3.4 – Web Search: Tort Reforms
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Consistent with what is stated in the Jennings text,
“[a]though nearly all states have adopted some form of limitations in tort
recover, these laws are a maze of laws differing from state to state and are in
a fluid state of judicial review” (2015, p. 301). Those, as well as federal
proposals/actions by Congress, frequently take a variety of forms, from capping
exemplary/punitive damages, to shielding certain categories of
industries/individuals from lawsuits, raising the burden of proof to a higher
standard (e.g., “substantial evidence,” “clear and convincing evidence,” etc.)
from normal civil court “preponderance of the evidence”’ standard, and/or
requiring that there be “gross negligence” as opposed to just any “negligence,
amongst other reform efforts.
Such attempts are by no means “new,” for in 1991 bill S.
640, entitled, “A bill to regulate interstate commerce by providing for a
uniform product liability law, and for other purposes,” was introduced in the
Senate on 13 March 1991 (with the related bill H.R. 3068 in the House of
Representatives). The Summary of the
bill stated that the provisions would “govern[] any product liability action
against any manufacturer or product seller, on any theory, for harm caused by a
product,” and “[s]upercede any inconsistent State law regarding recovery in
such actions.” More specifically, the
bill would have “limit[ed] punitive damages” and “require[ed] higher standards
of proof for recovery of punitive damages,” in that the plaintiff would have to
prove that the “harm suffered was the “result of conduct manifesting a
manufacturer’s or product seller’s conscious, flagrant indifference to the
safety of those persons who might be harmed by a product,” which must be shown
by a raised evidentiary standard, i.e., the “clear and convincing” standard,
instead of the normal “preponderance of the evidence” standard, but explicitly
precluded “a failure [by the manufacturer or seller] to exercise reasonable
care in choosing among alternate product designs, formulations, instructions,
or warnings [as being able to constitute] such conduct.” As to meeting government standards, the
Summary stated that the punitive damages would be prohibited “against the
manufacturer or seller of a medical device where: (the drug or device was subject
to pre-market approval by the Food and Drug Administration (FDA); or (2) the
drug is generally recognized as safe and effective under conditions established
by the FDA,” or “against a manufacturer [but not the “seller”] of an aircraft
where: (1) the aircraft was subject to pre-market certification by the Federal
Aviation Administration (FAA); and (2) the manufacturer complied, after
delivery, with FAA requirements and obligations with respect to continuing
airworthiness.”
Using your Web browser:
Go to thomas.loc.gov (Links to an external site.)Links to an
external site..
Provide an example, i.e., a citation (bill number) of
another bill introduced in Congress after the 111th Congress (i.e., the 112th
Congress or thereafter) of proposed tort reform and/or product liability (e.g.,
limiting punitive damage (other than one provided by any of your classmates, so
there might be some incentive to do this one relatively early in the week, and,
with bills sometimes having more than one reform, e.g., H.R. 3068, referenced
above, only cite one of the reforms, to ensure everyone in class can cite one),
in one or more of the categories listed above.
Give a brief description of what specifics the bill actually
proposed.
Alternatively, and this is an opportunity to begin to delve
into state law searches (as not just much of tort law, but also the majority of
contract law, is state, rather than federal, law), you may provide an example,
subsequent to 2009, of a state law effort to “reform” tort/product liability law
(i.e., where a state legislature has proposed or passed legislation similar to
any of those proposed in Congress), once more, other than one provided by any
of your classmates, so there might be some incentive to do this one relatively
early in the week). To this end, access
to most state sites can be done using your browser and inputting “ state.??.us”
and replacing the “ ??” with some two-letter state designator (e.g.,
“state.ak.co” (for Alaska), “state.me.us” (for Maine), and “state.vt.us” for
Vermont), and then do a search using
applicable terms, e.g., torts, product liability, punitive damages (or,
alternatively, exemplary damages), etc.
Just in case you aren’t aware of them, the following
two-letter state designators are available:
Two-letter State designatorsPreview the documentView in a
new window (PDF)
You are not required to respond to your classmates, but is
strongly encouraged that you respond to your peers.
