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a major catastrophe, large companies could make it difficult for workers to collect the full amount deserved by hiding behind liability of contractors, subcontractors, etc. Finally, it would greatly increase the cost of insurance and the expense of litigation because the plaintiff would be required to sue every party which might be involved in the case instead of letting the defendants fight it out among themselves, as occurs today. Elimination of Collateral Source Rule. The current rule prevents the guilty defendant from reducing the amount owed to the victim by the amount the victim receives from other sources, such as health insurance or government benefits. These entities currently are usually entitled to recoup their portions from the total amount awarded to the plaintiff although they often don’t bother to exercise these rights. Elimination of this rule would shift costs which should be paid by the defendant to the plaintiff to be paid for by benefits which have been bought and paid for by the plaintiff. This proposal would also require that juries be informed whether the plaintiff is insured while continuing to keep information about the defendant’s insurance situation under wraps. Negligence Standard of Proof. Currently, manufacturers are !.eld liable for harm that results from a defective product through the doctrine of “strict liability,” which requires that the plaintiff prove the product is defective and that it caused injury. The proposed “negligence” standard would require in addition that the plaintiff prove that the manufacturer was “unreasonable” or “negligent” in manufacturing the product. “Negligence” is often impossible to prove since the evidence can often only be gleaned from evidence about the state of mind of the defendant information which is only available to the defendant. Limit on Contingency Fees. Currently, plaintiff attorneys take cases on a contingency basis. If they win the case, The Explosion That Never Was 41. UST HOW LITIGIOUS is our “litigious society”? According to Dr. Robert Roper of the National Center for State Courts, “Careful examination of current available trial court data relating to tort, contract, real property rights, and small claims cases, from a representative group of state courts, provides no evidence to support the existence of a national ‘litigation explosion’ in state trial courts during the 1981-1984 period.” Professor Marc Galanter of the University of Wisconsin says, “There’s nothing to suggest that Americans recently have turned to the courts; Americans have always used the courts heavily” at about the same rate as the British, Canadians, Australians, New Zealanders, and Danes. Rand Corporation studies show that the number of lawsuits filed per capita has remained steady for the past several decades about one suit for every 200 people. Personal injury cases have risen somewhat, but most of those were automobile cases. Galanter notes that federal court cases doubled between 1975 and 1983, but most of those cases were brought by the federal government. One-third of the entire increase consisted of a jump from 600 to 41,000 cases filed by the federal government to reclaim overpayment of veterans or Social Security benefits or to collect on student loans. The next largest gain was an increase from 3,000 to 20,000 claims to restore disability payments cut by the Reagan administration. At the same time, many kinds of cases decreased: anti-trust by 15 percent; truth in lending by 50 percent; class actions by 66 percent. Certainly, the Texas figures do not support the tort “crisis” argument. According to the Texas Office of Court Administration annual reports, the number of personal injury cases has risen less than half of one percent in the past four years from 10.9 percent in 1981 to 11.4 percent in 1984. BUT AREN’T awards much higher than before? According to recent Rand Corpora tion reports, most plaintiffs’ awards are relatively small and the vast majority of plaintiffs received the same level of compensation in the 1970s as they would have in the previous decade, adjusted for inflation. The median jury verdict has remained at approximately $8000 in 1979 dollars since 1959; the mean jury verdict increased from $30,000 to $69,000. Between 1980 and 1985, less than 4 percent of all cases won by plaintiffs resulted in million-dollar verdicts. In Dallas County, for example, only 147 malpractice suits have been tried to verdict in the past 15 were decided in favor of the plaintiff. All verdicts for that period totaled $1.2 million in judgments. An additional $1.2 million in verdicts are under appeal. Data on total settlements is not available. Although there has not been a recent litigation explosion which would account for the current political frenzy, changing legal trends in this century have increasingly enabled plaintiffs to recover for damages they suffer. Until the early 1900s, plaintiffs stood little chance of being compensated through the courts by the manufacturer of a defective product unless they had directly purchased the product from the manufacturer. This effectively squelched consumer lawsuits against makers of bad products. In the 1960s and 1970s the standard of care changed so that victims were no longer required to show that the manufacturer had been “negligent” only that the product was unreasonably dangerThe demise of the negligence standard which the Reagan administration wants to resurrect enabled more plaintiffs to win more tort claims. The Civil Rights Acts of 1964 and the rediscovery of the post-Civil War civil rights laws led to more claims against local, state, and federal government. These are the claims that have most upset local governments but they won’t be resolved through tort reform. T.A. THE TEXAS OBSERVER 11