Clearing Uninjured Plaintiffs From The Tort System: The Road To A Solution

Fri Jul 25 16:24:38 EDT 2003
By Dr. Denise Martin with former NERA Senior Vice President Dr. Fred Dunbar

It is now well accepted that the way the tort system handles personal injury mass torts is in need of repair. One of the most obvious and alarming signs is that unfounded claims -- claims without any medical impairment -- continue to be filed and paid in large number. Such claims are notorious and ubiquitous in the history of asbestos litigation, but asbestos is no exception: claims of this type have been documented in litigation involving Agent Orange, breast implants, Dalkon Shield, and diet drugs.

In this article, the authors note that although calls for tort reform have largely focused on the greed of the plaintiffs' bar, this view is misguided: the breakdown results from a complex set of institutional failures that have received less attention. The institutions that share the blame include a small number of state court systems with pro-plaintiff procedures, Congress, and a number of medical professionals that certify impairment where none exists. However, in the past few years, a slow march toward a solution has begun to emerge, observed most prominently in the area of asbestos litigation. Encouragingly, this trend has also begun to be replicated outside the asbestos arena, with a clamp down on the medical profession specifically.

This article was published in the Washington Legal Foundation's Legal Backgrounder, Volume 18, Number 31.