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This page provides information about Americans' Right to Trial.
The following are articles courtesy of ALTA that you can read
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Supporters of so-called "legal reform" bills in Congress
claim that too many lawsuits have led to excessive costs and delays.
They also charge that juries can no longer be trusted to render
fair verdicts. The facts belie these assertions. These legal revisions
would gut our system's ability to force wrongdoers to change their
harmful conduct.
- Tort claims -- those filed by injured Americans -- do not
clog our courts. In fact, such claims accounted for only about
5 percent of all civil claims filed in state courts in 1992,
according to the most recent data compiled by the nonpartisan
National Center for State Courts (NCSC). Of the 19.7 million
civil cases filed in 1992, about one million were tort cases,
the center reports.
- Tort filings in state courts have essentially remained constant
over the past decade and actually declined by 6 percent between
1991 and 1993, according to the most recent NCSC study. This
is particularly significant because over 95 percent of all tort
cases are filed in state courts.
- The costs associated with our liability system are far less
than critics contend. The nonpartisan Rand Institute for Civil
Justice has estimated that $14 to $16 billion was paid in compensation
to injury victims through the tort system in 1985. When indirect
costs were added (court costs, legal fees, insurance claim processing
costs, etc.) Rand arrived at a total of $29 to $36 billion (or
about $29,000 to $36,000 per case).
- Rand's estimate probably has increased in the intervening
years, but it doesn't even remotely approach the $300 billion
figure so often cited by critics of the civil justice system.
Scholars have traced the basis for the $300 billion figure to
a guess by a corporate executive that was then multiplied by
three and one-half times.
- Tort system costs pale in comparison to costs associated with
injury. A 1991 Rand study estimated that non-fatal injuries
cost the U.S. economy nearly $176 billion in 1989 alone. The
National Safety Council estimates that accident costs totaled
$399 billion in 1992.
- About 6,000 deaths and millions of injuries are prevented
each year because of the deterrent effect of products liability,
according to the Consumer Federation of America.
- When juries speak, corporate America listens. That's why defectively
designed cribs no longer strangle infants. Trucks have back-up
alarms. Once-harmful medical devices have been redesigned. Auto
fuel systems have been strengthened. Cancer- causing asbestos
no longer poisons homes, schools and workplaces. And farm machinery
has safety guards.
Given the facts, why do opponents of civil justice blame
tort cases for clogging our courts and driving up costs? The proposed
legal revisions would limit the rights of individuals to hold
wrongdoers accountable, but give corporate America every opportunity
to vindicate its legal rights.
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Proponents of legal "reform" often argue that liability
claims hurt America's competitiveness and stifle innovation. This
oft-repeated myth is not borne out by the facts.
- The United States has the most competitive economy in the
world, according to the 1994 World Competitiveness Report, which
is put out by two Swiss organizations.
- The United States has "significantly strengthened"
its position in a dozen important technologies and holds big
leads in biotechnology, environmental technology, and computer
and communications technologies, the Council on Competitiveness
reported in September 1994.
- American industry is the leader, or is highly competitive,
in virtually every major global industry, according to a column
in The Wall Street Journal by Daniel Strickberger. American
owners, managers and workers have competed and won, taking home
37 percent of sales and 48 percent of profits in world markets,
he wrote. Daniel Strickberger, "The Other American Dream
Team," The Wall Street Journal, Feb. 15, 1994, at A16.
- The U.S. pharmaceutical industry, contrary to its claim that
experimentation is stifled by the civil justice system, reported
in February 1995 that it would spend a record $15 billion on
research and development that year.
- Our laws actually strengthen our competitiveness abroad. Professor
Mark Hager of American University has written that American
products "because of their superior reputation for safety,
due in part to the efforts of products liability . . . have
a superior reputation in the international marketplace."
Hager adds: "[I]t would be a grave risk to our international
competitiveness to toy with the tort system that helps bring
about that competitive advantage."
- Foreign manufacturers who market and sell their products in
the United States do not have a competitive advantage here.
They are subject to the same liability laws as American manufacturers.
- Japan and the European Economic Community both have moved
toward "American- style" products liability laws.
If the critics of American civil justice are correct, these
countries would be harming their own competitiveness by adopting
such laws. But the fact is, Japan and the European countries
know that such laws will not harm their position in the world
marketplace.
Given the competitiveness of America's economy, why do proponents
of these so-called legal "reforms" insist that our ability
to compete is hampered by our liability laws? Our laws discourage
the sale of unsafe products and hold wrongdoers accountable when
they do.
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Supporters of legal "reform" advocate adoption of the
English rule, also known as "loser pays," on legal fees
and costs. They argue that such a rule would deter frivolous lawsuits.
