13. The Trouble with Torts
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152 13 The Trouble with Torts Tort: n. from French for “wrong,” a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. —Law.com The tort reform movement, long a contentious political issue in the United States, aims to sharply reduce the numbers of civil lawsuits. As described by John T. Nockleby and Shannon Curreri in a 2005 law review article: In the 1970s insurance companies, tobacco interests, and large industry launched a political campaign attacking the American civil justice system. Unlike previous reform efforts that sought to change rules of law through case-by-case adjudication in the courts, the self-styled tort “reform” movement pursued a much grander vision: transforming the cultural understanding of civil litigation, and especially personal injury lawsuits, by attacking the system itself. . . . Before the tort reform movement galvanized conservative politicians in the 1970s and 1980s, most nonlawyers had no idea what a “tort” was. By the 1990s, however, the Republican Vice President of the United States could give speeches proclaiming that the tort system was broken, and that his party was prepared to fix it.1 Across the country, the reformers persuaded state after state to enact tortreform measures, including limits on the types of civil cases that could be filed and caps on monetary damages (and thus, legal fees). In the early and mid-1990s, as the hemophilia cases were coming to trial, this movement was gaining momentum. The hemophilia advocates and their lawyers had to push back, and hard. THE TROUBLE WITH TORTS 153 New Jersey’s activists were in the vanguard. Ron Grayzel became a leader and advocate, helping to form a coalition of citizen interest groups to do battle in Trenton against the tort reformers. He asked Elena Bostick and the Hemophilia Association of New Jersey to join the coalition, and they agreed. It was a natural fit, and a savvy move by Grayzel. HANJ was a strong organization, and no group had a greater interest in preserving its members ’ rights to sue. Grayzel and Weinberg enlisted them in a push to create an exception, or window, to the state’s statute of limitations—one that would briefly allow people with hemophilia and HIV to sue the drug companies even though the statute clock had run out. In March 1994, the coalition held a dinner in New Brunswick, featuring Ralph Nader as the keynote speaker. Grayzel was master of ceremonies . Weinberg and his wife, Diane, sat a table with Bostick, Salgado, and others. The atmosphere was charged; for this audience, tort reform was an effort to portray their life-and-death struggles as frivolous and greedy. The coalition represented the frontline troops, and Grayzel was their leader. He strode to the podium and began to address the buzzing crowd. They were with him from the start, cheering when he identified himself as HANJ’s lawyer. Grayzel exhorted them to fight. He was as animated as Weinberg had ever seen him. Then he introduced Nader, the champion of the underdogs , and the crowd roared even louder. Grayzel had become the face of the hemophilia litigation in New Jersey, and Weinberg realized that he had to accept that. Particularly now, he needed a big firm alongside him, because his relationship with Shrager continued to deteriorate. Shrager was writing him letters that began with sentences like, “We now have the written commitment of every committee member to the guidelines, except for yourself.” With some discomfort, the two of them agreed to meet for dinner. On the way, Weinberg met with the security director at Nordstrom’s department store in the Freehold Raceway Mall. He had been representing Nordstrom’s Menlo Park store for a year, prosecuting shoplifting cases. It was an easy payday with a great client, and the files were typically thin and manageable. Then Weinberg drove south to meet Shrager at a small BLOOD ON THEIR HANDS 154 Chinese restaurant in a strip mall. Weinberg got there early and started with tea and fried noodles. Shrager arrived and they ordered food. He asked how Weinberg’s wife was feeling; she was a month away from having the couple’s fourth child. The small talk dispensed with, they switched to business. Shrager updated Weinberg on the settlement talks with Baxter and Armour. He’d told the companies that the number to settle was one billion dollars. Shrager said the court would approve one hundred million dollars in legal fees, five million for each lawyer...


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