Beyond the asbestos case
A price cannot be placed on justice. But the cost of justice need not be as high as the soaring figures for litigation in many cases of harm to individuals from manufactured products.Skip to next paragraph
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Asbestos is now the center of attention as its largest American manufacturer, the Manville Corporation, resorts to bankruptcy for relief from the financial drain of thousands of lawsuits. But all products would be covered by pending legislation to bring order out of the legal hodge-podge that encourages waste and exploitation. The effort to perfect and pass such legislation is the more urgent as Americans become more alert to the commercial use of hazardous substances and to their rights when victimized by them.
The problem has risen to the point of persuading conservative Republican Senator Kasten of Wisconsin to seek a federal solution when he might ordinarily be expected to lean toward states' rights. He has found a range of support from Democrats Glenn and Inouye to his own party's Stafford and Hatch. His product liability bill would preempt the present variety of state laws and require all states to have laws meeting the same standards.
These standards, to be sure, are subject to debate. But the goal of consistency is important. Its achievement could reduce what has been called the ''frictional'' costs - the whole array of legal and court costs - in the American system for settling injury claims. For example, one likely result would be fewer frivolous, nuisance, or exploitative suits.
Such suits are already discouraged in Britain, where the losing side pays the court costs of both sides. A disadvantage is that serious and legitimate claims may not be pursued because of the high cost of failure.
In the United States a defendant company such as Manville customarily pays its own legal fees win or lose. The plaintiff's lawyers operate under a contingent fee system. They receive nothing if they lose but perhaps a third of the award if they win.
Thus there is an incentive to search out cases and go for high awards. At the same time there is an incentive to inform victims of their rights - and victims who could not otherwise afford legal counsel can obtain it on the contingent fee basis. Wastefulness can arise when many claimants with essentially the same case go to court individually instead of in a group.
To establish some uniformity in the situation, the government in 1979 published a model product liability act for voluntary adoption by the states. There was little response.
The present proposed legislation would in effect impose a model act. It addresses a legal development that has heightened the challenge to find consistent standards. This involves the law of torts, which applies to damage or injury suits. The upshot has been to ease the plaintiff's burden in many cases. In the past the plaintiff had to show the manufacturer was negligent; now it is sufficient to show that the product itself is faulty.
Some states have allowed this strict-liability test across the board instead of in certain categories of cases. The Kasten bill would have all states accept the same categories, with negligence still having to be proved in certain types of cases. Among the elements to be considered are defects in design, defects of construction, and manufacturers' warnings and warranties.
All this may sound complicated enough, but it is simple in comparison with the whole legal situation to be addressed. If the system cannot be made to work with fairness and efficiency, pressure could grow for federal alternatives.
Already, in the case of asbestos, the government is being sued along with manufacturers because many of the claimants are shipyard workers exposed to asbestos building vessels for World War II. And there are proposals for a federal compensation fund - paid for by industry, taxpayers, or a combination of the two. If such came to pass, it is not hard to imagine attempts to provide the same for victims of other product failings who, if fewer in number, are no less deserving.
Do Americans want to go down the road to universal indemnification by government? It would hardly seem so when large cutbacks in social programs are being accepted.
Thus it becomes all the more important for the existing system to operate as responsibly as possible. It is a task not only for legislators but for the courts and the legal profession that serves them.