Litigation Shouldn’t Be Necessary - But It Is, and Our Founders Knew It

SE Texas Record
Wednesday, November 6, 2019

Very few injured Americans file lawsuits. Granted it’s been awhile since anyone took an empirical look at the numbers, but when Rand’s Institute for Civil Justice did so 1991, researchers found that only 2 percent of injured Americans file lawsuits. The National Center for State Courts recently provided another perspective: “Tort cases garner a great deal of public interest but generally account for only about 4 percent of [state court] Civil caseloads….”

It takes a lot for someone to bring a lawsuit. Those who do have good reason. Parents may need compensation for a catastrophically-injured child. Someone suffering discrimination or assault might seek justice because other systems have failed them. Others may sue to stop corporate or professional misconduct, to prevent others from suffering the same way. There are lots of possible reasons why people go to court, but the one underlying truth is that few injured people actually ever do it. And that’s even though more and more people are getting injured as corporate misconduct and professional negligence increase.  

Take healthcare, for example. Two stories this week explain two extremely disturbing new trends that scream out for legal accountability. First, according to a Bloomberg story titled “When Wall Street Took Over This Nursing Company, Profits Grew and Patients Suffered,”

Under the control of two prominent private-equity firms, Bain Capital LP and J.H. Whitney Capital Partners LLC, Aveanna [Healthcare] has left a trail of injury and death in some of the biggest states where it does business.…

At least seven children have died in Texas, Pennsylvania and Colorado. In these fatalities, reported over the past year, health officials found that Aveanna’s nurses failed to check vital signs, follow emergency procedures, appear for their shifts or give the proper doses of medicine.…

[I]nternal company documents reveal financial incentives that favor corporate growth and cost-cutting over clinical care. In interviews, more than a dozen former Aveanna employees described how the pressure to meet financial goals jeopardized the quality of care for children.

Second, in the Washington Post, a story ran titled, “Health-care system causing rampant burnout among doctors, nurses; As many as half of all clinicians suffer from the problem, creating risks to patients, malpractice claims and absenteeism, study finds.” The title says it all.

Of course, health care is far from the only problem area. For example, last week a “damning report” was released from a multiagency task force that heavily faulted the Federal Aviation Administration for actions that led to two Boeing crashes in five months, killing 346 people. They found, among other things, that the FAA “relied heavily on Boeing employees to vouch for the safety of the Max and lacked the ability to effectively analyze much of what Boeing did share about the new plane.”

The Center for Progressive Reform’s recent report, “Regulation as Social Justice,” discusses “four broad contributing factors that help explain the current weakened state of the U.S. regulatory system: weak and outdated laws; unnecessary implementation barriers facing agencies; excessive corporate influence; and obstacles to meaningful public participation.”

Some of the problem stems from the growth of dark corporate money into our democracy. Since the 1980s, corporate lobbyists, using a gross imbalance of advocacy resources, have made tremendous strides weakening safety laws and standards for prevention of harm and protection against hazards. If you suffer discrimination or are harmed by toxic air, leaded drinking water, unsafe products, dangerous workplaces, or cheating banks, you likely lack the wealth or power to meaningfully participate in the legislative or executive branches of government to correct those problems or get some relief.

So it’s left to the third branch, the courts. The courts have and continue to provide a check on official or arbitrary misuse of power, corporate abuses, violations of civil liberties and civil rights and even the actions of violent criminals when, as often happens, the criminal justice system fails victims. (See, e.g., Center for Justice & Democracy studies such as Lifesavers, a Guide to Lawsuits that Protect Us All; First Class Relief, How Class Actions Benefit Those Who Are Injured, Defrauded and Violated; and, The Importance of Civil Justice to Sexual Assault Survivors and the Devastating Consequences of Tort Reform.

Because money and politics dominate the executive and legislative branches, we end up seeing stories like today’s, “Consumer Class Actions Nearly Tripled in the Past Decade” … “with cases over data privacy and unwanted text messages behind the increase.” As Laura Hopkins, a legal data expert at Lex Machina, put it, “You could classify that as more catastrophic events are happening to a large group of people.” In fact, access to the courts may be more important today than ever, with regulatory oversight of bad corporate actors or corporate practices virtually ground to a halt in many areas.

As the CJ&D reports (mentioned above) show, lawsuits have led to changes in the design and manufacture of automobiles, defective firearms, aircraft, consumer products, drugs and medical devices too many to name, particularly those designed for women, hospital and medical procedures, swimming pool drains, chain saws, tractors, lawn punch presses. Lawsuits have bankrupted hate groups, exposed police and other official misconduct, improved public and workplace safety.

Lawsuits have also exposed and held accountable entire industries engaged in massive corporate crimes and coverups, with tobacco being one well-known example but also product liability litigation that exposed a lethal 50-year coverup by the asbestos industry that led to millions of deaths. Some have equated what the asbestos industry did to mass murder. And as we recently reported, the ongoing opioid litigation is another example where courts have stepped in to hold accountable an industry that profited from knowingly fraudulent and dangerous marketing and sales activities resulting in a public health crisis with which we are all familiar.

It’s not surprising, then, that corporations that may have blocked regulatory oversight only to be forced to change their practices because of lawsuits, are constantly attacking judges and juries that rule for victims and plaintiffs. This strategy has been part of the so-called ”tort reform” movement since at least the 1980s. But there are reasons why they will not and should not succeed. Unlike other, weaker democracies which have abolished the civil jury, the jury's roots are deeper here. The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.)

As the late U.S. Supreme Court Chief Justice William H. Rehnquist once put it, “The right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence.... A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded....”

And that’s true whether or not we ever go to court.

Posted on ThePopTort on Oct. 24.

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