Wednesday, February 9, 2011

Toyota case provides a window into the Media Junk Science & Junk Statistics Litigation Complex

The rise and fall--and possible rise again--of the Toyota accelerator story tells us much about how the trial lawyers operate in the contemporary media environment.  The old jibe that tort lawyers were “ambulance chasers” needed to be updated long ago; tort-sters are now “headline chasers.”  Indeed, we can see a symbiotic relationship between reporters and trial lawyers: One wants fame, the other wants fortune.   And, of course, the “rights” and “civil liberties” rhetoric of the tort bar appeals to the debunking Naderite sensibility of many if not most journos.  

And we can further note that the media-tort bar relationship might traverse from symbiosis into outright dependence; reporters-now-bloggers, finding themselves trapped in a digitally desperate, get-paid-by-the-click business model, currently find themselves scrambling for the hottest headline and the most search-engine-optimizing keywords.  And so in the Toyota story, we can see eerie and ominous parallels to the ongoing wave of product-liability litigation that threatens to swamp our healthcare system in a wave of lawsuits--and, as a result, drown the prospect of improved healthcare outcomes.   In a nutshell: Nobody ever got cured thanks to a lawsuit.  And plenty of people have not and will not be cured in the absence of new medicine. 

So here’s a look at the Toyota story: The Washington Post this morning, above the fold of its hard-copy, headlines, "Report clears Toyota electronics: Government study on acceleration problems points to driver error." Transportation Secretary Ray LaHood is quoted: “The jury is back, the verdict is in. There is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period.”
Revealingly, the first counter-argument to LaHood’s emphatic Toyota-is-not-at-fault declaration that appears in the Post story comes from a trial lawyer.   As Post reporter Peter Whoriskey writes, the anti-Toyota litigation plague is likely to spread:

But the debate over engine electronics is very likely to continue, particularly in courtrooms, where Toyota is facing complaints from alleged victims and owners, and possibly on Capitol Hill, where auto safety legislation has stalled.

"Our experts tell us that the report is just wrong, and they are confident that they are going to be able to show that the electronic throttle control contributed to unintended acceleration," said Steve Berman, co-lead plaintiffs' counsel in a class-action suit filed on behalf of millions of Toyota owners who say the controversy caused their cars' value to drop.

And so, as plaintiff Berman declares, the battle will continue, featuring "our experts"--that is, the ones that the trial lawyers have bought and paid for.    The Transportation Department’s judgment will not necessarily carry weight in various courtrooms across the country.    One histrionic trial lawyer, working a weeping victim for the benefit of a jury, could well outweigh the factual evidence.  

Those who follow medical litigation might immediately see parallels to all the lawsuits over pharmaceuticals and medical devices: there’s an always an “expert” who will say anything--twisting science, pseudo-science, and junk science, as well as their notorious ally, junk statistics.   Plenty of these expert witnesses, of course, have abundant credentials, but that doesn’t mean that their testimony is any less for sale.  The most recent scandal involved Andrew Wakefield, who threw the autism world into a frenzy for a dozen years, based on thoroughly debunked, reportedly for hire, findings and testimony.   

But usually, the damage is done--because reputations are permanently scarred by the avalanche of bad publicity.  One is reminded of the case of Raymond Donovan, Secretary of Labor in the first Reagan administration.  Donovan was later indicted on a corruption charge, and was ultimately acquitted and vindicated, and yet at the time of his 1987 acquittal, he looked at the throng of reporters crowding around him and lamented to his tormentors, “Which office do I go to get my reputation back?”  The answer, of course, in this media environment, is “Nowhere.”  That is, when the damage is done, through a thousand headlines--or, these days, a million Tweets--a single day of vindication will not undo the damage.  

Whoriskey’s story in the Post this morning was fair, and the Post editorial praising LaHood was brave--but that’s not enough.   The deeper problem, as we have seen, is that the media feed on sensationalism--and that creates an endemic, and worsening, moral hazard that needs to be addressed. 

We can pause to consider the damage done to Toyota, as revealed in this chart, and at the same time realize that the problem of the litigation plague is far broader than autos: 
And then we might further note that the same kind of damage is being done to us and to our health by what might be called the “media junk science & junk statistics litigation complex.”  Indeed, the shape of the decline-curve in Toyota sales, seen above, oddly mirrors the shape of the decline-curve of new drugs approved by the FDA:
Does this downward slope of drug approvals, as calculated by Pfizer's Arthur Krieg, bother us?  It should.  Because if the trial lawyers continue to be able to sue products out of existence--and force the hand of bureaucrats to further constrict the supply of new drugs--then none of us will get the Serious Medicine we need.  Trial lawyers will continue not only to damage the business climate in this country, but they will also to damage our health.   

The terrible and deadly reality is that this ongoing juggernaut--this media-junk-science & statistics and junk litigation complex--continues to crush the prospect of Serious Medicine, even as it debilitates our economy.   And that’s something to keep in mind as we survey the next frontier of product-liability litigation: denture cream.  

Note: A video version of this post will appear on Fox News' "Bias Bash" later today.  


  1. I don't own a Toyota, but Dad had this Mercury Comet (mid 1960s). One day I was driving Mom, Dad & Sis up the NYS Thruway. All of a sudden the damn thing started to speed up. I had to throw the car into neutral and coast to the side. I then turned the car off, restarted it and it behaved itself.
    Another time I’m on the same highway with them, doing 65 mph and then - NOTHING! Not even a “click.” The engine cut out. Dead silence. It was like we were in a glider or an electric car. Off to the side of the road I went again. Put it in Park & restarted it.
    Well, no one ever found out what was wrong with it. But we traded it in shortly thereafter. We got a Ford Galaxy and had no more problems. Cars can be strange.
    If BO wins a 2nd term and another Law School is created in America we surely will be on our way to becoming part of the Caliphate. And the ACLU will be cheering all the way not realizing what they did to the drug, medical or auto industries etc., etc., etc.
    Our enemy is in our mirror! It’s time Uncle Sam held a mirror to his face and asked a good plastic surgeon to restore him to what he was. Oh, I forgot ... there are no more plastic surgeons, they went the way of our OB doctors. Nothing like a ‘good’ attorney to make you rich! :-(

  2. Jim, I will show how much this grandstanding bothered me, I just bought a 2010 loaded Toyota Corolla. Then because I work as a music critic and wanted to access several different devices and Sirius as well, I had the confidence in my Toyota to rip out the stereo system and replace it with a state of the art unit with Bluetooth. All this time I had no thoughts at all about the apparent mishaps as chronicled constantly in the media. I will finish with an example from my youth growing up in Uptown Manhattan and the reader can make the conclusion. Sometimes the Broadway or 104 bus would hit the curb on 99 Street and the bus driver would run for the pay phone. Meanwhile, every bloke hanging out on Broadway would ditch their beer in brown bag and jump on the bus.When the paramedics came the street wise wags were claiming all kinds of injuries, saying they had caught the 104 at points North.

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