Part 1 of the Predatort section examined how the tort law firms had to become creative in fabricating new case leads in the late 1990s when the honeypots of tobacco, lead and asbestos lawsuits started to dry up. There was a clear strategy of tobacconising other industries, articulated in the report from a legal strategy workshop in La Jolla in 2012. Part 1 demonstrated how, in the following years, lawyers worked with NGOs and scientists to systematically undermine the credibility and viability of companies through a relentless, coordinated wave of litigation, activist campaigns, bogus studies and government collusion. I have argued that the two decades of Predatort victim trawling has also resulted a series of emerging risk and public fear phenomena as a consequence of their attempts to manufacture jury-ready outrage.
This Plaintiff Playbook worked (accidentally) to bring Big Tobacco to its knees and is now being applied to evict Big Oil. But suing oil companies for beach-front property damage or burnt lawns are not as easy nor as dramatic as personal lives being destroyed by cancer. So the Predatorts returned to the tried and tested path of their honeypots of the 80s and 90s, replacing cancers from tobacco with cancers from pesticides, talcum powder and benzene. Now with more experience and a well-articulated Plaintiff Playbook, these opportunities seemed brighter than ever.
How was the Plaintiff Playbook brought back home to the lucrative opportunities of the millions suffering from cancer?
The Plaintiff Playbook in 12 Easy Steps
Any drama queen with questionable ethics who passes the bar can quickly become a millionaire in the United States. The Plaintiff Playbook establishes certain lines of logic that can be put down to 12 Easy Steps:
- Find a correlation between a cancer and a cause. Every cancer must be presented as being directly caused by a product or a practice. This targeted cause must be kept isolated from other potential causes with little litigation opportunity (ie, natural exposures) and preferably be focused on a large corporation that can be painted as evil in the media.
Recruit an epidemiologist (or an angry statistician). Find a scientist close to retirement who can be bought; one with a raw ego and perhaps a bit bitter about any mistreatment from the scientific establishment. Invest enough upfront so this expert can be readily produced for hearings, media interviews or outreach with NGOs. Train your expert to demonstrate an indubitable link in court between a plaintiff’s cancer and the targeted source of compensation (ie, train the expert not to speak like a scientist).
- Claim institutional credibility (use IARC or any other UN agency top-loaded with activists). Evidence is better demonstrated when backed by a declaration from an international institution, agency or research centre providing a semblance of auspicious credibility. The ideal expert is one with IARC panel experience and able to influence IARC in scheduling litigious-friendly monographs.
- Present cancer as potentially out of control. Occupational exposures are limited and not scalable. Large portions of the population have to fear they may have been exposed to carcinogens in their homes (in their cereal bowl, in their bathroom, on the street …). Companies will more easily settle out of court if they see a deluge of potential victims.
Engage influencers and celebrities. Spread your victim’s story via well-known media figures, celebrities, policymakers and activist gurus. Their role is to create a fear of the cancer, awareness of its insidiousness and an understanding of the clear cause. Celebrities and gurus don’t need facts or science to help amplify your story (and they love the PR in good v evil battles).
- Pay NGOs to run campaigns against targeted company. Global campaigns against an evil industry is necessary to ensure public outrage, create a distrust of the industry science, its actors and its position. Have the NGO release secret internal company documents that show how greedy and unethical the company is. Any scientists who stand up for the science or data will be vilified as corporate shills. Passionate activists often work for peanuts but their networks have a myriad of discrete funding channels.
- Lobby regulators to impose restrictions or bans. Once a regulatory body, in the face of uncertainty and media attention, invokes the precautionary principle, the link to product’s carcinogenicity is imprinted in the public mind. If regulators resist or hide behind the science, present government risk assessors as being captured by the corporations. If companies resist, their product is doomed. It’s better to settle out of court and throw some meat at the Predatorts.
- Identify a jurisdiction with a “hanging judge”. The first cases need to create media attention, jury momentum and a sense of pending doom that would scare away even the longest buy-and-hold shareholders. You can win big if you have your case heard in one of the famous judicial hellholes (see Part 4 of Predatorts) where the judges are biased against industry and cosy with certain tort lawyers.
- Trawl for good quality victims. Once awareness, outrage and fear have been amplified, employ organisations to develop profitable victim pools with good quality plaintiffs. In media ad campaigns, show the case as a David v Goliath contest with the Predatorts delivering justice.
March victims in front of the cameras. If you can present your plaintiffs with a series of strong victim stories, the media will play it up. No scientific evidence has a hope in hell against a father with his future stolen from him. It’s always better to settle out of court (more possibilities to over-bill the clients who did not go through trials).
