Department of Justice Study Disproves Tort "Reform" Myths

A report recently released by the Department of Justice?s Bureau of Justice Statistics deflates many of the myths that so-called "tort reformers" use to condemn our civil justice system. The August 2000 report, "Tort Trials and Verdicts in Large Counties, 1996," is the third in a series of reports based on a survey of the 75 largest counties in the United States. Report highlights include the following:

Tort "Reform" Myth: Punitive damages are awarded too often and are too high, resulting in a plaintiff?s lottery tort system.
Study Says: Wrong! Punitive damages are very rare, and when awarded they are small. Punitive damages are only awarded in 3.3% of the tort trials won by plaintiffs. According to the report, the median punitive damage award in 1996 was only $38,000, not the millions awarded in rare but highly publicized cases covered by the media. The likelihood of a punitive damage award varied with the kind of tort alleged. Of the cases studies, only 3 asbestos trials, or 3.2% of asbestos trials, resulted in a punitive damage award, and those plaintiffs received only $1,100 each in punitive damages. Only 3, or 1.1%, of the medical malpractice cases resulted in punitive damage awards. Of the products liability trials (excluding asbestos) studied, only 11, or 12.5%, resulted in punitive damage awards.

Tort "Reform" Myth:
Damage awards are escalating out of control.
Study Says: Wrong! The amounts awarded to plaintiffs for economic, non-economic, and punitive damages are decreasing dramatically. Juries are awarding smaller amounts to winning plaintiffs, particularly in automobile tort cases. Between 1992 and 1996, jury awards declined by 47%, from $57,000 to $30,000. This is strong evidence that juries are being polluted by media reports and the tort "reformers?" message that punitive damages are only a "lottery win" for prevailing plaintiffs. This study shows the need to educate the public, and therefore potential jurors, of the valuable deterrent effect of punitive damages on dangerous and harmful products and conduct.

Tort "Reform" Myth:
Juries get caught up in the emotion of a trial, ignore the law and find for sympathetic plaintiffs.
Study Says: Wrong! The "Runaway Jury" theory is a myth. Judges are more likely than juries to decide in favor of the plaintiff. Plaintiffs win in tort trial cases 48% of the time. Moreover, they are more likely to win tort trials decided by a judge (57%) than a jury (48%). The likelihood of a plaintiff winning varies among the kinds of torts. Generally, plaintiffs fare best with bench trials in premises liability, product liability (excluding asbestos), and medical malpractice cases. In premises liability trials, verdicts are in favor of the plaintiff 52% of the time when decided by a judge, compared to 38% of the time when decided by a jury. Plaintiffs won 63% of automobile tort trials before judges but only 57% before juries. In medical malpractice trials, plaintiffs won 38% of bench verdicts but only 23% of jury verdicts. An even more profound difference is found in product liability torts (excluding asbestos), where plaintiffs win 70% of trials decided by a judge and 31% decided by juries.

Tort "Reform" Myth:
Juries are more likely then judges to award punitive damages.
Study Says: Wrong! In fact, plaintiffs seeking punitive damages fare better with judges than with juries, according to the study. In 1996 tort trials decided by a judge, punitive damages were awarded in 8% of the trials, compared to 3% of jury trials.

Tort "Reform" Myth:
The tort system has been turned into a lottery system favoring plaintiffs.
Study Says: Wrong! Awards -- both compensatory and punitive -- are much smaller than is commonly perceived, whether they are handed out by judges or juries. The median final award to plaintiffs who won their tort trials in 1996 was $31,000 -- far less than the millions awarded in the few cases reported in the popular press. Damages of over $250,000 (including compensatory and punitive damages) were awarded to only 17% of plaintiff winners of all tort trials in the 75 largest counties. Only about 6% were awarded $1 million or more.

Tort "Reform" Myth:
Tort plaintiffs are using the courts to cripple American businesses.
Survey Says: Wrong! Most lawsuits do not involve an individual suing a business. Only 39% of tort claims involved an individual suing a business. Most tort cases, 42%, were individuals suing each other.

Tort Reform Myth:
Product liability and medical malpractice litigation is overloading our courts and federal legislation is needed to stem it.
Survey Says: Wrong! Product liability and medical malpractice litigation is not overloading our courts. Only 11% of tort trials were for medical malpractice and 2.3% were for defective products (not including asbestos cases, which were another 1.8%.) In contrast, automobile accident cases accounted for 49% of all tort trials, with three-fifths of those cases being one individual suing another.

As this Department of Justice report shows, there is no litigation crisis or punitive damage explosion or "runaway jury" problem as tort "reformers" claim. The legal system is actually remarkably restrained and juries are stingier than judges when it comes to financial awards.

To view the Department of Justice report, go to