Remember Erin Brockovich, the single mother turned environmental crusader, depicted in the 2000 hit movie with the same name? Well, she’s baaaack!
Famous for extorting $333 million from PG&E, in a toxic tort case that enriched the plaintiff’s attorneys by an incredible $133 million plus $10 million in expenses, while leaving most of the supposed victims with chump change, Erin herself pocketed a cool $2 million. Less famous are the mounds of data that pretty much prove that there was absolutely no scientific basis to the outrageous claims made, essentially charging that every single medical condition extant in the bodies of the residents of Hinkley, California was caused by the chromium 6, which the defendant had allowed to seep into the local water.
Erin and her boss, black sheep lawyer Ed Masry, now have their sights on the somewhat higher demographic municipality of Beverly Hills. It seems that an oil well has been in operation since the 1920’s, in close proximity to Beverly Hills High School, and that the plucky team has discovered a terrible cancer cluster. They claim that the cancer rates of Beverly High graduates are much higher than they should be, and the culprit is benzene, coming from the evil oil well. 25 personal injury claims were filed against the city and its school district on April 28th. A class action suit naming those parties and at least three oil companies is expected soon.
Even though the entire notion of a “cancer cluster” has fallen into disrepute, even though the incidence of cancer cited by the plaintiffs is not extraordinary, and even though there again is no science to support their ridiculous claims, it is very difficult to counteract emotionalism—especially amongst a scared and pampered class of plaintiffs. Given the level of scientific knowledge inherent in the potential jury pool, is it any wonder that despite an almost embarrassing amount of data on its side, the defendants in the awful silicone breast implant case settled for about $1 billion? This, when it was proven conclusively in study after study that the implants caused no disease.
But, forget all that for a moment. Suppose the plaintiffs are 100% correct in all their assertions. How does the notion of a class action benefit the victims?
A class action makes a lot of sense when the class is composed of plaintiffs who have been wronged in a small way, whereby individually seeking legal relief would not be worthwhile. In the case of Edge v. Blockbuster Video, the plaintiffs’ claim was that defendant had been overcharging its customers in the form of late fees. The basis for this assertion was that the cost of renting a standard video from Blockbuster was approximately $3.00 for two full nights while the late fee was $2.00 per day.
Thus, if a video rented on Tuesday that is due to be returned by midnight on Thursday were returned on time, the total cost to the customer would be $3.00. On the other hand, if the video were returned on Friday, an additional $2.00 charge would be added. If the video were returned on Saturday (an additional two full nights), then the total late fee would be $4.00, and the total cost would be $7.00. If the video were returned on Thursday and then re-rented, however, the total cost would be $6.00, rather than the $7.00 charged because of late fees.
The plaintiffs claimed that this extra dollar in late fees is an overcharge for which they are entitled to relief. As it turns out, the class was decertified on certain procedural grounds, but Blockbuster still got the message, and changed its practices. Thus, the plaintiffs succeeded with their primary goal, even in defeat. Had they won, the only difference would have been a very small award to each member of the class.
However, in the PG&E case, way too much money went to the attorneys, and by all accounts, the proceeds were transferred to the victims in a manner that was anything but equitable. It’s not as if there weren’t sound legal principles already in place governing attorney’s fees, or that a special master could not have been appointed to disburse the awards. Rather, it appears that toxic torts are the last truly unabashed mother lode for plaintiff’s lawyers.
Most people don’t realize that big time plaintiff’s attorneys are able to survive from one contingency award to the next by getting financing, at interest rates exceeding 200%, from private and very willing loan sharks—sorry, investors. A lawyer like Masry will have thousands of potential cases shoved in his face every year, and will only pick the sure winners. Otherwise, the investors might get a bit cranky.
So, a sure winner is a case in which many—or even all—of the bad things that happen to a particular group can be blamed on some dastardly corporation or institution, science, logic, and right reason be damned. Cold comfort that the hicks of Hinkley or the sophisticates of Beverly Hills are equally as gullible, scheming, mercenary, short-sighted, mundane, and self-indulgent.
No more perfect crime can be envisioned than larceny that is legal.