Posted by Brendan Fischer on July 13, 2011

On October 23, 2009, Harrison "Harry" Kothari celebrated his second birthday by blowing out candles on a cake decorated with a giant airplane. At age two, Harry could ride a tricycle, stack blocks, and say words like "mama," "airplane," and "thank you." A month earlier, surgeons at a Houston hospital had removed a benign cyst from Harrison's head without problems. In follow-up visits, nurses drained cerebrospinal fluid to test for infection, and following normal protocol, wiped the area around the drain with what they assumed were sterile alcohol wipes. On December 1, Harry was dead, his tiny brain swollen by a Bacillus cereus infection apparently caused by contaminated alcohol wipes.

According to the Milwaukee Journal Sentinel, the wipes were produced by the Hartland, Wisconsin corporation Triad Group and its manufacturing subsidiary, H&P. Employees had long complained of hygiene and safety problems; one former quality control inspector told the newspaper that "we were told to keep things running at all costs," and after one employee cut her finger when packing alcohol wipe packets, the wipes were nonetheless shipped with blood inside and outside the box. And for years, the Food and Drug Administration (FDA) -- the regulatory agency tasked with protecting public health -- had noted sanitation and manufacturing problems at the plant, but did not take serious action until it was too late.

Harry's family has sued Triad for killing their baby boy with its negligence. Triad states its products met FDA regulations. Under a bill promoted by the American Legislative Exchange Council (ALEC), the Regulatory Compliance Congruity with Liability Act, Triad's "regulatory compliance" might be enough to absolve Triad from any and all responsibility to Harry's family.

ALEC's Pro-Corporate "Tort Reform" Effort

The Regulatory Compliance Congruity with Liability Act is part of a set of "tort reform" bills from ALEC that limit corporate responsibility at the expense of average Americans. ALEC, the corporate-funded national organization that lets Big Business hand state legislators "model bills" to introduce in their state, has been pushing "tort reform" since about 1986, with the support of Big Tobacco, the insurance industry, and other major corporations.

ALEC Exposed - a project of CMDThe Center for Media and Democracy has obtained copies of more than 800 model bills approved by corporations at ALEC meetings (some of which are "tort reform" bills), analyzed and marked-up those bills, and made them available at the Center's newest resource, ALEC Exposed.

While "tort reform" is allegedly premised on the notion of "individual responsibility," the real theory behind the effort is "individual responsibility for you, but not for corporations." The ALEC "tort reform" bills help ALEC corporations escape responsibility for wrongdoing, help ALEC insurance companies limit payouts (and increase profits), and prevent Americans wrongfully injured or killed from receiving just compensation.

Tort Liability and Justice

A long-standing principle of American law gives a person injured (or whose family member is killed) by the fault of another the right to vindicate their losses through a lawsuit. An injury for which a person can sue is known as a "tort." Tort lawsuits are one of the few instances where an average American can stand on equal footing with a global corporation, make their case in front of a citizen jury, and demand justice. While a lawsuit cannot undo a person's injury or loss, monetary compensation -- "damages" -- provides the next-best substitute.

Tort cases are relatively rare -- they make up only 6 percent of the entire civil court caseload, and are declining -- but they are effective. Tort liability is why defective cribs are no longer strangling infants, why flammable children's pajamas are no longer on the market, and why carcinogenic asbestos no longer insulates our homes and poisons our lungs.

Other ALEC Attacks on Civil Justice

ALEC "model bills," approved by major corporations before being introduced in state legislatures, restrict the already-narrow accountability that tort liability provides. For Harry's family, a number of ALEC "tort reform" model bills, besides the bill barring liability for compliance with FDA regulations, would keep them from holding Triad accountable.

The ALEC "Non-Economic Damage Awards Act" limits to $250,000, or twice Harry's hospital bills, the amount Triad would owe Harry's mom, dad, and sister for the "pain and suffering" that accompanies their loss. In this bill, ALEC corporations are putting a flat rate on the value of a human life, and dictating to Harry's family what their suffering is worth.

If a jury determines that compensating Harry's family for their "pain and suffering" does not adequately punish Triad for its misconduct, it might award "punitive damages" to deter Triad and other manufacturers from repeating it. But under the ALEC "Punitive Damages Standards Act," Harry's family would have to prove Triad acted with "malice" (rather than "negligence"), a standard even higher than is required to convict a person for homicide in a criminal case. Even if it were shown that Triad corporate executives ignored safety concerns and cut costs in ways that made its products unsafe, no punitive damages would be available. If punitive damages were permitted, they would be capped at $250,000, or twice economic damages. When a corporation knows its financial liability for killing or maiming consumers will be kept low, it can write-off potential lawsuits caused by its defective products as a cost of business.

ALEC Circumvents Juries, Legislatively

These "tort reforms" apply to all lawsuits, regardless of the extent of misconduct or severity of the injury. None of these "reforms" will stop the "frivolous lawsuits" allegedly flooding the courts -- caps on damages ONLY apply AFTER a jury has listened to all the evidence, determined that the case has merit, and found the corporation at fault; frivolous lawsuits never make it that far.

The ALEC damage caps strip a jury of one's peers from determining an appropriate level of compensation for any particular case, based on the individual circumstances proven in court. This circumvents the constitutional right to a trial -- and decision -- by jury, guaranteed by the Seventh Amendment.