However, such a system actually would further erode personal responsibility
in America, because it would force injured citizens to back down
from holding wrongdoers accountable.
- The English rule would force injured Americans to shy away
from holding wrongdoers accountable because a claim filed against
a powerful corporation or government could wipe out these citizens
financially if they have to pay the other side's legal fees
and costs. Winning a trial is never guaranteed, and the injured
party would be faced with this stark reality: You can try to
right a wrong, but if all does not go exactly as planned your
family gets a one-way ticket to financial ruin and dependency.
- Even England does not strictly adhere to the English rule.
More than half of England's citizens qualify for government-run
legal assistance. The English rule rarely applies when the "loser"
is a recipient of legal aid.
The conservative English magazine The Economist in January called
for abandonment of the English Rule and expansion of contingent
fees. The magazine stated: "The worst aspect of this system
[English Rule] is that it denies access to justice to huge numbers
of people."
- English trade unions provide legal representation to their
members and pay the other side's costs if a case is lost.
Without a government-run program to help injured consumers
pay legal fees and costs, Americans could not afford to vindicate
their rights and wrongdoers would not be held accountable. Has
anyone seriously suggested that America needs to replace its system,
in which private litigants pay their own expenses, with a government-run
program?
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Farming is the most dangerous occupation in this country. In
the absence of federal regulatory action, legal "reforms"
would effectively destroy the ability of America's self- sufficient
and independent farmers to recover compensation for their injuries,
to hold wrongdoers accountable for their negligence, and to deter
corporations from continuing to place unsafe farm machinery on
the market.
- A 1987 National Safety Council (NSC) study revealed that farming
is the most dangerous occupation in America. Farm deaths occur
at a rate of 49 for every 100,000 workers - - almost five times
the national average for all industries. The injury rate of
50 for every 1,000 workers is almost four and one-half times
the rate for all industries.
- There were 1,400 agricultural work deaths in 1991, according
to a 1992 NSC report. The injury total for 1991 was 140,000
farmers and farm hands.
- Because farming traditionally has been a family enterprise,
children often help their parents. But children are not immune
from the hazards found on the farm. Nearly 300 children and
adolescents die each year from farm injuries, and another 23,500
suffer non- fatal trauma, according to a 1985 Consumer Product
Safety Commission report.
- The brutal nature of farm injuries cannot be ignored. An Iowa
farmer lost both his legs when he fell into an unguarded hopper
opening at the top of a forage blower. Another farmer in Alabama
had his left leg mangled by a combine because the manufacturer
decided to no longer include a certain protective mechanism
over the rotating auger. The same fate befell a farmer in Wisconsin;
it was later revealed that previous model augers were protected.
These are injuries that ravage the health and future of farmers
and their families.
- Lack of federal action on the issue of farm safety is a major
reason for the high number of farming fatalities and accidents.
OSHA enforces rules on rollover bars and guards on equipment
made after 1976, but these guidelines do not require the retro-fitting
of unsafe older equipment manufactured prior to these years.
In addition, the Department of Agriculture does not have a farm
safety agency or even a specialist.
- Moreover, the Consumer Product Safety Commission has no jurisdiction
over farm equipment, except with regard to all-terrain vehicles
(ATVs). While the Commission has stopped the sale of three-wheel
ATVs, older versions of this hazardous item are still in use
on farms because they were never recalled.
- Not all farm accidents can be attributed to manufacturer negligence
or recklessness, but it nevertheless is clear that injured agricultural
workers, by holding wrongdoers accountable through our civil
justice system, have spurred manufacturers to design and sell
safer machinery.
American farmers have suffered their injuries in silence for
too long. Legal revisions would aggravate such injustices. Aren't
the lives of men, women and children who put food on our tables
worth the few pennies it would cost to add protective guards?
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So-called "legal reforms" would arbitrarily cap damages
for non-economic loss in medical negligence cases and create hurdles
to bringing claims. Such proposals attack individual rights and
protect wrongdoers. Medical liability is a powerful deterrent
to incompetent care.
- Medical malpractice premiums amount to less than 1 percent
of national health care costs, according to the U.S. Congressional
Budget Office. Eliminating medical liability altogether would
thus do little to contain health care costs.
- Medical malpractice is actually the most profitable line of
insurance written nationwide. Losses paid by insurers in 1991
for medical negligence amounted to only 31 cents out of every
$100 of health care spending, according to insurance industry
monitor A.M. Best.
- Medical malpractice claims, which are extremely expensive
to prosecute, do not clog our courts. Only 7 percent of all
tort claims in 1992 involved any type of professional malpractice,
including medical negligence, according to the National Center
for State Courts.
