- The Washington Times - Thursday, February 3, 2000

It's easy to dislike big business and even easier for juries to inflict punishment for the alleged wrongdoings of these "big" and faceless corporations.

It's the David vs. Goliath mentality. And just like that biblical mismatch, it's often the little guy who wins with jurors.

But when juries make unjustified damage awards against large corporations based on negative images contrived by trial lawyers who play on the sympathies of jurors it's the employees and consumers who actually pay. They pay in lost jobs and in higher consumer prices.

The silicone breast implant decision, which steamrollered Dow Corning into bankruptcy, is illustrative of this as well as two similar and equally groundless lawsuits filed against Ford Motor Co. and General Motors.

In the Dow case, the company was compelled to file for protection under Chapter 11 bankruptcy following an agreement to pay $3.2 billion in damages to settle claims made by trial lawyers that silicone breast implants caused disease and serious illness in some 170,000 women.

On Dec. 1, federal bankruptcy Judge Arthur Spector affirmed the $3.2 billion judgment against Dow, paving the way for the cashing-in. That $3.2 billion works out to $300,000 for each woman alleging autoimmune disease even though a relationship between silicone breast implants and such diseases has never been scientifically established.

Dow Corning Chairman Richard A. Hazelton pointed out to no avail that "research has not shown a link between breast implants and the diseases alleged in lawsuits … prestigious institutions like Harvard University, the Mayo Clinic, Johns Hopkins and others have consistently found that women with implants are no more likely to contract disease than women without implants."

The facts didn't matter to the trial lawyers who saw dollar signs, not justice, each time they stepped into the courtroom.

It was the same thing in the Ford case, which hinged on claims made by attorneys representing the driver of a 1978 Bronco sport-utility vehicle that rolled over during an attempt by the driver to illegally pass another vehicle on the right. California resident Juan Romo lost control of his then 15-year-old SUV, which rolled over during the abrupt maneuvering, resulting in the deaths of several members of his family.

A lawsuit was subsequently filed alleging inherent defects in the 1978 Bronco that made it unsafe and unstable. On July 12, 1999, a jury awarded the plaintiffs $295 million, all but $5 million of it punitive rather than compensatory damages (even though California law requires a demonstration of malice before punitive damages may be awarded).

Not only was malice never demonstrated, but the 1978 Bronco met or exceeded all safety requirements in effect at the time it was built as well as most safety standards in effect 20 years later.

The outcome of those cases should trouble fair-minded people.

It's one thing to seek legitimate compensation for an actual damage or wrong objectively provable by facts and testimony. It is quite another for a jury to endorse a trial lawyer's lust for ill-gained loot, irrespective of the merits of his claims, simply because he represents the "little guy" in a dubious contest against the faceless malefactors of corporate "bigness."

It's important to bear in mind that with each successful litigation, the desire to innovate, take risks and offer new and better things to consumers grows dimmer. Companies such as Dow Corning, which deal in life-saving and life-improving medical products, are especially vulnerable to spurious litigation. But so are all businesses from large automakers such as GM and Ford to mom-and-pop neighborhood stores.

The money awarded by these juries doesn't just roll off printing presses; it comes from the pockets of ordinary people, who lose their jobs, don't get salary increases or who must pay more for the things they need in life. They are paying for an out-of-control, ethically challenged trial bar that doesn't mind cashing in so long as someone else is left holding the bag.

Eric Peters is an editorial writer for The Washington Times and a nationally syndicated automotive columnist.

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