In contrast with politicians hounded by lobbyists and dependent on campaign contributions, moneyed interests have a more difficult time manipulating the judicial decision-making process. While corporations have tried influencing who is elected or appointed as judges, corporate money cannot control who serves as a juror. Instead, through ALEC, corporations use the legislative process to limit judicial discretion and constrain juries in their role of dispensing civil justice.

Wisconsin Successes

ALEC has claimed success in pushing tort reform bills across the country, most recently in Wisconsin. Wisconsin Governor and ALEC alumni Scott Walker's very first action upon taking office in January, 2011 was to push "tort reform" measures from the ALEC corporate wish list.

Walker's law, Wisconsin Act 2, appears to draw liberally from the ALEC "Product Liability Act," the "Punitive Damages Standards Act," the "Litigation Accountability Act," the "Reliability in Expert Testimony Standards Act," and elements of the "Comparative Fault Act" and "Joint and Several Liability Act." (See a version of Wiconsin Act 2 identifying the ALEC bills here). After Governor Walker granted the wishes of ALEC corporations and limited the rights of injured Wisconsin residents, ALEC publicly applauded Walker's actions.

Contradictions and Concerns

ALEC claims to be guided by principles of "free markets" and "limited government," but its opposition to a robust tort liability system contradicts those alleged goals. Under the tort liability system, free market economic pressures check corporate misbehavior. The possibility of a lawsuit, and the associated financial liability, provides an economic incentive for manufacturers, hospitals, builders, and other corporations to be more safe and responsible, and it does so without government regulation and enforcement. By pushing its "tort reform" bills, ALEC is not advocating for "free markets" and "limited government," but enlarging government to protect corporate interests from free market pressures.

ALEC has been working behind the scenes for years to keep families like Harry's from achieving justice. Any one of us could experience a loss like that suffered by Harry's family. That ALEC has been so successful in limiting access to civil justice should concern all of us.

Please visit the Center for Media and Democracy's newest project, ALEC Exposed, for more on the American Legislative Exchange Council agenda, and read more about the project from CMD's Executive Director Lisa Graves.

Comments

It's way past time for tort reform in this country any way we can get it. How about something simple like - you lose, you pay.

Piggs do not like to pay money. Corporations will rip-off anybody, even if they kill people.

Your funny. Most lawsuits are for very small amounts of money. Corporations sue for more, yet I see no cap on them. Also, Tort Violates the 7th-Amendment, in case you do not know the Constitution.

All this article shows is one incident in witch the company was at fault. What about the numerous lawsuits where Americans sue for their own stupidity. Take the case of the woman who sued McDonald's because she spilt her coffe on herself. There are more cases of company's being wrongfully sued for people's lack of common sence then there are cases where the company is actually at fault.

hot coffee is a perfect example of the corporate spin surrounding tort reform. Watch this:

http://www.hotcoffeethemovie.com/Default.asp

Having retired from the practice of law, I can assure you that insurance company and corporate propaganda which has induced you to believe the lie that it is common to sue insurers and companies without adequate cause was made up to manipulate you to accept, even support "Tort reform." You cannot sue a person who harms you without legal counsel; legal counsel will not take a case that is not winnable, to wit, not a valid cause of action, because aside from ethical rules, they don't get paid unless you win and you won't win.

Remember when states allowed insurers to raise premiums for some doctors' malpractice insurance to $100,000 or more a year, on the basis that they expected a big increase in the number of malpractice cases? Well, the increase never came, but the premiums never went back to their previous level either, did they? Insurers are lying scam artists--but that's just my opinion based on my experience.

good comment, doc!

Come on America, insurance is the biggest scam ever. it used to be you paid it so the thugs didnt break your leg. now if you dont have it the thugs with the black and white cars with lights on the roof punish you if you dont have it.... unless you are a big corporation. that's right, many states allow big companies to post a bond against suits and be self insured.
how easy do you think it would be to get a check from GE if one of their vans scratched your car door?

Watch 'Hot Coffee', an HBO Documentary Video on Demand. When you're finished, go learn how to spell. I find your ignorance irritating. Take heart, if you work on it, it will only be temporary.

You must be very, very wise to know that this one case is the only time in history that a company hurt someone out of negligence. Seriously, had you even read the article you are criticizing you wouldnt have written your rant.
Apparently you have never been involved in any litigation. If you had, you would know it is stressful, expensive, and time consuming. The outcome is unsure. I cant picture many people going through the whole process without something real behind it.
Sounds like you are the kind of person that believes every defendant in a criminal case is guilty and they did something to put themselves in that situation. Just like most judges, juries, and witnesses. The reality is that our constitution guarantees they are to be considered "innocent until proven guilty."
Morons like you think it will somehow do you good to be on the side of these corporations. Just wait until your insurance company decides it's time to pull the plug on YOU because it's too expensive to keep you alive.

Please educate yourself before speaking. The Documentary Hot Coffee on HBO
Showed this woman's horrific injuries, i.e. requiring major skin graphs, and
indescribable pain. Most people who saw them became physically ill at the
destruction this coffee, which had been heated so that no one could take advantage of the free second cup, they would be far away before it cooled enough to drink. Years of ridicule from people like you who suck in anything mass media tells you made it even worse. It's time to wake up to and send the
corporations packing who do not respect human beings. I don't buy Mac Burn
products anymore.

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Bill Moyers presents "United States of ALEC," a report on the most influential corporate-funded political force most of America has never heard of -- ALEC, the American Legislative Exchange Council.