Selling Out Victims’ Rights

WASHINGTON, D.C.–On July 15, 1982, with wars overseas and deep recession and unemployment at home, President Ronald Reagan met with his Cabinet to decide whether to curb the compensation rights of corporate victims in America.

On the table was a proposal to federalize the various state laws that apply to conflicts between injured people and manufacturers who produce dangerous products such as drugs, autos or toxic materials.

Why would the Reaganites even consider centralizing the law in Washington which has developed for 200 years in courts of all the states? Has Reagan abandoned his New Federalism for returning power to the states? The answer is yes.

That day, the president gave the go-ahead signal to the secretary of commerce to launch an all-out effort in Congress to pre-empt many states’ rights in this crucial area of manufacturers’ liability for hazardous products.

A few blocks away the clutch of trade associations that have been working on the Reagan regime for months to accept federalization displayed their pleasure. Insurance companies, machine-tool firms, chemical corporations and the auto industry saw a possibility of restricting the rights of the injured and next of kin in one fell swoop. For a decade they had been trying to do so on a state-by-state basis, but this lobby failed in Missouri and Ohio and California and Connecticut and Pennsylvania. So it went to Washington.

Since early 1981 it has been working on senators and representatives. Sen. Robert Kasten, R-Wis., became an early convert. His subcommittee received comments and held hearings where the perpetrators’ representatives outnumbered those who defend the victims. Kasten then announced that there is a strong consensus for a federal law.

Meanwhile, out around the country, machines and chemicals break and burn into their victims. The casualty count in the workplace and marketplace runs into the millions yearly. Only a very small fraction of these Americans reach the courtroom and less than half of those obtain jury verdicts and compensation.

In recent decades the rights of injured persons have expanded. More adequate awards were given by jurors. Judges refused to allow defenses by culpable companies who maintained that everyone in the industry did the same thing or who insisted that they met the pertinent government safety standards. More and more judges said that negligence throughout an industry cannot release the defendants from liability. As for those government standards, judges knew how many were written by the companies themselves and were obsolete as well.

From California to Florida the courts were letting more victims have fair trials by allowing them to obtain internal company information. Remember the Ford Motor Co. memorandum noting that it was cheaper to install exposed fuel tanks and lose a few jury verdicts than to use safer fuel tanks in their Pintos? The California jury rocked Ford Motor Co. with that one.

The lobby growled at each one of these advances respecting life and limb. Now the lobby is smiling because the cruel man with the smile has smiled at them. The power of the White House is now side by side with those companies who would cheat the cripples and degrade the protection of the common laws of the 50 states. He sided with the conglomerates who want to make it more difficult to stop the industrial violence of factory, mine and consumer product and more difficult for the harmed to recover fair compensation for their injuries.

Of course, Secretary of Commerce Malcolm Baldrige, who prevailed over the attorney general and the secretary of labor in this super-secret Cabinet meeting, had other reasons. There was, he said, a need to achieve uniformity of the laws and reduce the uncertainty to business. He did not highlight that those businesses wanted to roll back a generation of progress for the legal rights of the devastated and open the door for yearly amendments to overrule each major courtroom advance somewhere in the country.

The trial lawyers for the plaintiffs are organizing to oppose this proposed calamity on Capitol Hill. But they cannot do it alone. Consumer and labor groups, together with elderly associations and health organizations, need to hit the hustings and tend to the grass roots. There is a grand moral consensus among Americans which is reflected in these careful determinations of judges and juries over time. The radical Reaganites should pay heed to that ethic and tell the lobby to go back home and build safer products and industries instead.