- Since 1985, the rate of claims has declined at an average
annual rate of 8.9 percent, according to a 1992 American Medical
Association publication.
- A 1995 U.S. Department of Justice study analyzing civil jury
cases in the nation's 75 most populous counties found that plaintiffs
won approximately 30 percent of the 1,362 medical malpractice
cases filed in the 12-month study period. Punitive damages were
awarded in 13 of these 403 successful cases. The award exceeded
$250,000 in just four of the 13 cases .
- Malpractice occurs too frequently in America. The 1990 Harvard
Medical Practice Study found that medical malpractice in one
year in New York state alone contributed to the deaths of nearly
7,000 people -- an average of 19 deaths each day -- and injured
27,000 more. Researchers, who extrapolated from the Harvard
study, concluded that 80,000 American die each year in part
due to medical malpractice.
- Despite this incidence of malpractice, only about 2,000 doctors
(one-third of 1 percent of all doctors nationwide) are disciplined
each year by state medical boards, according to the Public Citizen
Health Research Group. Doctors who are disciplined often are
sanctioned for transgressions other than negligence, such as
substance abuse and fraud.
- So-called "defensive medicine" is a red herring.
Only a small percentage of diagnostic procedures -- "certainly
le
ss than 8 percent" -- is likely to be caused by a concern
about malpractice liability, according to Congress's Office
of Technology Assessment.
- Health care providers often have a financial incentive to
run up costs, according to the Consumer Federation of America.
Physicians with financial interests in labs order 34 to 96 percent
more tests than those without such interests. Prices at these
labs are 2 to 38 percent higher that at independent, non-physician-owned
labs.
Given the facts, shouldn't we focus on eliminating, or at
least attempting to reduce, medical negligence rather than restricting
the rights of those who are injured? Limiting individual rights
will do nothing to root out the cause of medical malpractice --
incompetent health care.
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By seeking to limit punitive damages and raise the evidentiary
standard for such awards, so-called "reformers" would
strip individuals of the power to make reckless or malicious defendants
change their misconduct.
- Punitive damages are awarded in less than 5 percent of civil
jury verdicts, according to a 1990 American Bar Foundation study
of 25,000 jury verdicts in 11 states over a four- year period.
Between 1965 and 1990, there were only 355 such awards in products
liability cases, according to a study by law professor Michael
Rustad of Suffolk University in Boston. And more than half of
those awards were reduced or overturned on appeal. The rarity
of punitive damages helps to explain why such awards often have
news value. Moreover, the U.S. Supreme Court has mandated that
courts carefully scrutinize such awards.
- Contrary to allegations about the overuse and excessiveness
of punitive damage awards, data collected in the most recent
National Center for State Courts (NCSC) study reveals that they
are awarded in only 6 percent of tort cases in which the defendant
was found liable. Further, the NCSC study indicates that the
median award of punitive damages is $50,000.
A 1995 U.S. Department of Justice study analyzing civil jury
cases over a 12-month period in the nation's 75 most populous
counties found that juries awarded punitive damages in just
6 percent of all successful suits, and that approximately half
of these punitive damage awards were for $50,000 or less.
- The number of punitive damage awards between 1990 and 1994
in San Francisco and Cook County (Illinois) decreased 59 percent
from the 1985-89 period, according to data from a 1995 study
by the Rand Institute for Civil Justice. In the 1990-94 period,
punitive damages were awarded in only 2 percent of all cases
in San Francisco and in 1 percent of all Cook County cases.
- In nearly 80 percent of the products liability cases in which
punitive damages were awarded, the manufacturer made a subsequent
safety change, professor Rustad found. Beyond that, just the
threat of punitive damages causes safety to be taken into account,
thereby resulting in a safer America.
- Limiting punitive damages to an arbitrary level would undercut
their deterrent value since reckless or malicious defendants
might find it cheaper and more cost effective to continue their
bad behavior and to risk paying punitive damages.
Americans would be much worse off if they were not able to hold
wrongdoers accountable. The makers of asbestos certainly did
not voluntarily assume responsibility for the harm they caused.
The A.H. Robins Company did not offer to compensate the thousands
of women injured by the Dalkon Shield. It is only the civil
justice system and punitive damages that have placed accountability
where it belongs -- at the door of the wrongdoer.
Given the facts, why do the proponents of legal revisions seek
to protect the reckless and malicious from bearing responsibility
for their acts? In addition, why do they base policy recommendations
on misrepresented anecdotes? The threat of punitive damages deters
egregious misconduct.
