Legal Facts and Fiction


The civil justice system today serves crucial functions that, if weakened in any significant respect, would devastate our nation. Our legal system protects us all from injury and disease, whether or not we ever go to court. This is because the prospect of "tort" liability deters manufacturers, builders, chemical companies, hospitals and other potential wrongdoers from repeating their negligent behavior and provides them with an economic incentive to make their practices safer.  

And as the tobacco litigation so aptly demonstrates, tort actions also force disclosure of often extremely important internal information about products, drugs, toxics, unsafe practices and processes, and force the airing of these disclosures to millions of people through the mass media. Such disclosures not only alert members of the public to take their own precautions, but also inform regulators and legislators as to the advisability of stronger safety laws.

The civil justice system has greatly enhanced the safety of the workplace and marketplace. The number of dangerous or defective products that were made safer or driven from the market following lawsuits brought by injured consumers are too numerous to list. Such products include, to mention only a few: fabrics used in children's sleepwear, now flame-retardant; chain saws, now equipped with guards; the Dalkon Shield IUD, causing sterility in thousands of women, taken off the market; the anti-miscarriage, cancer-causing drug, DES, taken off the market; rear-seat shoulder belts, replacing lap-belts in passenger vehicles; the Chevy Corvette gas tank, now lined with a rupture resistant plastic; the Ford Pinto with the exploding gas tank, taken off the market; farm tractors, now equipped with roll bars; toxic household chemicals, now labeled with warnings; the Suzuki Samurai, prone to rollover, taken off the market; the Bjork-Shiley heart valve, prone to fracture without warning, taken off the market. Lawsuits have also forced improvements in hospital emergency room procedures, improved security in hotels and apartment buildings, and forced changes in many other corporate practices.  

Women, in particular, have had to rely on the civil justice system to ensure the safety of products. History shows that many dangerous or defective products that have caused some of the most serious injuries and death have been developed specifically for women, including the anti-miscarriage drug DES, the Dalkon Shield and Copper-7 IUDs, high estrogen birth control pills, high-absorbency tampons and breast implants. These products were removed from the market only after women brought lawsuits against the product manufacturers. In the case of the Dalkon Shield IUD, for example, which killed at least 17 American women and injured over 200,000, it took suits by more than 10,000 women over a decade, and several large verdicts, before A.H. Robins finally agreed to pay for the Dalkon Shield’s removal from users. See, Rustad, "How the Common Good is Served by the Remedy of Punitive Damages," 64 Tenn. L. Rev. 793 (1997); Walsh, "A.H. Robins Begins Removal Campaign for Dalkon Wearers," Wall St. Journal, October 30, 1984. According to SUNY Buffalo School of Law professor Lucinda Finley, "Reproductive or sexual harm caused by drugs and medical devices has a highly disproportionate impact on women, because far more drugs and devices have been devised to control women’s fertility or bodily functions associated with sex and childbearing than have been devised for men." Finley, "Female Trouble: The Implications of Tort Reform for Women," 64 Tenn. L.Rev. 847, 855 (1997).

Corporate risk-managers say that our civil justice system makes us safer. In 1987, the Conference Board, a business-funded research organization, surveyed the risk managers of 232 major U.S. corporations about the effects of product liability laws on their companies. It concluded, "Where product liability has had a notable impact -- where it has most significantly affected management decision making -- has been in the quality of the products themselves. Managers say products have become safer, manufacturing procedures have been improved, and labels and use instructions have become more explicit." This is consistent with the findings of a 1987 Consumer Federation of America (CFA) report. According to CFA, relatively few companies had a product safety management position in the early 1970's. But by the end of that decade, virtually all companies had a strong product safety presence in their management structures. CFA found that this heightened attention to safety produced dramatic changes in the rate of accidental injuries and deaths in the United States. CFA concluded that "approximately 6,000 deaths and millions of injuries have been prevented on an annual basis now because of product liability and other forces toward greater safety in our society." Testimony of Pamela Gilbert, Public Citizen’s Congress Watch, Senate Consumer Subcommittee, September 23, 1993. 

Weakening liability laws will lead to more deaths and injuries. Deterrence of unsafe practices through imposition of financial liability has always been considered a critical function of the civil justice system. See, e.g., Keeton et al., Prosser and Keeton on Torts, 5th Ed., 1984, p. 25. A recent Rand Corporation Institute for Civil Justice study explained that "the jury’s decision in any particular case indicates the costs of engaging in behavior similar to the defendants" and in doing so "deter[s] future such actions.¼" Punitive Damages in Financial Injury Jury Verdicts, Rand Institute for Civil Justice, 1997. Conservative theorist Richard Posner has written that the tort system’s economic function is deterrence of non cost-justified accidents, and that tort law creates economic incentives for "allocation of resources to safety." Landes, Posner, The Economic Structure of Tort Law (1987). A study of hazardous waste litigation by an MIT research team led by Dr. Nicholas Ashford found that wrongdoers who are not assessed the full cost of damages they cause do not take sufficient precaution to prevent future harm. It found that "The tort system seems to be the most significant mechanism to keep risk aversion in the market." The Role of Changes in Statutory/Tort Law and Liability Insurance in Preventing and Compensating Damages from Future Releases of Hazardous Waste, October 1987. Similarly, studies of the workers’ compensation system, which forces injured workers into non-jury administrative systems in order to collect compensation, have found the system to be an ineffective deterrent against workplace dangers. See, e.g., Abel, "The Real Tort Crisis — Too Few Claims," 48 Ohio L. J. 443, 459 (1987); Workers’ Compensation and Workplace Safety; The Nature of Employer Financial Incentives, Rand Corporation Institute for Civil Justice (1982).


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