The hidden cost of tort deform

General Motors knew that its ignition switches were faulty but allowed people to continue to drive Chevy Cobalts and other cars for years.  To date, 49 of those people have died in crashed related to the defective switches, and many more suffered horrific injuries.

burningcar

However, many families of these innocent victims have not been able to obtain justice.  Many states, including Ohio, place a limit on the amount of compensation injury victims and their families can get under the guise of “tort reform.”  As pointed out in this recent New York Times piece, it simply becomes too expensive to bring a case, in light of what the law allows to be recovered.  Said another way, by the time experts are hired to prove the case, the value of the injuries and suffering is not enough to obtain a successful result.

In fact, Ohio even takes the added step of cutting off the right to bring a case after the product is 10 years old.  This “statute of repose” applies even if it is defective and dangerous and even if the manufacturer knew of the problem.

What does this mean to you:  

No one would dispute that frivoulous lawsuits have no place in our legal system. The dispute is, what constitutes “frivolous” and who gets to decide?  Politicians or a jury of your peers?

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Take a moment and repose yourself

Most people are familiar with a statute of limitations, a law that gives you a certain amount of time to bring a claim starting from the date of the injury.  That makes sense, since you know when you are injured.  A “statute of repose,” on the other hand, is a limitation on the amount of time starting from the date a product is made, whether you have been injured yet or not.

Seeking enlightenment

What makes these laws – such as Ohio’s law – particularly vicious is that they can cut off the ability to file a claim BEFORE THE INJURY HAS EVEN HAPPENED.  One a product had been made – whether that’s a medical device like a hip implant, a smoke detector, or a baby’s high chair – after 10 years, no claims can be made against the manufacturer.

What does this mean to you?

Not surprisingly, Ohio’s statute of repose has been described as “a victory for manufacturers.”  If manufacturers won, who lost?  And by the way, how does this make products safer?

Well that’s good to know

Did you know that 10 years after a product is made, it is no longer dangerous in Ohio?  Few!  What a relief!  I feel much safer now.

Is this some miraculous feat of magic that automatically renders products safe – anything from an industrial punch press in a factory to the toaster in your kitchen – after the specified time of 10 years?

On the contrary, it is merely a feat of legal maneuvering.  The General Assembly passed a law a while back called a statute of repose.  Statutes of repose start the clock ticking for when you can bring a case when the product is made, whether or not you even know of the defect yet.  These are different from statutes of limitations, which only start the clock running once you have been injured or at least know that something is wrong.  Because statutes of repose can cut off your right to bring a case before you even know you have a case, the Ohio Supreme Court struck down the law as unconstitutional.

But, suprisingly, when the General Assembly again passed the same law in 2005, this time the Ohio Supreme Court upheld the statute of repose!  This does nothing to make products safer, protect Ohioans, or encourage manufacturers to design safer products.  In fact, statutes of repose create an incentive to only make products safe for the first 10 years.  After that, no matter how dangerous the design and no matter how bad the manufacture was, the manufacturer is not responsible for any harm caused by their product in Ohio.

So much for extended warranties!

What does this mean to you?

Product liability cases often involve lengthy investigation.  The sooner a lawyer can research the product, the more likely the case will yield a successful result.