ustxtxb_obs_1990_03_23_50_00004-00000_000.pdf

the hardest. Two lobbyists who are said to be working on or connected to the bill are Jack Gullahorn and Jerry “Nub” Donaldson. The Smokeless Tobacco Council has been among Gullahorn’s clients, and both Donaldson and Gullahorn have lobbied for the Texas Civil Justice League. \(Gullahorn and Donaldson did not return Observer Tom “Smitty” Smith, director of Public Citizen’s Texas office, said manufacturers in general want to limit liability connected to toxic waste. Nearly every manufacturer produces some form of waste, and Smith said producers are concerned about related health problems. “Across the country products manufacturers are living in fear that their toxics or products they have manufactured are going to turn around and bite them,” Smith said. “Texas has got 1,200 toxic waste dumps. The manufacturers have the responsillility of disposing of these products, and in the past did not or did not know how. This is another one of those major disasters that is waiting to happen, and it’s going to hit the manufacturer in the wallet, and they’re afraid of it.” Joe Woods, executive director of the Texas Trial Lawyers Association, said tobacco companies fearful of liability are behind the effort to overhaul the system. And numerous public interest lawyers say car manufacturers are strong supporters of reform. What all of these business interests have in common is a desire to lower costs. “And lowering liability is lowering costs,” said Reggie James, an attorney with the Consumers Union Southwest Regional Office. It is increasingly unclear if the central argument for anti-consumer legislation is more a smokescreen for greedy industrialists than the cries of an aggrieved business class. John Hildreth, director of the Southwest Regional Office of the Consumers Union, said in the last few years courts nationwide have increasingly found in favor of defendants and against consumers. Does a litigation crisis actually exist? A recent study published in the February issue of the UCLA Law Review shows that since 1985 “published opinions have moved toward benefiting defendants over plaintiffs.” Hildreth said no comprehensive figures on published opinions exist in Texas, although Texas is likely following the national trend. And it is published opinions that insurance companies use both to decide to settle a case and to determine settlement payments, James said. So if published opinions are going their way, manufacturers likely are securing more favorable settlements. Hildreth said before consumers are asked to forfeit legal rights, manufacturers should produce hard figures “that there’s some explosion” of judgments or settlements against them. Too, insurance companies over the years have been setting aside money to cover anticipated losses. This money, known as reserves, is invested. But the UCLA study suggests that losses have yet to materialize. 4 MARCH 23, 1990 And the study further suggests that insurance companies are sitting on a huge surplus of cash. Hildreth and other public interest lobbyists argue that large reserves are yet another example of the “unjustifiable increase in insurance rates.” “If you plotted lines you’d see the premiums going up and the number of plaintiffs who are winning going down,” James said. “They [insurance companies] should be charging less, but they’ve been charging more for products liability insurance.” I T IS NO coincidence that renewed atten tion to products-liability legislation comes just months after the debate over workers’ compensation reform. Forces loyal to business interests won a key victory in a 1989 special session. And the arguments that proved so persuasive in the workers’ compensation debate are almost identical to those being used to push products legislation a litigation crisis and escalating premiums are creating a poor business climate. In the battle over workers’ comp, business forces, with the support of such important leaders as Lieutenant Governor Bill Hobby, House Speaker Gib Lewis, and Governor Clements, were able to defeat a fragile coalition of trial lawyers and labor. It was the defeat of that coalition, and the defection of three senators once loyal to that coalition, that led to strongly worded anti-labor reforms. The business lobbyists sense they are on a roll. Trial lawyers have played a prominent role in bankrolling progressive candidates and providing support for a progressive agenda. And the trial lawyers are generally opposed to business-backed product-liability reforms that would make it more difficult for consumers to win cases, and for trial lawyers to make money representing those consumers. Woods, the trial-lawyer director, and numerous public interest lobbyists say bigtime independent lobbyists are pushing the products bill because Fortune 500 companies are involved. These lobbyists are using the workers’ compensation victory as a way of showing wealthy clients willing to pay high fees that the time is right for productliability reform. “One motivating factor is that you’re dealing with hired-gun lobbyists and if they don’t have a client they don’t have any money,” Woods said. “One way to make big money is to make a big enemy, to attack the trial lawyers.” The forces behind product-liability reform already have the support of many of the same legislative leaders who signed on for the workers’ comp fight, and who are eager to hand the trial lawyers another defeat. Lewis is often mentioned as an enemy of triallawyer interests, although a spokesman denied the Speaker would use the products issue to undermine trial lawyers. Lewis is said to support products legislation, how ever. Hobby’s position is less clear. Just as in the workers’ comp fight, the key to passing anti-consumer legislation is the Senate. It is assumed that the House, as it did on H.B. 15, will sign off on an anti-consumer package. And it is the upper chamber, where H.B. 15 died, that holds the best hope for killing bad legislation. Many pro-consumer lawmakers and public interest lobbyists agree that the fate of products legislation will be determined by the three senators whose votes were decisive in the workers’ comp fight. But it is unclear if Chet Edwards, Judith Zaffirini, and Chet Brooks will be as willing to back business interests this time around. Edwards, who could not be reached for comment, is described as an “award winner” on consumer issues. But the pressures of a congressional race, and the need to fund that campaign, could make Edwards more likely to side with business interests. It is unclear how Zaffirini would vote. And Brooks, who faced a trial-lawyer financed opponent in the March 13 primary, said he holds no ill feelings toward the trial lawyers. He said he would only support a bill backed by all major interests. “I would be very reluctant to vote for one unless we could get all the parties agreed to, including the trial lawyers,” Brooks said. Woods is confident the pro-consumer forces will have the votes on their side. And he points out that the forces backing the products bill aren’t as strong as the coalition assembled for the workers’ compensation fight. Consumers are not likely to take kindly to giving up rights. And consumers represent a larger interest group than workers affected by the workers’ compensation system. “It’s going to be awfully hard to get the corner gas station guy to write a letter on products liability,” Woods said. “Everybody can look around and be reminded about why society is safer because of products liability.” Senator Lyon said: “I don’t think it will be the same type of battle. There are not that many associations who care about product liability.” In the next few weeks, as the Legislature focuses on school finance, lobbyists will be busy at the Capitol tallying votes to see just how strong the support is for products liability legislation. Chances are that if the votes appear to be going their way, the lobbyists will urge Clements to place products liability on the call, and the Governor is certain to oblige that request. “The governor can put something on the call anytime he or she wants,” said Smith, the Public Citizen director. “The thing is that it will happen so rapidly that we will not have the opportunity to marshal our forces to stop it. ,’ Said Port Arthur Senator Carl Parker: “This is just meanness on the part of Bill Clements. If they drop it in, that means they are more concerned about the private buck for some folks than the quality of education for our children.” A.F.