EDITORIAL

Tort Law, Tort "Reform" and the Tort Museum

by William F. Gallagher

The fundamental policy of tort law is threefold: the compensation of innocent parties; the shifting of loss to responsible parties or distributing it among appropriate entities; and deterrence of wrongful conduct. The imposition of tort liability is based on these factors, but limited by a reasoned analysis of the economic burden imposed on the general public, the certainty – or uncertainty – of significant social benefit, and the weight of judicial authority. Our courts struggle constantly with these competing factors. On August 25, 1998 the Connecticut Supreme Court published a decision denying a child damages for the loss of society and consortium because of an injury to a parent. The decision is full of an analysis and balancing of these factors. It is a stunning example of the common law of torts in action, with Justice David Borden and Justice Robert Berdon writing opposing points of view.

While it may seem that there is a remedy for every wrong, there clearly is not. Our tort law has developed over many years. It represents the forces of reason and principle melding a body of law that compensates the injured, shifts or spreads the losses, and deters the wrongdoer, but does not place an unreasonable economic burden on the public, is certain to bring about a significant social benefit, and is based on sound decisions of the courts. Sometimes these are close calls, like the parental consortium case decided August 25.

The so-called tort "reform" movement seeks to interrupt this common law process with radical changes that are not reforms so much as they are punishments. All of the "reforms" either deny access to the courts by the injured or killed victims, or limit the remedy available. The purpose of these "reforms" is not based on reason and principle, or compensation, or shifting or spreading losses, or deterrence. The purpose is profits.

The "reforms" come with a sort of newspeak. They use names like "Tort Reform," "Judicial Reform," and "Civil Justice Reform," but what they really are about is profits. Whether it is a manufacturer that produces defective products or a negligent doctor that does harm, let’s face it, tort "reform" is nothing more than welfare to these wrongdoers. Proposals limiting the amount of noneconomic damages, enacting restrictive statutes of limitation, placing impossible burdens of proof or denying access to court entirely are welfare proposals. They subsidize destructive behavior.

When we limit the noneconomic damages a victim of a defective product or medical malpractice can receive, we are subsidizing that manufacturer or that doctor. We not only reduce their cost of doing business, we force the rest of society to pay the price for their misconduct through other welfare programs.

Examples of a safer society and accident prevention through civil tort actions abound. Consider the Dalkon Shield IUD. For years the manufacturer, A.H. Robins, had known that the IUD was associated with a high rate of pelvic disease and septic abortion. For years it misled doctors about the device’s safety. It had dropped or concealed studies on the device when the results were unfavorable. After a series of substantial plaintiffs’ verdicts, Robins finally recalled the Dalkon Shield from the market.

Playtex manufactured and sold super absorbent tampons. The Tenth Circuit Court of Appeals found that Playtex deliberately disregarded studies linking high absorbency tampon fibers with increased risk of Toxic Shock Syndrome at a time when other manufacturers were responding by modifying or withdrawing their high absorbency tampons. It was only after a series of wrongful death actions, and substantial verdicts, that Playtex finally agreed to withdraw the product from the market.

In 1983 a 13 month old baby was found hanged to death on the headboard of a Bassett crib. The girl’s head was caught in a cutout between the top corner post and a blanket roll, lifting her feet off the mattress. Bassett Furniture had stopped producing the cribs, which were associated with the deaths of nine children in 1977, but had failed to notify crib owners. The company sent modification kits to stores rather than to consumers, and had refused a Consumer Products Safety Commission demand for a national press release. After a substantial plaintiff’s verdict, the company was prompted to speed up the recall and notify the public of the hazard. There were no more deaths.

Successful tort actions have focused on defective transmissions, flammable children’s pajamas, jaw implant devices, faulty surgical ventilators, asbestos, arthritis drugs, charcoal briquettes causing death from carbon monoxide, exploding cans of Drano, steam vaporizers, rifles with defective safeties, poisonous insecticides, and the irresponsible and negligent placement of a gas tank in a vehicle. This list mentions only a few of the tort actions which have corrected bad corporate behavior.

Tort law holds wrongdoers accountable and brings about safety. It does so by providing a remedy for injured victims that our society overwhelmingly supports. Tort "reform" denies accountability and seeks a welfare subsidy for wrongdoers, mostly corporate wrongdoers.

Ralph Nader’s Museum of Tort Law chronicles the development of tort law by focusing on its enormous accomplishments over the last 50 years. It is a reminder that the American public can sue for safety, and that one individual’s case can make a difference.