Newsweek, as is typical for a newsweekly, published only a terse editorial response (see previous post) to the litigation lobby’s concerted attack on its reporting. However, Stuart Taylor, Jr., the distinguished veteran journalist who (with Evan Thomas) was principal author of the feature, has kindly consented to let us reprint his more detailed point-by-point rebuttal to ATLA’s official gripe catalogue, published under the title “Spin or Facts? A Look Behind Newsweek’s Series ‘Lawsuit Hell’“. Because of the length of Taylor’s response, we’ve split it into two posts, the first responding to the first six points of ATLA’s critique and the second responding to the rest. Check out in particular, under heading #6, ATLA’s false (and remarkably brazen) assertion that the Tillinghast study’s $233 billion estimate of the cost of the liability insurance sector includes “the cost of the entire property/casualty insurance industry” and in particular the cost of hurricanes and similar damage. (It doesn’t.)
Posts Tagged ‘Stuart Taylor Jr.’
Newsweek: ATLA’s Turn
Newsweek policy states that the “My Turn” reader-submitted essays should not be “framed as a response to a Newsweek story”, but the December 22 issue features precisely such a piece from Linda McDougal. The article includes almost verbatim the half-facts from ATLA’s press packet that we refuted earlier (see Dec. 12).
A final irony: McDougal concludes her essay with “I also know that if all those who want to restrict the legal rights of ordinary citizens have their way, I wouldn’t have waited seven months for an apology from the doctors, which I got only after my story became public. I would have waited forever.” I’ll leave aside the fact that many ordinary citizens are victims of societally harmful tort lawsuits (see, e.g., Feb. 7, 2000). Has McDougal considered that perhaps the reason that the doctors waited to apologize for a mistaken mastectomy until after she went public was because they were afraid that the apology would be used against them in a lawsuit? (Linda McDougal, “My Turn: I Trust Juries?and Americans Like You”, Newsweek, Dec. 22).
The “Civil Wars” author, Stuart Taylor, was confronted with a series of questions pulled from the same ATLA press release McDougal used, and responded to them in an on-line chat. (Stuart S. Taylor, MSNBC on-line chat, Dec. 11).
Sidenote: we covered a lawsuit of a Pennsylvania parents who sued their school board because their 13-year-old daughter was suspended for a consensual sex act on a school bus (see Sep. 19). Newsweek, in its story, mentioned a superficially similar Kentucky case that involved an alleged sexual assault of a 14-year-old on a school bus, resulting in criticism from McDougal and ATLA, but also going to show that Newsweek only scratched the surface of the problem by dint of its space-limited selections for the story.
ATLA and Newsweek
The American Trial Lawyers Association is engaging in a campaign to discredit the recent Newsweek cover story (see Dec. 8) on litigation abuses. Their “fact sheet” is riddled with half-truths, however.
For example, ATLA’s response to Newsweek’s anecdote about the Reverend Singleton is “no cause of action for clergy malpractice (ie: negligent counseling) exists in South Carolina.” The response is disingenuous: first, plaintiffs’ attorneys regularly bring lawsuits to try to create a cause of action for clergy malpractice (see, e.g., this ATLA member law firm that advertises that it has “recover[ed] large verdicts and substantial settlements” in clergy malpractice cases; perhaps your Yellow Pages has a similar ad?); while courts have generally rejected “clergy malpractice”, they frequently let identical causes of action go forward under a “breach of fiduciary trust” theory. (Gerald J. Russello, “New Jersey Supreme Court Recognizes Tort Action Against Clergy”, Federalist Society, Spring 1998). Second, Rev. Singleton spoke of the fear of being sued for inappropriate contact, not clergy malpractice.
ATLA also repeatedly pooh-poohs other pieces of the Newsweek story with variations of the following statement: “Under the Volunteer Protection Act of 1997, volunteers for non-profit organizations or government programs around the country — even those dealing with children – cannot be held responsible for their negligence.” Notice the precise language “cannot be held responsible for their negligence.” What ATLA doesn’t say is that, to get around the Volunteer Protection Act of 1997, all a trial lawyer needs to do is add a single word to the complaint: the Act provides no immunity for allegations of “gross negligence.” While the legal standard is technically different for “gross negligence” than for “negligence”, few defendants are willing to bear the risk of a jury making that distinction, especially given the potentially bankrupting effect of punitive damages. This site has identified numerous lawsuits (e.g., Nov. 16 and Sep. 15) where volunteers or sponsors of non-profit activities continue to be sued.
ATLA also defends itself by noting “The McDonald’s obesity cases were dismissed.” Will ATLA take a public stance against future fast food obesity suits? Not likely: a September 16, 2002 column by ATLA President David S. Casey asked the public to withhold judgment on the McDonald’s lawsuit until we “have all the facts”; the later (but undated) official statement of ATLA President Mary E. Alexander was similarly neutral.
Newsweek and Weekly Standard cover stories
Newsweek has a new cover story (“Civil Wars”, Dec. 15) on “Lawsuit Hell”, with sidebars on what litigation is doing to schools, medicine, and municipal governance (Chicago), with balance from Sen. John Edwards. The good news to report is that it’s a superior package, no surprise since one of the lead writers is Stuart Taylor Jr. (writing with Evan Thomas). The less good news is that although many of the colorful cases cited will seem, um, familiar to our readers (see Nov. 26), this website wound up not getting mentioned in the final draft. (Maybe someone will recommend us in a letter to the editor). NBC/MSNBC is doing related broadcast features all week, and the authors will be taking part in a live Web discussion on Thursday 12/11 at 11 a.m. EST.
And it’s a busy week on the newsstands, since our friend Bill Tucker has a cover story in the new (Dec. 15) Weekly Standard entitled “In Defense (sort of) of Trial Lawyers”. We disagree with quite a bit of it, as you can imagine, but it does give us a couple of nice mentions, which counts for a lot, no?