"Reform" measures on products liability and non-economic damages would disproportionately affect the health and safety of women.
American women have been disproportionately injured by dangerous and defective drugs and products, especially those related to reproduction. The anti-miscarriage drug DES, the Dalkon Shield and Copper-7 intrauterine devices, super-absorbent tampons that cause toxic shock, and silicone-gel breast implants are but a few. These legal revisions would make it even harder for women injured by defective drugs and devices to hold wrongdoers accountable.
Statistics reinforce the importance of products liability to women. Investigations conducted by law professor Michael Rustad of Suffolk University in Boston of punitive damage awards in products liability cases between 1963 and 1993 revealed that nearly 70 percent of all women receiving punitive awards were injured by defective drugs or medical devices.
Limits on punitive damages are actually "gender injustice in disguise," Rustad concludes. Rustad, who has studied punitive awards, has found that nearly 50 percent of such awards in products liability cases were made to women who had been injured by drugs or medical devices.
Punitive damage awards are indispensable to women, whose health concerns have been repeatedly neglected by federal agencies such as the Food and Drug Administration. Despite decades of overwhelming evidence of the need to regulate silicone gel breast implants, it was not until 1992 that the FDA took action against the commercial distribution of this product. Were it not for the vigilance of injured consumers in uncovering and publicizing the implant's danger, the FDA might never have addressed this health hazard.
So-called "reformers" assert that non-economic losses are somehow not real and are unworthy of compensation and should therefore be capped, but permanent injuries such as the loss of fertility and gross disfigurement are by no means merely "hurt feelings." The diminution of non-economic damages would have a Draconian effect on women, the very people who have borne the brunt of many of this nation's worst medical travesties. By elevating the importance of economic losses and arbitrarily limiting non-economic losses, such legislation would only duplicate and intensify the existing wage inequities in the market. Only the tort system places proper value upon non-economic losses and warns the medical industry to safeguard our health and safety -- it would be foolhardy to allow legislation that would eliminate this warning.
Don't American women deserve the same legal protections as everyone else? Their right to hold wrongdoers accountable must not be diminished.
Used with permission from The Association of Trial Lawyers of America. All rights reserved.