I love New Mexico – Land of Enchantment, powerful history, gorgeous landscape, blue meth. And of course this week, I’m thinking about lawyers (although not necessarily the dedicated folks at the New Mexico Trial Lawyers Association). My thoughts are more consumed with one particular ethically-challenged fake NM attorney named Jimmy McGill, aka Saul Goodman, Attorney at Law. And now it turns out, there’s an even more ethicially-challeged attorney to fill my thoughts today. His name is Senator Ted Cruz (R-TX), and unfortunately, he’s real.
David Corn at Mother Jones broke a story today about Sen. Cruz that would be unbelievable if not so common. Certainly the Senator qualifies to join our esteemed list of “Hypocrites of Tort Reform.” (John Boehner received our last shout out.) But the Cruz story is so much more. It’s really one of the worst cases of “tort reform” hypocrisy that we’ve ever seen.
As a policy advisor to George W. Bush's, a Senate candidate and a Senator, Ted Cruz “championed tort reform” (to put it mildly.) For example, writes Corn,
When Cruz ran for Senate in 2012, his website declared he had defended a landmark pro-business tort reform law passed in Texas in 2003 that severely constrained the ability of consumers to sue medical professionals and nursing homes and to collect punitive damages in other cases.… After becoming a senator, Cruz told the Austin Chamber of Commerce that Texas-style tort reform—which places a cap of $750,000 on punitive damages—ought to be a national law.
Yet, as a lawyer in private practice, Cruz—at least twice, in 2010 and 2011—worked on cases in New Mexico to secure $50 million-plus jury awards in tort cases prompted by corporate malfeasance. These are precisely the kind of jury awards that the tort reform Cruz has promoted would abolish. That is, Cruz the attorney, who sometimes billed clients $695 an hour, made money defending jury awards that Cruz the politician wanted to eliminate—and he did so at the same time he was running for Senate as a pro-tort-reform candidate.
Notes Corn, “The two cases Cruz worked on were gruesome.” One involved a nursing home resident who bled to death due to neglect. The case was against “Ohio-based ManorCare Inc., one of the largest for-profit operators of nursing homes in the nation, for wrongful death."
The jury found that the nursing home had been negligent and awarded Barber's family $53.2 million, with $50 million of that in punitive damages. This was one of the largest jury awards in the history of New Mexico.
When ManorCare Inc. appealed and challenged the punitive damages award, Cruz came in to help the family and defend the award, which he did in writing. The case settled before he had a chance to argue it.
His next case involved a civil case brought on behalf of “a profoundly mentally and developmentally disabled man—he could not speak or effectively use his limbs—[who was] was raped, presumably by an employee at the Roswell group home where he lived and which was operated by the New Mexico subsidiary of ResCare Inc. (RCI), a Louisville-based health services firm.… The jury slammed RCI and the subsidiary, awarding $4.95 million in compensatory damages and a whopping $49.2 million in punitive damages.”
Again, the company appealed and Cruz came into the case arguing in favor of the award. Wrote Cruz and his team, “[A] large punitive damages award is justified by the need to deter conduct that is hard to detect and often goes unpunished."
The filing Cruz helped write echoed an argument often used by consumer advocates and plaintiffs attorneys who oppose tort reform and claim it protects companies that seriously harm people, especially the elderly and infirm: "Restoring the punitive damages awarded by the jury in this case is crucial if there is to be any hope of deterring companies like RCI from engaging in reckless conduct against vulnerable individuals.”
For the appeal, Cruz's main task was to sway three appeals court judges during oral arguments. On November 15, 2011, Cruz took time off from his Senate campaign to appear in an Albuquerque courtroom to argue for Selk and the $54 million jury award.…
The appeals court, Cruz told the judges, was obliged "to respect the jury's finding," regarding the substantial punitive damages, which, he noted, represented only 3 percent of RCI's gross revenue. Toward the end of his presentation, he put it plainly: "The purpose of punitive damages is to punish and to deter…The jury rightly concluded the appropriate amount to punish and deter was $48 million."
Yup. Again, “the case was settled before the appeals court reached a decision.” And here’s where the real hypocrisy comes in. Continues Corn,
If either the Selk or Barber case had been brought in Texas, the noneconomic damages could not exceed $250,000, according to Paula Sweeney, a Dallas attorney and former president of the Texas Trial Lawyers Association. “These jury verdicts would not be possible in Texas,” she says. And, Sweeney notes, the tort reform in Texas that Cruz supported has created serious obstacles to even filing such lawsuits. (In 2006, the American Bar Association Journal noted that "Texas plaintiffs layers have been leaving in droves from nursing home and medical malpractice litigation in the wake of tort reform.") Under Texas tort reform, Sweeney points out, a victim (or relative) cannot ask a jury to hit a corporation with tens of millions in punitive damages, as Cruz in the Selk case contended is necessary to deter serious wrongdoing.
In the courtroom—when he was being paid—Cruz was an articulate and forceful champion of super-size punitive awards, insisting such lawsuits and punishments were needed to protect consumers from reckless corporations that put profits ahead of people. On the campaign trail—when he is trying to score political points and draw the support of the business community—Cruz has embraced tort reform that disempowers consumers and protects negligent companies from such penalties. So what does Cruz truly believe? It might depend on whether he is trying to win cases or win elections.