- Take evidence to an enraged public. Release as much as you can before the trial (best via the NGOs, scientific tort-torts and activist gurus you have contracted). Try the case before the court of public opinion stressing any bad corporate behaviour your researchers can dig up. Ensure that any potential jury member will be so angry that any witness who does not side with the plaintiff will be seen as a heartless corporate shill.
- Quietly take the money to the bank. Keep the attention on the victim receiving justice. Don’t tell the public your haul, how they will pay for your outrageous fees in the form of higher prices on consumer products, less industry investment on innovation and fewer jobs once the appeals process is exhausted.
The word “tort” means “wrong” or “injury”. But as the Plaintiff Playbook exploits science and emotion, as the lawyers use activists and media to create fear, as the distribution of settlements fall mainly in favour of the lawyers, consultants and investors, we need to ask: Who are the injured ones? Is it the consumer who has to compensate for the ridiculous settlements via higher prices? Is it the public who now lives with large irrational fears of little risks? Is it the value chain (the doctors, farmers, manufacturers …) who have to make do with inferior substitutes? Is it the victim who suffers through years of further torment only to see the law firm take home most of the settlement?
The literal translation of “tortueux”, from the French, means: “twisted” or “devious”. Perhaps a few case studies will shine a light on how the twisted use of tort has allowed these firms to have injured so many.
The Plaintiff Playbook in Action
What follows are several historical case studies of how Predatorts have applied the Plaintiff Playbook to great success. The first case is how the slimiest lawyer in America, Stephen Tillery, spent eight years threatening Syngenta on atrazine, and in the end was able to extort a tidy sum, not for his clients (they got basically nothing), but for himself. The second case looks at the cases against Dow Corning and others on silicone breast implants where doctors were paid to produce victims at an industrial output rate.
Keep in mind how these cases have established the Plaintiff Playbook we see today unfolding according to plan in the cases against glyphosate, talc and benzene. In both cases, there was very dodgy science, if any at all, to provide evidence in the courtroom. The scientists involved were compromised and biased by certain interests. The NGOs and activist groups used mainstream media to create public fear and outrage. And the law firms? They were only in it for the money and media attention.
Unleashing the Hounds of Hell
One of the most alarming examples of the Plaintiff Playbook in action was a case against Syngenta on atrazine in the mid-2000s. A scientist from Berkeley, Tyrone Hayes, did a study showing reactions in frogs’ endocrine system when exposed to atrazine. The study was not replicated, by Hayes, the US EPA nor Syngenta. Hayes did not share his data with the EPA. The US regulatory inaction and a paper that refuted his conclusions set Hayes off on a bizarre and tireless decade-long series of anti-Syngenta rants, lurid email attacks, strange sexually explicit taunting and paranoia (including unsubstantiated claims that Syngenta employees were reading Hayes’ emails, threatening his family and following him around).
The noise from Hayes’ antics was enough to gain the attention of Stephen Tillery, lead at Korein Tillery. Several water authorities found trace residues of atrazine in the water supply (well below safety levels) and Tillery saw an opportunity to use this situation to bring cases against Syngenta. Tillery filed the cases against Syngenta in Madison County, Illinois in 2004. Madison County is a well-known “judicial hellhole” where tort lawyers can easily find judges willing to disregard science, evidence and procedure while meting out extraordinarily high penalties on industry.
Tillery’s office applied media pressure, providing information to activist groups like the Natural Resources Defense Council and the Center for Media and Democracy (CMD) who was actively using the case (and internal plaintiff information) to publicly attack Syngenta and atrazine. Before the judge unsealed Syngenta emails, SourceWatch and the CMD were illegally publishing them on an atrazine case website they had set up. Articles came out in large media organisations like the New York Times questioning the EPA’s regulatory reliability on atrazine. Anyone following Carey Gillam’s bag of tricks at USRTK and the Monsanto Papers may find haunting similarities of ethical negligence.
None of these articles or reports looked at the science; none of them looked at Tyrone Hayes’ dreadful public antics; none of the claims against the industry’s behaviour were substantiated. But with a relentless activist assault via large media outlets, none of that mattered. The Plaintiff Playbook was executed at its optimum level.
Tyrone Hayes was an expert witness at the Syngenta hearings on behalf of the plaintiff. Tillery said that “Hayes’ work gave them the scientific basis for the lawsuit”. That Hayes’ results from that study were not replicated and the EPA considered the findings to be inconsequential did not seem to matter.
