MANHATTAN INSTITUTE: TIPPING POINT IN TORT BAR WARS APPROACHING.

As the Manhattan Institute marks its 25-year anniversary of "Turning Intellect into Influence," it claims the war against the plaintiffs' bar is close to victory - a claim bolstered by its own evidence as well as that of others.

Backing up its claim, the free-market-oriented think tank cites response to its book released last year, Trial Lawyers Inc., portraying the plaintiffs' bar as a behemoth industry (Liability & Insurance Week, Sept. 29, 2003).

"Judging from the heavy traffic on our website and the requests for copies from general counsels and CEOs, trade associations and reporters, we sense the tipping point is approaching," its year-end update concludes.

The Manhattan Institute said its goal for the book was "to introduce into the public imagination the idea of the tort bar as Big Business, and in doing so, completely reverse the current popular misperception."

A month after its release, it said, an editorial in The Wall Street Journal, on a Food and Drug Administration advisory panel's decision to lift the 1992 ban on silicone breast implants ended with two lines that show the Institute was achieving its goal.

"So while we're happy that the FDA finally seems to be tossing over the junk science on breast implants, let's remember the staggering price we've paid: legally, scientifically and in public health.

"The real lesson here is that the robber barons who make up Trial Lawyers, Inc. are often far more toxic than the industries they purport to protect us from."

The initiative to accomplish its goal was led by former U.S. attorney general Richard Thornburgh and Sen. Jeffrey Sessions (R-AL), it said, with the Institute lining up "a key set of interviews for Mr. Thornburgh with Catherine Crier on Court TV, Judge Andrew Napolitano on Fox's The Big Story and CNBC's Kudlow and Kramer."

After the first wave of publicity for the book, it said it hosted Texas Gov. Rick Perry (R). "Personal injury trial lawyers have turned a legal system designed to resolve disputes into their own personal investment vehicle to strike it rich," Perry was quoted as saying.

"They turned that system from one intended to dispense justice to a new kind of lottery that dispenses jackpot justice. Nothing illustrates this phenomenon more than the outstanding report recently published and prepared by the Manhattan Institute, Trial Lawyers Inc."

The Institute's prediction of a tipping point comes just before the Senate is to take up the class action bill, which would allow class actions to be removed to federal court when at least $5 million is at stake and when fewer than two-thirds of class members live in the same state as the defendant.

Removing class actions from state to federal courts has been one of the Institute's top priorities in its war against the plaintiffs' bar.

James Copland, director of the Institute's Center for Legal Policy, says current law allows plaintiffs' attorneys to forum shop for a state judge known for hospitable treatment to plaintiffs in class actions.

If a federal judge certified a national class of plaintiffs, he says, the decision "could be immediately appealed - to the Supreme Court if necessary - to prevent rogue judges from abusing their positions."

Besides the Manhattan Institute's self-assessment, the year ended with other evidence that groups working to limit liability are gaining the advantage over their adversaries in the plaintiffs' bar.

So far, for example, the plaintiffs' bar has succeeded in stopping the class action bill, S. 274, from passing the Senate.

But when the Senate voted Oct. 22 to close off debate, the plaintiffs' bar held the opposition at bay by only one vote.

Since then, three Democratic senators have decided to switch from opposing to supporting the measure, giving two votes more than would be necessary to close off debate and 12 more than necessary to pass the measure.

The three Democratic senators are Christopher Dodd (CT), Mary Landrieu (LA) and Charles Schumer (NY).

Senate Majority Leader Bill Frist (R-TN) has said he will call the bill up when the Senate returns Jan. 20.

If the vote goes against the plaintiffs' bar, the Institute's prediction the "tipping point is approaching" could prove true.

Other straws in the wind:

Newsweek and MSNBC Cable cooperated to present a harsh criticism of the plaintiffs' bar, with the magazine devoting its Dec. 15 cover story to "Lawsuit Hell: How Fear of Litigation Is Paralyzing Our Professions" and the network presenting a special series called "Civil Wars" (Liability & Insurance Week, Dec. 15).

Meanwhile, the U.S. Chamber of Commerce's National Chamber Litigation Center reported it has filed a record number of legal for the third year in a row, entering 73 new cases, and chalked up 30 victories - also a record.

Notable among the later, the Chamber said, was its Supreme Court brief in State Farm Mutual Automobile Insurance Co. v. Campbell, overturning a Utah court's award of punitive damages 145 times the compensatory damages.

"As a result, state appellate courts have already slashed excessive punitive damages awards that exceeded the guidelines established by the State Farm decision in three other cases in which NCLC has participated: Bocci v. Key Pharmaceuticals, Inc., Waddill v. Anchor Hocking, Inc., and Ford Motor Company v. Romo, et al.," NCLC said.

"NCLC's efforts in these four cases alone helped contribute to a reduction of punitive damage payouts totaling almost $430 million."