Stacking the Deck Against Consumers

If only the two scenes could be seen side by side.

On one side would be pictures of badly injured men, women and children trying to have their day in court against heavily organized manufacturers charged with making or selling hazardous autos, drugs, power presses, chemicals, power lawnmowers and a myriad of other misconstructed products. On the other side would be pictures of private meetings in elegant Washington hotels attended by lobbyists. They represent insurance, auto, drug, machine tool and other industries determined that a bill pass through Congress to make it harder for these injured people to enter or prevail in the courtroom.

Unfortunately for the victims, the lobbyists in the Washington hotels have three assets. The legislators in Congress see these business reps far more than they see the victims back in their districts. And these reps bring focused power and money to their cruel objective.

Take Senator Robert Kasten (R. Wis.) for example. He is pushing S. 2631, a bill to federalize and replace the states’ common and statutory laws that give rights to the injured or next of kin against defective products and their manufacturers. Last year he held hearings. Most of the witnesses were selected because he agreed with them. There were no victims and very few scholars or lawyers who support keeping the present deliberative system wherejudges and juries decide the standards by which defendants are held liable and plaintiffs are compensated. This historic system has been stable, not revolutionary. But it is hard to buy or rent, even harder to slam doors shut on victims, and resistant to being straitjacketed. As a result, our country leads the world in holding manufacturers liable for harming workers or consumers with their dangerous machines, consumer goods or chemicals.

Not that it is easy to win in court over such manufacturers; few victims even get that far, so difficult are the problems of securing the evidence and establishing the proof. But those people who do win in court obtain some justice for themselves and help make manufacturers and distributors more careful in the future.

Now comes S. 2631. If enacted into law (and Ronald Reagan supports it along with dozens of company associations), this bill would take away the states’ and judges’ right to develop the standards under which companies could be judged liable for damages. Under the guise of the need for corporate certainty, sponsors of this legislation would achieve uniformity down and rigidity up. They would obtain the federal framework so that anytime powerful companies want an amendment to squelch a progressive court case, they could do it federally with one stop injustice.

For example, if Borg-Warner Corp. designs an auto part defectively, or if Ford puts a dangerously located fuel tank on its Pinto, they could lose in court on the merits. With S. 2631 they are less likely to lose, but if they do, they can always grease the Congress for another amendment to prevent such a decision from happening again.

Indeed, having lost in the courts and before the state legislatures in their attempt to return the law backwards several decades, the insurance industry and its allies are now swallowing their rhetoric about states rights and pushing for retrograde federalization.

No sooner was Ronald Reagan inaugurated then the corporate lobby was huddling secretly to plan its strategy. Having been discredited in its wild exaggeration about the alleged product liability crisis a few years ago, the lobby now wants to link companies losing in the courts with a growing reluctance by them to design and make new products. That assertion has as much validity to it as the lobby’s former claim that there were one million product liability cases filed each year (the more accurate figure is about 65,000). Instead, perhaps the reluctance is in making dangerous new products.

Basically, the well-heeled proponents of Senator Kasten’s bill do not like the gradual progress of the common law in recognizing and respecting the rights of injured people. They want to stop it with one fell swoop in Congress.

Since most Senators have not heard from the citizens back home, they are likely to support Kasten’s bill. However, the House of Representatives will be more skeptical. To find out where your Representative and Senators stand, you’ll have to write them. If you do, be sure and insist that full public hearings be held in both Houses with the first invitations going to victims and their expert advisers.