Kimberley Hoff 16 Sep 2012 PAR116 Defenses to Intentional Torts From 2002 to 2003, 98,786 negligent and intentional

tort cases were terminated in US federal courts approximately 20% of all federal civil litigation1, a significant portion of the work load for district and circuit courts even though most torts are litigated through state courts only2. Most cases that go to federal court do so because the litigants reside in separate states and most involve citizen versus business complaints or citizen versus citizen complaints. Suits against the US Government or questions of federal law (such as maritime cases) are now a smaller percentage of overall torts. Of the total number of federal tort cases, only 1,647 (about 2%) resulted in bench or jury trials, a decline of 79% in the trial rate since its all-time peak (at 10%) in 19851. In the present day termination by trial is the exception in tort cases and settlement, dismissal, and summary judgment are the rule3. Alternative Dispute Resolution methods have increased proportionately as trials have decreased, in part to avoid the ever-increasing time and expense of the trial process (median length of trial cases was a little less than 2 years1). Approximately 90% of trials dealt with personal injury issues (such as motor vehicle accidents, product liability, marine injury, and medical malpractice), with the remaining 10% dealing with property damage1. The increasing prevalence of product liability litigation is responsible for the general rise in tort caseloads (both trial and non-trial cases) over the past 40 years, rising from almost none in 1970 to the present situation where such cases dominate the system. Asbestos and breast implants were the two products that resulted in the highest volume of tort cases and the eventual consolidation of individual cases into class action suits resulted in sharp annual spikes in termination. Asbestos cases represented one of the first uses of tort law as consumer protection and, like silicone breast implants, are an ur-example of a dangerously negligent product. Almost three-quarters of tort trials were decided by juries rather than by judges, although the default in federal civil court is bench trial unless one of the parties requests a jury4. Plaintiffs were about 10% more likely to prevail in a bench trial case than a jury trial case but received substantially higher median awards from juries than from judges, especially in property damage cases1. This suggests that plaintiffs may often request a jury trial in hopes of increasing the award if they prevail or defendants may often request a jury trial in hopes of increasing their chances of winnng. Plaintiffs were more likely to prevail in asbestos product liability cases or in cases where the defendant was the federal government than in other types of tort trials. The default assumption in US Defendant cases seems to be that the

Cohen, Thomas H. Federal Tort Trials and Verdicts, 2002-03 NCJ 208713, Bureau of Justice Statistics Bulletin, August 2005. 2 NCSC, Examining the Work of State Courts, 2003: A National Perspective from the Court Statistics Project, Williamsburg, VA, and AOUSC, 2002 Annual Report of the Director: Judicial Business of the U.S. Courts, Washington, D.C. 3 AOUSC, Judicial Business of the U.S. Courts, 2002, and Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, Journal of Empirical Legal Studies, 1 (3), 2004, pp. 459-570. 4 Title 28 Federal Rules of Civil Procedure 38.

government is to be held to a higher standard of responsibility than private citizens and is thus generally in the wrong, despite public necessity being a complete defense for property damage tort5. This data suggests that federal tort law is, at the present, deeply intertwined with personal injury and in particular product liability issues with individuals suing businesses for negligence. Few cases go to trial because of the time and expense involved and those that do are usually decided by juries, who are less likely than magistrates to side with the plaintiff but more inclined to award large sums for damages. The largest awards to plaintiffs seem to result from cases like medical malpractice where physical and emotional personal suffering may be most serious and the plaintiffs personal actions are least likely to be implicated.

Defenses to Intentional Torts PowerPoint, Slide 12: