More Tort Reform Than Is Needed

March 09, 1995

Americans for Tort Reform says a new poll shows that 83 percent of respondents "believe the present liability system has problems and should be improved." Count us in that group. But don't count us among those who support the entire package of Republican bills dealing with product liability and civil litigation now being pushed through the House of Representatives.

Some items in this package of bills are not reform, they are more like a wrecking ball.

There are large problems with frivolous law suits, though hardly ones so severe they justify some of the barriers to a citizen's day in court that House Republicans want to erect.

For example, one bill already passed says an injured consumer who rejects a settlement offer in federal court could end up having to pay the legal fees of the manufacturer or merchandiser of the product involved -- even if the consumer won at trial. That would deter many consumers with legitimate complaints but shallow pockets from ever thinking of going to court.

The Republicans also would limit punitive damage awards to a relatively small amount: $250,000 or three times actual damages. What's that to a billion dollar corporation? Certainly not enough to deter or punish those few in the corporate sector who would attempt to save tens of millions of dollars by cutting corners to the point of human endangerment, which some might do with impunity if there is no fear of a big punitive damage award.

Details aside, a major flaw in the House Republican tort reform package is that it in effect federalizes a lot of civil law. It requires states to follow federal rules and law. We thought Speaker Newt Gingrich's revolution was interested in "devolving" power and decision-making to the states. This is hardly the way to do that. Some state jurists see it as an unfunded mandate.

The states have, in fact, already been working at reform. In the 17 years that tort reformers in Congress have been trying and failing, 43 states have changed laws regarding civil liability -- and not to the advantage of plaintiffs.

Republicans have shown they can get enough votes to win in the House of Representatives. But in the Senate it is by no means certain that the package of bills could survive intact. A bi-partisan group there supports a more reasonable approach.

The Clinton administration has belatedly come out against the House package. The possibility of a veto should lead House and Senate Republicans to look for changes that can become law. Unless they want an issue rather than reform.

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