WASHINGTON – The American civil justice system elicits strong opinions from both sides of lady justice’s scales. And while some argue the courts are being exploited as breeding grounds for frivolous litigation, others view efforts to reform the tort system as an attack to impede access.
On Sept. 26, the Center for Progressive Reform, a nonprofit research group primarily focused on safety and environmental issues, scrutinized a different kind of concern, releasing a report entitled: “Civil Justice in the United States: How Citizen Access to the Courts Is Essential to a Fair Economy.”
“Americans depend on our civil courts to keep the economy on a fair and firm foundation, but a decades-long campaign to limit access and tamp down awards to injured parties has left courts with diminished power,” the opening paragraph of the report states. “In an era of rising economic insecurity and inequality that has left many individuals and communities struggling to overcome disadvantages beyond their control, we need legislators and policymakers at all levels of government to take action to promote greater access to justice.
“Too many individuals and families have seen their chances at economic advancement stalled or undone by injuries caused by unreasonably dangerous products and other irresponsible corporate behavior.”
The CPR report explores a range of civil justice issues and case studies, including the current opioid crisis that has given rise to hundreds of counties and cities filing multi-million dollar suits against drug makers.
Peppered with strong language, the report asserts opioid lawsuits illustrate “key themes” at the heart of the relationship between civil justice and a fair economy.
“First, they (opioid lawsuits) spring from the reckless actions of several large pharmaceutical companies that promoted the overuse of opioids despite the known dangers they posed,” the report states. “Second, several regulatory failures contributed to the opioid crisis…
“Third, the lawsuits, if successful, could help promote a fairer economy by providing compensation for victims and by holding the drug companies accountable for the opioid crisis they helped fuel.”
Opioids aside, the report further asserts “teams of corporate lobbyists” have successfully pressed for legislation and consumer contract provisions over the years in order to “hobble the effective functioning of our courts as a check on the behavior of the politically and economically powerful.”
According to the report, three strategies used in the campaign to “hobble” the courts are:
• Barring the courthouse door through forced arbitration and onerous requirements that deserving plaintiffs must satisfy before they are eligible even to initiate a claim;
• Dividing and conquering plaintiffs with measures that prevent or limit access to class action litigation; and
• Shifting the burden to the victim with arbitrary caps or limits on the amount or type of damages available to prevailing plaintiffs.
“While this campaign continues, individuals continue to stand up to the people and companies that have harmed them, as the case studies illustrate,” the report states. “With the aid of enterprising attorneys, they are using the courts to address harms that can contribute to social inequality.”
Other cases studies explored in the report, include:
• The pollution from factory farms that raise thousands of hogs in confined spaces without using state-of-the-art management practices for the tons of manure generated daily;
• The Wells Fargo fake account scandal that resulted in the theft of millions of dollars from consumers who did not know about the accounts; and
• The injuries to first responders, the significant property damage, and the disruption of entire “fenceline” communities located next to a chemical manufacturing plant that failed to safely shut down prior to Hurricane Harvey.
"When the courthouse doors remain open to everyone, regardless of social or economic standing, even the wealthiest individuals and the most powerful corporations can be held accountable," said Karen Sokol, a CPR member scholar and report co-author.
The report is available at http://bit.ly/CivilJustice4FairEcon.