Financial Impact on Campaign : Stands on Civil Cases Stir Praise, Criticism of Bird

In 17th-Century France, it might have been the stuff of bedroom farce--a lawsuit by a distraught husband claiming a doctor ruined his marriage by wrongly diagnosing that his wife had syphilis.

In 20th-Century California, it is grist for a landmark Supreme Court opinion and a multimillion-dollar political campaign.

Six years ago, the California Supreme Court ruled in favor of a San Mateo County man who sought damages for emotional distress after he said a false alarm over syphilis led to the breakup of his marriage. In its ruling, the court abolished a longstanding requirement that to collect damages for emotional distress a plaintiff must also suffer physical injury.

More recently, the case made its way into the campaign to defeat California Chief Justice Rose Elizabeth Bird and the three other justices commonly referred to as the Supreme Court’s liberal majority. Gov. George Deukmejian singled out the ruling, along with 30 others, as examples of what he described as the court’s misguided zeal to compensate plaintiffs in personal injury cases, no matter what the cost to business and government.

Deukmejian’s comments signaled the first round in a debate over the role of the court in civil litigation. That debate, while quieter than the one over the court’s death penalty decisions, is having a significant financial impact on the election. During the last year, business interests have spent hundreds of thousands of dollars to defeat Bird, while plaintiffs’ lawyers have poured at least as much money into the campaign to reelect the chief justice.

Other Sources

Banks, investment firms, insurance companies, real estate developers, doctors and hospitals so far have provided close to 40% of the money given by listed contributors to the campaign to defeat Bird.

At the same time, about 40% of the money contributed to reelect Bird has come from members of the California Trial Lawyers’ Assn., an organization largely made up of attorneys who litigate claims against business and government on behalf of plaintiffs who say they have been hurt, fired, cheated or evicted.

The trial lawyer association’s political action committee alone gave Bird $110,000, and members of one Los Angeles law firm, headed by two of the state’s leading trial lawyers, Browne Greene and Charles O’Reilly, contributed more than $77,000 to the chief justice’s campaign. The Greene and O’Reilly firm also donated office space for Bird’s campaign headquarters.

Plaintiffs’ lawyers have fared well before the court, particularly in front of Bird.

Won More Than Half

The California Trial Lawyers’ Assn. has prevailed in 25 of 37 friend-of-the-court briefs filed with the Supreme Court since 1977 when Bird’s tenure began, according to Leonard Sacks, a Los Angeles lawyer who prepared many of the briefs.

Moreover, Sacks’ records show that Bird, who often dissented with the majority, sided with the association in 34 of the 37 cases.

Plaintiffs’ lawyers acknowledge a debt To Bird and other justices who have been friendly to their causes.

“What we all feel is that we have to defend someone--in this case the chief justice--who decides cases along lines we agree with,” said one lawyer, who asked not to be identified.

At the same time, officials of the trial lawyers’ association bristle at the suggestion that they are contributing purely out of self-interest.

‘Political Manipulation’

“I’m for the death penalty. I don’t agree with Bird’s death penalty decisions. But I don’t believe we ought to vote her out because I am very worried about the future of a judicial system that falls prey to political manipulation,” said J. Gary Guilliam, chairman of the political action arm of the trial lawyers’ association, the group that gave $110,000 to Bird’s reelection campaign.

Moreover, Guilliam and other trial lawyers point out that the court is not always on their side. They cite a series of four opinions in which the court upheld a state law putting a ceiling on damages and attorneys’ fees that can be awarded in medical malpractice cases.

Bird dissented from the majority opinions in all four cases.

Representatives of the Bird campaign say the chief justice takes pains to avoid even the appearance of a conflict of interest in her dealings with lawyers who contribute to her campaign.

Disqualifies Herself

Stephen M. Glazer, the main spokesman for the campaign, said Bird disqualifies herself from any ruling in cases involving the firm of Greene and O’Reilly, whose members made the $77,000 contribution, and also said that Bird attempts to remove herself from any case in which a contributor has an interest.

That is not always easy to do, Glazer conceded, during a campaign in which several hundred attorneys--and not just plaintiffs’ lawyers--have given to the chief justice’s cause. Glazer said there may be times when lawyers who have contributed are involved in cases that Bird rules on.

“As chief justice, she signs hundreds of orders a week, many times without the background that would tell her who all the lawyers are,” Glazer said.

In a recent interview with The Times, Bird said lawyers are told that they should expect nothing in return for their contributions.

“I think it’s made clear to everyone who contributes in any way, shape or form that they are contributing to the rule of law,” Bird said. “And that means that any issue that comes before the court, which they are interested in, and the law is against them, that we’ll vote against them, no matter what amount of money is given.”

Even the Appearance

The state Code of Judicial Conduct permits judges to raise campaign funds on their own behalf. Nevertheless, Bird was urged by some supporters to spurn all campaign activity in order to avoid even the appearance of a conflict of interest.

She rejected that advice, saying that the best way to run a clean campaign was to run it herself. And so far, Bird’s decision has not got her in trouble. Hard as her opponents have been on her, no one has accused her of breaching judicial ethics.

