Tort Laws Deter Unsafe Behavior or Technology

The corporate lobbying assault on the right of Americans to

have their full day in court against wrongdoers who harm or defraud them is underway again on Capitol Hill. The glasses of champagne are clicking and the whiskey drinks are flowing at campaign fundraising parties around Congress to grease the way.

The objective is legislation to federalize, restrict and destroy rights in state courts that workers and consumers can use to achieve both compensation for their harms and deterrence against safety and health hazards in the markets workplace and environment.

The cruelty and greed brigade is led by Senators from both parties such as Senator Mitch McConnell (R-KY) and Senator Jay Rockefeller (D-WV). However, most Democrats oppose taking away peoples’ rights here, while most Republicans want to tie the hands of state judges and jurors by this absentee federal legislation, whose lawmakers never see the actual evidence in the cases before the court.

Contrary to the insurance industry’s propaganda, few wrongfully injured people ever file a lawsuit against companies who sell them defective products or hospitals who harm them through negligence or incompetence. Studies from the Harvard School of Public Health to the Rand Institute for Civil Justice note that about one out of ten victims files suits.

One reason is that the evidence is controlled by the harmdoers (i.e., the Hospital) or it is difficult to find an attorney willing to take on a large corporation with endless reserves to wage a war of attrition in court.

Since most people do not litigate, they may feel that the battles at the state legislature and the Congress between consumer, labor and environmental groups on one side and the manufacturers, insurance and other business interests, seeking to escape responsibility, on the other, do not affect them.

They are quite mistaken. The two hundred years of the common

law of torts (a tort is a wrongful injury) is one of the central prides or our country.

A severely injured but powerless worker can obtain a contingent fee attorney (only gets paid if the attorney wins) and take a large corporation to court. In proving to the judge and jury, subject to appeal, that the auto company or drug company or medical device manufacturer, for example, wrongfully harmed him or her, the plaintiff is helping to deter unsafe behavior or technology in the future. Just about everybody benefits from the enhanced level of safety in society.

For example, in the landmark case of Borel v. Fibreboard Paper Products Corp., the U.S. Court of Appeals held in 1973 that a manufacturer of asbestos could be held liable if its products were unreasonably dangerous. Evidence in the case showed that asbestos markers had known of and deliberately concealed evidence that asbestos causes cancer. Many more suits were filed and the asbestos makers were made to pay for their misconduct. Deterrence? Well, asbestos insulation was withdrawn from the market. Deadly asbestos in products which have taken tens of thousands of lives are on the way out in this country.

Another example: Cases against Ford Motor Company involving defectively designed transmissions and improperly located fuel tanks have led to changes by that company. In another case where a family sued a manufacturer of flammable pajamas, the evidence and the verdict in court led to cessation of the sales of these pajamas and stronger regulatory safety standards.

A case in the Sixties out of California against a tire company produced evidence that Senator Gaylord Nelson used to pass the tire safety law a couple of years later in Congress.

In an Arkansas case, the family of a woman who suffered brain and lung damage as a result of a defective anesthesia machine won a major verdict, upheld by the Arkansas Supreme Court. The case proved the company knew from the outset, by its very own testing, of the danger. The company then sent out a public alert to all users of this equipment.

There are many many cases which changed the design or construction of machines, devices, chemicals, fabrics to make matters safer for millions of Americans who never heard of the court case or cases that led to such improvements.

So next time you hear the phrase “tort reform,” ask its backers in the business community just how much they have paid out in verdicts and settlements (it is far less than they imply), how much in profits the insurance companies are making off of falsely scaring people about the so-called “litigation explosion,” (Americans filed more civil cases per capita in pre-Civil War America than they do today) and why they use the word “reform” to describe a destruction of civil justice rights in court for victims, instead of expanding the accessibility of the courts to the many innocent wounded and sick now shut out from holding their perpetrators accountable.