The Cooper Firm

Toyota is only the latest example of lethal defects gone unaddressed by
regulators.
By MARK ROBINSON AND KEVIN CALCAGNIE

The alleged need for "tort reform" has become a refrain in American
political life. Yet for all the demonizing of trial lawyers, the
reality is that product-liability litigation has become an ever more
important means of keeping consumers safe.

Case in point: the current Toyota Motor Corp. recalls, with their
attendant revelations of corporate obfuscation. This is only the most
recent situation in which lethal defects have gone uncorrected for
years at least in part because of insufficient government oversight.
In model after model, as we've now learned, car owner complaints were
either minimized or ignored altogether by Toyota and by the regulatory
agencies that were supposed to police the company. In one review of
federal records, the Los Angeles Times found 2,600 complaints of sudden
acceleration from 2000 to 2010 by Toyota and Lexus owners. And
according to CBS, recently released internal company documents indicate
that as far back as 2005 Toyota was tracing its sudden acceleration
problem to its software—not to floor mats.

Yet for nearly a decade, neither Toyota nor federal regulators
aggressively addressed the problem. Toyota is now likely to face a
rising tide of class action lawsuits as consumers look to their
historic fallback: the courts.

Regulation is crucial to the creation of a level playing field for
consumers, particularly in this era of growing corporate power. But
regulation alone has never been enough. Federal agencies such as the
Food and Drug Administration (FDA), the Consumer Product Safety
Commission and the National Highway Traffic Safety Administration have
long been swamped by large work loads. And lobbyists are adept at
weakening and fending off regulations.

The laissez-faire policies of the Bush administration only further
weakened regulatory agencies by cutting funding and personnel, since
such agencies were viewed as an impediment to private-sector growth.
Government watchdogs soon found themselves so overwhelmed and
undermanned that they could scarcely do their jobs.

Consider the FDA. By the mid-2000s, the FDA's caseload extended to more
than 11,000 existing drugs, some 100 new drugs a year, and a breadth of
products from food to vaccines to medical devices that comprise
approximately 25% of all consumer spending.

Resources were stretched so thin that a 2006 report on drug safety by
the Institute of Medicine of the National Academies found that the FDA
simply couldn't ensure the safety of new prescription drugs. The
reasons given? Inadequate funds, cultural and structural problems, and
"unclear and insufficient regulatory authorities."

The FDA is just one example. Until April 2009, federal motor vehicle
safety standards were so weak that many vehicles could comply and still
sustain severe roof collapse from a force equivalent to a 5 mph parking
lot collision. Similarly, drivers and passengers are far too frequently
ejected in rear-end collisions because the minimum standard for
automobile seatback strength is so low that many folding lawn chairs
can pass the test.

The recession threatens to further starve the agencies responsible for
consumer safety, even as the tough economic climate subjects
manufacturers to brutal competition and discourages them from investing
in product safety on their own.

As a result, consumers are increasingly left with the courts not only
to compensate them when the regulatory system fails to protect them,
but also to deter manufacturers from cutting corners in the future.
Product liability lawsuits have played a crucial role in ensuring
public safety, encouraging—and sometimes compelling—manufacturers to
put safety first. A 1988 survey of 264 CEOS of manufacturing companies
found that a third had improved their product lines as a result of the
threat of litigation, 35% had improved product safety, and 47% had
improved warnings to consumers.

At the same time, such lawsuits have provided important assistance to
agencies overseeing product safety. Litigation involving defective
products has increased access by regulators and the public to critical
safety information about particular products. This has resulted in
stronger regulations, safer new products, and the removal of dangerous
products from the market. Just last year, in Wyeth v. Levine, the
Supreme Court noted that state tort suits "can serve as a catalyst" for
regulatory action.

Litigation has not only advanced public safety, but has encouraged
improvement in products almost too numerous to mention: air bags, seat
belts, child safety seats, tires, minivan doors, hot water vaporizers,
children's pajamas, farm machinery, firearms, building materials,
tobacco products, intra-uterine contraceptive devices, tampons,
sleeping pills, anti-depressants, pain medication, appetite
suppressants and many more. Toyota is just another sign of how much
work remains to be done.

Strong product liability laws remain vital to public health and safety—
no matter how passionate the political debate on tort reform.
Mr. Robinson, managing partner at Robinson, Calcagnie & Robinson in
Newport Beach, Calif., has represented plaintiffs in the Ford Pinto,
Vioxx, major tobacco and other cases. Mr. Calcagnie is a senior partner
at the firm.