What Bird has been accused of--and to a lesser extent other members of the court--is a point of view that makes her a predictable vote for the interests of plaintiffs’ lawyers.

Opponents accuse the court of manipulating the law in order to carry out social policy--the redistribution of corporate wealth to needy plaintiffs and their attorneys. “The court’s opinions reek of the notion that there is no social value in being a businessman,” said Gideon Kanner, a Loyola University Law School professor who frequently criticizes the court.

Long Line of Opinions

The controversy over the court’s civil cases has its roots in a long line of opinions that date back 40 years. It is a legacy that earned the court a national reputation as an architect of plaintiffs’ rights.

Legal scholars say the California court has acted on the theory that it is harder for individuals to bear the financial burden of accidents or other misfortunes than it is for businesses that can offset costs by raising prices.

“Over the years, this court has shown great compassion toward consumers, toward workers, toward sick and helpless people. It has been a people’s court. That’s what voters should keep in mind when they think about dumping Bird,” said Guilliam of the trial lawyers’ association.

During Bird’s tenure, the court has expanded the rights of working people to seek damages from employers who have fired them without good cause or exposed them to unhealthy working conditions. The court has made it easier for people to sue the manufacturers of cancer-causing drugs, and it set a precedent by ruling that tenants injured by faulty appliances can sue their landlords for product liability.

Personal Tragedies

At the center of many of the court’s opinions are people seeking relief from a variety of personal tragedies, ranging from terminal illness to loss of employment to the death of loved ones.

In one case, the court ruled in favor of a man suffering from a lung disease who claimed that his employer, an asbestos manufacturer, had fraudulently concealed evidence that asbestos had caused the man’s illness. In another case involving labor-management issues, the court ruled in favor of a former employee of an oil company who said he had been wrongly fired for refusing to take part in an illegal price-fixing scheme.

In a claim for punitive damages against a major insurance company, the court sided with a disabled man who said that his insurance agent, in the process of disputing his disability claim, drove him to weep in front of his family by scoffing at his financial needs, calling him a fraud and trying to make him surrender his insurance policy.

Son Died in Custody

And the court ruled in favor of a distraught mother, seeking damages for emotional distress, who said she was forced to stand by helplessly as her 13-year-old son slowly died of a painful illness while he was in the custody of juvenile authorities who refused to give him the medical treatment he needed.

Bird, while denying that the court consistently favors one side over the other, said that since well before her time, the court has tried to be sensitive to personal hardship.

“We’ve had a court over the years that has developed law that has been sensitive to the workplace, and to the victims of injuries within society. . . . We’re not plaintiffs nor defense judges. We simply are judges trying our best to decide cases and to develop the law, and in this area, in a way that is sensitive to people,” Bird said.

But critics warn that the court’s generosity to plaintiffs will backfire as business and government are forced to raise prices and taxes--higher costs that will make it impossible for poor people to pay for insurance coverage.

Hostility to Court

Ellis Horvitz, a Los Angeles lawyer who has represented many insurance companies in cases before the Supreme Court, said that business’s hostility to the court is reinforced by evidence that punitive damages awarded by California juries have skyrocketed during the last 10 years.

Quoting the publication Jury Verdicts Weekly, Horvitz said awards for punitive damages in the state rose from $7.5 million in 1976 to $242 million during the first six months of 1985.

“We are reaping the harvest of years of Supreme Court opinions that has made it easier for plaintiffs to recover damages,” Horvitz said.

Some business people say, however, that it is concern over crime, not economics, that motivated them to contribute to the anti-Bird campaign.

Anti-Business Bias

But others who gave say they did so because they believe, like Deukmejian, that a majority of the justices are biased against business.

“We feel the Supreme Court has displayed both an anti-business and anti-insurance bias,” said Rick Dinon, assistant vice president for corporate relations with 20th Century Insurance Co., a firm that gave $1,500 to defeat the chief justice.

“We feel that the liability of both individuals and businesses has been expanded dramatically without consideration of the total costs,” Dinon said.

At least one of Bird’s critics contends that her aggressiveness on behalf of plaintiffs in personal injury cases is in line with legal precedent.

“I would not vote against Bird solely on the basis of her opinions in this area,” said Stephen Barnett, a law professor at University of California, Berkeley, who has been an outspoken critic of Bird’s opinions in death penalty cases.

“I would say that the ends she wants to achieve in these cases are in line with well-established legal principle. I don’t think it can be claimed here as it can be in the death penalty area that she is refusing to enforce the law.”

Kanner at Loyola Law School disagrees. He sees Bird as a trailblazer and not merely a camp follower when it comes to plaintiffs’ rights.

“There is such a thing as going along dutifully with precedent and such a thing as doing it with great gusto,” Kanner said recently.

“There is nothing wrong with the idea of compensating people for their troubles. It’s a wonderful idea. But it’s a little like 30-year-old Scotch. It’s nice to have a drink, even to get a little buzz. But not to the point of staggering and falling down. You reach the point where you have had enough.”