Product Liability Bill Failure

One of those age-old battles between grasping tobacco, drug, auto, chemical, oil and insurance companies, on one side, and the health, consumer, elderly, worker and environmental groups on the other, temporarily concluded the Senate last week. The winners: present and future Americans, wrongfully injured by product defects, who wish to have their full day in court against the perpetrators of their harm. That is, they held on to the status quo.

The lobbyists from the manufacturers and the Bush/Quayle regime swarmed over the Senate on September 8 to 10. Countering them were a handful of product defect survivors who flew to Washington to reason with the Senators about the bad effects that S.640 (best named the wrongdoers Protection Act) could have on their right to seek justice in the courts.

S.640 is a clever, complicated and callous bill which would start the process of federally restricting what state judges and state juries could decide in product liability cases. If the corporate lobbyists got this legislation passed, subsequent years would witness more federal controls over state courts in this area of personal injury law.

Elaine Levenson of Pittsburgh, PA is a survivor of the Bjork-Shilley heart valve. Over three hundred people with this valve have died because of its propensity to fracture. About 53,000 other customers of this Pfizer product live in dread and fear that their valve may break. She called on her Senators.

James Hoscheit is 20 years old from a farm near Caledonia, Minnesota. Both his arms were torn from their sockets due to a defective forage blower. If 5.640 was law when he filed his case against the manufacturer, he would have had to worry about having to pay the company’s attorneys fees and expenses had he lost his claim.

Similar criticisms were made of S.640 by Don and Marion Edwards of Alabama whose exploding Chevette took the lives of their two little boys. Or Darlene Eikey of West Virginia whose husband was killed by a defect in a beverage delivery truck.

These and other survivors got only to see Senatorial aides, while the manufacturers saw the Senators directly. What a difference a Political Action Committee (PAC) makes? Nonetheless, undaunted, the survivors see themselves on a mission for other Americans at risk.

As James Hoscheit described those farmers and farmworkers who are using the same dangerously designed forage blower, which recently pulled out both arms of a young North Dakota boy, “my constituency cannot be identified because these accidents have not happened yet, but these people need a voice in Washington.”

The wrongdoers lobby and their White House allies are greasing their way in Congress with the most outrageous exaggerations, lies and deliberate distortions. To listen to their wild claims, product liability lawsuits have destroyed our global competitiveness, are costing $100 billion a year, retard innovation and fuel inflation. Never mind that each of these hysterias have been refuted by authoritative studies coming from the General Accounting Office, the Rand Institute, the National Center on State Courts and MIT.

In fact, product defect cases total around 30,000 a year, have been steady in overall number and average actual payouts and total about $2 billion a year. All the alarums about juries going wild and judges going crazy by the wrongdoers lobby have been refuted not just by the internal trial and appellate checkpoints of the courts, but by newly released insurance company data.

Instead of concentrating their enforcement against the corporate polluters and makers of injurious products (remember asbestos, Dalkon Shield, Pinto fuel tank, Oraflex, DES, silicon-gel breast implants, etc.), the Bush/Quayle team deregulates safety and goes after the small fraction of horribly burned, broken, disabled or sick survivors who are willing to take their chances with judge and jury, but not with any Washington straitjacket.

What does society receive for this annual $2 billion in payouts to victims (less than what is spent on cat food, less than what Congress spends on itself, less than what companies spend on booze entertainment expenses)? They receive deterrence — wakeup calls to industry to be more careful in the future. They receive disclosures that alert them to hazardous products and prod safety agencies to strengthen safety standards. And they receive a growing body of law that establishes higher levels of corporate care and responsibility toward their customers, Yorkers and communities. All this saves lost wages, medical expenses and, most important, much human tragedy.

The Senators who blocked S.640 last week understood.