New Report Claiming Connection Between Cutting Legal Rights and Accidental Deaths Relies on Junk Science

Oct. 12, 2005

New Report Claiming Connection Between Cutting Legal Rights and Accidental Deaths Relies on Junk Science

Emory University Researchers Say Tort Law Restrictions Affect Product Safety; But if a Student Wrote This Paper, It Would Get an “F”

WASHINGTON, D.C. – A new research report, purporting to show that curtailing citizen access to justice in the courts for wrongful deaths and injuries has saved thousands of lives, is rife with errors and no more than junk science, says Public Citizen.

The report, “Tort Reform and Accidental Deaths,” by Emory University faculty members Paul H. Rubin and Joanna M. Shepherd, claims that tort law changes restricting citizens’ legal rights led to an estimated 14,222 fewer accidental deaths between 1981 and 2000. The study claims this is because restrictions cut liability costs for businesses, which can then sell safer products and services to the public. But the underlying premise is highly questionable: that liability costs force businesses to stop supplying goods and services, which thereby increases the risk of accidents because safer products and services that would have been sold are no longer available.

“There are so many problems with this work it would take pages just to list them,” said Joan Claybrook, Public Citizen president. “It is riddled with unsubstantiated assertions and there are problems with the researchers’ beginning assumptions, the data they used, how they used it, how they interpreted the results and more.”

In Congress and in state legislatures across the country, corporate and insurance interests have been working incessantly to undermine citizen access to the courts. “This new work is especially unfortunate, because it carries the otherwise credible imprimatur of a well-known university. With that, special interests are sure to seize upon it as a way to bolster their self-interested cause to avoid responsibility for harm they cause,” said Frank Clemente, director of Public Citizen’s Congress Watch division.

A detailed explanation of the report’s shortcomings is available at https://www.citizen.org/congress/accidents. Highlights of the many flaws in the work include:

  • The fundamental premise makes no sense: The study focuses on accidental deaths, but many accidental deaths have no connection to tort litigation because they are not caused by a product or service. Thus, the study’s claim that accidental deaths are a function of the presence or absence of tort law restrictions – on the theory that restricting the ability to sue leads to greater use of safer products and services – breaks down. By resting its analysis on the availability of safer products and services, but then failing to discriminate according to whether deaths were actually caused by use of a product or service, the study is defective. Moreover, the study omits motor vehicle deaths. The authors claim this wouldn’t change the outcome. However, motor vehicle deaths dwarf the largest category in the study and are the subject of a substantial number of tort claims.

 

  • Relying on an implausible occurrence: The study relies heavily on changes in the accidental death rate in the first year following enactment of tort law restrictions. Even assuming there is an effect, it is unreasonable to expect tort law changes to have an impact so quickly, because, for starters, the legal system itself simply doesn’t react that quickly. Tort trials – which produce the largest liability awards and expenses – typically take about two years to go from filing to final verdict or judgment. For medical malpractice – one of the most hotly contested areas in tort litigation – it often takes more than five years for a case producing a damage award to progress through the system. Moreover, once the purported effect has played out in the legal system, there must be further adaptations in the world of commerce, according to the study. All this makes it highly unlikely the cycle of change can be accomplished in a single year, as the study claims.

 

  • The source data may be wrong: The most important data in the study – accidental deaths – is based on information from the WISQARS database of the Centers for Disease Control and Prevention’s National Center for Injury Prevention and Control for the period 1981 to 2002. But there is a potentially significant problem with this data, which the study fails to take into account. Beginning in 1999, the center’s mortality data were coded using a new classification system. As a result, the NationalCenterfor Health Statistics urges caution in the type of analysis employed by this study. The study includes no discussion of this limitation, nor any efforts to cure this potential problem with its most crucial variable. The type of classification is important because similar events could end up being recorded differently under each system.

 

  • There have been major, unexplained changes in the accidental death data: When research covers an extended period, it’s important to examine whether underlying dynamics of what’s being studied have changed over the period. If there has been a significant change, conclusions are suspect. In this case, the underlying nature of accidental deaths has changed substantially over the study period, as formerly leading causes of accidental death have been overtaken by causes that were less frequent in earlier years. For example, unintentional poisonings rose from 9 percent of accidental deaths to 28 percent, an increase of 213 percent. Other categories fell. The study took no account of these shifts, or if it did, it does not provide any discussion or explanation. Further, some of these types of deaths reflected in large shifts are rarely the subject of lawsuits.

 

  • Important possible explanations for the results observed have been omitted: While the study includes some variables, there is no discussion or inclusion of others that could be important. Other possible variables, none of which were discussed in the study, include: overall product safety; product safety enforcement/regulation that results in a reduction or increase in deaths; level of safety education/awareness; the magnitude of any reduction in liability costs attributable to tort law restrictions, rather than simply the mere presence of such changes; and measures addressing the major types of accidental death, e.g. poisoning, suffocation, drowning, etc.

There is no single flaw in the work, Clemente said. Instead, the paper is infused with error at nearly every turn. “This work has every earmark of being dogma cloaked in academic respectability,” he said. “The only other explanation is that it’s ludicrously incompetent.”

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