Hope for sanity in product liability?

At a time when juries hand down multibillion-dollar awards as if they were "Employee of the Month" plaques, the real news may be the seemingly rare occasions when courts take the side of common sense. Three such cases in the last month or so offer hope that sanity can be restored to product liability litigation. The first case involved a lawsuit by relatives of Frank White, a California smoker who died of cardiomyopathy, a heart muscle disease, in 1999 at the age of 81. The plaintiffs blamed R.J. Reynolds and Philip Morris, arguing that they had failed to warn White about the risks of smoking and neglected to introduce safer versions of their cigarettes. The tobacco companies noted that White continued to smoke long after he was well aware of the risks. Furthermore, they said, the plaintiffs had not shown that safer cigarettes were feasible or that White would have smoked them if they had been available. In recent years such eminently sensible arguments have not stopped juries, especially on the West Coast, from expressing their hostility toward Big Tobacco in dollar terms. Last fall, for instance, a California jury decided that Philip Morris should pay $28 billion in punitive damages to a smoker with lung cancer. A judge later reduced the award by a factor of 1,000, to a mere $28 million. The judge in the White case, by contrast, acted proactively. On Dec. 31, U.S. District Judge Saundra Armstrong entered a directed verdict in favor of the defendants. In essence, she ruled that, based on the evidence presented by the plaintiffs, no jury could award them damages without flouting the law. A few weeks later, U.S. District Judge Robert Sweet rejected a lawsuit copied right out of the tobacco litigation playbook, involving fat New York teenagers who blamed McDonald's for their obesity. His Jan. 22 opinion echoed, in more polite terms, the general public reaction to the case. "This opinion is guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast-food fare unless consumers are unaware of the dangers of eating such food," Sweet said. "If consumers know the potential ill-health effect of eating at McDonald's, they cannot blame McDonald's if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald's products." The following week, in a decision that got less attention, a Florida judge threw out a verdict against the gun distributor that sold the pistol used by 12-year-old Nathaniel Brazill to kill schoolteacher Barry Grunow in the summer of 2000. Last November a jury found the distributor, Valor Corp., 5 percent responsible for Grunow's death and said it should pay $1.2 million to his widow. But in his Jan. 27 ruling, Palm Beach Circuit Judge Jorge Labarga declared the verdict "fatally inconsistent." Although the jury concluded that the gun was not defective, it faulted Valor for selling the weapon without "feasible safety measures" -- a kind of defect. The jury's confusion is understandable given the counterintuitiveness of product liability law, under which a product can be "defective" even if it works as advertised and expected. In effect, the plaintiffs argued that the gun was defective because it could be stolen by a 12-year-old and used to murder his teacher -- a concept the jurors (who found the gun's owner and the school district mainly responsible for Grunow's death) did not quite buy. One tempting solution suggested by these three cases is to get rid of juries in civil cases. Certainly in the gun case and probably in the tobacco case, bad verdicts would have been the result had the judges not intervened. By contrast, given the widespread ridicule that greeted the fast food lawsuit, McDonald's had a good shot at winning. But in a few years -- after the predictable series of revelations about the industry's targeting of children, disregard for its customers' waistlines, and knowledge of the french fry's addictive properties -- Big Food may start to seem just as sinister to jurors as Big Tobacco. If doing away with juries seems too extreme, surely it's time to change the way they're selected. In his new book "The Rule of Lawyers," excerpted in the January issue of Reason, Walter Olson describes how plaintiffs' attorneys game the system to get malleable jurors. If such manipulation can be curtailed, perhaps common sense in the courtroom will no longer be so remarkable.