TCS Daily

Busy Bee Brockovich Looking to Sting Again

By Nick Schulz - November 9, 2001 12:00 AM

On Wednesday the Ninth Circuit Court of Appeals vacated a massive punitive damage award in Baker v. Exxon, a case in which a district court jury had punished Exxon for its role in the 1989 oil spill in Prince William Sound.

In the ruling, Ninth Circuit Judge Kleinfeld pointed out that the case was supposed to be "about commercial fishing." That is, it was about a class of plaintiffs -- fishermen -- whose livelihood was adversely affected by the Exxon Valdez oil spill. The case was not, the appellate court said, about punishing Exxon for its role in harming the environment, for which Exxon had already been tapped to the tune of over $1 billion.

Nonetheless, a jury had awarded an astounding $5 billion to the plaintiffs -- the largest award in history at the time. On appeal, the Ninth Circuit's three-judge panel unanimously threw out this award and remanded it to the lower court for further consideration.

In vacating the decision, the Ninth Circuit wisely followed the lead of the Supreme Court, which had earlier ruled - in an effort to rein in lottery-like damage awards racked up by aggressive trial lawyers - that the constitutionally appropriate ratio of a damage award to the actual damage inflicted should be about 4 to 1. Apparently the jury in the district court case didn't think a 4 to 1 ratio would be punishment enough: the $5 billion award was closer to a 17 to 1 ratio.

Busy Brockovich

But in the same week that the Ninth Circuit restored some sanity to our legal system, predatory trial lawyers were gearing up to further exploit American tort laws and inflict still more punishment on Exxon.

On Tuesday the Los Angeles Times reported that celebrity legal aide Erin Brockovich is rounding up the workers who helped clean up the Valdez spill. Why? Brockovich and trial lawyer Ed Masry are saying that many of the workers became seriously ill after working on the cleanup and that Exxon and Veco Inc., the company Exxon hired to oversee the cleanup, are responsible. They allege a proliferation of respiratory problems, cancers, and other ailments among the over 15,000 people who worked on the effort.

Brockovich earned fame and fortune as a legal assistant who helped push a class action case against the utility Pacific Gas and Electric (PG&E). Her story was later turned into a popular motion picture.

What the motion picture failed to show its audience, and what TCS and others have pointed out, is that Brockovich and Masry eschewed sound science in their case against PG&E. There is no evidence that PG&E is responsible for any ailments and illnesses claimed in the case. That didn't matter, however, as PG&E was forced to settle for over $300 million.

That's not all America's most famous legal eagle is up to these days. As TCS discussed last week, Brockovich may be cashing in on her fame to make the jump to the celebrity TV circuit. NBC has announced it intends to give Brockovich a TV talk show. This is an odd development, seeing as NBC's parent company, General Electric, has been the victim of activists armed with shoddy science. G.E. is now currently being forced by the EPA to dredge the Hudson River for PCBs despite there being no scientific evidence that such a costly move will benefit anyone. One wonders what the legal and corporate big wigs at G.E. could be thinking by bringing Brockovich on board.

That Exxon is now in the Brockovich/Masry crosshairs is unfortunate for American business. It is too early for TCS or anyone else to evaluate the merits of the case being developed. But it's worth mentioning that while Brockovich is busy assembling anecdotal evidence of harm, "most health officials remain unconvinced that the cleanup left anyone sick," the Los Angeles Times reported this week.

It is not good for American corporations - and, thus, American consumers and stockholders - that Brockovich and Masry, the poster figures for coupling shoddy science with trial lawyer excess are on the warpath again.


TCS Daily Archives