Lawyers Will Win States' 'Tort Lotto'

By Wagner, David | Insight on the News, March 16, 1998 | Go to article overview

Lawyers Will Win States' 'Tort Lotto'


Wagner, David, Insight on the News


Private lawyers stand to make fortunes as `special attorneys' representing state governments against big tobacco, under new rules designed to guarantee that defendants can't win.

What would you say to a fee of $7,700 per hour? That's how much certain plaintiffs' attorneys stand to make in Florida's lawsuit against the tobacco industry to recoup Medicaid costs, as calculated by a free-market policy analyst. Similar jackpots are on tap in other states.

Robert Levy, a senior fellow in constitutional law at the Cato Institute in Washington, notes that this figure assumes 24-hour workdays and seven-day workweeks during a 42-month period. If we assume the lawyers occasionally ate, slept and visited the necessary during those 42 months, the hourly rate goes even higher.

Evidently, say critics, some members of the plaintiffs' bar believe allegedly obscene profits should be redirected from the tobacco industry to their own.

The exorbitant hourly rates, if achieved, would not be the fruit of ordinary tort lawsuits by individuals against the tobacco giants. Instead, it would come from lawsuits brought by states seeking to recover their Medicaid funds from the industry.

Florida amended its Medicaid Third-Party Liability Act in 1990 and again in 1994, creating a virtual can't lose situation for the state when it sues an industry to recoup Medicaid expenses. According to Levy, these amendments altered several traditional rules of the common law of torts:

* They abolished the "assumption of risk" defense, i.e. the argument that the plaintiff knowingly took the risk and therefore cannot recover damages;

* Causation need no longer be specific. Whereas in an ordinary tort case the plaintiff has to show that the defendant directly caused the plaintiff harm, in Florida Medicaid cases the state, as plaintiff, can substitute "statistical analysis" for particular causation;

* The state need no longer identify individual Medicaid recipients whose costs it supposedly is trying to recoup;

* The court may apportion liability among different companies based on "market share";

* No statute of limitations now is valid in Medicaid cases;

* If the state wins (and under these rules, it can hardly lose), it is authorized to recover "reasonable" attorney fees for outside counsel.

Florida enacted these changes by statute. The Legislature eventually voted to repeal them, but Democratic Gov. Lawton Chiles vetoed the repeal bill. Meanwhile, similar changes are working their way through the legislative process in Iowa, Maryland, Massachusetts and Vermont, and have been put into effect by judicial decision in Texas.

It is the rule allowing fees for outside counsel that represents the jackpot for the trial attorneys. The states that are bringing Medicaid lawsuits against the tobacco industry argue that their limited staffs of state-salaried lawyers are no match for the armies of blue-chip law firms, staffed by phalanxes of former Harvard Law Review editors, that the industry can afford to throw at them. So the states need to hire crack tort lawyers from the private bar. And, for the same budgetary reasons that prevent the states from handling these cases solely with state-salaried attorneys, the private attorneys brought in to help must be recompensed on a contingency-fee basis: that is, they get a percentage of any monetary verdict or settlement.

In Levy's view, this sets up a very problematic relationship between the state and the private bar. "These new rules have the effect of punishing the industry," he tells Insight, "and the private `special attorneys' are in effect auxiliary prosecutors.

"But is it proper for the state to use the private bar on a contingency-fee basis? Prosecutors -- unlike private attorneys -- are supposed to balance the needs of the legal system against zeal for courtroom victory. They have to protect all parties, including the defendant. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Lawyers Will Win States' 'Tort Lotto'
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.