# Tort reform: Do we need it? What type of reform is needed?  Will we get it?

**URL:** <https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634>\
**Category:** Great Debates\
**Created:** [January 4, 2003, 5:50pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634 "2003-01-04T17:50:30Z")\
**Posts on this page:** 4\
**Page:** 5

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**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\
**Post date:** [January 8, 2003, 3:38pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/81 "2003-01-08T15:38:51Z")

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**Minty** (sigh):

> [@](#):
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> (a) Employees can, under certain circumstances, sue their employers outside the worker’s comp system. As I recall, the primary exception to WC is when the employer acted intentionally, which, given that employers often happily continued to use asbestos for decades after they knew it was dangerous, is at least a possibility here.

Yes, there are exceptions, but hey are rare. They vary by state. On the one extreme, Illinois allows suits in the case of certain types of unsafe workplace. California, at the other extreme, allows virtually no exceptions at all.

For the employer to allow workers to use a dangerous substance is not the same as intentional harm, as you well know. Intentional harm is, e.g., when the employer physically attacks the employee. And, IIRC, in California, even intentional harm doesn’t permit a tort liability suit.

If a dangerous substance allowed a liability suit, then WC’s fundamental no-fault principle would the out the window. Most workplaces have some degree of danger. That’s not enough to permit a suit, except for Illinois in certain cases and perhaps a very few other small exceptions.

> [@](#):
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> (b) Asbestos suits typically do _not_ involve employees suing their employers. Nearly all–and in fact, maybe “all” period, I haven’t done any studies–such suits are againt the manufacturers and distributors of asbestos and asbestos products.

Yes, many or most asbestos suits involve workers suing third parties – suits which are not affected by Worker’s comp law. I wasn’t addressing those. I was referring to those cases where classes of employees have sued their own employer on account of asbestos. These cases were allowed to go forward even though most of them violated state WC law.

There was a reason why judges chose to allow these cases. WC law was badly equipped to provide justice to asbestos victims. It’s hard or impossible for a worker to prove that his current disability was caused by exposure to asbestos long ago. So, there was a perceived need to substitute some other system (even though the WC system handles other occupational diseases.) However, it’s noteworthy that this change in law was done merely by some judges’ edicts, not by legislation.

Some of the mass tort issues, asbestos, cigarettes, and pollution in particular, have involved a kind of legal hysteria, where normal procedures, precedents and laws have been routinely overridden by the courts.

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**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\
**Post date:** [January 8, 2003, 3:52pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/82 "2003-01-08T15:52:51Z")

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> [@](#):
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> Some of the mass tort issues, asbestos, cigarettes, and pollution in particular, have involved a kind of legal hysteria, where normal procedures, precedents and laws have been routinely overridden by the courts.

Ignoring the characterization of “hysteria” unless and until you can provide a cite for it, _did_ you actually read my post above? Normal procedures, precedents, and laws are often useless when it comes to mass torts. And despite what you say, you have not shown _ **whatsoever** _ that “individual justice” is ignored in these cases. To wit:

> [@](#):
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> The underlying principle of mass torts is not justice; it’s merely that everyone in a certain class be able to get some amount of money.

Wha–? The principle that _everyone who has been done a legal wrong and been injured by it_ be able to recover in a court of law is justice. Would you prefer a system where someone is injured by a company’s negligent actions but has no recourse, because traditional torts principles don’t cover the circumstances? Or would you prefer that we take the ‘mass’ out of mass torts, and just have everyone who’s inhaled asbestos sue each defendant individually in every court in the country? The justice system would be overwhelmed would literally–literally–have time for nothing else.

Give me a solution that doesn’t involve abrogating justice done to plaintiffs who have been legitimately injured.

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**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\
**Post date:** [January 8, 2003, 4:19pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/83 "2003-01-08T16:19:57Z")

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\*\*december, \*\* a favor: what are these loopholes in Illinois which allow injured employees to sue employers for amounts above and beyond what WC allows? I don’t know much about them, but you seem to refer to the idea that they allow for additional recoveries if the employer intentionally created an unsafe workplace.

