing not with law but with extortion parading as law."
Legal scholars and economists discussed the litigation explosion at a conference last month sponsored by the American Enterprise Institute and the Brookings Institution. They said most specialists concur that on legal grounds, most of the suits are tenuous at best.
Yale Law School professor Peter H. Schuck, in an analysis of the gun suits, wrote that "to most legal experts these cases are non-starters; most judges will not even submit them to a jury because, among other things, the governmental plaintiffs, unlike shooting victims, have not suffered the kind of direct harm that courts require."
But winning in court often isn't the point, Schuck added, in cases that "are better understood less as solid legal claims than as political ploys - intended to spotlight issues and to embarrass and pressure the industry into adopting safer designs and marketing practices that the government either cannot or will not mandate itself."
Duke Law School professor Philip J. Cook said the theory underlying the lawsuits is that legislative bodies, dominated by special interests such as the tobacco and gun lobbies, no longer serve the public interest.
"What's exceptional in this area is that the political process is not acting on the will of the majority," Cook said. "The majority, when it's asked in surveys or when it's given the chance to vote, will vote for more regulation. It's the legislatures that are flouting the will of the majority and the courts that are being called to act on it."
Ronald Levin, a specialist in administrative law and civil procedure at Washington University School of Law, said the problem with the tobacco settlement and its legal progeny is that they have overburdened the courts and undermined the traditional role of legislators and regulatory agencies.
"If you work through the administrative process, you have some assurance that you'll have decisions made by people with expertise," Levin said. "They'll have to write opinions explaining their conclusions and support them with evidence. There will be political review of those decisions and judicial review in detail.
"But if you put those same questions to a jury, you are putting the responsibility on lay decision-makers who have been randomly chosen. A jury, moreover, will do little if any articulation of its reasoning. So while the courts may look at what they've decided, they will have less to work with in terms of assessing what was actually done, and why."
Critics say the lead-based paint suits are an egregious example of disputes that don't belong in court.
The suits seek damages from paint manufacturers for products that were legal when sold (but which have been banned since 1978). The actions are not directed at landlords who might clean up lead-contaminated housing units, nor at the government agencies that first said leaded paint was safe and that have continually tightened standards since for safe exposure to lead. The suits offer no relief for those who arguably suffered most - now-grown adults who grew up at a time when housing units had far greater concentrations of lead than those today.
Randall Lutter, an economist at the AEI-Brookings Joint Center for Regulatory Studies, said it appeared that cities such as St. Louis, faced with the costs of lead abatement on the one hand and on the other the availability of lawyers who get paid only if they win, view lawsuits as a no-lose proposition.
"Broadly speaking," he said, "the primary rationale for government agencies to sue these companies appears reminiscent of Willie Horton's famous rejoinder about why he robbed banks: That's where the money is."
The attorney representing St. Louis insists that the city has suffered direct damages from lead-based paint and that the lawsuits will demonstrate that the paint manufacturers withheld information for years about the adverse health effects of lead-based paint.
"The city has an enormous burden to get rid of the lead paint," said Michael A. Garvin, who represents St. Louis in the case now pending in St. Louis Circuit Court. "The fact is, we're spending $100,000 a year already cleaning up the lead paint that was produced and sold by these companies," he said.
What tobacco wrought
The 1998 settlement between the major tobacco companies and the attorneys general of most states, including Illinois and Missouri, marked a major turning point in the way governments use the courts - and high-priced trial lawyers - as a bludgeon against targeted industries.
Specialists who have reviewed the tobacco settlement question not just the legal fees but also the merits of an agreement that is only crudely related to actual damages caused by smoking.
W. Kip Viscusi, professor of law and economics at Harvard Law School, told the AEI-Brookings conference that, in terms of direct costs to society, tobacco is a net plus, in fact, for the simple reason that smokers die early and so require less nursing home care and receive less in pension and Social Security.
Tom Strong, lead attorney in the Missouri tobacco case, discounted Viscusi's argument.
"It's like someone coming in and murdering your mother and saying: 'Look, she'll have no medical bills at all. If I hadn't shot her dead, she'd probably be in the hospital like everyone else ... and cost all kinds of money.'"
Viscusi's analysis also highlights the striking differences among states in what they recouped from the tobacco settlement.
Hawaii took home $2.89 for every dollar the state spent in tobacco-related medical costs, for example, and Arizona received $2.85. Tobacco-producing states fared much worse, with North Carolina receiving 68 cents back for every dollar in direct medical costs and Kentucky getting 64 cents.
Missouri recovered 85 cents for every dollar in its direct medical costs; Illinois, 84 cents.