Civil Justice Memo
No. 1 June 1987
by Walter K. Olson
Any attempt to make life safer—as the liability revolution is meant to do—must sooner or later come to grips with one central fact: the only sensible way to address risk is to address comparative risk. Every form of transportation, medical treatment, or food storage involves some risks, and it is worse than useless to do away with one hazard in ways that push society toward more hazardous substitutes. If cyclamates are banned, dieters will use saccharin; if air travel is made overly expensive by safety rules, more vacationers will drive; if nuclear power is blocked, there will be more underground coal mining. In all three cases, the new hazard may be worse than the old.
Courts are very illsuited to conduct these sorts of comparisons, which is one reason liability law has such a high backfire potential. Everyone knows the example of vaccines: companies are getting out of that market even though for most children the risk of going unvaccinated is much greater than that of getting a side effect. Other medical examples abound. Every major form of contraception is under tort attack, including options that are clearly safest for many women—not to mention that pregnancy itself is a hazardous affair. Wary of malpractice suits, many country doctors have stopped delivering babies, so expectant mothers take three-hour drives to the big city hospital; and if they miscarry on the way, there's no one to sue. Condoms are crucial in preventing AIDS, yet not 100 percent foolproof, so what happens the first time someone uses them and catches the virus anyway?
These reflections are prompted by the latest reports of mass-market products under attack in the liability courts: fiberglass insulation and disposable cigarette lighters. In both cases, one hopes courts will ask the Henny Youngman question: "Compared to what?"
Fiberglass, ominously enough, is the leading substitute for asbestos, with which it shares a similar physical structure: fine, inert fibers whose very fineness and inertness is the problem they lodge deep in the lungs, whose tissue cannot dissolve or expel them easily, and sit there as a wick for cigarette smoke and other carcinogens. Such, at least, is the working theory.
But asbestos and fiberglass are archetypal safety materials, and have saved countless lives from flame, heat, and smoke, as well as pneumonia and other diseases of cold (since they insulate against heat loss too). And asbestos was a critical war material in WWII—indeed it was the crash shipbuilding of WWII that has led to the single biggest group of court cases among affected workers. Even had the full hazards of asbestos been apparent then, it surpasses credulity that shipbuilding would have been halted while scientists searched for an alternative.
Yet such an alternative would likely have been fiberglass, which has replaced asbestos in many if not most uses. Fiberglass seems much safer than asbestos—at least its makers haven't started to lose court cases yet—and it has doubtless saved many lives that would have been lost to asbestos diseases. But under today's tort system, fiberglass companies are dead ducks if their product turns out to be even one-tenth as hazardous as the asbestos it replaced. Under such incentives, what prudent company would spend its research funds on, let alone bring to market, the safety materials of tomorrow—knowing that, thirty or forty years later, it could be held responsible for all the residual risk that remains? Unless we are to live in tropical huts, we will always need insulation from the elements; increasingly we may need insulation from our would-be protectors as well. ("Evidence Grows on Possible Link Of Fiberglass and Lung Illness," New York Times, 5/15/87)
Disposable Cigarette Lighters
In the case of Bic lighters, the allegation—again in dispute—is that a few, perhaps one in a million, injure their users by leaking, failing to go out properly, or even, it is claimed, exploding untouched in a sort of spontaneous combustion. One quoted authority believes that the safety problems could be rectified easily with a slight redesign. On the other hand, a successful plaintiff's lawyer suggests that the problem may be with the whole concept of disposable lighters, which, for inevitable economic reasons, are not built of materials as durable as the refillable lighters they have largely replaced.
Supposing the latter to be true, it is quite possible that the tort suits will drive all brands of disposable lighters off the market or at least make them much more expensive. What happens then? Few will quit smoking. Some will go back to refillables, leaving cans of lighter fluid around the house and office. Others will use matches or such homely methods of ignition as crouching over the gas burner. Does anyone really know whether the result will be more fire injuries, fewer, or about the same? Has any court even bothered to ask? ("Lawsuits, and Worry, Mount Over Bic Lighter," New York Times, 4/10/87.)