The American Trial Lawyers Association is engaging in a campaign to discredit the recent Newsweek cover story (see Dec. 8) on litigation abuses. Their “fact sheet” is riddled with half-truths, however.

For example, ATLA’s response to Newsweek’s anecdote about the Reverend Singleton is “no cause of action for clergy malpractice (ie: negligent counseling) exists in South Carolina.” The response is disingenuous: first, plaintiffs’ attorneys regularly bring lawsuits to try to create a cause of action for clergy malpractice (see, e.g., this ATLA member law firm that advertises that it has “recover[ed] large verdicts and substantial settlements” in clergy malpractice cases; perhaps your Yellow Pages has a similar ad?); while courts have generally rejected “clergy malpractice”, they frequently let identical causes of action go forward under a “breach of fiduciary trust” theory. (Gerald J. Russello, “New Jersey Supreme Court Recognizes Tort Action Against Clergy”, Federalist Society, Spring 1998). Second, Rev. Singleton spoke of the fear of being sued for inappropriate contact, not clergy malpractice.

ATLA also repeatedly pooh-poohs other pieces of the Newsweek story with variations of the following statement: “Under the Volunteer Protection Act of 1997, volunteers for non-profit organizations or government programs around the country — even those dealing with children – cannot be held responsible for their negligence.” Notice the precise language “cannot be held responsible for their negligence.” What ATLA doesn’t say is that, to get around the Volunteer Protection Act of 1997, all a trial lawyer needs to do is add a single word to the complaint: the Act provides no immunity for allegations of “gross negligence.” While the legal standard is technically different for “gross negligence” than for “negligence”, few defendants are willing to bear the risk of a jury making that distinction, especially given the potentially bankrupting effect of punitive damages. This site has identified numerous lawsuits (e.g., Nov. 16 and Sep. 15) where volunteers or sponsors of non-profit activities continue to be sued.

ATLA also defends itself by noting “The McDonald’s obesity cases were dismissed.” Will ATLA take a public stance against future fast food obesity suits? Not likely: a September 16, 2002 column by ATLA President David S. Casey asked the public to withhold judgment on the McDonald’s lawsuit until we “have all the facts”; the later (but undated) official statement of ATLA President Mary E. Alexander was similarly neutral.

Filed under: AAJ, Stuart Taylor Jr.