Senator Joseph Lieberman
U.S. Senate
Washington, DC 20510

Dear Senator Lieberman:

Your voting record and position on a number of issues have been among the most corporatist and anti-consumer as any Democrat in the Senate, often differing from views shared by Vice President Gore and most Senate Democrats. Since your selection as the Democratic candidate for Vice President, you have chosen to back down on a number of important issues, including school vouchers, affirmative action and social security.

However, there is one major issue on which, so far, you have refused to back down: more immunity for corporate wrongdoers for causing grave harm to innocent people. Are you planning to follow a different track on civil justice issues than you have on the other important issues with which you have broken with your party in the past?

The National Law Journal recently reported that you are “unsurpassed among Senate Democrats in supporting tort reform.” Victor Schwartz, lobbyist and counsel for the coalition of insurance companies and corporate defense lobbies called the American Tort Reform Association, was quoted as saying, “Joe Lieberman is the most effective Democrat in the Senate” on these issues, adding that “If it were not for Joe Lieberman, there would never have been a Biomaterials Access Act,” a 1998 law that immunizes from liability corporations like Dow and Dupont that supply raw materials and components used in the manufacture of medical implants.

You boast about having supported nearly every anti-consumer, anti-worker liability bill that has crossed your desk as Senator. You were one of the few Democrats who supported the Draconian federal product liability bill that President Clinton vetoed in 1996. The bills you have supported include caps on punitive damages, making it much more difficult to hold corporations accountable for their most severe misconduct; liability limits for manufacturers of defective products, tobacco companies and malpracticing doctors, hospitals and HMOs; and bills that would prevent the most severely injured or disease-afflicted Americans - seniors in nursing homes, quadriplegic workers or brain-damaged children who suffer most and suffer for a lifetime—from obtaining fair compensation for their injuries.

Moreover, each of these bills would impose a federal system of liability on all 50 states, tying the hands of local judges and juries. Individual adjudication of cases by wrongfully injured persons have traditionally been the province of state judges and juries. Only they see, hear and evaluate the evidence, unlike members of Congress. Exactly what is the basis for such lack of confidence in your constituents who are jurors and judges, and the reviewing courts, to make fair decisions? If you trust them in capital crimes, why don’t you trust them in these civil cases?

Federal preemption of state tort law also deprives state legislatures of the ability to protect their own citizens with stronger liability laws. This authority includes the ability of states to deter manufacturers from producing unsafe products and to force disclosure of dangerous products and practices—all proven functions of the American tort system.

Organizations like American Tort Reform Association (ATRA), from whom you received an award in 1997, rely on alarmist, prejudicial propaganda and distorted or erroneous data which either belie credulity or are so manipulated as to more closely resemble fiction than fact. Here is what the data show: around the country machines break and chemicals burn their victims and the cost of the casualty count in the workplace and marketplace runs into the billions of dollars annually. According to the Harvard School of Public Health study, at least 80,000 Americans die each year as a result of medical malpractice just in hospitals alone (that doesn’t include similar casualties in clinics and physician offices). More die in a given year as a result of such gross negligence than from motor vehicle accidents (43,458), breast cancer (42,297) or AIDS (16,516).

Yet ten times as many patients are injured by medical malpractice as ever file a claim; 16 times as many suffer injuries as receive any compensation. Indeed, very few injured Americans file lawsuits. Overall, only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. Compensation for Accidental Injuries in the United States, Rand Institute for Civil Justice (1991). Moreover, the number of tort lawsuits filed in state courts is steadily dropping, down 16 percent since 1996, according to the National Center for State Courts.

Major corporations and their allies have also been feeding the public misinformation about the alleged need for tort deform legislation, including arguments that they are economically necessary. There is no basis for this view. The annual survey of business insurance conducted by Ernst & Young and the Risk & Insurance Management Society calculates annual insurance and claims costs for U.S. businesses, including property damage, workers compensation, and all other liability costs. These liability costs are astonishingly minimal and generally declining—only $5.71 for every $1000 in revenue in 1998, down from $7.10 in 1992. This important fact (not to mention record corporate profits year after year) makes it impossible for corporations or politicians to even argue there is any economic need to ration justice, limiting compensation to people wrongfully injured by their products or services.

