Your Right to Trial

This page provides information about Americans' Right to Trial. The following are articles courtesy of ALTA that you can read by scrolling down the page or you can find directly by clicking on one of the topic links.

Our Civil Justice System	English Rule	Farm Safety
Competitiveness	Products Liability	Punitive Damages
Medical Negligence	Women's Health

RIGHT TO TRIAL:
OUR CIVIL JUSTICE SYSTEM

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.

RIGHT TO TRIAL:
COMPETITIVENESS

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.
 

RIGHT TO TRIAL:
ENGLISH RULE

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?

RIGHT TO TRIAL:
FARM SAFETY

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?

RIGHT TO TRIAL:
MEDICAL NEGLIGENCE

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.

RIGHT TO TRIAL:
PUNITIVE DAMAGES

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.

RIGHT TO TRIAL:
WOMEN'S HEALTH

"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.

YOUR RIGHT TO TRIAL:
PRODUCTS LIABILITY

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?