Frank Fat's Napkin; How the Trial Lawyers (and the Doctors!) Sold out to the Tobacco Companies
Glastris, Paul, The Washington Monthly
Frank Fat's Napkin:
How the Trial Lawyers (and the Doctors!) Sold Out to the Tobacco Companies
It's no secret that the 800 lobbyists registered to do business in the state of California wield a certain amount of influence. Sacramento wags refer to them collectively as the "third house' of the legislature. Lacking a marble building commensurate with their power, lobbyists then to conduct their affairs in borrowed surroundings: space meeting rooms in the state house, suites at hotels, and often around tables at Frank Fat's, an art deco Chinese restaurant a couple of blocks from the capitol.
It was at Frank Fat's, on the evening of September 10, 1987, that State Senator Bill Lockyer scribbled on a cloth napkin. At his table were lobbyists representing the state's trial lawyers, doctors, and insurance companies--the three largest contributors to the campaign coffers of state legislators--as well as the Chamber of Commerce. For years these groups had fought over the state's civil liability laws. What Lockyer wrote on the napkin was an outline of a "nonaggression pact,' as it came to be known, in which the parties agreed to cease hostilities and support radical legislation making it more difficult and less profitable to sue in civil court. One provision raised the standard of proof an injured person must meet to obtain damages. Another granted virtual immunity to "inherently insafe' products, such as tobacco.
The California "compromise' gave something to everyone at the table. Manufacturers got protection from law suits. So did insurance companies, which also won relief from threatened regulation of their industry. Doctors got a promise that they wouldn't lose lawsuit protections they already had. Trial lawyers, long opposed to these "liability reform' measures, won increases in the fees they can collect in malpractice cases. "Unfortunately the victims who will be harmed weren't in the room when the deal was cut,' complained Harry Snyder, the regional director of the Consumers Union.
Such a sweeping, controversial measure, you might think, would require months of debate in legislative hearings. Instead, the bill, written by the lobbyists, went before the legislature the next day, the final, frenetic day of the 1987 session. Legislative leaders who supported it, announced they'd accept no amendments: that would upset the balance gingerly achieved at Frank Fat's. Indeed, while it was being thoughtfully mulled over at a one-hour committee hearing, the bill was already on the assembly floor in a mad swirl of more than 500 bills being considered. The legislature passed it by wide margins, and the governor signed it. About the only evidence legislators have of their involvement in crafting this fundamental new law is The Napkin, which Lockyer displayed to reporters like a trophy-- "I'm willing to participate in some of the theater,' he said.
In state legislatures, the quick slip at the end of the session is a familiar ploy. But in the history of special interest politics, the California Civil Liability Reform Act breaks new ground. No one in Sacramento had ever seen a bill with an accompanying peace pact, or one that so studiously avoided serving the public interest. While an major premise of liability reform is that it will cut insurance rates, the bill's proponents now admit that it won't. What the act will do is make it more difficult for anyone to sue a corporation for civil liability. And if you manage to win a malpractice suit against your doctor, the bill assures that more of your settlement will go to your lawyer and less to you.
But the biggest losers are those who suffer the diseases and deaths caused by tobacco. The new law grants virtual immunity to tobacco manufacturers. There is a chance that it could be found unconstitutional or interpreted as not applying to certain claims. But if it is not, anyone bringing a liability suit against a tobacco company--including 27 who had filed cases before the law was passed--can stack their papers, zip up their briefcases, leave the courtroom, and by and large forget about collecting damages. …