As Professor Michael Green's comments trenchantly remind us, all of this has a familiar ring: insurers and tort defendants claim unfairly escalating liability, plaintiffs' lawyers and consumer groups counterattack, and (for the most part), insurers and defendants obtain some of the relief they seek. The tort reform victories are not so overwhelming as to completely unravel the historical rights of victims or the power of courts generally, but some constriction of rights inevitably occurs. During periods of quiescence, plaintiffs and consumers take back some lost territory through common law victories expanding claimant rights, or through specific legislation. Statutes that permitted states to sue tobacco companies for state-paid health care costs during the 1990s are an example. Arguably, Nevada Revised Statutes Chapter 40, which governs claims for defective construction, is another example.
But plaintiffs and consumers during the past thirty years have probably not been net gainers relative to inflation and population growth. While plaintiffs may have won some doctrinal victories, defendants have had no shortage of the same. In fact, this particular time period contained what Professors Theodore Eisenberg and James Henderson call the “quiet revolution” in product liability claims, leading to common law doctrine and adjudication favorable to defendants. It was also an era of civil procedure rule “reform” that systematically favored defendants. Meanwhile, the U.S. Supreme Court also weighed in on behalf of defendants and insurers, making it easier for defendants to get summary judgment, harder for plaintiffs to introduce expert testimony in their cases, and dramatically limiting punitive damages as a matter of a constitutional right.
If keeping a scorecard, one would be hard-pressed not to conclude that defendants have been the overall winners in both the chronic and episodic tort reform battles of the past thirty years. Yet, neither have they been able to deliver a knockout punch - though not for want of trying. The legal, political, social, economic, and rhetorical battle over tort reform continues. Compromise resolves most of the issues for a time, but final consensus remains elusive.
Why have these and similar explorations of tort litigation failed to produce greater consensus? Why does the issue of tort reform continue to be so divisive and the divisions so repetitive (the “deja vu all over again” noted by social critics Yogi Berra and Mike Green)?
4 Nev. L.J. 337 (2004).
Stempel, Jeffrey W., "Not So Peaceful Coexistence: Inherent Tensions in Addressing Tort Law Reform" (2004). Scholarly Works. Paper 227.