Negligence Law Reform: How It Will Hurt You

This article concerns the newly proposed legislation facing our lawmakers in the U.S. Congress that will directly impact each and every one of our lives.

This proposed legislation will significantly restrict our nation's civil law system. Specifically, the new tort (negligence/injury) reforms that are being introduced in Washington will severely limit access to the Courts as well as the amount one can recover from product liability as well as personal injury cases.

Despite the proposed legislation's lofty goals of curtailing frivolous lawsuits and the quantity of existing lawsuits, we disagree with this proposed legislation because it restricts a person's Constitutionally guaranteed right of access to the courts, equal protection under the laws of our Nation as well as the Due Process Clause of the 14th Amendment to the Constitution. Simply put, from a consumer's viewpoint, any potential claimant (plaintiff) may forfeit the rights they once enjoyed.

Despite the fact that the American Trial Lawyers Association, the Defense Bar as well as others oppose the proposed laws for a variety of reasons, this article expresses the views of the writers only and does not extend to other organizations. Our primary concerns are non-partisan and focus upon the fact that the proposed legislation offers protection to businesses and the insurance industry at the expense of the consumer.

Should this bill become law, current product liability standards will be altered. A claimant will not be able to hold sellers of defective products liable unless they were somehow negligent. Currently, a seller of a defective product can be held strictly liable without proof of negligence. The bill proposes new defenses for defendants to use against an injured party. Product liability defendants will have the security of not being held jointly liable for non-compensatory damages such as pain and suffering, but only responsible for the role in the harm done.

Under the proposed bill, a "statute of repose" will be introduced; fifteen years after a product is sold, a manufacturer would be immune from any injuries arising out of the use of that product. What happens with asbestos, lead poisoning, long term side effects of certain drugs and other ailments that may not manifest for long periods of time? This issue is not addressed. Supposedly, the bill would also take into account and exclude cases involving products that cause serious injuries, but it has yet to be elaborated.

Punitive damages will also be limited to $250,000 or three times the compensatory damages, whichever is greater. No matter how heinous the circumstances surrounding fault including willful, wanton, reckless or even intentional misconduct, the wrongdoer will be rewarded by a cap on damages. Where are the deterrents? What will the consumer safeguards be? With relatively "cheap" punitive damages, a company will be encouraged to willfully take calculated risks in manufacturing dangerous products such as the negligent placement of gas tanks in motor vehicles. The standard of proof will be made more stringent for all plaintiffs.

Additionally considered are measures completely insulating private industry from certain liability. There has been a proposed "FDA Defense;" if the Food and Drug Administration approved a drug or food, a manufacturer of that drug or food cannot be sued from the harm and injuries that it may have caused. In such circumstances, manufacturers are off the hook. Furthermore, with Federal safeguards already in place, including sovereign immunity, it is unlikely that many will sue the U.S. Government either.

Finally, there has even been suggestions of making a "winner takes all" provision in this proposed law. In other words, the prevailing (winning) party would be entitled to all costs related to the lawsuit, including attorneys' fees. Present Florida law entitles the prevailing party to costs without attorneys fees except in those cases where attorneys' fees had been contracted for or the Florida legislature had made exceptions to the blanket rule. Such a rule will deter if not prevent many reasonable issues and people from ever reaching the courts.

Despite the fervor surrounding this issue, the fact that the Legislative branch of the Government will restrict people's access to the courts may directly violate the United States Constitution. Due process and equal protection provided for by our Constitution guaranty certain fundamental rights and opportunities without discrimination. Since these rights have consistently been upheld by the Supreme Court, the Supreme Court may invalidate these measures should this bill become enacted.

Except for big business as well as the insurance industry---two major lobbyists, the proposed legislation will severely restrict everyone, specifically the consumer. As a resident, you should contact your local congressman/woman or U.S. senator and voice your concerns so to derail this "run-away train." To protect your individual rights, contact your attorney.

SOKOLOFF & WEINSTEIN, P.A., ATTORNEYS AT LAW, IN ROYAL PALM BEACH. (561)790-6788/(561)790-4505