In general, U.S. courts divide injuries into two groups. In one category are accidents that are the fault of the victims -- or of unfortunate circumstances beyond anyone's control -- and for which the victims (or their insurance companies) are expected to pay. In the other category are injuries that result from the negligence of some other person. In those cases, the victim can sue to force the responsible party to pay damages.
Congress may be on the verge of opening up a massive exception to that general rule. The proposed radical restructuring of the product-liability laws has the enthusiastic backing of a lot of businesses, even though it is sure to lead to a large number of new claims.
Hearings on the proposals open next week in the consumer subcommittee of the Senate Commerce Committee. Robert W. Kasten Jr. (R-Wis.), chairman of the subcommittee, is the chief congressional advocate of reforming the product-liability system, but he never intended his legislation to become a vehicle for an approach that actually would increase the number of claims. What Kasten wants is to impose federal standards on product-liability litigation, which now is the province of the states. Those federal standards would be less generous to accident victims than the current rules in the most pro-plaintiff states, such as California, New York and Pennsylvania.
Kasten's approach has never been very popular in the House, and is opposed vigorously by unions, consumer groups and the organized bar. This year, however, it seems to have lost popularity in the Senate, too: The full Senate Commerce Committee (which last session voted out the measure by a lopsided 11-to-5 tally) last month refused to send the Kasten bill to the floor.
That refusal seems to signal a determination that any legislation must address what has come to be known as the "innocent victim, innocent manufacturer" problem. This is the person harmed, for example, by a design that conforms to industry standards when the product is made, but that turns out to be hazardous. The company has not been negligent, but the accident victim may have lost an arm or an eye.
Congress now is going to consider whether that person should be compensated in some way that is totally different from the tort system's criteria for placing blame. Two senators, Christopher Dodd (D-Conn.) and Slade Gorton (R-Wash.), have introduced legislation that would allow accident victims merely to file a claim with the manufacturer responsible and receive compensation for their injuries.
Nobody would have to prove that anybody was at fault; it would be enough merely to show that the product caused the accident. The dispute would never get into a court. But there would be limitations on the damages that the victims could recover: Medical bills would be covered, and wages for days lost because of the injury, but there would be neither punitive damages nor big bucks for the pain suffered as a result of the accident.
A lot of accident victims who now do not sue -- either because their case is too weak or their injuries too minor to interest a trial lawyer -- would be collecting money under the alternative compensation scheme. But if those proposals were grafted onto the Kasten bill, the new legislation would mean that the victims who did opt to sue would have less chance of winning. The result probably would be that manufacturers would pay on more claims, but that the average size of payments would take a nosedive.
The business coalition that has been backing product-liability reform is splitting apart over that trade-off. So far the insurance industry is unalterably opposed to the Dodd-Gorton approach. A big reason: With no history of how the plan will work, they have no statistical basis for setting rates.
"The cost of the system is not known at all," argues David Farmer, vice president of government affairs for the Alliance of American Insurers. "You may be creating an ever greater degree of uncertainty." If the price of getting the Kasten reforms through Congress is to couple them with the no-fault alternative, Farmer said he would prefer to back off from federal reform and leave the tort system in state hands, as it is now.
But other business voices are willing to take a no-fault hybrid if that is the only way to rein in the most pro-plaintiff states. A combination measure has a much greater chance of picking up the labor and consumer support essential to making the legislation palatable to the Democratic leadership of the House.
And then some corporate executives are positively enthusiastic about a way to settle claims quickly and cheaply, without running up litigation expenses. For example, the makers of sporting goods -- the group hardest hit by product-liability suits -- think the Dodd-Gorton approach is the right way to go. "This is the ultimate solution to the problem," argues Howard Bruns, president of that industry's trade association.
He's not alone. Marsh & McClennan just released the results of a survey of 1,400 risk managers with U.S. companies. M&M argues that the respondents cast a strong vote against the Dodd-Gorton proposal.
But the figures can just as easily be read as an endorsement of the proposals. The questioners asked not whether the executives favored a combination of the Kasten reforms and an alternative compensation scheme, but rather whether they would prefer the no-fault plan instead of other reforms. And even to that question, 43 percent of those with a choice picked the Dodd-Gorton approach.
That many business officials voted for such a radical solution is perhaps the best evidence of how divided the corporate world is on the product-liability issue.