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Tort Reform-The Ugly Elephant In The Room

Posted by Andrew J. Barovick | Nov 23, 2014 | 0 Comments

The NY Times editorial board has called for increased accountability and transparency in products liability cases–a call prompted by the recent revelations that General Motors, maker of faulty ignition switches that killed drivers,  and Takata, maker of airbags with deadly defects, hid evidence of the defects as consumers continued be to injured and killed.  The editorial has a more expansive view about such secrecy.  “Whether the products are cars, airbags, tires, toys, cribs, food, drugs or other goods, new laws are needed to deter corporations from covering up safety defects and punish those individuals and companies that do.”  What is the Times really saying here?  When you read between the lines, the message is clear: tort reform is not only a bad idea–it's deadly.

In this age of transparency, must the Times make a big push for instituting the Sunshine in Litigation Act, so that secret settlements  concerning faulty ignition switches become a thing of the past? As the Times points out, when families of the injured and dead must stay silent, the public loses by missing out on learning of the dangers immediately, and regulators can't learn from the problems. The Act would require that public safety issues receive consideration before court records are sealed.  The Automaker Accountability Act would eliminate industry-spawned tricks like the $35 million dollar cap on GM's civil fines from its fatally defective ignition switches.  That amount is meant to cover all injuries and deaths. Pretty sweet deal, no? Maybe the Hide No Harm Act is a good and timely idea. This act was prompted by “evidence that high-level corporate officeres at GM did not act to inform regulators or warn the public of the defective switches even after they knew of the problem.” Such corporate officers should have to face not only large fines, but incarceration when they fail to make such basic disclosures. The Times ominously warns that “ u nder current law, there is no general legal duty for companies or individual company officers to disclose safety dangers.”

Why the caps? Why the secrecy? Why the utter lack of accountability? Why the exalting of corporate profits over consumer safety? Why haven't we progressed much beyond the good old days when Ford continued to let occupants of its Pinto become incinerated, despite its knowledge of the gas tank defect, because paying out some wrongful death settlements was cheaper than fixing the manufacturing process? The answer is tort reform–the endlessly-funded fountain of misinformation that tells the public that victims of corporate malfeasance, and especially their lawyers, are no more than opportunistic seekers of “jackpot justice” who file frivolous lawsuits that jack up insurance rates for every American. The Times never mentioned that term in its editorial. It didn't have to.

This article, from Michael Hiltzik of the Los Angeles Times, provides helpful background information on the realities of tort “reform,” and discusses how a new study shows that the savings from so-called tort reform are nothing short of  mythical .

So will the truth triumph? Or will Big Business continue to engage in amoral conduct that kills consumers without any fear of accountability? I'll give you one guess.

UPDATE:  What is said to be the first federal lawsuit against Takata has been filed based on the alleged excessive force with which one of its airbags deployed, according to the National Law Journal.

And, Honda has admitted failing to report more than 1,700 incidents of deaths and injuries caused by defects in its cars, including defective Takata airbags.

This afternoon (11/25/14), the Blog of Legal Times reports that a couple of senators are seeking Takata's internal documents on its airbag defects , after testimony from a top executive left many unanswered questions.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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