Similarly, according to a report by the Consumer Federation of America (CFA) based on data collected by the National Association of Insurance Commissioners, products liability insurance costs only 16 cents per $100 of a retail product—a tiny fraction equaling less than 2/10 of 1 percent. Adjusted for inflation, products liability insurance costs have fallen about 75 percent over the last decade. Moreover, according to the CFA, total products liability verdicts and settlements nationwide for insured and uninsured manufacturers cost $4.1 billion in 1993 (There is a difference between trial verdicts and the final result of either appeals or settlements). By comparison, Americans spend about twice that much - about $8 billion - on dog and cat food each year. This figure is an incredible bargain for reckless perpetrators since 90 percent of those injured by medical malpractice, product defects and toxic harm each year do not even file a claim for compensation. Therefore, wrongdoers are paying only a fraction of the harm they are costing the family pocketbook, workers and the health care industry. And when someone is hurt and the wrongdoer doesn’t pay, it’s the taxpayer who often must pick up the tab in the form of taxpayer-funded health and disability programs. Either the wrongdoer pays or the taxpayers pay.

In addition, there is no “crisis” or “explosion” in punitive damages awards to victims to suggest any need for legislators to curb the power and authority of judges and juries. Punitive damages are rarely awarded. A new report by the Bureau of Justice Statistics and the National Center for State Courts, which looks at 1996 state court data in the nation’s 75 largest counties, shows that punitive damages are awarded in only 3.3% of cases won by plaintiffs, and that the median punitive award is less than $40,000 (excluding the unusual, recent punitive damages award in Florida’s tobacco litigation that is under appeal). Moreover, the median punitive damages awarded by a judge is $75,000, $48,000 higher than the median punitive jury award of $27,000.

Lawmakers considering whether to enact tort deform rarely ask the opinion of judges, who have more intimate knowledge of the system than anyone does. A recent survey of federal and Texas judges appearing in the May 7, 2000, Dallas Morning News shows that judges are extraordinarily supportive of the civil jury system. According to the article, “The judges’ responses reflect a high level of day-to-day confidence in the jury system. Only 1 percent of the judges who responded gave the jury system low marks.Ninety-one percent believe the system is in good condition needing, at best, only minor work. Overwhelmingly .judges said they have great faith in juries to solve complicated issues.Ninety-six percent said they agree with jury verdicts most or all of the time. And nine of 10 judges responding said jurors show considerable understanding of legal issues involved in the cases they hear.”

Nor do tort law restrictions reduce insurance rates. The only study ever conducted of the impact of tort restrictions on insurance rates in every state in the country finds absolutely no correlation between enactment of tort deform and insurance prices. Some states without tort deform have experienced low rate increases, while other states with major tort deform laws have seen very high rate increases relative to national trends. Premium Deceit—the Failure of “Tort Reform” to Cut Insurance Prices, Citizens for Corporate Accountability & Individual Rights (1999). In 1995, under the leadership of Governor George W. Bush, Texans were forced to trade away their legal rights through the enactment of a series of brutal tort deform measures in exchange for the promise of $864 million a year in insurance savings. But a recent study by J. Robert Hunter, Director of Insurance for the Consumer Federation of America (former Texas Insurance Commissioner and Federal Insurance Administrator under Ford and Carter), found that overall insurance premium savings, including any that might be attributed to these tort deforms, have been a “small fraction of the amount predicted by the legislature and claimed by the proponents.” In fact, as the study found, “on an overall basis, premiums in Texas in the lines containing liability components have risen by 6.9% from 1995 to 1997, whereas the same lines saw a premium increase of 5.9% nationally. On an annualized basis, Texas premiums rose by 3.4% vs. 2.9% nationally. So, despite the ‘savings’ claimed for tort reform, premiums in Texas are going up for liability lines at a faster rate than the national average.”

You have used your position in the Senate to press for legislation on behalf of the business community which hurts consumers. Still, your spokesman, Dan Gerstein, continues to spout deceptive corporate propaganda, contrary to the facts, when he told the Wall Street Journal on September 11, 2000, that the tort system “drives up costs, stifles innovation, limits products available to consumers and undercuts the competitive advantage our leading companies have.”

Will you now back down on your position supporting legislation that immunizes corporate wrongdoers from full responsibility for the grave harm they cause innocent Americans?

Sincerely,

Ralph Nader