Blawgletter read this morning in the WSJ an op-ed item that totes up the annual costs of "excessive" tort litigation, arriving at an estimate of $865.37 billion. Blawgletter also studied the Pacific Research Institute paper that explains the authors’ methodology. Blawgletter’s inescapable conclusion? That tort lawsuits produce only human misery and homicide.
How, you may ask, does going to court shuffle off the mortal coil? According to the authors, the fatalities result from raising health care costs (through defensive medicine), sucking money from safety-enhancing R&D, and pushing risk-reducing products from the market. They estimate that too much tort litigation has cost 77,000 lives.
What should we do? The authors propose "comprehensive tort reforms" — but, alas, don’t "venture to propose a specific litigation-reform agenda."
But, before turning in your law license and yourself into the authorities, consider possible shortcomings in the study. For now, at least, leave to one side its name — Jackpot Justice: The True Cost of America’s Tort System — which to some may imply less than complete objectivity on the part of the authors. Not to mention the Pacific Research Institute itself, whose major contributors include Altria, Pfizer, and Microsoft. And never mind that the study makes no attempt to determine the beneficial effects of tort litigation. Let’s look instead at what the authors did:
- They determine "excessive" tort costs by comparing U.S. expenditures, as a percentage of gross domestic product, with average expenditures in Poland, Spain, Italy, Japan, and other "industrialized" countries. The authors don’t explain why they think these nations, on average, have achieved tort lawsuit nirvana or whether the universal availability of health care helps explain their lower litigation costs. Nor do they tell us why the U.S. should spend less of its GDP than Italy, Germany, Spain, and Belgium do.
- They muddle the definition of "torts". Their anecdotes concern personal injury cases exclusively, but "torts" for them includes "defamation, misrepresentation, invasion of right to privacy, trespass against land and personal property, conversion, nuisance, and infringement on trademarks, patents, and copyrights." They even sweep in "class actions", apparently without regard to the underlying claims, which may involve non-tort causes of action like breach of contract, violations of civil rights, and antitrust.
- They count the cost of "defensive medicine" as purely negative — even if it produces better health care and more favorable patient outcomes and even if factors other than fear of a lawsuit prompted the additional measures.
- They use a single research paper to justify their conclusion that tort lawsuits kill people. The paper itself concluded that at least one kind of "tort reform" increased accidental death rates. Plus, according to the abstract, it dealt only with deaths from non-motor vehicle accidents and a handful of "reforms" that apply only, if at all, in the personal injury context.
Blawgletter could go on, but we see our time has expired. Count Blawgletter skeptical.
Barry Barnett
