Forbes Publishes Article Seeking to End “Tort Reform”

Forbes Magazine is a bastion of right-wing, pro-business thinking.  I was therefore very happily surprised to recently find on their website an article acknowledging that the whole notion of “tort reform” is nothing more than big businesses “hoodwinking” legislatures into giving changing the rules in their favor, to fix a supposedly that never really even existed. That’s right: “hoodwinked” – their term, not mine.

As of March 9, 2015, the article can be read in its entirety here.  It’s entitled “On Tort Reform, It’s Time to Declare Victory and Withdraw” and is written by an author who’s been covering medical malpractice lawsuits for 25 years. The introduction to the article sums it up nicely.   Here are the first few paragraphs:

“The greatest trick the Devil ever pulled was convincing the world he didn’t exist.”

Verbal (Kevin Spacey) in The Usual Suspects

“The second greatest trick may be the insurance industry’s success in getting more than half the states to implement “tort reform.” That achievement was based on the promise that restricting victims’ ability to bring medical malpractice suits would improve healthcare and reduce its cost. Those myths have now been completely dispelled.

“The last bubble to burst was that because doctors are fearful of getting sued, they practice “defensive medicine,” prescribing unnecessary and costly tests and procedures. That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.

“This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

“None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent.”

The article goes on to state that one of the unintended consequences of the whole tort reform notion is that it has slowed down progress in patient safety initiatives,  which are largely driven by doctors’ healthy fear of jury verdicts:

“Sadly, the tort reformer’s success has had one unintended consequence that hurts everyone: they have slowed down progress in patient safety initiatives. It is well documented that major reforms in anesthesiology in the 1980’s were the direct result of anesthesiologists’ frustration with many large malpractice verdicts against the specialty – and the attendant negative publicity. In response, anesthesiologists revamped their procedures, established mandatory monitoring, improved training, limited the number of hours anesthesiologists could work without rest, redesigned machines and outfitted others with safety devices. Within 10 years, the mortality rate from anesthesia dropped from 1 in 6000 administrations to 1 in 200,000. And anesthesiologists’ malpractice insurance rates fell to among the lowest of any specialty. Since the success of the tort reformers, other specialties have felt less pressure to undertake similar self-reflective reforms.”

The article then concludes:

“It is time for legislators to recognize that they were hoodwinked, dismantle the so-called reforms, and begin to look for real solutions to make patients safer.”

I completely agree. The most efficient  way to make  everyone in our society safer ( patients, pedestrians, vehicle drivers, airline passengers,  etc.)  is to hold fully accountable  every person who  causes injury.   Shielding doctors  from the consequences of their actions doesn’t promote safety –  it encourages carelessness.  The most efficient way to protect our citizens is to  cancel all so-called “tort reform” laws.

Allowing Companies To Keep Claims Against Them Secret Places The Public In Danger, And It’s Contrary To The Purpose Of The Jury System

Federal Judge Releases Previously Secret Documents Exposing Defective Highway Guardrails, Allowing Improved Public Safety By Holding Manufacturer Accountable

At its core, the very purpose of the jury system  is to have a sampling of the community act in the community’s interest in deciding cases.  The members of the jury are,  very literally, the conscience of the community.  The jurors decide what conduct  will and will not be permitted in that community.

Companies that are sued for wrongdoing frequently try to hide their bad actions  by claiming that lawsuit documents should be kept secret.  They frequently  try to obtain secrecy by  stamping  almost every page that they’re forced to turn over to the other side as containing “trade secrets”,  even  though  the documents really don’t contain any trade secrets.  They do this because they know that this is  their best chance to keep the documents secret.

We’re happy to report that in a major case involving successful claims against the manufacturer of dangerous highway guardrails, a federal judge has ordered that court records in the case be made open to the public. In Harman v. Trinity Industries Inc. and Trinity Highway Products LLC, Judge Rodney Gilstrap refused Trinity’s request to keep confidential various documents that the company claimed contained trade secrets. Judge Gilstrap disagreed, saying that allowing  the company’s defense attorney to decide which documents were kept  secret or not,  as Trinity’s defense attorney in this case did, “would undermine public confidence in the judicial system—a confidence that cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from public view.”

Allowing corporations to keep lawsuit documents secret puts everyone our country in real physical danger, because there will be no public hue and cry to fix dangerous products if the public never finds out about them.

We applaud Judge Gilstrap for having the courage to do this. All too often, big companies get away with it, hiding behind completely fictitious claims of trade secrets.  United States Supreme Court Justice Louis Brandeis said it best when he said:

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants.”

There is a real safety danger to everyone in the public when corporations are allowed to keep secret the claims that are made against them.  We completely agree the trade secrets should be protected so that competitors can’t steal them.  But the vast majority of the time, companies seek secrecy for their documents not because they want to hide things from competitors, but because they want to hide things from the public.  The facts they try to hide frequently include such things as how dangerous their products can be,  how many people their products have killed or maimed, how inexpensive and simple it would be to fix their design, when they first knew about the dangers, and how many times they’ve been sued by other innocent victims.

Classic examples of this include car companies refusing to recall their products to fix defects.  GM’s massive ignition switch recalls last year only happened because a tenacious trial lawyer sued them and exposed the fact that GM knew all along that its ignition switches could accidentally turn off, disabling air bags, power steering and power brakes at the very moment the driver needed those features the most, resulting in many fatalities and injuries.

False claims of trade secrets are commonplace, having been made by companies as far ranging as manufacturers of guns that fire even when their triggers aren’t pulled to manufacturers of cars that accelerate when their gas pedals aren’t depressed.

Public Justice, a non-profit public interest project, explained in its blog here why this decision is so important and what this case is about.  Public Justice said:

That’s why the victory for public access is so important in this case. A major highway guardrail manufacturer, Trinity, will not be able to hide the fact that it kept its changed guardrail design from the federal government and that that guardrail design is unsafe. The victory also means that the public has access to facts that will be critical for making the case that the federal government should withdraw its approval of these guardrails. And these documents are also major ammunition for states seeking to phase out and remove these lethal guardrails from our highways.

Trinity was sued for defrauding the federal government by changing the design of its guardrail end terminals, not conducting appropriate crash tests on the new design, and not telling the federal government about the changes—meaning that the guardrails remained on the Federal Highway Administration’s list of approved guardrails. A jury found that Trinity defrauded the government to the tune of $175 million.

Because of the design change, when the terminal is hit by a car, instead of absorbing the energy of the crash and slowing the vehicle, the guardrail jams and turns into a potentially lethal spear. Drivers and their passengers have been decapitated, their limbs have been severed, and they have been stabbed by these guardrails. A study by our client The Safety Institute found that the redesigned Trinity guardrail was 2.86 to 3.95 times more likely to be involved in a lethal accident and 1.36 to 1.95 times more likely to be involved in an accident with serious injury than Trinity’s older design.

In the case against Trinity, huge swaths of court records—including crash test documents—were filed under seal. On behalf of The Safety Institute and the Center for Auto Safety, we sought to intervene to unseal the records. Although our motion to intervene was denied, our efforts to unseal the records helped to convince the court to do the right thing.