Product liability reform - it can't wait

A federal product liability standard; what do the legal beagles have to fear? Let's hope it's not a fair shake for the consumer. Many of the trial lawyers are more up in arms about S44, the product liability reform legislation, than they have been about anything else in years. They love the status quo. They like operating in the current environment while 32 states have sprinklings of product liability statutes and the 18 others operate under a wide variety of case law.

This patchwork of ever-changing laws across the country has created a maze of conflicting standards that make it virtually impossible for manufacturers to know their obligations. Let me illustrate the hodgepodge:

* In California, a product design can be found defective if it ''fails to perform as safely as an ordinary consumer would expect.''

* A product would be found defective in Georgia if the design caused it to be ''not merchantable'' and not ''reasonably suited to the use intended.''

* In Nebraska, design is acceptable if the product incorporated what was ''generally recognized'' as the ''best prevailing technology reasonably available.''

How can a manufacturer possibly be expected to meet 50 conflicting standards? It is not surprising that legal fees in product liability cases currently take $ 7 for every $6 received by injured persons.

What is needed is a clear national standard that defines the legal rights of consumers and the obligations of the nation's manufacturers in injury cases.

Balance, order, and predictability must be the goal.

My legislation would establish incentives for manufacturers to design and make their products as safely as possible. Specifically, under S44, manufacturers would be automatically liable for all harms caused by mismanufactured products.

In design and warning cases, manufacturers would be liable if they failed to use the ''care, attention, knowledge, intelligence, and judgment that society requires of its members for the protection of ... the interests of others.'' This standard is clear; it is also vigorous.

This statute would not add to government bureaucracy. It would not affect the number of lawsuits expected, or limit damages injured consumers could recover.

Today, conflicting state laws bring disincentives to product innovations, sharp upward swings in insurance costs, and rising expenses in resolving product liability disputes. All of these problems would be alleviated by enacting a federal product liability standard.

Arguments against reform do not hold up under careful scrutiny. Let's examine several of them.

Some say my proposal would dilute the deterrent value of current law and weaken manufacturers' incentives to design for safety.

This is not true. Today's American consumer is history's most sophisticated. And it's clear that those who produce harmful goods have suffered in the end, and will continue to. S44 will do nothing to decrease incentives for the manufacturer of safe products.

Some critics of this legislation suggest it would supersede existing state case and statutory law. Those who argue this point of view ignore the fact that on average over 70 percent of goods are shipped out of state. The Commerce Clause in our Constitution was designed to permit Congress to fashion remedies in matters of significance to interstate commerce. If ever there was need for such action, product liability reform qualifies.

Finally, opponents suggest that the ability of consumers and workers to sue manufacturers would be curtailed. In effect, they argue that a system that would bring fairness to manufacturers would in turn bring unfairness to those who purchase and use their products. These arguments ignore the thrust of S44. A very strong standard of responsibility would be established under the bill - stronger than that which currently exists in most states.

Again, the secret is balance, order, and predictability. The nation needs and deserves a common-sense approach to product liability rules. We don't have it today. The current mishmash of conflicting statutes brings with it expense and burdensome legal costs which must be passed on to consumers.

We can, and should, do better.

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