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"Reform" measures on products liability and non-economic
damages would disproportionately affect the health and safety
of women.
- American women have been disproportionately injured by dangerous
and defective drugs and products, especially those related to
reproduction. The anti-miscarriage drug DES, the Dalkon Shield
and Copper-7 intrauterine devices, super-absorbent tampons that
cause toxic shock, and silicone-gel breast implants are but
a few. These legal revisions would make it even harder for women
injured by defective drugs and devices to hold wrongdoers accountable.
- Statistics reinforce the importance of products liability
to women. Investigations conducted by law professor Michael
Rustad of Suffolk University in Boston of punitive damage awards
in products liability cases between 1963 and 1993 revealed that
nearly 70 percent of all women receiving punitive awards were
injured by defective drugs or medical devices.
- Limits on punitive damages are actually "gender injustice
in disguise," Rustad concludes. Rustad, who has studied
punitive awards, has found that nearly 50 percent of such awards
in products liability cases were made to women who had been
injured by drugs or medical devices.
- Punitive damage awards are indispensable to women, whose health
concerns have been repeatedly neglected by federal agencies
such as the Food and Drug Administration. Despite decades of
overwhelming evidence of the need to regulate silicone gel breast
implants, it was not until 1992 that the FDA took action against
the commercial distribution of this product. Were it not for
the vigilance of injured consumers in uncovering and publicizing
the implant's danger, the FDA might never have addressed this
health hazard.
- So-called "reformers" assert that non-economic losses
are somehow not real and are unworthy of compensation and should
therefore be capped, but permanent injuries such as the loss
of fertility and gross disfigurement are by no means merely
"hurt feelings." The diminution of non-economic damages
would have a Draconian effect on women, the very people who
have borne the brunt of many of this nation's worst medical
travesties. By elevating the importance of economic losses and
arbitrarily limiting non-economic losses, such legislation would
only duplicate and intensify the existing wage inequities in
the market. Only the tort system places proper value upon non-economic
losses and warns the medical industry to safeguard our health
and safety -- it would be foolhardy to allow legislation that
would eliminate this warning.
Don't American women deserve the same legal protections as
everyone else? Their right to hold wrongdoers accountable must
not be diminished.
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The so-called "reform" bills would wipe 200 years of
state laws on products liability off the books. They would make
it harder for injured consumers to hold wrongdoers accountable
and would cap punitive damages for the most egregious misconduct.
The proposed federal scheme on products liability is an assault
on state sovereignty and the very principle that fortifies our
justice system and democracy -- accountability.
- Products liability cases account for only 4 percent of all
tort cases in state courts, according to the National Center
for State Courts.
- Non-asbestos products liability cases in federal courts declined
by 40 percent between 1985 and 1991, reports law professor Marc
Galanter of the University of Wisconsin.
- The real increase in litigation these past few years has been
in businesses suing each other over contracts, not consumers
seeking redress through products liability. The Wall Street
Journal has reported that businesses suing each other comprised
nearly half of all federal cases filed between 1985 and 1991.
These legal revisions would not limit the rights of business
and industry, but only those belonging to individuals.
- Products liability awards are closely related to the severity
of consumer injury, while punitive damages are rare and thus
have little impact on the majority of businesses, according
to a U.S. General Accounting Office (GAO) study.
- The most comprehensive study ever of punitive damages in products
liability cases found only 355 punitive awards between 1965
and 1990. The study, by law professor Michael Rustad of Suffolk
University in Boston, found that in nearly 80 percent of those
cases the manufacturer took some subsequent safety measure in
the wake of punitive damages.
- A 1995 U.S. Department of Justice study analyzing civil jury
cases in the nation's 75 most populous counties found that juries
disposed of about 360 product liability cases during the 12-month
study period. Plaintiffs won 41 percent of these case. Of the
142 winning cases, just three resulted in punitive damage awards.
The total punitive damages awarded in these three cases was
$40,000.
- Products liability insurance only costs American consumers
26 cents out of a purchase of $100, according to a 1995 report
by the Consumer Federation of America. The study also found
that products liability premiums dropped 45 percent between
1987 and 1993.
- The GAO has found that liability insurance costs large businesses
about six-tenths of 1 percent of annual gross receipts and costs
small businesses about 1 percent. The National Insurance Consumer
Organization found that liability insurance premiums in 1991
accounted for only fourteen one-hundredths of 1 percent of product
retail sales.
Given the facts, why do manufacturers and insurers continually
overestimate the impact of lawsuits on products liability costs?
Lawsuits over defective and dangerous products represent a small
percentage of all tort claims, and contribute only a fraction
to the costs of products. Is this too high a price to pay for
safety?
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