Jason Rohr, another scientific critic of Syngenta, was also approached by Stephen Tillery with offers of big bucks if he joined Hayes as an expert witness. See the image of Rohr’s account (page 17) of how slimy he thought Tillery was – basically getting Tillery to acknowledge he was only in it for the money. The issue Tillery identified was not about science (he admitted so much) but about whether a big company was behaving unfairly towards a scientist, and the more the activist NGOs broadcast this fiction to the public, the less likely there would ever be a reasonable outcome. This was one of the lessons from tobacco litigation discussed at the La Jolla legal strategy workshop.
Tillery’s behaviour demonstrates the dark, slimy underbelly of the toxic tort legal profession. Timothy Pastoor, the Principal Scientist for Syngenta’s US subsidiary during the Plaintiff Playbook campaign in the 2000s, shared his experiences in an interview for this blog series. Pastoor, now retired, recalls how, in 2009, Stephen Tillery came up to him, and in something that resembled a scene out of “The Sopranos”, growled: “If you don’t settle with me, I will unleash the hounds of hell upon you!” The ‘hounds of hell’ he was referring to was a group of scientific consultants and contracted experts who would relentlessly go after Syngenta in the media. Tillery was already working with Tyrone Hayes, the NRDC, SourceWatch and the CMD, so this suggests he was planning a further assault. Tillery then threatened Pastoor: “I will depose you to death!”. Tillery knew he had squat, so his best bet was to continue to pester Syngenta and play for an out-of-court settlement. This slime strategy (with the help of bad science and some aggressive activists) was pure harassment and extortion … the Plaintiff Playbook in action.
In 2012, after eight years of abusive attacks and activist campaigns originating from Tillery’s office, Syngenta settled out of court for $105 million in order to avoid their downstream users, including farmers, from being exposed to further litigation. Part of the agreement was that there would be no further litigation against Syngenta. Sure enough, Tillery was back at the trough trying to sue the company again six months later.
Stephen Tillery’s reputation for slime is perhaps second to none (regularly polluting judicial hellholes with bogus cases, fishing expeditions and industrial extortion). He knew he had no basis for a case on atrazine, but by using the NGOs and creating a perception of industry attempting to silence a courageous scientist, Tillery’s game was to play for an out-of-court settlement … he was originally gunning for $3 billion. Of the actual $105 million settlement, each plaintiff received around $5000 per claim (about 0.005% of the pay out). Tillery’s firm received over $37 million.
Tillery had nothing and he should have received nothing, but he exploited the system and got away with extortion. Such disgusting greed is what the NGOs and activists now celebrate on a daily basis when they praise performance artists like Brent Wisner and Robert Kennedy Jr.
Of the actual $105 million settlement, each plaintiff received around $5000 per claim (about 0.005% of the pay out). Tillery’s firm received over $37 million.
As a postscript, after the settlement, Tillery represented Tyrone Hayes, when the Berkeley professor sued his own university over increased lab costs (which eventually terminated his research there). Was Tillery returning a favour to one of his hounds of hell?
The Silicone Doctors
The 1980s and 90s were the first high point of Predatort opportunism in America. Settlements were getting increasingly beyond reasonable levels, media (especially day-time TV) were covering broad class actions suits as battles of good versus evil and the courthouse became the new get-rich-quick strategy. Besides the headline tobacco, asbestos and lead cases, millions of cases were brought against pharmaceutical, medical device and medical establishments (it should be no surprise that health care costs in America rose with the corresponding increase in litigation insurance). At the beginning of the 1990s a wave of litigation on companies manufacturing silicone breast implants erupted.
While there were some suggestions from early research of potential health effects from leaking breast implants, by 1992, a series of studies showed no increased risk of cancer. By 1994, studies had ruled out any rheumatic or autoimmune diseases from exposure to breast implant materials. By 1997, all health risks from silicone breast implant leakage exposure were dispelled. The US FDA, who had taken precautionary measures to ban silicone breast implants back in 1992, finally reversed their decision 14 years later in 2006 (nine years after the scientific community had closed the books on that risk). The decade of large settlements based on bad science was not, however, reversed and still, to this day, people are suing implant providers for damages. Juries are not expected to understand bad science, but the Predatorts do (and still these slimeballs play the game).
How did this defiance-of-science madness happen?
While tort lawyers had not yet formally articulated the Plaintiff Playbook, it is quite evident in the early 1990s how a lucrative windfall could be had from working with the trusted medical establishment as well as with large media organisations.
A group of “silicone doctors”, paid handsomely by the tort law firms to assess potential clients for class action lawsuits, were flown around to examine patients (often in law firm offices rather than clinics or hospitals). An article addressing malpractice in the medical profession severely criticised the Predatorts for drawing doctors into such an unethical situation.
