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Sunday, January 17, 1999

Trial Attorneys Say Consumer Laws Unsuitable
Litigation: Newport lawyer heads drive by plaintiffs' bar to change rules it says unfairly favor business. Gov. Davis' election aids cause.
By NANCY HILL-HOLTZMAN, Times Staff Writer

The state's trial lawyers, long chafing under restrictions backed by Republican governors, are flexing their political muscle after helping to put a Democrat in the governor's mansion.

Members of the plaintiffs' bar, who contributed heavily to Gov. Gray Davis' election in November, have put together an agenda to change laws they say overly protect business interests at the expense of consumers.
Led by Newport Beach lawyer Mark P. Robinson Jr., the Consumer Attorneys of California wants to raise the limits on certain medical malpractice damage awards, open the courtroom door to patients of health maintenance organizations, and expand the ability of injured parties to sue insurers for so-called bad faith.

The group has been stymied for years by public and political sentiment that juries were out of control in awarding huge verdicts. Business also argued that defense costs were burdened by meritless suits, laws and court rulings made it too easy to sue, and plaintiffs' lawyers were after fees, not justice.

But Robinson said public opinion is changing as it dawns on people that they have limited recourse, for instance, if they are mistreated by their HMO or stonewalled by an insurance company.

Even so, lawyers, legislators and lobbyists predict the newly enfranchised trial bar won't go hog wild in proposing legislation, especially under Robinson's leadership.

"They won't go for the moon or for the jugular," said Assemblywoman Sheila Kuehl (D-Santa Monica), chairwoman of the Judiciary Committee, through which such new measures must pass.

Even Robinson's courtroom opponents believe the new president of the trial lawyers group will be cautious.
"He'll push the plaintiffs' agenda, but he's not as rabid as some," said defense attorney Darrell Forgey of Hillsinger & Costanzo. "He's a realist."

Besides, note those on both sides of the tort reform issue, Davis has sold himself as a moderate and is expected to follow the middle road.

"He's made it pretty clear he'll hold a moderate path," said John H. Sullivan, director of the Assn. for California Tort Reform, which has championed Wilson's efforts to curtail litigation. Still, Sullivan is worried about the future. The day after Davis won, he wrote on his association's Web site: "It is clear that those fighting for balance in California's civil justice system face the biggest challenge in 20 years."

The trial lawyers' agenda focuses on four issues:
* Raising the $250,000 limit on so-called "pain and suffering" damages in medical malpractice cases. The cap has not been adjusted in 23 years, making it worth $84,000 in today's dollars, trial lawyers say. The issue is so important to Democrats that their Assembly leader, Speaker Antonio Villaraigosa (D-Los Angeles), plans to carry the bill himself.
* Giving Californians the right to sue their HMOs, which they cannot do now. The ban had been enacted as a way to keep medical costs low, but patients have been increasingly angry over their inability to take effective legal action on such matters as an HMO's refusal to provide needed medical services.
* Giving injured parties the right to sue negligent people's insurance companies for "bad faith" in processing claims. Currently, an insured person can sue only his or her own insurer for bad faith.
* Banning secret settlements of lawsuits. Trial lawyers contend that confidential agreements to end litigation prevent the public from learning about dangerous products.

Making Their Presence Felt With Politicians

Well before the Democrats took charge of the governor's office and added to their majorities in both houses of the Legislature, Robinson and the plaintiffs' trial bar have been making their presence felt among party leaders.
Robinson represented Davis in one of the many civil cases against the tobacco industry, and helped win a proposed settlement last month that would bring the state and local governments $25 billion. Davis had filed a private enforcement action when former Atty. Gen. Dan Lungren delayed in joining other states in lawsuits against the tobacco industry.
Robinson's law firm pumped $140,000 into Davis' gubernatorial campaign and gave $360,000 more to other state candidates, including law firm partner Joe Dunn, who defeated incumbent state Sen. Rob Hurtt (R-Garden Grove). In all, trial attorneys contributed an estimated $8.6 million to statewide and legislative races.
Robinson downplays his influence with Davis, but he concedes that any relationship at all with a governor "would be an improvement over communication with Gov. Wilson."

Atty. Gen. Bill Lockyer, who as a state senator often carried bills favored by the trial lawyers, said: "Pete Wilson had an attitude of never, ever agreeing with the trial bar on any issue."

Indeed, Wilson said in an interview last month that one of his regrets is failing to make more progress in hamstringing "a predatory legal system that raises the cost of doing business."

If trial lawyers win major changes under the new administration, Wilson said, the state's business climate and economy will suffer. But two of Robinson's favorite words are "fair" and "reasonable," an approach designed to avoid evoking the kind of lawyer bashing that has made these fights so shrill in the past.

"The reality is, lawyers are trying to do right--most of them," Robinson said. "It's a little unfair the way they've been attacked for 10 years."

The son of a former Orange County Superior Court judge, Robinson grew up in mid-Los Angeles and graduated from Stanford University and Loyola Law School. He spent brief stints as a prosecutor and a civil defense attorney before finding his niche as a plaintiffs' attorney, specializing in product liability cases. He was a lead lawyer in the Ford Pinto exploding gas tank case, and won a $15-million verdict in a suit against Hyundai Motor America in Fountain Valley, alleging a defective seat belt. In those and other major cases, like ones involving breast implants, phen-fen diet drugs and tobacco, he has won or settled 75 personal injury lawsuits for more than $1 million each.

Timothy Walker, a Long Beach lawyer who represents insurance companies, sees Robinson as a much-needed "fence-mender and consensus builder." "Mark has an ego like everyone else, but he doesn't wear it on his sleeve," said Walker, a Robinson friend. In taking a more moderate approach to changes in tort law, Robinson hopes to head off more criticism of lawyers by building on a changing public attitude about the need for consumer protection.

"I think we have a little bit more of a voice, but we have to narrow it down to a few areas of fundamental fairness," Robinson said.

Those who oppose any loosening of tort laws are likely to appeal to moderate Democrats.
"We hope to peel off a number of business-oriented Democrats who see this would increase the cost of doing business in California," said Assemblyman Bill Campbell (R-Villa Park), who opposes the changes sought by the trial lawyer.
In a separate effort, Sullivan's tort reform group recently launched a public relations salvo to highlight the high cost of litigation to public agencies, especially school districts, to remind the public that taxpayers foot the bill for those lawsuits.
Insurers and their lawyers are worried about what will come out of the new legislative session. "Everyone would prefer to have a different situation," said Wayne Wilson, a Farmers Insurance Co. vice president.
Sullivan and his tort reform group also are concerned. "I can't predict whether they're going to have a field day or not," he said.


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