On April 2, 1985, Shirley Affatato went to her neighborhood Jewel and did something unremarkable: She bought a gallon of 2 percent milk.
Reports were emerging of a salmonella outbreak unleashed by an invasion of bacteria in the 2 percent milk production line at Jewel`s Hillfarm dairy in Melrose Park. But the story was of only passing interest to Affatato who, along with her son Anthony Jr., 10, and daughter Gina, 5, drank the milk with no ill effect.
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Then one Sunday evening, nearly two weeks after his wife`s trip to the grocery, Tony Affatato came down with the classic symptoms of salmonella poisoning. The 41-year-old father`s temperature shot up to 103. His stomach cramped. He suffered from vomiting and diarrhea.
On June 10, Affatato died, one of 180,000 persons stricken by salmonella during the Jewel milk episode, one of six who did not survive.
Before his death, however, Affatato honored an increasingly common American ritual: He called a lawyer.
With that simple call, placed from his sickbed, Affatato`s family was launched on a grinding journey through the uniquely American landscape of tort law.
It is a landscape where litigation is regarded by many as a well-paying lottery, a landscape tended by a society increasingly averse to risk and bent on retribution.
In no other country can a citizen so easily go to court to air a grievance. And in no other country does a citizen have the chance to receive the kind of big-money damages awarded in U.S. courts.
For nine months, the Tribune followed Shirley Affatato, et al. v. Jewel Companies Inc., et al. through the courts. In this story, and the ones that follow, the case will serve as a guidepost for exploring the wider arena of high-stakes liability law and how such cases have overwhelmed the courts and reshaped American society.
In filing her suit, Shirley Affatato`s grievance became one of more than 30,000 filed against Jewel after the salmonella episode. Those suits contributed to the estimated 1 million personal-injury claims filed every year by Americans.
Tort law, which governs civil rather than criminal wrongs, has ballooned into an $80 billion-a-year industry built on attorneys` fees, damage awards and court costs.
It is a business that surpasses the combined profits of the top 100 U.S. corporations.
According to a growing number of Americans, it is a business that has become too big.
With increasing urgency, U.S. manufacturers, insurers, doctors and municipal officials say they are being crippled by lawsuits. And in a campaign of potentially enormous consequence, they are trying to overhaul the nation`s tort system.
The engineers of this effort are among the country`s wealthiest professionals and manufacturers, the ”deep pocket” defendants so highly prized by contingency fee lawyers who charge nothing for pursuing a lawsuit but take a third or more of any awards.
Attorneys, critics say, have created a lottery atmosphere in the courts that has stirred ever greater numbers of Americans to sue at the drop of a hat, hoping to cash in. The phenomenon of multimillion-dollar damage awards, unheard of 30 years ago, has grown commonplace to a generation conditioned to settling differences the new fashioned way: in court.
”Neighbors who disagree no longer settle matters over a cup of coffee,” President Bush observed at the May commencement of the University of Michigan. ”They hire lawyers and go to court.”
”People want to get their lottery ticket,” says Phyllis Isen, director of risk management for the National Association of Manufacturers, one of the lobbyist groups fighting to reform the tort system.
”The suing mentality in this country amounts to liability madness. Somehow we have to get back to a society where people take some responsibility and some risk and not run off to the courtroom all the time.”
Though Isen was talking just a few weeks ago, she was saying the same thing 10 years ago. Others were saying it 10 years before that. The fight over the American propensity to sue is a 20-year war, and counting.
Some of the casualties have become so familiar they`re hardly noticed anymore: the obstetrician who stopped delivering babies, the township that closed its swimming pool, the company that curtailed experimental research.
It wasn`t always this way. Tort law was once a placid, predictable field in which producers of goods and services, both private and governmental, protected themselves with liability insurance. Because fewer lawsuits were filed-and fewer won-insurance was cheap.
But beginning around 1960, liberalized tort doctrines fell into place, engineered by progressive legal scholars and judges who wanted to increase access to the courts for people who normally wouldn`t have the money to push a suit if they had to pay hourly rates to a lawyer.
The new reality of tort law first hit the liability insurance industry, which in the mid-1970s and again in the mid-1980s declared a ”liability insurance crisis.” Multimillion-dollar awards had become so numerous and unpredictable, insurers said, they could no longer put a price on their coverage with any accuracy.
Some withdrew from the liability business in certain high-risk areas such as municipal services. In other areas, such as obstetric gynecology, they raised liability premiums by as much as 1,000 percent or more.
As a result, obstetricians in several areas of the country quit delivering babies. Many municipalities began closing down playgrounds and pools because they couldn`t find or couldn`t afford the insurance.
Some industries, hard hit by product-liability suits, began to shrink from the market. Most pharmaceutical companies have all but abandoned research and production of certain high-risk products such as birth control devices.
”There has been a murder of innovation in this country,” says Isen, claiming tort laws are responsible for America`s weakened ability to compete in the international economy.
But supporters of the tort revolution say it has been beneficial to American society in several ways.
Contingency fee lawyers assure that the poorest, least influential citizen can go to court against the wealthiest, most powerful opponent on an equal footing. He can enjoy the official censure of the courts against those who hurt him. He can recover monetary damages.
Moreover, liberalized tort laws may serve as a deterrent. Not only does a stiff judgment penalize the maker of the dangerous product, but it also sends a message of accountability to the wider society.
This year the U.S. Supreme Court boosted the litigation business. By a 7-1 margin, the justices upheld an $840,000 punitive-damage judgment by an Alabama jury in a $3,800 insurance fraud case. The decision bitterly disappointed business groups, who anticipated a landmark ruling restricting the power of juries to award punitive damages, the source of many
multimillion-dollar verdicts.
