The Myth of the Litigation Explosion – An Assault On American Consumers

Many special interest groups are attempting to limit or deprive a consumer’s right to bring a lawsuit. What makes this new assault on the American consumer so remarkable is how effectively the public has been misled about the need for these supposed “reforms.” Through widespread advertising campaigns, business interests have created the impression of a legal system out of control, and sketched a portrait of armies of lawyers rising from the mists like the undead to bring down the mighty houses of industry. Where the facts don’t fit, they are discarded. Image is everything; sound bites are the rule. It is a ruthlessly capable mechanism for swaying public opinion, and is all too reminiscent of the way political campaigns are run.

For example, the McDonald’s coffee case has become the poster child for the tort reform campaign. By now we all know the story: the 81-year-old New Mexico woman who spilled boiled coffee in her lap, sued, and was awarded $2.9 million, $200,000 in compensatory damages and $2.7 million in punitive damages. Pretty outrageous, if that’s all you’ve been told.

Of course, the big corporations didn’t tell you the coffee’s temperature was 180 degrees. Or that company records revealed McDonald’s had received more than 700 complaints about the temperature of its coffee and had been routinely settling claims from burn victims for years. Or that the woman received third degree burns to her buttocks, thighs and labia from the coffee, spent a week in the hospital and had to undergo several skin grafts. Or that she only sued after McDonald’s refused to reimburse her out of pocket medical expenses, about $2,000. Even after all that, the judge reduced the punitive damages to $480,000 and the compensatory damages to $160,000. In the end, she was awarded $640,000, not $2.7 million.

The business interests and their lawyers and lobbyists have worked very hard to convince the public that cases like this are an everyday occurrence and the result of a litigation explosion brought by suit-happy trial lawyers with nothing better to do. In fact, this “crisis” exists only in the minds of CEOs and insurance company executives looking to maximize profits and minimize liability in return for the American consumer’s health and well-being.

For example, product liability lawsuits are just three-tenths of one percent of all civil cases and the corporations win more of these cases than they lose. Moreover, the National Association of Insurance Commissioners estimates that the cost to American business of this litigation is only one-fifth of one percent of retail sales. Or, put another way, less than what all Americans spend annually on dog food.

Overall, personal injury lawsuits make up less than nine percent of all civil cases, and those numbers have declined every year since 1990. The average personal injury jury verdict dropped in 1993 to $62,000, an 11 percent decrease from four years earlier. The number of medical malpractice suits declined at an annual rate of 8.9 percent from 1985 to 1990. Hardly the stuff of which “explosions” are made.

But the phalanx of lawyers and lobbyists hired by big businesses haven’t let facts get in the way of their aggressive marketing campaign. These are, after all, the same people who brought you Joe Camel to sell cigarettes to pre-teens. That is what brings us to the perilous position we are in.

American consumers have fought long and hard to protect their rights and deserve better than to be hoodwinked by lobbyists in Washington. We need to get the message out to the public that these proposals are not in the public’s best interest.

Of course, there will be temptation here to slay the messenger. After all, some will say, the trial lawyers who raise these objections have a financial interest in being able to bring these lawsuits and collect multimillion dollar judgments from corporations. These trial lawyers’ clients are the very consumers whose rights are under attack. But look carefully at who exactly is defending these propositions. Are the product liability defense lawyers and lobbyists hired by large businesses acting for the public good, or on behalf of their own clients’ pecuniary interests? Then ask yourself, which of these two types of clients are you more likely to become one day, the large corporation or the consumer?

What if it was your father whose respirator was accidentally turned off by a hospital worker who couldn’t be bothered to make sure she was “pulling the plug” on the right patient? Or your brother who drank a malted soda laced with toxic chemicals and who now lies, brain-dead, in a coma? Imagine looking at your teenage son in the wheelchair he will wear for the rest of his life because of an accident caused by a joyriding teen driving with a license illegally obtained for him by his father – would you be willing to settle for having the insurance company buy your son the wheelchair, and call it even? Is that all that has been lost?

The time to make a stand is now. Call or write your Senators in Washington and don’t let them forget who it is that will really pay for this misguided attempt at “reform.” Do not allow your individual rights to be stolen by big business. Once the consumers’ protection is stripped away, it won’t be coming back, at least not in our lifetimes.

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