Sharp Practice

Over the past 220 years the Vermont General Assembly, like any democratically-elected legislative body, has done some fine and memorable things, and some foolish and costly things. On no occasion I know of, however, have our legislators done something truly dishonorable. That, alas, is about to change.

At issue is a bill to change the legal rules of the Vermont court system. The purpose of the bill is to guarantee that one particular plaintiff - the state of Vermont - will be able to go into its own courts and extract at least $25 million from one particular group of defendants, Big Tobacco.

Now one can make a credible case that the tobacco industry has done the world a lot of damage. Anybody with a high two-digit IQ ought to be able to figure out that repeated inhalation of a potent mixture of nicotine and carcinogenic tars can not be good for the lungs. There is good mortality data that shows that on the average regular smokers die eight years earlier than non-smokers. One can make an argument that the manufacturers of tobacco products have, over the years, withheld important information from their customers, manipulated the nicotine content of cigarettes to encourage repeated use, and unscrupulously promoted the sale of tobacco to boost their earnings. The defendant industry has a lot to defend.

But what Attorney General William Sorrell is promoting in the General Assembly goes far beyond a tort lawsuit against Big Tobacco. His bill (H. 749) declares that "affirmative defenses normally available to a defendant are abrogated to ensure full recovery." Sorrell's idea of justice is to rig the case in advance so he can't lose.

Sorrell's bill would allow the State to bring a tort case against Big Tobacco not in the name of Medicaid patients with smoking-related afflictions, but in the name of the State itself. Further, the defendant's liability could be established by statistics, not by exhibiting individual victims. That is, if national studies show that, say, 12% of all Medicaid expenditures are smoking-related, then Vermont could demand that the tobacco industry pay 12% of Vermont's Medicaid costs, year after year.

In hundreds of tort cases brought by individual smokers around the country, Big Tobacco has argued that the plaintiff knowingly assumed the risks of smoking and should be responsible for the health consequences. Juries almost always reject the plaintiff's argument that he was brainwashed into damaging his health by that rascal Joe Camel. Sorrell wants a case he can win, so his legislation would simply strip away these defenses and declare the state the victor. Gov. Howard Dean MD, who once accepted a campaign contribution from Big Tobacco and when exposed, ostentatiously gave it to his favorite charity instead of giving it back, is strongly on Sorrell's side.

The genesis of Sorrell's tobacco cases is interesting. There is a group of tobacco tort lawyers, headed by Steve Berman of Seattle, Richard Scruggs of Mississippi, and Ron Motley of South Carolina, who have gone from state to state to sell their services on a contingency basis to attorneys general eager to pocket big bucks from the much-despised tobacco industry. These three and others appear as "special assistant attorneys general for the state of Vermont" in Sorrell's pending 1997 case declaring tobacco a public health hazard and seeking multimillion dollar fines and damages. The same lawyers will undoubtedly appear on Sorrell's Medicaid recovery brief, which will be filed just as soon as Sorrell can get the legislature to change the rules to ensure a victory.

Out of 39 states accepting the services of this legal SWAT team, only one (Maine) is paying legal fees on a straight hourly basis. In Texas, a group of tort lawyers claimed a contingency award of $2.3 billion for their services, producing a huge voter backlash. In Vermont, these "special assistant attorneys general" handling the state's case will get up to 15% of the multimillion dollar award which H. 749 makes virtually a sure thing, depending on how soon the defendants cave in and pay.

The strategy for changing the legal rules of the game was apparently conceived at a tort lawyers' seminar at Harvard in 1994. The seminar was conducted by constitutional law Professor Laurence Tribe, nationally known for his lust for enormous legal fees and his willingness to defend any proposition that would increase his chances of receiving a Supreme Court appointment. The first state to actually change the legal rules to assure a plaintiff's verdict was Florida, which engaged Tribe (at $450/hour) to defend the 1994 law upon which H. 749 is modeled. Last week Sorrell presented a letter defending the bill's constitutionality from the eminent Professor Tribe to the Senate Judiciary Committee. It neglected to mention that Tribe was the architect of the strategy behind the bill and was pocketing six figure legal fees for defending it in other states.

H. 749 is explicitly targeted only on Big Tobacco, today's least popular defendant. But once this racket becomes ethically acceptable, similar legislation will give the state a sure-fire legal hunting license, aimed at one industry after another wherever a lucrative recovery appears possible. The state could sue liquor companies for the costs of alcoholism (after explaining away the state's wholesale liquor monopoly). The state could sue Ben and Jerry's for peddling artery clogging 15% butterfat ice cream, purposely made as tasty as possible to encourage addiction from childhood on.

Yes, a state legislature may change the rules in civil tort cases. It may be, as Professor Tribe urgently argues, that a legislature can change the rules on the eve of the State's filing its own lawsuit and get away with it, especially in a Vermont Supreme Court that has already held that your life belongs to the State. But earlier Vermonters with some sense of integrity about the conduct of public business would have a ready name for this sort of thing: sharp practice. If that is how William Sorrell, Howard Dean, Rep. Tom Costello, Sen. Helen Riehle, and Sen. Dick Sears want to be remembered, they are well on their way.

# # #

April 1998