Role of litigation in preventing product-related injuries.

Injuries and the law are connected in many important ways. The law can be a powerful tool for reducing the risk of injury (1). Laws can compel certain individual behaviors, such as seatbelt use, and prohibit other behaviors, such as speeding, to protect the safety of us all. Laws can also require product manufacturers to design and market their products in a manner that will reduce the likelihood of injury. Product safety rules are enacted at all levels of government—federal, state, and local. Sometimes these laws, called statutes, are enacted directly by a legislature. Often, however, the details of safe design are delegated to administrative agencies, such as the National Highway Traffic Safety Administration (NHTSA) or the Consumer Product Safety Commission, for promulgation and enforcement. These administrative rulings are referred to as “regulations.” There is a substantial body of literature that evaluates the effectiveness of a variety of product safety statutes and regulations, and often they have been proven effective in controlling the risk of injury (1, 2). Another aspect of the law, litigation, is sometimes seen (inaccurately) as applying only to the aftermath of an injury, when prevention has failed. A primary purpose of litigation is indeed to assess and assign liability for injury causation, and litigation can result in the compensation of the injured party. However, litigation can serve as a powerful tool for prevention as well. It has long been argued that transferring the cost of injuries through litigation, from the damaged person to the person or corporation who could have but did not prevent the injury, creates a motivation to invest in prevention rather than to pay the penalty of neglect (3). The conceptual basis by which litigation, actual or threatened, can foster injury prevention involves the direct link that lawsuits create between faulty products or risky behaviors and the imposition of liability for damages. Civil litigation for private wrongs (much of which is called “tort” litigation), rather than criminal prosecution for wrongs committed against society, has as its primary desired outcome a judgment involving money. For obvious reasons, the desire to avoid paying monetary damages can be a powerful motivation. As William Prosser, one of the leading scholars of tort law, recognized, “. . . there is of course a strong incentive to prevent the occurrence of the harm. . . . Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive” (4, p. 23). There are, however, additional ways in which tort litigation can promote injury prevention. The process of discovery, through which a plaintiff—the person bringing the lawsuit—learns about the conduct and products of the defendant, can reveal information of critical importance to injury prevention. Anecdotal or epidemiologic information developed during discovery can assist in the formulation of prevention strategies. For example, an injury that might seem to be a rare, “freak accident,” such as an incident where a young child suffered severe burns on more than 30 percent of her body when a vaporizer that was called “tip-proof” by its manufacturer overturned, was better understood as a foreseeable and preventable injury when discovery revealed that the manufacturer had information on other children who had suffered similar injuries with this product (5, 6). A redesign of the vaporizer in question was developed and its use compelled by the manufacturer’s insurance company in this case (6). Publicity is another possible outcome of litigation that can reduce the risk of injury. In February 1978, a California jury awarded $125 million to Richard Grimshaw who, at age 13 years, had suffered permanently disfiguring burns when the Ford Pinto (Ford Motor Company, Dearborn, Michigan) in which he was a passenger was engulfed in a postcollision fire