Good day Austin:

It’s been a while.

When I first saw the Wendy Davis’ “wheelchair ad,” I couldn’t get past the opening image – an empty wheelchair – and the opening line: A tree fell on Greg Abbott.

A tree fell on Greg Abbott.

Wow. Stark.

A tree fell on Greg Abbott.

And then, He sued and got millions. Since then, he’s spent his career working against other victims.

The issue the Davis campaign was raising was well within bounds. But tonally the ad was harsh, even shocking. The script might as well have read: A tree fell on Greg Abbott. Good for the tree.

But Greg Abbott is running for governor of the great state of Texas, he has a fat lead in the polls and a fat enough campaign wallet to give a couple bucks to every registered voter in the state. Unless the wheelchair ad is as “incredibly effective” as Davis said it is during a stop at Guero’s Taco Bar in Austin Wednesday, Abbott will be elected governor and be heralded nationally as a barrier-breaker, or, as the Texas Monthly tagged him in Brian Sweany’s October 2013 cover story, The Overcomer.

As Ken Herman wrote this week, the righteous indignation about the ad seems overwrought. Abbott can take it, and, as for the tender sensibilities of similarly situated folks who are not running for governor, well, at Guero’s, Davis met with a small group of supporters with disabilities including Dave Dauber and Gene Rodgers who do The Gene and Dave Show,  a disability-focused show on Austin Public Access Community Television. Think Wayne’s World with wheelchairs.

Gene and Dave loved the Davis ad, which the Davis campaign titled, Justice.

“When I saw the empty wheelchair, I thought, that ‘s it. There’s a wheelchair but no one of substance in it,” said Rodgers, who has been in a wheelchair since he fell off a ledge while hiking outside Cleveland, Ohio, at the age of 17, breaking his neck and severing his spinal cord.

“It was very symbolic of Greg Abbott,” said Dauber, who was born with cerebral palsy. “He’s a person who is in a wheelchair, but he’s not supporting people with disabilities.”

The empty wheelchair, Dauber said, is such a fitting symbol that he and Rodgers used it in a video parody of Abbott’s Garage ad, which, in the Abbott-Davis ad wars, introduced the wheelchair as a symbol of Abbott’s grit and determination. In Garage, Abbott re-enacts his recovery regimen of rolling his wheelchair up an eight-story parking garage. His mantra: To get to the top we must push ourselves to do just one more.

“We did a spoof ad against Greg Abbott’s `push one more.’ We got several of our fans together and filmed it in a parking garage, all of us trying to get up the parking garage,” Dauber said. “The ironic thing is we’re all in electric wheelchairs so we’re not really pushing. The concept we brought to it is that we push every day, we push to fight to get into accessible buildings, to get attendant care, to get public transportation. We list out all the things the ADA (Americans with Disabilities Act) is supposed to help provide us and then we show that Greg Abbott is saying that the state of Texas is immune to the ADA.”

In the parody, the folks in their motorized wheelchairs, smash, screaming, into the wall of the parking garage, because, as the narrator intones, when “Texans with disabilities try to help themselves, they run into a wall built by Greg Abbott.”

The ad samples Abbott saying, “to get to the top we must push ourselves,” answered by a chorus of, “we’ll give you  a push,” with the posse of motorized wheelchairs giving chase and a wheelchair with an Abbott dummy in it rolling off the edge of a cliff.

The parody offers a disclaimer: “The makers of this video wish no physical harm on Greg Abbott. In no way shall the concept of this video be viewed as threatening.”

The ad ends with an image of an empty wheelchair rolling down a parking garage ramp, with the superimposed words, “Please Don’t vote for Greg Abbott for Texas Governor.”

When Dauber saw the Davis ad, his reaction was, “Oh my God, that’s our idea. They stole that from us.

Here is the original Garage ad, followed by the Gene and Dave parody.

It is not surprising that this all would inevitably become an issue.

In his cover story on Abbott a year ago, Sweany wrote:

 Among Democrats, there’s the lingering feeling that the attorney general is a hypocrite, or worse, for having supported tort reform in Texas after he himself did not hesitate to sue the homeowner in River Oaks whose property the oak tree was on and the maintenance company that had failed to determine that it was rotting. The tort reform movement began in earnest during George W. Bush’s 1994 campaign for governor, but it wasn’t until the 2003 legislative session—Abbott’s first as attorney general—that much stricter regulations were put into place, limiting, for example, the payout for noneconomic damages such as pain and suffering to $250,000 in medical malpractice cases. Abbott supported this reform, but his own suit—which was not for malpractice—was settled for roughly $11 million, adjusted for inflation. During the 2002 race, Abbott attacked his Democratic opponent, Kirk Watson, for being a trial lawyer; an attorney who had worked on Abbott’s settlement promptly lashed out at him for being unfair. 

