Professor Bainbridge...on law, politics, religion, culture & food

Teaching Torts via John Edwards

Eric Johnson:

I have tried to expand my syllabus beyond the traditional slate of federal and state appellate opinions.

Yesterday, I had a tremendously energetic class based on a case reading that wasn’t a judicial opinion at all.

Our reading was a personal-injury attorney’s first-person narrative of Howard v. Collins & Aikman Corp. (N.C. Super. Ct. 1990), a wrongful death suit brought by a four-year-old boy after an overworked tractor-trailer driver crossed into oncoming traffic, jackknifed his rig, and crawled up on top of the passenger car carrying the boy’s mother and father.

The author, of course, is John Edwards. Before he was a meteorically rising and falling presidential candidate, he was a multi-multi-multi-million-dollar success as a tort lawyer. We have his political ambition to thank for the valuable residue left over in the form of his autobiographical collection of plaintiff-side war stories, Four Trials.

I’m using each one of the four chapters this year to replace an appellate opinion on my syllabus. Each chapter discusses one case, and in so doing, does what a good appellate opinion should for a law-school class: It presents facts, applies law, and serves as a basis for classroom dialog. But these narratives go so much further, exposing the tactical, strategic, and human side of lawyering that lies beyond the sightlines of the appellate bench. The facts are richer, and the real-world context for the legal doctrine is more clear. Best of all, the text is gripping and imminently readable. These stories make marvelous teaching tools, and I urge you to try them. USA Today published an excerpt you can assign without using the book itself. But if you want more than one, the paperback only adds a relatively guilt-free $13 to students’ bookstore bills.

I wonder whether the book or other course material acknowledges Edwards’ routine use of junk science?

John Edwards built his career suing doctors and hospitals, claiming that maternity-ward missteps caused newborns to develop cerebral palsy. The theory that doctor error is a common cause of CP was dubious when Mr. Edwards used it to win his cases, from the 1980s to the mid-1990s, and is universally rejected by experts today.

Like other plaintiff’s lawyers, apparently, Mr. Edwards went shopping for medical theories, conveniently agreeable experts and sympathetic defendants--a process that is easy to deplore. But the real problem with Mr. Edwards’s record as a lawyer lies beneath the specifics of his cases, in the fundamental philosophy that motivated his work.

CP is a lifelong neuromuscular condition that ranges widely in degree. It is a manageable hindrance for some people and an insurmountable barrier to talking, walking and normal learning for others. Mr. Edwards’s clients were on the severe end of the spectrum. He writes in his autobiography, “Four Trials,” of his strong desire to see his clients’ prodigious needs provided for and makes clear that he considers torts a tool of social justice. ...

[But] blockbuster pain-and-suffering awards, including several record-setting verdicts that Mr. Edwards won in his home state of North Carolina, push malpractice premiums up--making it harder for average Americans to afford good medical care and for good doctors to afford to practice.

What is more, attacks on alleged negligence in the maternity ward may actually have hurt the quality of patient care. Many CP lawsuits, including one that Mr. Edwards describes in his book, turned on the theory that doctors could have prevented CP by ordering a cesarian section. Such suits put nonmedical pressure on doctors and hospitals to choose c-sections. In the past 30 years, the proportion of births by c-section has gone up fivefold. But a 2003 study in the American Journal of Obstetrics and Gynecology found that the rate of CP remains constant.

As Jim Copland likewise wrote:

The untold story of Edwards’s candidacy is that Edwards may have built his fortune in part by relying on the very sort of “junk science” medical-malpractice lawsuits that have created a health-care crisis in no fewer than 19 states. Some of Edwards’s biggest wins — including a jury verdict of $6.5 million (reduced to $2.75 million on appeal) and a settlement of a reported $5 million — came from cases suing doctors, hospitals, and insurance companies over infant cerebral palsy allegedly due to botched deliveries.

Yet as my Manhattan Institute colleague Walter Olson has documented in the Wall Street Journal and on his website overlawyered.com, the American College of Obstetricians and Gynecologists, in a comprehensive study released last year, determined that delivery problems were not to blame for cerebral palsy in the “vast majority” of cases. Cerebral palsy is instead typically caused by factors beyond the doctor’s control, such as maternal thyroid problems, genetic abnormalities, or prenatal infection. The ACOG report was peer reviewed and endorsed by, among others, the Centers for Disease Control and the United Cerebral Palsy Research and Education Foundation.

Of course, Edwards’s own cases may have been legitimate, but given jurors’ difficulty in making scientific determinations and the trial bar’s record in this area, there is certainly reason to be suspicious. Why then, in an era in which candidates are so subject to public scrutiny, has Edwards been given such a pass?

One wonders whether Prof. Johnson’s students get that narrative too?