To Err Is…

Although more than 300 personal injury lawsuits have been filed by smokers against cigarette companies since 1954, the companies had not lost until this year. Now three of the six jurors in that case say they were wrong to decide as they did.

They say they were worn down by five days of intense discussions with two other jurors who seemed determined to find the tobacco companies guilty. One of three now having second thoughts, Ralph Eliseo, said, "There are nights I [lie] awake wondering, 'Did I do something wrong that's going to affect mankind for years?'"

Such inconsistency is no surprise to legal experts. Faced with thousands of personal injury claims over asbestos, lawyers for the Johns-Manville Corp. staged a series of trials, presenting the same evidence to several mock juries. Verdicts ranged from no liability at all to huge damage awards.

Is the problem, as lawyers sometimes snicker, that complex cases must be decided by people not even smart enough to get out of jury duty? In his new book, Liability, Peter Huber of the Manhattan Institute argues that most of today's personal injury cases do not belong in court in the first place. Once, the seller of a product would have been liable to a purchaser who got injured only if the bargain between the parties spelled out that liability. In any lawsuit, the question for the jury would simply have been, What were the terms of the contract?

Thanks to radical expansions of tort law by judicial fiat, however, juries are now called upon to renegotiate private contracts after the fact to help one of the parties. A jury can hold the seller of a product liable for the purchaser's injuries—even if there was no negligence involved—if the jury decides that the product wasn't designed or built "safely." Of course, no product is perfectly safe under all conditions and for all uses.

This legal policy, which essentially forces all product makers to sell insurance along with their goods (by increasing the price to cover their risks of liability), is having some unfortunate consequences. It keeps untold products off the market (the "CJ" Jeep, for example, or certain contraceptives declared safe and effective by the FDA), it increases the cost of others (it adds more, for example, to the cost of a football helmet than the cost of making it), and curtails such popular activities as Little League, fireworks displays, and amusement park rides.

Also, the new liability law depends entirely on the inherently unreliable jury system. Huber explains the irony in thinking that people can make decisions in a jury box—about the health risk of smoking, the safety of automobile design, the dangers of various contraceptive devices, and similar topics—that they are incapable of making for themselves in the marketplace. This, he says, is the theory of the "idiot/genius, incapable of dealing with the objects that lay within his own experience, but infinitely capable of errorless flash judgment when it came to the experience of others."