The facts are these: in his settlement, Abbott received a variety of tax-free payments: an immediate $300,000 cash award; monthly payments of $5,000 that began in November 1986 and increase each year at a rate of 4 percent compounded interest; and periodic payments that began in November 1987 and will continue until 2022 (the next such payment will occur on November 1 in the amount of $400,000).  

For his part, Abbott flatly denies that there is any conflict between his own case and his efforts to limit frivolous lawsuits. He points out that he did not sue for punitive damages and that a person in the same situation today as he was back in 1984 would still have the opportunity to claim the same award. I sought out Southern Methodist University law professor Bill Dorsaneo, an expert in tort reform cases and the principal author of the 26-volume Texas Litigation Guide, for some perspective. Dorsaneo says he rarely agrees with the attorney general’s opinions about tort duties and causation, but he concurs with Abbott’s view of the settlement. 

“General Abbott’s case is not a very good example of the differences between cases then and now,” he told me. “Except for the fact that insurance companies did not expect to get favorable treatment from the appellate courts until sometime in the nineties and were more inclined to settle weak liability cases then than now, there is not much about Abbott’s settlement that seems unusual under today’s legal standards.”

Abbott dismisses the controversy soberly: “I would give back every penny of that settlement if I could dance with my wife and walk my daughter down the aisle.” In fact, if there’s anything about his candidacy—and his potential governorship—that could wind up transforming his party, it’s the idea that he is, in a visceral, obvious sense, a victim.

But, after Justice appeared, Houston Chronicle columnist Lisa Falkenberg, while suggesting that the Davis ad could have been more deftly executed ( “A few simple words could have mitigated the harsh accusation. A tree fell `tragically.’ He `rightfully’ sued.’”), offered a more critical take on Abbott’s position.

Abbott has long argued that a Texan who was injured today in the same way he was could secure the same award.

“If you had a jogger out in Houston today who was injured the way I was, that person would have access to the very same remedies I had access to,” Abbott told me last year.

But, as I’ve reported, that isn’t true. Several laws passed since Abbott’s accident could hurt a victim’s ability to recover a similar award. For one, Abbott collected from both a homeowner and a tree company, but Texas law governing “joint and several liability” has made it harder for Texans to recover from more than one wrongdoer, according to a Northwestern University law professor’s data.

Abbott’s own former Houston attorney in the fallen tree case, Don Riddle, acknowledged as much to me: “Today, a claimant would not have the same benefits,because they’d be limited by the new joint and several liability limitations.”

Meanwhile, research from University of Texas law professor Charles Silver has shown that payouts for Texas spinal cord injuries between 1988-2010 declined and the most recent median payout was around $380,000. Today, Silver concluded, a $10 million payout might be possible but unlikely: it would be “a top 1 percent settlement.

Then there was this powerfully personal piece about the ad from Dan Solomon at Texas Monthly:

I’m very familiar with tort reform and the way it’s impacted Texans who suffer from negligence. In 2003 and 2004—the year after tort reform passed in the Texas Legislature—the woman I’d marry a few years later was left legally blind in her right eye after a series of seemingly routine eye surgeries to correct cataracts were botched by two different doctors.

 xxxxx

So when I watched Wendy Davis’ new ad—called “Justice”—with my wife, her reaction wasn’t “that seems mean.” It was more like, “finally, someone is talking about this.”

xxxxxxx

For Texans like my wife, Davis’s point that Abbott himself continues to receive a six-figure yearly income because such settlements were easier to procure before he played an active role in changing the state’s liability climate doesn’t look much like “attacking a guy in a wheelchair.” And, though it may not have been well perfectly executed, calling out the disparity between his own life and the lives of the people whose lives were changed by negligence after 2003 doesn’t feel too far off from “Justice.”

When Abbott announced for governor in July 2013, I wrote about how he would prove a “problematic hero in the disability community.”

When Texas Attorney General Greg Abbott announced his candidacy for governor last Sunday, on the 29th anniversary of the accident that left him a paraplegic, he described himself as “the general in the battlefield fighting against an overreaching federal government,” hoping to become its commander-in-chief.

What he didn’t mention was that one of the encroachments he has fought against is the Americans with Disabilities Act – the signal piece of civil rights legislation for disabled people and the very act that required the renovations that made the Texas Supreme Court building wheelchair-accessible just as Abbott was to assume his seat as a justice back in 1996.

That history is likely to make Abbott a problematic hero in the disability community should he be elected governor and thrust into the national spotlight as an inspirational role model because, even as he continues to express his support for the Americans with Disabilities Act, his office has done everything it can to undermine its application in Texas.

