Andrew Wheat

Stop Lawsuit Abuse—Or I'll Sue


In the gubernatorial primary debate, Tony Sanchez memorably remarked that Dan Morales, who took advantage of affirmative action to get into Harvard Law School, had “pulled the ladder up behind him” by failing to fight for affirmative action as Texas attorney general. Now we find out that Republican attorney general candidate Greg Abbott–that mortal enemy of “lawsuit abuse”–pulled the wheelchair ramp up behind him after making a fortune from a personal-injury lawsuit.

Abbott was paralyzed in a freak 1984 accident when a tree fell on him while he was jogging in Houston. The Houston Chronicle reported this April that Abbott hired a leading plaintiff’s lawyer after the accident to sue the homeowner whose tree fell on him–as well as a company that once trimmed the tree. Abbott refused to reveal how much he demanded to settle his lawsuit, telling Texas Weekly only that it was “over $100,000” and that it was not an issue in the campaign.

In fact, it was Abbott who first politicized the accident. In a February fundraising letter, Abbott wrote that the trauma taught him that “the only way to overcome the iron wheels was to have iron will.” That same iron will may have helped Abbott deliver a shamelessly hypocritical money pitch in the same letter. “My opponent, a former Mayor of Austin, is a liberal plaintiff personal injury trial lawyer who’s made millions suing doctors, hospitals, businessmen and women,” he wrote.

If trial lawyer Kirk Watson “made millions” off personal-injury lawsuits, then he and Abbott are birds of a feather. This month the Austin American-Statesman revealed that Abbott already has received almost $3 million of an award that is expected to exceed $10 million in his lifetime. Abbott’s attorney in the case, Don Riddle (who made more than $1 million off the case), says that medical costs and other “actual damages” accounted for a fraction of the settlement, which mainly compensates Abbott for noneconomic damages, such as mental anguish.

Damages for mental anguish are even harder to obtain today than they used to be, thanks in no small part to Greg Abbott. His 1995 appointment to a vacant Supreme Court seat was part of Governor George W. Bush’s attack on trial lawyers (who favor Democrats). That year, Bush signed a raft of “tort reform” bills that hit court plaintiffs like Tanya Harding’s pipe on Nancy Kerrigan’s knee. Meanwhile, Abbott and his Supreme Court colleagues devised tougher legal standards that further squeezed injured parties–or, in the delicate words of Abbott’s current campaign literature, “helped cement tort reform.” The high court repeatedly overturned plaintiffs’ jury verdicts in the 1990s, in part by imposing harsher standards for mental anguish, the very form of suffering that accounts for much of Abbott’s monthly checks.

Not surprisingly, business interests eagerly funded the campaigns of Abbott and his fellow Republican justices. In 1998, 10 percent of Abbott’s $1.4 million campaign war chest came from the business tycoons who fund Texans for Lawsuit Reform (TLR). These same interests again are funding his attorney general campaign, led by James Leininger, who also has tort skeletons in his closet. Leininger founded a company that makes high-tech hospital beds that rotate to prevent bedsores. In so doing, these beds also have dropped and squished nurses and patients, according to federal injury reports and plaintiff lawsuits–the apparent genesis of Leininger’s tort-reform religion. Yet in 1995 Leininger’s Kinetic Concepts, Inc. (KCI) went plaintiff, filing a federal lawsuit against its main competitor.

Leininger’s 40-page complaint would inflict mental anguish on any self-respecting tort reformer. Demanding $321 million in anti-trust damages, the complaint alleges that Hillenbrand Industries dominated the hospital bed market through unfair business practices. In closing arguments in the case, Leininger’s corporate attorneys from Akin Gump sounded like Nader’s Raiders, arguing that, “Big companies think they can run our lives–what doctor we can go to, what drugs we can take, what specialty beds we can buy.” Hillenbrand defense lawyers cast Leininger’s hospital-bed company as an overgrown ambulance chaser: “These courtrooms are not casinos to win something in here [market share] that they can’t win out there.”

But win they did, and big time. On September 27, a San Antonio jury awarded KCI a $174 million verdict, which Leininger’s attorneys trumpeted as “one of the biggest [anti-trust] verdicts of all time.” Because KCI demanded triple damages under a provision designed to punish anti-competitive behavior, this verdict could rise as high as $520 million. Converted to campaign cash, this huge plaintiff pot could help Greg Abbott get his campaign back on message and fuel the political war on “lawsuit abuse” for many years to come.

Andrew Wheat is research director of Austin-based Texans for Public Justice.