This is the Ford Pinto. About forty years ago, Ford chose to ignore a safety defect that caused this to happen if the Pinto was rear-ended. Ford knew of the safety defect, and knew that the cost to cure the defect was $11.00 per vehicle. They chose to put the vehicle on the market anyway without fixing the defect, and as a result many people were seriously injured, maimed and killed. Why did Ford make this choice? It was a profit consideration. Some would argue this is greed.
You can no longer buy a Pinto because Ford stopped making them. Over the years, cars have become safer. This is in part due to trial lawyers who sued Ford to secure justice for those injured, maimed and killed due to Wall Street greed. The civil justice system is the only redress ordinary citizens like you and I have in these situations. It is our David to the wealthy and powerful Goliaths. Today, the civil justice system is under attack, and so are your rights.
Republican and Democratic legislatures in both chambers of the North Carolina General Assembly currently seek to pass new tort reform measures under a bill entitled, “Tort Reform for Citizens and Businesses Bill.” Many critics of this bill have begun calling it the “Liability Insurance Bailout Bill,” as its effect if enacted into law will be to generate larger profits for liability insurance companies at the expense of the rights of working class North Carolina taxpayers.
If the bill becomes law, it will give immunity from product liability suits to manufacturers of goods where the good has been manufactured in accordance with the terms of approval, license or similar determination of a government agency. In lay terms, that means that had this bill been law when the Pinto was made, then the familys of those killed and those who had their lives permanently changed for the worse would have been barred from any recourse against Ford. What incentive would Ford have at that point to fix the $11.00 defect?
This provision of the bill is the only one of its kind in the United States. These are just a few of the products that would fall under the broad provision of the Tort Reform Bill: medications (e.g., Vioxx), automobiles, airplanes, art materials, asbestos, baby bouncers and walkers, bicycles, bicycle helmets, bunk beds, carpets and rugs, child-resistant packaging, cleaning products, clothing, cosmetics, baby cribs, infant cushions, dietary supplements (e.g., Phen Phen), fire exstinguishers, first aid kits, food, appliances, and childrens’ toys. The complete list is extensive and encompasses virtually every product we buy and use on a daily basis.
The bill, which is currently pending in the House Select Committe on Tort Reform, also includes some of the following provisions:
- Billed v. Paid. For every North Carolinian injured or killed by someone else’s wrongdoing, the bill would give a credit to the Defendant and their insurance company if the innocent victim bought and paid for their own medical insurance or other insurance and uses that insurance to pay their hospital bills or make up for their lost wages. The bill allows the wrongdoer’s insurance company to reduce the amount they owe the injured victim using the victim’s own insurance. This means that if somebody injures you because of their own carelessness, they will benefit from the insurance you work so hard to pay for even though they have their own insurance.
- Elimination of the Collateral Source Rule. This 80 year old rule of evidence currently prevents either side from mentioning the existence or non-existence of any type of insurance or collateral payment in the case. Since the rule was enacted, it has enjoyed a proven track record of preventing unfair and excessive verdicts for both the Plaintiff and Defendant in civil cases. The bill removes all collateral source protection to the Plaintiff, but leaves intact all protection for the Defendant and will deprive North Carolina juries of the information they need to make a fair and just decision on the case. Additionally, the Defendant’s liability insurance company will be able to introduce collateral source evidence at trial and receive a credit for the victim’s own insurance.
- Limitations on Attorneys’ Fees. This bill provision will make it cost prohibitive for damaged victims to sue on smaller automobile accident cases and will allow the insurance companies to pay whatever they want on these small cases. Often, in my own experience, insurance companies already offer victims much less than the medical bills the victim incurred even when the fault of their insured is clear. Just because they can. How much worse will this practice get if this legislation is enacted?
- Legalized Negligence for Emergency Room Physicians. The bill contains provisions that would insulate emergency room physicians from any and all liability for wrongdoing unless it can be shown the emergency physician engaged in intentional misconduct.
Tort reform measures are often packaged in a way that seem like a good idea, but which are unsupported by any facts. In fact, many of the “facts” the supporter use to advance their “reforms” have been shown not to be true. I have blogged about this issue a great deal recently, and you can read about this in my posts entitled: Lessons in Frivolity , The U.S. Chamber Pot, and Thinking Caps.
Supporters of the bill argue that the reforms are necessary to create jobs for North Carolinians and to prevent good doctors from leaving the State. However, opponents argue that the supporters of the legislation have presented no facts or rationale to support what amounts to a dismantling of the civil justice system in North Carolina. In fact, North Carolina is ranked No. 1 by Site Selection Magazine as the most “business-friendly” State. North Carolina has one of the most restrictive products liability statutes in the country, and is one of only four jurisdictions still adhering to the doctrine of contributory negligence. This doctrine of law holds that if a person contributes to their injury as little at one-percent, they are barred from any recovery at all. The vast majority of states in the country have adopted a less harsh doctrine of law that allows for recovery even if they contribute to their own injury.
Campaign finance records show that many of the supporters of the Tort Reform for Citizens and Businesses Bill received campaign contributions from liability insurance companies, pharmaceutical companies, medical special interest groups, and insurance trade associations. The House Select Committee on Tort Reform is scheduled to have a public hearing on the bill on March 31, 2011. It is unclear whether Governor Purdue will sign the bill into law should it pass both chambers of the General Assembly.
When this country was founded, there were certain rights felt to be so important they were incorporated into our Constitution as the Bill of Rights. As American citizens, we hold these rights near and dear to our hearts: the right to free speech, the right to freedom of religion, the right to bear arms, the right against self-incrimination, the right to counsel, the right to be secure in our possessions. We also have a right to a fair justice system and jury. The 7th Amendment to the Constitution reads:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”
This right is in jeapordy for North Carolina citizens. Justice is an endangered species for every citizen in this State. Please take a moment to contact your elected officials and remind them that they work for you, the citizens, and that you feel that fairness and justice should win in this State over corporate profits and campaign contributions. I promise you that making a quick phone call or sending a quick email voicing your concerns will take you less time than it takes you to get your morning coffee at Starbucks.
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Disclaimer: The views of the author are his own. Nothing in this post should be construed as legal advice.