Devil’s Advocates

 

Here’s a little story about two smoking guns in the Missouri House of Representatives.

Bryan Pratt and Brian Yates are guys in their 30s who represent eastern Jackson County.

They also work at a law firm that, more than once, has been compared with Bendini, Lambert & Locke — the make-believe lawyers who kept mob secrets in John Grisham’s thriller The Firm.

Pratt and Yates toil at Shook, Hardy & Bacon, a Kansas City firm that has defended the tobacco industry for decades. Shook Hardy formed a lasting bond with cigarette makers in 1962, when David Hardy convinced a jury that Philip Morris was not to blame for a Missouri man’s lost larynx.

Shook Hardy went on to become one of Big Tobacco’s most trusted advisers. The firm didn’t just defend cigarette makers in court. Shook Hardy lawyers set strategy, reviewed press releases and even taught scientists the industry’s position on smoking and health. Jeffrey Wigand, the chemist portrayed by Russell Crowe in 1999’s The Insider, attended orientation at Shook Hardy when he started at Brown & Williamson Tobacco Corporation. After he left, he became a whistle-blower.

“They clearly were the nerve center for the tobacco industry,” says Richard Daynard, president of the Public Health Advocacy Institute at Northeastern University School of Law.

Documents made public in recent years put Shook Hardy in the middle of a massive effort to suppress information about the dangers of smoking. David Hardy was involved in the development of industry-friendly witnesses. (A Marlboro man, Hardy died of heart failure at age 59 in 1976.) In 1984, Philip Morris closed a lab after Shook Hardy warned that nicotine-related research “seems ill-advised from a litigation point of view.”

Yes, and lung cancer is ill-advised from a not-dying point of view.

Shook Hardy lawyers have said they represent their clients with zeal and in an ethical manner. But critics have argued that the firm’s tobacco work crossed a line. Daynard says lawyers hired by fraud suspects have a duty to defend their clients. “What you can’t do is help them do it,” he says.

Last year, a federal judge in Washington, D.C., fell in with the critics. Ruling that tobacco companies had violated racketeering laws, Gladys Kessler sharply criticized Shook Hardy and two other firms in her 1,700-page opinion. Kessler concluded that lawyers played a central role in the industry’s deception of the public, leading her to mourn a “sad and disquieting chapter” in the history of the legal profession. (Kessler’s ruling was appealed.)

Shook Hardy’s blackened past seemed relevant, recently, when trial lawyers complained about bills that Bryan Pratt and Brian Yates have introduced in Jefferson City.

Pratt, chairman of the House Judiciary Committee, sponsored a bill that would put new requirements and specifications on asbestos lawsuits. Yates, who chairs the Insurance Committee, sponsored legislation that would limit the liability of companies that inherit asbestos claims when they merge with other companies.

The Shook Hardy boys held hearings on their bills earlier this year. A Washington, D.C., lawyer named Mark Behrens testified in favor of both bills.

Behrens is an expert in product liability. He travels the country, advocating changes to state laws. He belongs to business-funded outfits such as the American Tort Reform Association and the Coalition for Litigation Justice.

He is also a partner at Shook Hardy.

Behrens helped write a model of the bills that Pratt and Yates (both Republicans) introduced in Jefferson City. The Pratt bill would allow cancer sufferers to proceed with their asbestos cases but would block claims made by those who were exposed but show no signs of illness. Calling from a hotel in Phoenix, Behrens tells me the current system fails the sick because the resources available to help them are spent dealing with the claims of the healthy. Says Pratt: “If you’re injured, you’re going to be able to sue.”

The bill that Yates introduced is more narrowly focused. In fact, it was written with a specific company in mind: Crown Cork and Seal of Philadelphia, a target of asbestos suits since its 1963 merger with a bottling company that had an insulation division. Behrens says Crown never made or sold asbestos yet has spent tens of millions of dollars dealing with claims. “The Crown story is a poster child for asbestos lawsuit abuse,” Behrens says.

The trial lawyers I spoke to say the asbestos bills are bad and unnecessary. St. Louis lawyer Andrew O’Brien says Pratt’s bill “is designed to make sure cancer patients who might file cases have legal obstacles put in their way to make it extremely difficult to even file their case.”

Trial lawyers also complain that the Pratt bill responds to a crisis that doesn’t exist. “There aren’t 100 [asbestos] cases pending in the whole state,” says Independence lawyer Ken McClain, who does asbestos work.

Yates’ liability bill earns similar derision from the plaintiffs’ bar. “It’s the height of special-interest legislation,” O’Brien says.

Yates tells me the bill will help Crown and other companies avoid bankruptcy. Some retirees from Crown, Yates notes, live in Missouri and rely on the company for pension and benefits. “We’re just trying to make sure these corporations are able to survive in Missouri or other states,” he says.

So it goes in Jefferson City and other state capitals. Industry looks for help. Trial lawyers bray. Drinks at five.

But sometimes the dreary facts of politics commingle in a way that causes even a cynic to pause.

I can live with the fact that generations of Shook Hardy lawyers have gone home to Brookside and Mission Hills after putting in billable hours for tobacco companies. I suppose I’ve derived some benefit from the taxes they’ve paid.

The “and” is what bothers me. Yates and Pratt work for a law firm with a dark history and they’re introducing legislation that seems to have been scripted in a well-appointed board room. A dirty fighter shouldn’t get to referee the match, too.

Yates and Pratt are like twins. They both went to the University of Missouri-Columbia (undergrad and law school). They were elected to the House in 2002. They receive campaign contributions from the same business groups and insurance PACs. In 2005, they co-sponsored a bill that capped the size of appeal bonds, which companies post while they appeal court judgments. Philip Morris, among others, supports appeal bonds.

But Yates and Pratt dispute any suggestion that they’re doing Shook Hardy’s bag work in Jeff City. Pratt says the leadership of the firm has never asked him to anything during his legislative career. Pratt also notes that he and Yates co-sponsored tort-reform legislation in 2005 that was unpopular with plaintiffs’ and defense lawyers alike. “If there are less lawsuits in the state of Missouri,” he says, “that hurts law firms.”

Somehow, I think Shook Hardy will find a way to survive. According to the American Lung Association, nearly 2,000 children become regular smokers each day.

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