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Kevin Mark Smith of Wichita defends trial lawyers in the Right Wing Agenda. In a balanced article Mark supports the efforts of attorneys seeking to take on insurance companies trying to deny benefits to victims of Hurricane Katrina. Tort reform has gone too far when it hampers rights to seek redress in our Courts.

From the heartland of America comes the voice of Kevin Mark Smith of Wichita, Kansas, to defend trial lawyers in the Right-Wing Agenda, of all places.

Mark takes exception to the spin of the Wall Street Journal that greedy trial lawyers are getting a piece of the Hurricane Katrina pie (see “Plaintiffs File Suits Seeking Redress for Hurricane Damage,” B1, September 26, 2005).

In a balanced article that praises good lawyering and criticizes bad Mark supports the efforts of attorneys seeking to take on the insurance industry strategy that would deny benefits to a huge number of victims of Hurricane Katrina. He concludes that tort reform has gone too far when it hampers the rights of thousands of victims of corporate misconduct to seek redress in our system of justice.

“Richard Scruggs, the Gulf Port, Mississippi attorney who spearheaded the tobacco litigation that yielded hundreds of millions in legal fees for him and other attorneys, lost his home to the hurricane. It’s personal, and Scruggs is ticked, but not at Katrina. It seems that the insurers of home, property and business owners in the region are claiming that the flood damage caused by Katrina was caused solely by flooding and not by the storm’s violent winds or or its storm surge. The net effect of this limited interpretation is that only flood insurance, something most in the hardest hit areas are either ineligible for or do not have, will cover the bulk of the damages.”

“Think about this for a moment. But for the hurricane, the storm-damaged areas would not have been hit. Wind, tidal waves, and anything carried by same ripped apart people’s lives, though water was the principle weapon. If I worked for an insurance company in the region and had to face some homeless mother trying to rebuild her life and could only parrot “your damages were flood related so we’re not paying,” I think I’d kill myself. Add to this injustice the fact that lawyers like Scruggs will be handicapped by Congress’s recent class action tort reforms, and the victims of Katrina and Rita have an uphill battle ahead of them.”

“In my humble opinion, tort reform has a place, but not when it’s used to protect an insurance industry with armies of lawyers hired for the sole purpose of denying claims that policy holders contracted the companies to pay.”

“Some of the post-Katrina lawsuits are asinine. I’ll give the reformers that much. For example, “Lawyers have sued the energy industry over ruptured oil tanks and pipelines that have fouled Louisiana neighborhoods.” Ibid. I guess the oil companies should have expected the morons running Louisiana to drop the ball and not fix the levees. I doubt very seriously that “sustaining fifteen feet water levels for weeks at a time” was a tolerance required by federal and state regulatory agencies. Wind, hail and marginal flooding, sure, but what we saw in New Orleans? Get real.”

“Here’s another good one: “One suit filed against the oil and gas industry for its alleged role in the disappearance of wetlands that protected Louisiana from storm surges.” Ibid. Did they sue the city of New Orleans for expanding its borders despite the fact that it was building below sea level? Of course not. I suspect that the litigants’ motives are purely political and not about remuneration. They want to stick it to Big Oil, and raise the price of a gallon of gas for the rest of us. Damn tree huggers.”.

Back to the Not-So-Gready Trial Lawyers: “Here’s the thing that really ticks me off. Scruggs and his trial attorney colleagues are now at a severe disadvantage compared to the frivolous lawsuits filed by the aforementioned whacko environmentalists. Congress, aided by the likes of Senator Bill Frist, a major shareholder of Hospital Corporation of America (and an apparent inside trader), has enacted sweeping reforms that have hamstrung plaintiffs seeking redress. When a company like Merck sells a drug that kills, you and I must now find a lawyer to handle our cases one at a time if we are to have any hope of receiving realistic reparations (how much is the life of your husband, wife, or child worth when a drug company kills him or her?). Class actions of this type can now only be filed in federal, as opposed to state, courts. Conversely, no efforts have been made whatsoever to stop those with a political cause to express their views via lawsuits like those filed by the environmentalists on the Gulf Coast.”

“Tort reform is a good thing state by state, but federal intervention only serves to block those with serious claims from fully exercising their rights while protecting the ones who caused the harm in the first place. I would add that unless you’ve tried to retain an attorney to represent you in a personal injury claim, you are grossly unqualified to accept the logic offered by reformists that plaintiffs and plaintiffs’ lawyers are nothing but a bunch of thieves stealing from innocent people. It’s merely a claim made by those who have much to gain from such hostile legislation. (Most attorneys refuse to accept so-called frivolous cases all the time, including yours truly.) Conversely, if you’ve faced the consequences of life-long trauma caused by bad medicine or flat out stupid, inconsiderate people, you know what I’m talking about. The fact that environmentalists and other non-personal injury litigants aren’t faced with the same restrictions makes it clear that it’s more political than anything else. Big companies who want to be able to market any product regardless of the harm it might inflict love the idea of eliminating their own responsibility as public entities.”

“Responsibility must be shared by all, from the individual to the faceless corporation. When a person’s damages are exasperated by a callous insurance company’s failure to honor its contract with the person, lawyers should be free to hit it as hard as they can with class actions lawsuits filed in state, federal or whatever court will protect the person’s rights most effectively. It’s not necessarily a conservative position to take, but it’s clearly just and right.”

The next time I pass through Wichita I plan to hug Mark, although he may not like it since I have fought only for the little guy for 35 years. Greed had nothing to do with it. I think Mark has fought the good fights, too.

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