‘Deep Pockets’ Initiative--TV Ad Stirs a Controversy

One of the first television ads promoting Proposition 51, the so-called “deep pockets” initiative on the June ballot, singles out as an example of the need for court reform an obscure Bay Area personal injury case in which the City of Antioch was “only remotely at fault,” but was still forced to pay $400,000.

Coincidentally, proponents say, the ad--which began running this week statewide--depicts a case brought against Antioch by none other than Peter Hinton, president of the California Trial Lawyers Assn. The CTLA is one of the primary opponents of the controversial ballot measure, and the circumstances of the ad give an indication of the heated rhetoric the measure has generated.

The commercial is an “outrageously unfair depiction of what occurred,” Hinton said after the script of the 30-second spot was read to him by a reporter. He also expressed doubt that the measure’s backers were, as they claimed, unaware that he was connected with the case.

“If they’re going to use a case, they should be more careful with their facts,” Hinton said. “It’s easy for anybody to distort something as a way to advocate. This distortion goes beyond advocacy.”

James L. Hazard, the attorney who represented Antioch, meanwhile, called the lawsuit “a classic case” of why reforms are needed.

The television ad is part of the opening media campaign that proponents hope will sell voters on Proposition 51. The measure is aimed at radically altering the size of personal injury settlements and courtroom verdicts by limiting liability in the awarding of non-economic damages to each defendant’s individual percentage of blame. Present legal practice in California directs wealthy or heavily insured defendants--those with “deep pockets”--to pay the full damages, regardless of their degree of blame, if poorer co-defendants more at fault are unable to pay.

At the same time, the defendant with the means to do so could still be required to pay all economic damages. Only from the non-economic “pain and suffering” damages could a wealthy defendant be spared full exposure.

In unveiling the three TV ads, Jack McDowell, the campaign’s chief spokesman, said he had not learned until Wednesday that the plaintiff in the Antioch case was represented by CTLA’s Hinton.

“I didn’t know Peter Hinton handled it,” McDowell said. “We’ve got scads of (cases). I didn’t select (the one for the commercial). Our office did. I looked over the scripts and it looked as good as any to me. There was nothing peculiar about it.”

The 30-second commercial features rapidly changing scenes of a fast-moving car, broken beer bottles and an actor who says:

“Five youths speed 60 miles an hour down city streets, go out of control and collide with a light pole. Beer is found at the scene. An injured passenger sues the driver, the shopping center, the utility company, the light pole installer and the City of Antioch. Though only remotely at fault, the city has to pay hundreds of thousands of dollars. The ridiculous deep pocket law allows this to happen. It costs taxpayers millions. Change the unfair deep pocket law. Vote yes on 51.”

CTLA’s Hinton said the ad falsely implies that the driver and all of the car’s passengers were drinking. One container of beer was opened in the car, he added. The car’s speed also was disputed, he said.

The accident, which occurred near dawn on July 20, 1980, resulted in the death of a passenger and the injuring of Hinton’s client, a 16-year-old girl. Doctors amputated one leg and the foot on the girl’s other leg, Hinton said.

Hinton said his client eventually settled the case in 1984 for about $1 million, which included about $100,000 in actual damages and the balance in “pain and suffering” damages. The City of Antioch settled for $400,000, while several other co-defendants paid a lesser amount.

Negligence Charged

Hinton said Antioch had negligently allowed the placement of the light pole too close to the roadway as defined by the American Assn. of State Highway Traffic Officials.

Antioch attorney Hazard said in an interview that the city settled only because co-defendant Pacific Gas & Electric settled out of court just weeks before trial, thus exposing Antioch to a much greater risk of having to pay a verdict that could have amounted to $5 million or more. He said he felt the city had a “90% chance (of winning), but that the risk was still too high. He added that Antioch’s portion of blame--which was never determined because of the settlement--ranged “between 0 and 10%.”

“I think it cries out for being a classic case whether, either by trial or settlement, (a defendant) has to pay a highly disproportionate amount of damages for any potential liability,” Hazard said.