Enriching Lawyers And Fostering A Risk Averse Culture

Mike Pyatt

by Mike Pyatt

Nineteenth century English jurist, Jeremy Bentham said, “The power of the lawyer is in the uncertainty of the law.” Daily there’s another recall or warning of a product that turns out to be defective, have design flaws, or a drug with “unanticipated side affects,” and consumer complaints are ignored. Warning labels are so common and frequent that the average consumer’s uninformed and confused. This drama’s played out in the form of advertisements, enticing those, who’ve been exposed to mesothelioma, a failed hip or knee replacement, prescribed IVC vascular filters, with compensation, without going to court.

In 1971, A.H. Robbins Dalkon Shield IUD, marketed the contraceptive device, that caused women to suffer symptoms such as severe infections, miscarriages, stillbirths-even death. For another ten years the company continued to market the product, even though, in1974, the FDA halted distribution of the device. The company didn’t recall the product, and sold more than 4.5 million devices oversees. Court documents indicated that at least 66,000 women were known to suffer septic spontaneous abortions, and at least eighteen women suffered death by infections caused by use of the device. “The manufacturer knew and failed to inform the public,” according to the LA Times, was the hue and cry by courts, government, lawyers and clients.

The list of pharmaceutical manufacturers is exhaustive. Products vary widely. Johnson & Johnson, Bayer, GlaxoSmithKline, Ely Lilly, Astra Zeneca, and Chiron, manufacturer of more than half of the U.S. supply of flu vaccine, and the physicians who prescribed these drugs.Court records contain comments like, “Great smoke and mirror job,” regarding Big Pharma’s marketing strategies, hawking products to an uninformed and vulnerable consumer. Prozac, Paxil and Zoloft, in the late 80’s, before the drugs hit the market, manufacturers became aware that the drugs posed an increased risk of suicide-a fact they brushed off for decades. According to court documents, their own clinical trials revealed the drugs were often no more effective in treating depression than a placebo, a fact also hidden from regulators and patients. These cover-ups aren’t just for the Big Pharma. There’s body armor, baby cribs, tainted peanuts, poultry, beef, automobiles, and agricultural chemicals. There’s no shortage of blame. Callous and greedy executives, corporate boards, complicit and willing clinical agencies, prescribing physicians, naive and obsequiously ignorant consumers, complicated by a miserably flawed and feckless FDA, joined by law firms ready to pounce like buzzards upon a three legged dog.

Our litigious American culture is fueled and crippled by a greedy public, activists lawyers, and doctors dodging malpractice, ordering innumerable, often unnecessary tests. Who’d forget the 79-year old, coffee drinker, Stella Liebeck, who sued McDonald’s after spilling hot coffee in her lap. Her initial suit was for $2.9 million, later reduced by the court to $640,000. The company paid. Their coffee cups bear the legendary caution: this cup contains an extremely hot beverage. Whatever happened to the old principle, “Caveat emptor.” Lawyer and author, Philip Howard, reported an account of a fifteen-year old boy who bled to death only thirty feet from the hospital ER door. Hospital staff feared their legal liability if they ventured outside to retrieve him. Paralyzed by legal anxiety is as pernicious as an inveterate disease. Few understand this legal juggernaut that’s counter to their best interests.

A Newsweek column cited The Quarterly Journal of Economics estimate, that the recent practice of defensive medicine-doctors prescribing treatments, X-rays and life support-to principally pre-empt legal action-costs nearly $50 billion a year. The high cost of CYA. Fear of litigation has a lighter side. Detergents carry a warning label few believed would ever be necessary-before the recent craze of dim witted teens eating Tide Pods. The prize goes to the federal injunction against eating photocopier toner. Handiwork of the legal profession and encroaching government at its worst.

Four years after the Class Action Fairness Act of 2005, researchers at Mayer Brown, stated “For practical purposes, counsel for plaintiffs, and defendants, are frequently the only real beneficiaries of the class actions.” In 2009, not a single case went to trial, illustrating that plaintiff attorneys embrace the class action system. Once a judge certifies a case as an action on behalf of thousands, or millions of consumers, according to Andy Pincus, Mayer Brown’s D.C.partner, the stakes are usually too high for companies to consider anything other than settlement. Rarely do lawyers come out of the skirmish empty handed. For example, in the Kellogg Rice Krispies litigation, under the FTC action, consumers received a “right to a $5 refund, while lawyers sought half the $2.5 million claim fund.”

We’ve reared a generation of bubble-wrapped kids. No bike riding without helmet and shin guards. No dodge ball at school, no talking to strangers, and don’t dare risk drinking from the garden hose. Ribbons given for eighth place. Teachers reluctant to hug a student for fear of a lawsuit. Should one be fearful to risk the American dream, though surrounded by a cloud of lawyers? Beware of that tawdry firm, Dewey, Cheatum & Howe. Until recently, America has avoided the fate of other nations that’ve traded freedom for vacuous promises of security and safety. How does one balance security and civil liberty, yet not be hobbled by litigious activism? First century historian Tacitus recognized “the more corrupt the government, the greater the number of laws.”

Why would thirty year-old pajama boy risk straying out of his parents secure bunker to approach an irksome, alienated habitat? By contemporary standards, our Founders should’ve taken out a surety bond in the event of state’s rebellion. Are we willing to cast fear aside and take a challenge today? Nearly every message to American consumerism stress comfort, security and risk aversion. In the Old Testament, Esther broke royal proclamations to rescue her people, and boldly stated, “If I perish, I perish.” No craven, cowering behavior. How should we then behave? What do you think?

Mike Pyatt’s a Natrona County resident. His email’s roderickstj@yahoo.com

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