“Lawsuits alleging harm from silicone gel breast implants were successful largely because of the support of a group of “silicone doctors” who approved women for inclusion in the class of plaintiffs. These doctors claimed to trace a broad range of symptoms (chronic fatigue, insomnia, depression, headaches, and muscle or joint pain) to silicone poisoning. Doctors received referrals in bulk from plaintiffs’ attorneys, who were known to fly them around the country to see patients and offer their law offices as exam rooms. In some cases, plaintiffs’ lawyers paid the doctors’ medical bills (a practice barred by some states); in other cases, doctors agreed to defer payment of their patients’ bills until after the lawsuit was settled (a practice bioethicist Art Caplan called ‘somewhere between slimy, skuzzy and sleazy’).”
The charges for a quick medical assessment were sometimes more than $40,000. One doctor, for example, had examined over 4700 potential victims over two years (over 90% referred by the Predatorts paying him), finding 93% eligible for class action suits while not actually following defined medical protocols. The author concludes:
“The silicone breast implant litigation of the nineties is notable for way in which judges and juries overlooked an astonishing lack of scientific evidence, while plaintiffs and their attorneys raked in millions. The hysteria and hype that the lawsuits generated caused some medical device companies to go bankrupt or leave the implant market altogether.”
A special report in the New York Times in 1996 showed how the medical establishment had become complicit in the Plaintiff Playbook. Some law firm offices had waiting room lines of potential plaintiffs likened to “herds of cattle” waiting to qualify for compensation. Greed corrupts and in the case of silicone breast implants in the 1990s, even doctors who should have taken an oath to respect medical practices, were corrupted by the slimy Predatort industry.
By 1993, almost 13,000 individual breast implant lawsuits had been filed against Dow-Corning (as well as a large number of class action suits). Dow Corning filed for bankruptcy protection in 1994. The other breast implant manufacturers (mainly Bristol-Myers Squibb, Baxter and 3M) established a multi-billion dollar fund to handle subsequent claims as they largely abandoned the implant business. While many jobs were lost, research budgets slashed, investors were taken to the cleaners … the Predatorts did well.
While many silicone breast implant lawsuits were locally heard via smaller “strip-mall” tort law firms, one case and one Predatort stand out as an early case study for the Plaintiff Playbook. In 1991, Pamela Johnson received a pay out of $25 million for damages due to leakage from a breast implant. The problem was that Ms Johnson did not have cancer nor evidence of autoimmune disease. Her symptoms included fatigue, muscle pain and headaches (flu symptoms). The defence for Bristol-Myers Squibb’s medical device subsidiary, MEC, showed how the implant may have failed due to Johnson’s heart medication and the fact that she smoked about two packs of cigarettes a day.
However, Johnson’s lawyers took her case to the court of public opinion, appearing on the main US day-time TV talk shows, 60-Minutes and had her case broadcast on Court TV. The nation was riveted. The lead counsel, John O’Quinn used his time on the media pulpit to show, not the science, not the health issues Johnson clearly was not suffering from, but rather, the poor conduct of the company (reading out a message from the MEC CEO on company profits). Outrage was building, vengeance was ripe … the jury was primed.
O’Quinn’s fame from this $25 million settlement lead to his firm acquiring a burgeoning case load with thousands of new implant plaintiffs. While O’Quinn could be described as the “white trash” of the tort world, at the same time he had been ranked one of the top 100 most influential lawyers in America and one year coming in at Number 2 in Forbes lists of highest trial income lawyers. He was also once voted the most hated lawyer in the State of Texas, sanctioned by the bar in several states for violations of ethical codes of conduct and “hustling” for victims. In 2007, O’Quinn was ordered to pay back more than $41 million in fees he had over-charged his breast implant clients. In the 1990s, such levels of slime, deception and misuse were still considered offensive and newsworthy. Today it is merely part of the Predatort persona, accepted and often celebrated by complicit activists and scientists.
The Next Big Thing?
As today’s pay outs from talc, glyphosate and benzene are running into the billions, what is the next big thing in Predatort opportunism? Opioid victims? Cell-phone cancers? Microwave oven owners? The future looks bright for the Predatort industry as more lawyers pour into the profession. With activist groups and scientists now readily at their side, with social media tools more easily abused to create public outrage, with stronger anti-industry societal narratives, these slimeballs are owning America, influencing important policies from Brussels to Jakarta and having a detrimental effect on world economies, trade and human livelihoods in developing countries. If they don’t have any respect for the victims they are representing, why should these Predatorts care about global food security and rights for subsistence smallholders.
How have these thieving opportunists gamed the system to ensure that most of the money stays where it belongs … in-house? That is the subject of Part 3 of the Predatorts chapter.