Special Report

Litigator Bait

Defeat becomes the trial lawyer ticket.

By 10.31.04

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Item found in my mailbox this week:

The One Billion Dollar Man: John M. O'Quinn '67 earns record verdict in fen-phen suit

John M. O'Quinn '67 has a new nickname these days -- The One Billion Dollar Man. And he hopes the moniker will stick for a long time.

On April 27, 2004, a jury in Jefferson County returned a stunning $1 billion award -- that's BILLION, with a "B" -- to the family of a woman who died after taking the now banned fen-phen drug. O'Quinn led the plaintiff's trial team and said that the evidence strongly supported the verdict. The outcome is large enough to put Wyeth, the pharmaceutical company that manufactured the drug, out of business.

This little notice was included in my law school alumni magazine. It was accompanied by a beautiful photograph of the smiling O'Quinn. Thanks to this case and others like it, O'Quinn is one of the richest men in Texas. One of the other richest men in Texas, Joe Jamail, is also a trial lawyer. One might take note of the fact that O'Quinn first made his fortune suing manufacturers of silicone breast implants, which were later found not to have caused breast cancer. Surprisingly, neither O'Quinn nor any of the other lawyers involved have refunded their share of the damages.

Unlike some University of Houston Law Center alumni, I did not feel a sense of pride when reading about "The One Billion Dollar Man." I felt a different emotion. Shame. While others might dwell on how skilled a lawyer must be to get a damage award of that size, I thought about how an entire pharmaceutical company has been forced out of business. How many researchers, lab techs, clerks, analysts, secretaries, computer repair specialists, janitors, and other workers were put out of jobs by this legal action?

A woman died from taking the drug. That is terrible. If I were her family, I'd want something done, too. On the other hand, a member of my family took the same drug and combined it with exercise to lose life-threatening weight. She is now healthier than she has been in decades. So, was THIS the right answer? John O'Quinn will be able to line the walls of his home with $1,000 bills, while many other people will be entering the unemployment bureaucracy. The woman's family will experience a windfall that will never bring her back. A productive company that helped a lot of people and generated useful drugs is no more.

Litigation has become a cancer in the American body politic. Productive enterprises and professions are endangered by it. Creativity and willingness to solve difficult problems are severely penalized by legal action. The result is that those attributes will dwindle, leaving us impoverished with regard to life-saving drugs, procedures, and devices. There's an old saying about how much easier it is to throw rocks through stained glass windows than it is to create one in the first place. The same is true in free enterprise. If a lawyer and a party with a grievance can unravel a complex and beneficial undertaking so easily and become rich in the process, there is little point in taking chances in the first place. Why put yourself (or your capital) on the line?

If America elects the Kerry/Edwards ticket, which is fueled with trial lawyer money, the problem is highly unlikely to be addressed in any productive way. With John Edwards in office, a man whose Senate seat was paid for by medical malpractice award dollars, the parasitic profession will have its own representative in the executive branch.

Almost anyone with a smidgen of common sense can see how litigation has introduced a debilitating x-factor into our free market economy. Ridiculous verdicts like the one that made "The Billion Dollar Man" shoot holes in the plans of stockholders and ordinary employees. And what about the medical malpractice insurance problem? How many doctors are forced to abandon their practice or retire early when they have many good years left? How many people worked for them and have difficulty finding their next position?

Implementing some type of national litigation reform is utterly necessary if we hope to continue strong economic growth. George W. Bush is the only candidate for president willing to tackle the problem. Give him a few more Senators on his side and something will be done. When that happens, the Opportunity Society will begin to celebrate a new phase of prosperity.

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About the Author

Hunter Baker is associate dean of arts and sciences and associate professor of political science at Union University. He is the author of The End of Secularism and winner of the 2011 Michael Novak Award. His personal website is www.hunterbaker.wordpress.com.