I actually think you're mostly wrong about that. I don't think we have too much torts litigation. I think we have: 1. not enough and 2. only certain people bring suit..
I don't think I made the case that we have too much. I'd like you to make the case that we have too little, unless by that you're referring to your arguments below that litigation should replace regulation.
The answer to your first problem is insuring against the loss. It's the best we'll ever have. If, as a defendant, your lawyer can't find a way to get the case dismissed or for you to win on summary judgment before it ever gets to trial, your case probably isn't entirely meritless. If it is, I'm sorry for you, really. But I think those case are far more rare than you might think..
My sister is a paralegal who has worked primarily for plaintiffs for 25 years, and my ex-wife is a paralegal who has worked mainly in insurance defense for almost thirty years. Based on the many, many stories I've heard from both of them over the years, I've heard of many cases that, while not exactly frivolous, cost the defendants more than they should have, given the details.
The problem is not that they may eventually win. It's the damage done trying to answer. So, I bring suit. I have enough merit that the case isn't thrown out, yet it is likely I'll lose. The defendant, though in the right, now must suffer, in some cases, losing his business before it can be resolved. No way to make him whole. Yes, he won, but he lost as soon as he was sued. That's what needs to be addressed.
Products liability lawsuits are severely screwed up. I agree with that. I don't know of a good way to reform it. Perhaps one way is to cap punitive damage awards, but punitive damages are very rare. I wouldn't support any cap on compensatory damages. The distortive effects of such a cap on compensation would ruin capitalism forever..
I think the compliance with regulations issue likely would go in the defendant's favor. That's actually one of the reasons I disfavor government regulation and prefer tort liability. Mere compliance with a regulation probably would be enough to win. But it shouldn't be, and society loses as a result. If someone is negligent, they should pay. The problem comes when juries assume and demand an unnecessarily high level of care..
If the solution for anything is that juries must change, the solution is a non-starter. Changing human nature has never and will never work as a solution. Systems must be changed so that the flaws of human nature are minimized.
Lots of drug companies would disagree with you, that regulation saved them.
The drug approval process should be totally eliminated and tort liability substituted for the exact reasons you mention..
It is a myth that we have too much tort litigation in this country. Certain high profile cases have made the tort system look bad in the media, but that doesn't mean that plenty of legitimate plaintiffs haven't been able to prove a case (or never bring one), either. .
I'm not talking about the McDonald's coffee judgement. I know those are rare. I'm talking about bicycle manufacturors getting sued in one instance because they didn't provide reflectors, then in another sued because they did, implying their bikes were meant to be ridden at night, which is inherently unsafe. I'm talking about people being sued for falling off a swingset, which is what this post was about.
A small company can go out of business because of a lawsuit, even if they win a no-judgment.
I should be able to operate in a legal environment where I know if I'm taking chances with liability. That should be established to a certain level, and shouldn't be based on the malice of a plaintiff, and a lawyer's creativity at finding liability.
If you cause economic harm to someone else, you have to pay and there absolutely must be a process for that. A world of no liability means no precaution, and trust me, you don't want to live in that world.
Not a fair statement based on my argument. Suggesting that the system needs to be adjusted is not the same as suggesting that no one have legal recourse for harm.