“Now that he is running for governor, he is raising this issue of his disability as a positive thing, which is good. I commend him for that, but where has he been as attorney general?” asked Jim Harrington, director of the Texas Civil Rights Project, who has jousted with Abbott’s office on disability issues. “How can he try to gut one of the most important laws that has helped the disability community and then turn around and say, ‘I’m an example.’ It’s just crazy to me.”

“If I were in Texas I’d be campaigning against him, I don’t care if he’s in a chair or not,” said Mark Partin, who now lives in Connecticut, but as an Austin attorney was among the plaintiffs in a 1995 lawsuit to force the Texas Supreme Court to make accommodations that would enable him, in his wheelchair, to get into the building that had issued him his law license. The building had just undergone renovations without making the building accessible.

But Abbott, in a brief but intense interview on his return to Austin on Thursday after a statewide tour launching his candidacy for governor, made very plain that he thinks this criticism is unfair and out of bounds, and that he is not about to cede his place as a champion for the rights of people with disabilities.

“I’ve been a door-opener, to use a metaphor, for those with disabilities,” said Abbott, making clear that separate and distinct from his obligations as attorney general, he is someone who appreciates how the ADA has helped remake the American landscape for people like him.

“Do I see the merits of the ADA? Of course I do,” Abbott said in a back room at Scholz Garten, where he had just spoken before a crush of supporters. “Just because I see the merits of the ADA does not mean I can abandon state sovereignty and abdicate my responsibilities to defend the state.”

And, he continued, “It is deeply offensive for anyone to suggest that I should abandon my responsibility as the attorney general of the state of Texas just because I have a disability. Frankly, I think that’s unpatriotic.”

 

Last November, Allen Rucker, a writer who was paralyzed in middle age, wrote a cover story on Abbott for New Mobility, “the magazine of active wheelchair users.”

Rucker wrote:

Abbott has an undeniably inspiring story to tell, and though it is often just a warm-up to his focus on hot-button issues like immigration and abortion, his very presence in a wheelchair — without shame, self-consciousness, or excuse — makes him a potent public presence. He himself has said that just by demanding his own access to hotels and courthouses, “I’ve opened doors for the disabled in ways that no lawyer who brings lawsuits ever will be able to do.”

(Lex) Frieden agrees: “He has had a profound impact on access in Texas and disability awareness in Texas simply by his very public presence. And he has never, ever made an attempt to hide his wheelchair … if you look at the photographs of his stump speeches, you will see that he uses a specially designed dais that does not cover his legs but in fact is a single pole that emphasizes the fact that he is in a wheelchair.”

Referring to Abbott’s self-description as quite literally a man with “a spine of steel”when he announced his candidacy for governor, Rucker wrote:

This may be the most powerful image Abbott evokes in his run for office. A spine of steel conveys power, endurance, and an unbendable will. No matter how he feels about the needs of other people with disabilities, he himself is not asking anyone for anything to redress his own disability or to treat him any differently than any other Texan trolling for votes. He certainly has not made a special plea for disabled voters to support him. His base, it appears, are hardcore, government-leery Texas conservatives, not the “diversity base” that elected President Obama, which includes the most vocal leaders of the disability community.

Whatever its impact, politically or culturally, Abbott belies every stereotype disabled people have been trying to eradicate for well over a hundred years. He is not a victim, not deviant or strange, not sweet and ineffectual, not a burden, and not isolated and alone. He is an inspiration, a hero, something many people with disabilities find offensive (a way to brand them “special” and not “normal”). But it is easy to see how a Texas high school student in a wheelchair struggling with his identity could be inspired by such a forceful public figure.

xxxxxxxx

Greg Abbott — and you can take this any way you like — is a cowboy in a wheelchair. It comes down to which facet of Abbott most reverberates with you if you were to step into a Texas voting booth (assuming you could get in). If you are disabled and your politics line up with his, it’s a slam dunk of a choice. But if you are disabled and are even a political moderate, let alone an advocate for disability rights and services, you have a conundrum on your hands.

Josie Byzek, New Mobility’s managing editor, who has MS, said Thursday that she believes the Abbott campaign, and the Davis ad, have provoked a worthwhile discussion.

“We want people to talk about these issues,” Byzek said. “We want people to be aware.”

Byzek lives in Harrisburg, Pennsylvania,  so she doesn’t have to decide how she would vote in the Texas gubernatorial election. But, she said, it is an interesting question.

“Abbott’s policies in the short term would be a disaster for our community, but, in the long run, a governor who uses a wheelchair and is very open about it is good for our community and a very significant thing.”