If this is the case, why are you taking issue with the idea that there shoud be a higher degree of responsibility placed on the party who is proven to have ignored common industry safety measures, thereby increasing the probability of worker injury? I can see a no-fault system if, in most cases, there is really no fault, but this isn’t the case when an employer ignores applicable safety standards.

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**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\
**Post date:** [January 14, 2003, 8:51pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/84 "2003-01-14T20:51:27Z")

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> [@](#):
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> \*Originally posted by lucwarm \*  
> Can you give some specifics as to “out of control” class actions? Would you care to offer some specific proposals?

Here and elsewhere I’ve been challenged to find cites where class-action attorneys received fees way out of proportion to the damages they obtained for their clients. [The Microsoft settlement provides an example](http://online.wsj.com/article/0,,SB1042505801821150864,00.html?mod=opinion).

> [@](#):
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> That includes last week’s agreement by the software giant to pay $1.1 billion to Californians it “overcharged” as a monopoly in the 1990s. Under the deal, any California consumer who bought Microsoft software will receive a tech voucher worth a magnificent $5 to $29…
> 
> Meanwhile…Microsoft will be paying the plaintiffs’ attorneys in the cases what could be 5% to 10% of the total settlement, or up to $110 million. In cash, not vouchers.

Note that the $1.1 billion of vouchers is actually worth a tiny fraction of that amount, since most of the vouchers won’t be used. Furthermore, Microsoft will probably make a profit on their product even after paying a “tech voucher” of $5 to $29, so this is actually a good marketing gimmick for Microsoft.

I just noticed my failure to respond to the last two posts:

**Eva Luna** , you asked how Illinois workers could get the right to sue. Here’s a [cite](http://www.herald-review.com/rednews/2002/11/20/build/topstory/topstory.php)

> [@](#):
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> \*\*Structural Work Act \*\*
> 
> Repealed by Illinois lawmakers in 1995, the Structural Work Act predates workers compensation and is seen as a costly redundancy by critics, who point out that New York is the only state where it hasn’t been repealed.  
> Also known as the scaffolding act, the law allows workers injured on the job to sue the contractor for civil damages. Shampine said the potential for large awards provides contractors with much greater financial incentive to maintain a safe workplace environment… However, state Rep. Bill Mitchell, R-Forsyth, said the scaffolding act has less to do with promoting safety than lining the pockets of attorneys.
> 
> …If the scaffolding act is reinstated and employees receive larger injury settlements, Swartz says it could spell the end for businesses struggling for survival during difficult economic times.

I had been unaware that this act was repealed in 1995, nor that it might be reinstated.

There is a decent moral case to permit a worker to sue when his employer was at fault, whether due to an unsafe workplace or any other reason. However, the philosophy of WC is to have scheduled benefits regardless of fault. This was intended as a trade-off. The schedule holds down the cost. Payment regardless of fault insures that the needy worker gets paid. If you give the worker benefits regardless of fault _and_ the right to sue, then the cost goes up. This discourages business from operating in the state – particularly businesses where WC costs are a high proportion of wages.

**Gadarene** , would I prefer a system where someone might be injured by a company’s negligent actions but have no recourse? First of all, in many of these recoveries, the company was not negligent. The risk was simply unknown. Second, when normal procedures, precedents, and laws are useless, ISTM the legislature ought to remedy the problem, rather than having some judge take upon himself the power to do justice, as she sees fit.

You say, _“The principle that everyone who has been done a legal wrong and been injured by it be able to recover in a court of law is justice.”_ I disagree. It’s only justice if the injured party recovers a just amount. When a lawyer makes a group settlement, there’s no showing that the money is divided justly amoung the group of claimants. Of course, where there was no harm to the plaintiff, and the case is based on perjury, any settlement is unjust.

You ask, _“Give me a solution that doesn’t involve abrogating justice done to plaintiffs who have been legitimately injured.”_ The Perfect is the enemy of the Good. In an effort to do perfect justice to every injured asbestos claimant, the system has done horrible injustice to asbestos-related companies and insurance companies, as well as these companies’ workers, their stock-holders, and their other customers.

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