By the late 1980s, it was no secret to anyone that justice was very difficult to come by in the Texas civil justice system.
The courts were swamped with tens of thousands of lawsuits filed in Texas by people who had never set foot in the state, but were fishing for a sympathetic judge or jury. Many of those judges were presiding over trials which awarded outrageous noneconomic and punitive damages.
That began to change in the mid-nineties, as Texans began to elect judges, legislators and other officials who understood the problem and were willing to do what was necessary to fix it.
Since 1993, Texans have embarked on an unprecedented effort to restore justice to its rightful place in Texas courtrooms. One can get a sense of the impact of these reforms by examining the benefits of the 2003 medical liability reforms.
Since they were put in place, every liability insurance provider in Texas except one has lowered premiums. The benefits of medical liability reform go beyond the mere monetary.
Health care for Texans has improved as the tens of millions of dollars being saved by health care providers are redirected into new services and improvements, such as loss prevention initiatives, safer transportation of patients, enhanced testing procedures, and monitoring and certification of nurses. Doctors are more willing to take on new, risky cases, and hospitals have had unprecedented success in recruiting new physicians.
While Texans have clearly benefited from past tort reforms, there is evidence more work remains to be done in completing the overhaul of the Texas civil justice system.
The most telling evidence is the decision in August by a Corpus Christi jury to award $253.4 million in damages against Merck in the first Vioxx lawsuit to go to trial. The lawsuit claimed Vioxx caused a heart attack that killed Robert Ernst, and the jury agreed.
However, the autopsy showed that the cause of death in this case was arrhythmia, not a heart attack. There is no scientifically proven link between Vioxx and arrhythmia. Additionally, Ernst’s arteries were clogged up to 75 percent in some places – he was clearly at risk for heart problems, and he had only been taking Vioxx for eight months, not the 18 months that it takes for the cardiovascular risk of taking Vioxx to appear.
The actual economic damages in the case totaled only $400,000. Most of the damages seemed designed to punish Merck for what the jury considered to be questionable marketing practices. If the verdict is upheld on appeal, the punitive damages must be reduced, but the total damages could still top $25 million, based on junk science and a questionable verdict.
Potential payouts like this are driving massive filings of Vioxx lawsuits all across the country. More than 6,400 suits have been filed, with at least 600 of those in Texas. And more are on the way.
That is because many trial lawyers, led by Mark Lanier, the Houston lawyer who won the initial Vioxx verdict, are shifting their focus to state courts. Tommy Fibich, a Houston trial lawyer, explained why Texas courts in particular are attractive to trial lawyers. “All mass torts go through Texas: breast implants, fen-phen and now Vioxx. … There is no other group of lawyers anywhere able to do what the lawyers in Texas have done, and every other state looks to us. Mark has led off with a grand slam home run,” said Fibich.
Texas may look even more attractive to trial lawyers now that a New Jersey jury has found Merck not liable in the second Vioxx case to go to trial. Unlike the Texas jury, the jury in New Jersey found nothing objectionable, or at least actionable, in Merck’s marketing practices.
The first big wave of Vioxx lawsuits is likely to hit Texas in the middle of 2006. Lanier has a Vioxx suit set for trial in April 2006 in Hidalgo County with several others soon to follow. Fibich says he believes Judge Randy Wilson of Houston, who oversees the Texas Vioxx multidistrict litigation pool, will set trials for May and June 2006.
If the Texas civil justice system is going to weather this and future waves generated by the mass tort litigation industry, there is clearly more work to be done. Options for additional reforms include modifying damage awards and reforming jury and judicial selection.
Texans can be proud of the work already done that has restored justice to its rightful place in the Texas civil justice system. With just a little more effort, Texans can finish the job they started.
Bill Peacock is the economic freedom policy analyst at the Texas Public Policy Foundation, an Austin-based research institute. He may be reached at [email protected].