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Legislators, Lawyers Caused Liability Mess

January 12, 1986

I am compelled to comment on "Liability Issue: A Need to Find Right Balance," (John F. Lawrence, Dec. 8).

One day about 10 years ago, my husband, a manufacturer, came home obviously under great stress. Innocently, I asked: "What can I do to help?" His desperate response, "Do something about product liability insurance," left me feeling disturbed and inadequate as I didn't know what he was talking about.

I began studying the problem and found that other people, individually and collectively, had been studying it for years along with other issues involved in tort law, such as medical malpractice, auto insurance, homeowners insurance, professional insurance, municipal liability, etc.

I read articles and books, talked with others, attended meetings, asked questions and wrote letters. Gradually, I learned some of the vocabulary: state-of-the-art, alterations-modification, statute of limitations, statute of repose, contingency fees, "deep pockets," strict liability, joint-and-several liability, market share liability.

Gradually, I realized how serious the problems were and how they were affecting our lives in many ways.

When I read the last sentence in Lawrence's article, "It is a complex question and it should attract more study than it has," I almost laughed--but my laughter would have had a hollow, bitter ring to it.

After seriously thinking about it, I realized that the sentence was frightening to me, as he appears to be unaware of the many studies that have been made in the past.

Many organizations have studied the issues including the California Chamber of Commerce and the California Manufacturers Assn. Some groups have been formed just to study the issues and make recommendations.

Letters have been written, telephone calls made, meetings held, discussions endured, recommendations debated, and reports, papers, articles and books have been written.

I just dug out of my files the report of the California Citizens' Commission on Tort Reform, "Righting the Liability Balance," published in September, 1977, after 15 months of study. It contains many recommendations. In the mid-1970s, the California Legislature set up the Joint Committee on Tort Liability. Advisory committees on medical malpractice, product liability and municipal liability were formed to study and make recommendations.

Meetings were held in various locations, serious discussions were recorded and specific recommendations were approved by the committees. I attended some of the meetings and later attempted to find out what happened to the final reports.

The search was a frustrating and embittering experience. That was when I first was made aware of the power of the California Trial Lawyers Assn.

Some legislative committees have studied the problems involved and have held hearings on tort reform.

In 1979, I testified at a hearing of the Finance, Insurance and Commerce Committee. The chairman of that committee, Assemblyman Alister McAlister, has introduced legislation many times trying to reform unrealistic, impractical tort laws.

I know how frustrated he must have felt as he watched them being defeated by colleagues who had not studied the issues as he had. It was obvious that he understood the depth and seriousness of the problems involved.

Once some legislation was passed unanimously by both the Senate and the Assembly--it was an alteration-modification bill. Hallelujah! How happy we were as it seemed that the legislators were listening after all.

Then-Governor Edmund G. Brown Jr. vetoed it--as I think the legislators knew he would. I wrote the governor and asked his rationale for the veto. One of his staff wrote me. It was a very interesting and depressing correspondence.

Rand Corp.'s Institute for Civil Justice has been studying various aspects of the issues for years. One of their reports involving the asbestos litigation revealed how the lawyers were benefiting more than the plaintiffs from the costly, involved negotiations.

The U.S. Commerce Department issued a report after an 18-month interagency study on product liability in 1977.

After further study, in 1979 a Draft Uniform Product Liability Law was presented for study. It was debated, letters were written, hearings were held, but again the results were disappointing as it was not passed.

As I have studied this issue during the past 10 years, over and over again I have been told that tort reforms have been blocked by the various trial lawyers associations including the California Trial Lawyers Assn. mentioned in the article. Some lawyers like the present system as it is as they benefit from it--they are about the only ones who do.

I had one good laugh lately about this as I read that lawyers are having problems obtaining legal malpractice insurance. At last, some justice even if not from the court system.

The irresponsible acts and shortsightedness of lawyers have cost us all in higher taxes, higher prices for all goods and services, higher insurance premiums and numerous other hidden costs.

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