The Truth About Torts: Closing the Courthouse Door

In recent years, the effort to protect industry from accountability in court has taken a new turn, as various industries have lined up before state legislatures and Congress seeking legislation granting broad immunity from litigation resulting from their tortious behavior. Among other things, CPR Member Scholars’ work in this area includes multiple installments in the Truth About Torts series:

• Civil Justice/Economic Justice. Read Civil Justice in the United States: How Citizen Access to the Courts Is Essential to a Fair Economy (or PDF), by Martha McCluskey, Thomas McGarity, Sidney Shapiro, Karen Sokol, and James Goodwin, September 2018.
• Preempting Safety at the FAA. Read Regulatory Preemption at the Federal Aviation Administration about a 2016 federal appeals court ruling related to a plane crash that dealt a setback to the campaign to close the courthouse door on victims of companies' unsafe products.
• Analysis of TSCA Reform Proposals. Read TSCA Reform: Preserving Tort and Regulatory Approaches, CPR Issue Alert 1309, October 2013, by CPR Member Scholars Emily Hammond,Thomas McGarity, Sidney Shapiro, and Wendy Wagner, and CPR Senior Policy Analyst James Goodwin, analyzing competing bills for reforming TSCA: the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA). Also check out the day-of release blog post, and the news release. Also read, The Role of Health and Safety Evidence in Regulation and the Civil Justice System: Preserving Protection of the Public, by CPR Member Scholars Emily Hammond, Thomas McGarity, Noah Sachs, Sidney Shapiro, and Wendy Wagner, and CPR Senior Policy Analyst James Goodwin, CPR Issue Alert #1401, February 2014.
• Corporate Immunity. In Sweeping Corporate Immunity for the Fuel Industry: The Next Front in the "Corporate Accountability" Wars (CPR White Paper 1303, March 2013), CPR Member Scholars Thomas O. McGarity and Sidney Shapiro, with CPR Policy Analyst Nicholas Vidargas, explore corporate efforts to gain sweeping immunity for their tortious behavior.
• MedMal. Tort reform and health care industry lobbyists argue that "frivolous lawsuits," and "sky-high jury awards" are driving the high cost of health care. CPR's The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice "Reform" debunks the myth. It's CPR White Paper 1203, March 8, 2012, by CPR Member Scholars Sidney Shapiro and Thomas McGarity, and CPR Policy Analysts Nicholas Vidargas and James Goodwin. Read more about the report, and read the news release.
• Hobbled Law, Hollow Regulation. In a 2011 report, CPR Member Scholars Alyson Flournoy, Sidney Shapiro, William Andreen, and Thomas McGarity, joined by CPR Policy Analyst James Goodwin, explained how that played out in the case of the BP Oil Spill in The BP Catastrophe: When Hobbled Law and Hollow Regulation Leave Americans Unprotected (CPR White Paper 1101). Read the news release, and Sidney Shapiro's blog post on the report.
• Twombly Case and Access to the Courts. Recent Supreme Court rulings have made it harder for deserving plaintiffs to get their cases heard in court. Read CPR's May 2010 white paper on the subject, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, by CPR Member Scholars William Funk, Thomas McGarity, and Sidney Shapiro, with CPR Policy Analyst James Goodwin.
• Truth About Torts VII: Federal Railroad Administration. Read The Truth About Torts: Regulatory Preemption at the Federal Railroad Administration, by CPR Member Scholars Thomas McGarity, Sidney Shapiro, William Funk, and Nina Mendelson, and CPR Staff Jennifer Marshall and James Goodwin.
• Truth About Torts VI: Rethinking Regulatory Preemption. Read CPR's white paper, The Truth About Torts: Rethinking Regulatory Preemption and Its Impact on Public Health, March 2009, by CPR Member Scholars William Buzbee, William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and CPR Policy Analyst Matthew Shudtz.
• Pharmaceuticals and Preemption. In March 2009, the U.S. Supreme Court handed down its ruling in Wyeth vs. Levine, rejecting an argument from pharmaceutical giant Wyeth that a woman harmed by one of its drugs could not bring a lawsuit against the company because the FDA's approval of the drug's label effectively preempted litigation under state tort law. The Court held for the woman on a 6-3 vote. CPR Member Scholars have produced a variety of materials on the Wyeth vs. Levine case. Read a pre-decision op-ed by Member Scholar Thomas McGarity, "Court Takes Up Preemption Doctrine," in the November 28, 2008 Austin American Statesman. Read a post-decision op-ed by McGarity, A Rare Win for Consumers" (91 kb download), in the March 6, 2009 Dallas Morning News. Subsequently, the Supreme Court held that FDA-approved generic drug manufacturers cannot be found liable on "failure to warn" claims, unlike brand-name manufacturers. Read McGarity's blog posts on the subject before the ruling and after.
• Truth About Torts: CPSC and Regulatory Preemption. Read about efforts by industry and CPSC to preempt citizen suits against manufacturers of dangerous products. Read CPR's White Paper on the subject, The Truth About Torts: Regulatory Preemption at the Consumer Product Safety Commission, by CPR Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and Policy Analyst Matthew Shudtz, published December 18, 2008.
• Proposed Executive Order on Agency Preemption. Read Limiting Federal Agency Preemption: Recommendations for a New Federalism Executive Order (1.2 meg download), by CPR Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, and David Vladeck, and CPR Policy Analysts Matthew Shudtz and James Goodwin, November 2008, White Paper 809. In it, the authors propose an Executive Order on agency preemption of state laws.
• Truth About Torts: NHTSA Overreaches. Read The Truth About Torts: Regulatory Preemption at the National Highway Traffic Safety Administration, by Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and Policy Analyst Matthew Shudtz. CPR White Paper 804, July 2008. And the news release
• Truth About Torts: Preemption. Read The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety, by William Funk, Sidney Shapiro, David Vladeck and Karen Sokol, White Paper 704, September 2007. Read the news release.
• Truth About Torts: Corporate Immunity. Read The Truth about Torts: Lawyers, Guns, and Money, by Thomas O. McGarity, Douglas A. Kysar, and Karen Sokol, White Paper 603, July 2006.
• Truth About Torts: Malpractice. Read "The Truth about Torts: An Insurance Crisis, Not a Lawsuit Crisis," by Thomas O. McGarity, Douglas A. Kysar, and Karen Sokol, White Paper 509, June 2005.