The Campaign for 'Tort Reform' Undercuts Vital Protections
In recent years, efforts to rein in excesses of corporations have run head-long into an assault on individuals' right to bring suit against manufacturers whose products or activities cause them harm. This push for what its backers call “tort reform,” has been driven by a seemingly endless stream of thinly fact-checked anecdotes about frivolous lawsuits and by a brazen effort to blame the rising costs of health care on malpractice lawsuits.
CPR’s Member Scholars have conducted extensive research on the implications of "tort reform," and in a series of reports have debunked most of industry’s claims about the need for such measures. Indeed, the push for tort reform is at its core an effort to protect industry from its own excesses. By limiting the dollar damages citizens can seek in court, industry hopes to make unsafe and polluting practices less financially risky. And by denying citizens access to the courts, industry hopes to make such practices all but free of risk.
Nevertheless, the myth of the "Lawsuit Crisis" has taken root, the result of years of pounding by corporate interests intent on enacting "tort reform" that protects them from the harm their products and practices cause.
For decades, corporations intent on avoiding accountability for the illness and injuries their products sometimes cause have waged a fierce campaign against citizen access to state and federal courts. Now they've got a new gambit: a federal bill that effectively alters the rules of evidence in state courts. Read CPR's January 2014 Issue Alert.
Protections against the dangers of toxic chemicals include federal law (the Toxic Substances Control Act), as well as state regulation and state and federal civil justice systems. TSCA needs an update, and industry is hoping to use that process to weaken the other two legs of the framework.
The Consumer Product Safety Commission's mission is to protect consumers from unsafe products. But during the Bush Administration, it often worked to shield manufacturers from liability for harm resulting from unsafe products. Read about CPR Member Scholars' research on the subject.
In recent years, the effort to protect industry from accountability in court has taken a new turn, as various industries have lined up before state legislatures and Congress seeking legislation granting broad immunity from litigation resulting from their tortious behavior. In 2012, for example, the federal “Domestic Fuels Act” (DFA) sought to grant immunity to purveyors of ethanol and other fuel additives. Such bills are the next wave of the attack on corporate accountability. CPR Member Scholars Thomas O. McGarity and Sidney Shapiro, with CPR Policy Analyst Nicholas Vidargas, explored the phenomenon in their March 2013 white paper, Sweeping Corporate Immunity for the Fuel Industry: The Next Front in the "Corporate Accountability" Wars(CPR White Paper 1303).
Among other things, CPR Member Scholars’ work in this area includes multiple installments in the Truth About Torts series:
Governor Jindal's Choice: On May 31, 2014, CPR Member Scholar Robert R.M. Verchick published an op-ed in the New Orleans Times-Picayune warning Louisiana Governor Bobby Jindal of the reach of a bill on his desk for signature intended to protect oil and gas companies from litigation over wetlands loss.
Editorial Memo on NHTSA and state emissions standards. Read CPR Member Scholar Rena Steinzor's April 28, 2008 editorial memorandum on the NHTSA’s effort to preempt state emissions standards with its April 2008 vehicle mileage standard.
Twombly Case and Access to the Courts. Recent Supreme Court rulings have made it harder for deserving plaintiffs to get their cases heard in court. Read about CPR's May 2010 white paper on the subject, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, by CPR Member Scholars William Funk, Thomas McGarity, and Sidney Shapiro, with CPR Policy Analyst James Goodwin.
Pharmaceuticals and Preemption. In March 2009, the U.S. Supreme Court handed down its ruling in Wyeth vs. Levine, rejecting an argument from pharmaceutical giant Wyeth that a woman harmed by one of its drugs could not bring a lawsuit against the company because the FDA's approval of the drug's label effectively preempted litigation under state tort law. The Court held for the woman on a 6-3 vote. CPR Member Scholars have produced a variety of materials on the Wyeth vs. Levine case. Read a pre-decision op-ed by Member Scholar Thomas McGarity, "Court Takes Up Preemption Doctrine," in the November 28, 2008 Austin American Statesman. Read a post-decision op-ed by McGarity, A Rare Win for Consumers" (91 kb download), in the March 6, 2009 Dallas Morning News. Subsequently, the Supreme Court held that FDA-approved generic drug manufacturers cannot be found liable on "failure to warn" claims, unlike brand-name manufacturers. Read McGarity's blog posts on the subject before the ruling and after.
Austin American Statesman Op-Ed. Read "Court Takes Up Preemption Doctrine," by CPR Member Scholar Thomas McGarity, published in the November 28, 2008 Austin American Statesman, on Wyeth vs. Levine.
Op-Ed on the Roof Crush Rule and NHTSA Preemption Efforts. Read "Beware Dangers of Roof Crush Rule," by CPR Member Scholars Sidney Shapiro, Nina Mendelson, and William Funk in the August 4, 2008 Winston-Salem Journal, on the dangers of agency preemption, in the context of the NHTSA's "roof crush" rule.