The Boston Herald, September 28, 2007
Suppose America’s economy suffered an $865 billion loss every year - more than the combined output of all six New England states - and no one knew the reason.
You can bet political leaders in both parties would be demanding investigations and vowing swift action to protect businesses, jobs and consumers from this destructive economic force.
As it turns out, $865 billion is the total annual cost that our tort system imposes on America’s economy, according to a recent study by the California-based Pacific Research Institute.
The abuse of our courts in frivolous lawsuits costs the average American family thousands of dollars a year in inflated prices, higher insurance premiums and many other ways. Yet Congress has done almost nothing to prevent these abuses by trial lawyers, and the record of most state legislatures isnt much better.
One of the biggest reasons is that consumers and even many business leaders don’t fully comprehend the scope of the problem.
Sure, every now and then some ridiculous lawsuit comes along that captures the attention of the media and the public.
Last summer, it was the case of a plaintiff (who also happened to be a sitting judge) who filed a $54 million lawsuit against his local drycleaner for losing a pair of pants. The drycleaner had misplaced his favorite pair and nothing less than $54 million could balance the scales of justice.
Bizarre lawsuits like this draw well deserved laughs on late-night comedy shows. But they keep coming, year after year, and such cases offer just a glimpse of a serious problem afflicting our civil courts and our economy. And their impact ranges from the seemingly trivial to the potentially life-affecting.
Last year, Attleboro schools banned tag and other playground games in part out of liability concerns. Kids can’t even have fun during recess anymore because school officials have to worry about a lawsuit.
For years, transportation officials have pushed for a revival of a commuter rail between Lowell and Nashua to relieve congested highways. But the project has been stalled by fears of accident liability, and we can thank the trial bar for that, too.
Last month, Jamey Tesler, deputy general counsel of the MBTA, urged New Hampshire legislators to adopt a cap on rail accident damages similar to the $75 million cap in Massachusetts. But a New Hampshire trial lawyer warns that any cap adopted by the Granite State Legislature would be unconstitutional.
In hospitals across the country, the number of Caesarean deliveries in the United States rose to 26 percent of births in 2004 - compared to just 6 percent in 1970 - after trial lawyers began racking up hundreds of millions of dollars in jury awards (and legal fees) in cases where they argued C-sections would have prevented cerebral palsy. While this procedure is far more dangerous for the mother, studies have shown it has done nothing to lower the incidence of cerebral palsy.
School playgrounds, rail stations, hospital delivery rooms - that’s a pretty broad reach for one problem.
In reality, however, the trial bar’s impact on our lives goes even further. Trial lawyers exert such influence over our economy these days that we pay the costs without ever even seeing the bill.
How do you measure the loss of research never done, innovations never tried, products never brought to market or jobs never created because of lawsuits or just the fear of lawsuits?
Fear is never a positive influence in economics or in politics, and in the case of abusive litigation it is time our leaders faced up to the problem.
In Boston and in other state capitals, the political influence of the trial bar is powerful. But the influence of voters matters too, and it’s time our leaders acted with serious reforms to protect our economy and our courts of justice.
Steve Hantler is chairman of the American Justice Partnership, which promotes legal reform at the state level.