Jan. 30, 2001 -- It's not just in your imagination. From motor vehicle injuries to dangerous children's toys, juries are awarding consumers ever-larger cash awards in trials over defective products.
From 1993 to 1999, the median jury award has more than tripled, from $500,300 to more than $1.8 million, not including punitive damages, according to a study of 2,751 product-liability verdicts released today by LRP Publications, a Horsham, Pa.-based group that maintains a nationwide database of verdicts and settlements resulting from personal injury claims.
But the trend toward top-dollar jury awards isn't all good news for consumers. As the awards creep up in price, increased costs and procedural changes are forcing many lawyers to accept fewer of these cases, preventing some consumers from having their day in court.
The Laws of Natural Selection
Legal experts say the trend is largely due to court rulings that have changed the rules of product-liability trials in recent years. Since 1993, the U.S. Supreme Court has handed down a series of decisions effectively heightening standards for expert witness testimony and making it more expensive and difficult to bring product-liability cases to trial.
As a result, experts say, plaintiffs' attorneys are being choosier about their clients.
"It's the legal version of natural selection," says Robert T. Cunningham, an attorney in Mobile, Ala. "What happens is we tend to only take those cases in which there are severe injuries and where fault is very clear."
Reflecting this trend, according to the Administrative Office of the United States Courts, the number of product liability cases filed in federal court is half what it was four years ago, falling from 32,856 in 1997 to 14,428 in 2000.
Being more discriminating about taking such cases, experts say, makes economic sense for many trial attorneys. To mount a product-liability case with a likelihood of success, attorneys must put together an impressive roster of expert witnesses. The cost of getting such a case to trial these days can reach up to a quarter of $1 million.
Since most lawyers aren't usually paid unless they win, fronting the costs of a product-liability case can be a risky gamble unless the plaintiffs are egregiously injured, leading many attorneys to just avoid them altogether.
If only the most persuasive cases are making it to trial, then it makes sense that the awards are getting larger, attorneys say.
The Going Rate for Pain
It also makes sense that plaintiffs are succeeding more at trial. Injured consumers won 39 percent of their cases in 1993, compared to 46 percent in 1999, according to the study by LRP.
Recent cases of plaintiffs who have walked away with millions of dollars — remember the woman who won close to $3 million after she spilled hot coffee on her lap? — could also contribute to the ballooning of jury awards.
As Americans hear word of massive awards granted to consumers, some juries could feel pressure to match or exceed previous amounts in cases where parties have suffered even more, some say.
"Juries hear about these large numbers given in some cases, and they think that's the going rate, the market rate," says Joseph M. Price, a product-liability defense lawyer in Minneapolis. "It has an inflating effect on what juries do when they get into the jury room."
The public perception of corporations probably contributes to the growing awards as well, Price says.
"Corporations are generally seen with mistrust by many people. When you get a situation where an injured person is in there against a deep-pockets defendant, sometimes the niceties of whether there's a liability or not goes by the wayside, and it's a way to redistribute the wealth," he said.
Hurting the Little Guy?
Big business isn't necessarily a casualty here, others say. The trend toward fewer but more massive jury awards probably prevents some plaintiffs with legitimate cases from ever seeing a courtroom.
"Unless you've been severely injured, a lawyer generally can't afford to take your case," Cunningham says. "It leaves a lot of people out in the cold who have injuries but aren't dead and not crippled for life. The manufacturers, I would think, should love the result."
Corporations could get more good news if President Bush attempts to extend his history of tort reform in Texas to the federal level. Although some say support among lawmakers is too weak, Bush could find enough votes in the Republican-controlled Congress to push a cap on product-liability awards into law.
Still, not everyone thinks the trend toward "natural selection" of product-liability cases is all bad.
Although he says no one should be denied their day in court just because they won't make enough money for their lawyers, Price, the Minneapolis attorney, says the current trend reduces frivolous lawsuits.
"It gets rid of the junk stuff which these guys shouldn't be fooling around with anyhow," he says.