Heroes By Any Other Name

We have some unsettling news. Brace yourself. Oncologists, who battle the relentless onslaught of death and serious injuries caused by cancer, get paid for doing so. Believe it or not. Of course, this does not make them any less valuable to society. The same may be said for police officers who fight crime or teachers who fight ignorance or chefs who fight hunger. As far as we can tell, the only group of people who do good and get paid for it, only to be villified by society, are plaintiff's personal injury lawyers. Why is that? 

Because we allow it. Because we do not fight it. Because we permit others to set the stage. Because we, ourselves, are somehow embarrassed when we make money as a result of the injuries of others. We've never met a doctor (and we meet plenty) who apologizes for a patient who is ill or sending a bill for curing them . . . or not. The Hippocratic Oath does not say "Do no harm" and if you do, pay for it. It doesn't mention getting paid at all. It focuses on the doctor's duty to the patient, not the patient's duty to the doctor. In essence, it assumes doctors will be paid for their efforts, unless the doctor decides to forego that fee, which is the doctor's business and not the profession's.

We suggest that we're sending the wrong message. Yes, we get paid as a result of injuries to others, but we don't cause those injuries anymore than the oncologist does. When we sue the maker of a medical device the cripples or kills those to whom it is sold, it's as if we've discovered a cure for cancer, or at least one type of cancer. It will kill no more. It's the pajama that won't burn a child, the bone graft device that won't cripple a father, the IUD that won't destroy a woman's ability to bear children. What are we apologizing for? Say it out loud; "I'm a personal injury lawyer and I'm proud."  Wear the sweatshirt: "If it weren't for me, you'd be burnt toast in the rear seat of a Ford Pinto." 

Speaking of things that kill people, a special shout out goes to the Connecticut Supreme Court who, last week, decided that in Connecticut, no one can advertise, market and promote a device in its state for use in violent, criminal behavior. When it comes to the Bushmaster, XM15-E2S semiautomatic civilian variant of the AR-15 style assault rifle, you simply can't advertise it to kill school children, at least in Connecticut. It is frowned upon. One such Bushmaster was sold to the mother of Adam Lanza who then used the device at Sandy Hook Elementary School to deadly effectiveness. 

"Following a scrupulous review of the text and legislative history of PLCAA ("Protection of Lawful Commerce in Arms Act" 15 USC 7901-7903 [2012]), we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case.  The regulation of advertising that threatens the public's heath, safety, and morals has long been considered a core exercise of the state's police powers.  Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations." Soto v. Bushmaster Firearms International, LLC, Slip Op SC 19832, 19833 (Conn. 3/19/19)

Imagine what happens when the plaintiff's personal injury bar hears about this.