Supporters of liberal tort doctrine were elated.
Michael Maher, president of the Trial Lawyers of America, said the court`s ruling sent a strong message to ”those who make unsafe products, defraud consumers and hide industrial hazards: act responsibly.”
The lawsuit Shirley Affatato filed after her husband died illustrates many of the issues fought over in the liability war.
When she was suddenly left a widow with two young children in the spring of 1985, she received the same blanket assurance from Jewel that all the salmonella victims did. She would be compensated for her loss.
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It was an offer she chose to refuse.
Before he died, Tony Affatato contacted Robert Holstein, a partner in one of Chicago`s high-profile contingency fee law firms, Holstein Mack & Klein. Immediately after Affatato`s death, Holstein began reviewing medical evidence and widened the suit to include not only Jewel but also Resurrection Hospital and two doctors who treated Affatato during his illness.
The case Holstein made was typical of the complex, high-stakes lawsuits creating the monumental backlog in American civil courts. The civil division of Cook County Circuit Court alone has a backlog of 55,000 lawsuits.
It took more than five years from the time the Affatato case was filed in August 1985 until it reached trial last Sept. 28 in Judge William Kelly`s courtroom on the 19th floor of the Daley Center.
The Affatato case was complicated. Holstein had to persuade a jury that four entities-Jewel, a hospital and two doctors-each shared responsibility for the wrongful death.
Fighting Holstein were three separate teams of attorneys hired by the defendants. They lined up expert witnesses to say salmonella had nothing to do with Affatato`s death. Holstein found his own experts and hoped they could state the case more compellingly.
Holstein and an attorney in his firm, David Poindexter, were excited by the suit`s prospects.
They had an autopsy report laying heavy blame on salmonella as a factor in the death of Affatato, a state unemployment benefits counselor. The report also noted dehydration, a condition that figured into the negligence charges against the hospital and doctors.
They had a sympathetic family of survivors, including two appealing children, to tug at a jury`s heartstrings.
And they had a plaintiff`s lawyer`s dream: An emotional personal record, in the form of Affatato`s diary, chronicling his illness and debilitation in the days before his death.
For the defendants, the bills for research, deposition-taking, private detectives, expert witnesses and pretrial and trial transcripts spiraled into hundreds of thousands of dollars.
But Holstein, at the outset, charged Mrs. Affatato nothing. Had she been made to pay her attorneys to take the case, which was once standard practice, the bill would have reached $375,000, based on the firm`s $200-an-hour calculations. In addition, she would have had to pay for such expenses as fees for expert witnesses and trial transcriptions. Those amounted to $80,000, Holstein says.
In that sense, the contingency fee system worked for the Affatatos and served as encouragement to sue. As a widow who supports herself and two school kids on the salary of a receptionist/bookkeeper, it is doubtful she would have raised or risked nearly $500,000 to pursue the case.
As it was, Holstein and Poindexter were willing to gamble on the chance they could persuade a jury to award big damages to the widow and her children- and, indirectly, to the lawyers. Under the terms of their arrangement with Affatato, the lawyers would deduct at least 33 percent of whatever the jury awarded, plus the expense money.
As the trial was about to begin, Holstein seemed confident of a jury`s answer to the question: What is a man`s life worth?
”I`ve just never seen a case quite like this in which the evidence is so compelling, so powerful in terms of what a man meant to the life of his family,” Holstein said. ”It`s obviously a multimillion-dollar trial.”
More than 90 percent of lawsuits are dropped or settled before they get to a courtroom. And only 4 percent actually make their way through a trial to a verdict; the rest are dismissed or settled.
The defendants tried to keep the Affatato case from making it up the mountain. Just before the trial date, without admitting liability, they offered Mrs. Affatato $900,000 to drop her suit.
She declined the offer. Her lawyers said she was seeking ”in excess” of $10 million. The defendants said her attorneys were demanding $29 million for her husband`s death.
More than the other defendants, Jewel worried about how the Affatato case figured into the monumental liability problems it faced from other salmonella victims.
Early on the grocery chain took responsibility for the epidemic, agreeing to pay victims for medical costs, lost wages and, in some cases, pain and suffering. What it wanted to avoid were jury findings that Jewel had acted in ”willful and wanton” disregard of those stricken by salmonella. Such findings could result in extremely high damage awards, especially if the jury assessed punitive damages.
Jewel`s biggest obstacle in that fight was a 15,000-person class-action suit demanding punitive damages for the grocer`s alleged negligence in its handling of the salmonella infestation.
With so much at stake, the class-action suit was rushed into court late in 1986, bypassing the backlog. In January 1987, a jury denied the plaintiffs punitive damages, a spectacularly decisive victory for Jewel that set a precedent for thousands of other pending salmonella lawsuits.
It meant most of the remaining plaintiffs, including Affatato, could not claim punitive damages against Jewel.
If the thousands who sued Jewel did so in the hopes of hitting the liability jackpot, most were disappointed. Under court supervision, Jewel mostly paid for medical expenses and lost wages, which, in the majority of cases, averaged three to five days and didn`t top a few thousand dollars.
Nonetheless, given the large number of people involved and the several hundred claims for far more serious injuries against Jewel, the episode has proven an extremely expensive one for the company.
Jewel has paid more than $55 million in damages and, by some accounts, might spend as much as $100 million by the time the last suit is processed. And those totals do not include Jewel`s attorney expenses.
Fifty years ago, there were no giant regional dairy operations on the scale of Jewel`s, distributing milk across a wide swath of the Midwest from one central plant. Since then, improved equipment has not only widened distribution but also has kept the price of milk low.
Even as Americans embrace the benefits of technology, however, they seem qincreasingly averse to its attendant risks.