In Defense of Tort Law.

In Defense of Tort Law

Thomas Koenig
Michael Rustad
New York University Press
www.nyupress.nyu.edu
[phone]
320 pp., $45

Like every good Boy Scout, a trial lawyer should always be prepared. Whether you are giving comments to a newspaper reporter, speaking to a state representative at a dinner party, or conducting voir dire in an important case, it is helpful to have facts on hand that refute the insurance industry- and business-driven myths about the "litigation explosion," "runaway juries," and the need for tort "reform." In Defense of Tort Law, by Thomas Koenig and Michael Rustad, provides trial lawyers with a wealth of information to help them refute those and other myths about the civil justice system.

In this exhaustively researched work, the authors trace the history of tort law from its origins in the Old Testament and the Code of Hammurabi to the Roman Twelve Tables and the British Common Law. Did you know, for example, that the Hindu Code of Manu referred to statutory penalties imposed as punishment for wrongdoing injurious to the social order? Or that Luke 19:8 describes how Zaccheus agreed to pay restitution of four times the actual damages incurred to punish him for committing deceptive practices?

In Defense of Tort Law meticulously chronicles what U.S. Supreme Court Justice Antonin Scalia might refer to as the "tradition" of providing compensation to tort victims while punishing the wrongdoer who has caused the harm. (See, e.g., Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 25 (1991) (Scalia, J., concurring).)

The book puts a human face on tort law by recounting some of the more publicized cases of recent years. The authors discuss the Woburn environmental cases made famous by A Civil Action, the California toxic tort cases detailed in Erin Brockovich, and the infamous McDonald's hot coffee case.

The book explains how insurance and other defense interests manipulate the media and "grassroots" organizations to bias prospective jurors and campaign for tort "reform." Koenig and Rustad also point out that these "reform" efforts are aimed only at David v. Goliath litigation and do nothing to stem suits among businesses. They use as an example the Spam case, in which Hormel Foods Corp. filed a trademark infringement action against the producers of the Muppet Treasure Island movie because one of the Muppets was named Spuh-am.

One of the book's central themes is that the latent function, or "hidden face," of tort law is the private promotion of public welfare. Tort law furthers social justice by uncovering and deterring unsafe and fraudulent conduct.

The authors give the example of Athel Hunt, who was crushed to death in 1989 when his tractor flipped over and landed on his chest. The tractor should have been equipped with a rollover-protection system that would have saved his life. The manufacturer, a Japanese corporation, offered the rollover protection as an option in the United States, even though it was standard equipment in Japan and the National Safety Council had passed a resolution requiring the system in 1967.

Alec and Susan McNaughten, the attorneys for Hunt's estate, filed a products liability suit against the manufacturer and others, which ultimately resulted in a substantial punitive damages verdict in favor of Hunt's family. The manufacturer withdrew tractors lacking rollover protection from the U.S. market and placed ads in U.S. newspapers warning farmers of the hazards the tractors posed.

In perhaps the most interesting chapter, Koenig and Rustad explain how tort law affects men and women differently. They review the historical and socioeconomic biases against women in the courts, then show how tort "reformers" are turning their attention to causes of action that particularly affect women, such as those involving reproductive injuries, sexual exploitation, and cosmetic surgery. The effort to place caps on noneconomic damages, in particular, has a disparate effect on the women who suffer these injuries.

The authors explain, "In general, women spend fewer years in the labor force than men and will have lower earnings over their lifetime. Limiting their potential recovery to some arbitrary multiple of their already lower incomes marginalizes women's work by increasing the unjust impact of wage disparities."

One chapter deals with an area of the law that perhaps has been most adversely affected by tort "reform": medical malpractice litigation. In a section titled "Empirical Studies of Medical Malpractice Lawsuits," the authors condense the entire medical malpractice tort "reform" debate into a series of eight fallacies--for example, "juries regularly award punitive damages in medical malpractice actions"--that are contradicted by eight sets of facts. Using hardnosed statistics and specific case examples, Koeing and Rustad deconstruct the wall of misinformation, one brick at a time.

Next, they move to products liability law, again replacing tort "horror stories" with realities. Koenig and Rustad explain the origins of punitive damages awards in products suits and the reasons juries impose these damages on corporations. Once again, they mix empirical studies--such as those performed by the Rand Institute for Civil Justice--with real-life examples, such as the punitive damages awarded in Borom v. Eli Lilly, a case involving a drug that had been associated with 61 deaths overseas.

The last chapter begins, "The threshold of a new millennium is a good time to speculate on the future of tort law." Despite the erosion of consumer protections over the past few decades, the authors offer new hope in the emerging areas of patients' rights, nursing home abuse, tobacco liability, and Internet-related injuries, among others.

This book is an important addition to the growing body of works--including Laurence E. Drivon's Civil War on Consumer Rights and Ralph Nader's No Contest--that consumer advocates and attorneys can use to defend the civil justice system in the legislatures, in courtrooms, and in the court of public opinion. Trial lawyers who want to be good Scouts will read In Defense of Tort Law and be prepared.

Stephen J. Herman, the author of America and the Law: Challenges for the 21st Century, practices in New Orleans.