Firestone/Ford makes the case for the tort system.

The Firestone/Ford human tragedy tally is now reported to be over 100 fatalities and more than 300 serious, life-threatening injuries caused by tread separation in Firestone tires used with the Ford Explorer. These numbers eclipse the death and injury tolls of the 1970s' Firestone 500 debacle and the infamous Ford Pinto exploding gas tank cases combined. In fact, they are higher than the total U.S. troop casualties reported in both the Bosnian conflict and the Persian Gulf war.

The question surely arises as to what, if anything, we have learned over the past 30 years about protecting consumers and families in America and what we can do to prevent future unnecessary loss of life and human suffering. A complete solution may forever elude us because our regulatory system is necessarily driven, in part, by economic concerns and is highly complex because of its size. Nevertheless, certain important lessons seem obvious.

As we craft our arguments in state and federal lawmaking bodies against limiting access to justice, we must continually emphasize the following points, made so clear by this sad saga of shredding tires:

* Federal regulatory bodies are toothless. The National Highway Traffic Safety Administration (NHTSA) has no way to track safety-related problems unless the affected industry chooses to notify the agency of a problem. Since neither Firestone nor Ford shared information about their tire failure experience with NHTSA until they had been repeatedly sued, the subsequent recall was too little too late, particularly for the affected families. The likelihood of an automotive company voluntarily turning over consumer complaint information in a timely fashion is in the range of zero.

* The tort system works. An unfettered civil justice system roots out dangers, holds people and corporations accountable for creating those dangers, compensates those who are victimized, and prevents others from being harmed. Dangerous products are removed from the marketplace as a result of thorough investigative inquiries in civil litigation.

* Punitive damages serve an important purpose. NHTSA cannot seek criminal penalties for even the most callous disregard for human life. Indeed, the steepest fine that may be levied for flagrant disregard of regulatory standards is $925,000, hardly hefty enough to deter a multibillion-dollar corporate enterprise. The threat of civil punitive damages serves to punish and deter outrageous misconduct. Particularly because of the absence of real criminal penalties for corporate wrongdoing, punitive economic sanctions levied in the most egregious cases often serve as the only effective means of changing inappropriate behavior.

* Secrecy kills. With benign complicity by courts and legislative bodies, tortfeasors routinely seek to seal court records and discovery documents. Firestone/Ford is the latest example of the harm to the public from privatizing the civil justice system. Bogus claims of "trade secrets" notwithstanding, this pernicious practice should be eliminated by enactment of statutes and court rules creating significant presumptions against secrecy. Undoubtedly, if Firestone and Ford had been successful in their efforts to forbid plaintiffs and their lawyers from revealing anything about settled lawsuits, the death toll would be significantly higher. (For more on the need for openness in the courts, see Overcoming Secrecy with Judicial Power, by Richard A. Zitrin, on page 74 of this issue.)

* Beware of the small print. If Firestone and Ford had mandatory arbitration agreements in their consumer purchase contracts, as increasing numbers of businesses do, and those agreements were held to be binding, it is entirely possible that we still would not know about defective tires and sport utility vehicles.

Twin missions

Let's face it, the reason that the civil justice system is under attack all over this country by corporate entities is because it is still effective in carrying out its twin missions: to compensate victims and deter misconduct. Every time that effectiveness is compromised by legislative restrictions, the public will be forced to look only to government agencies to protect the safety of their families.

Needless to say, there are few among us who have not witnessed the relative ease with which bureaucracies can be politically manipulated by skilled corporate lobbyists. It is unrealistic to believe that the administrative system will ever work to protect ordinary people against the wrongdoing of large companies.

What we do individually and through our association is extremely important work. Once again, in the area of automotive safety, it has been proven by clear and convincing evidence that the private system of civil litigation and the trial lawyers who have worked so hard to uncover the hazards of these tires and vehicles have prevented countless families from suffering the same horrible fate as the victims whose cases are being litigated.

Next time someone tells you that there is a need for tort "reform," remind them about Firestone and Ford.