Document Type

Article

Publication Title

Valparaiso University Law Review

Abstract

Most proposals for tort reform are efforts to mount a frontal assault against a system that many believe to be deeply at odds with the best interests of our legal social system. In the many years in which I have dealt with mass torts, both as a scholar and as a consultant, I have become convinced that the protracted struggles in litigation are a pointless social exercise that fail in all of their fundamental objectives. The sprawling nature of the litigation consumes enormous social resources, and the kinds of factual inquiries that are raised in the cases require lawyers to develop extensive expertise in a wide range of scientific, economic, and historical issues. In 1968 when I started to teach, the paradigmatic tort was still the automobile collision at the intersection of Fourth and Main, and serious scholars were asking whether the tort system had any future at all, given that automobile no-fault insurance was likely to overtake automobile liability, just as employer liability gave way to worker's compensation laws. Those predictions have, of course, proved to be wrong. Today tort litigation is as likely to direct one to the state of medical knowledge in 1930 as it is to be concerned with events in the here and now. The collection and organization of data on so broad a front is a full time task that generates an expertise of its own. I am happy to report that lawyers are not the only ones to blame for this new found situation. They have received expert assistance throughout - namely they have had the assistance of expert witnesses whose services in a wide array of specialties are absolutely necessary to drive any complex case from beginning to end. To be sure, experts have always been a part of tort litigation. It is impossible for any medical malpractice action to proceed without competent medical testimony, both on the standard of care and on the question of causation and extent of injuries. Modem product liability litigation brings a powerful demand for engineers and for psychologists, the first to tell us about design and the second to tell us about warnings. And in all cases economic experts are prepared to give precise indications of present and future losses in the critical damage phase of a trial. So experts are here to stay. But they are an expensive trinket. There are two ways in which one can attack the problem. By the first, one can try to alter the substantive rules of the game so as to reduce the complexity of the issues on which the experts are forced to testify. If one had a rule for automobile accidents that said noncompliance with the rules of the road were conclusive evidence of negligence, then there would be somewhat less running room for experts to comment on insanity and drunkenness, or to explain why this or that maneuver should have been tried by a bard-pressed driver. The question would be, who hit whom, or who had the right of way at the intersection? Similarly, if the matter is one of product liability law, it will be far easier if the expert has to testify whether the defect was latent or patent, than to testify if some alternative device was (1) technically feasible at the time the product was sold, (2) economically feasible, and (3) acceptable to consumers. The hypothetical reconstruction of the market, so routinely demanded in tort litigation, is always an arduous and uncertain task.

First Page

757

Volume

26

Publication Date

1992

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