If you asked a hundred people what they think of when they hear “personal injury lawyer,” how many do you think would say something negative or resort to unflattering stereotypes? I’m not going to sit here and pretend that some lawyers may not fit those stereotypes.
But let’s be honest and conduct a bit of an experiment. Write down what you think of when you think of a personal injury lawyer. Then, read on. When you’re done reading, consider your definition and decide if you’d change it.
My goal here is not some self-congratulatory nonsense or a complaint about how my job is perceived by some. I want people to better understand the nuances of my profession and what it is we do. And why we do it. This is a story filled with irony and maybe a little sarcasm. Also, lots and lots of facts that can’t be ignored.
How Personal Injury Lawyers Have Helped You – A Day in Your Life
Every day, you use products made by large corporations and manufacturers and distributed through a network of transporters, retailers, prescribers, and so on. If that product is mislabeled or dangerous from the source, there’s nothing you can do about it.
Suing the manufacturer may be the answer. However, that was not always an option. Personal injury attorneys helped to shape that legal doctrine in one historic case.
Products Are Safer Because Manufacturers Can Be Held Responsible for Mistakes
The case is Thomas v. Winchester, and it happened a long time ago. How long ago? The case revolved around a woman being prescribed dandelion and nearly dying because she received a bottle of belladonna labeled as dandelion. The year was 1849.
Duty of care is the backbone of liability. If you owe a duty of care to someone, and your breach of that duty leads to an injury, you are responsible for that injury. The issue at hand for the poisoned woman, which had not been brought forth in court before, was: Is the producer of a product liable for negligence even though it had no contract with the injured party? In a shocking decision, the court determined that they could be.
Before that case, a person poisoned, injured, or killed by a manufacturer’s defective product was simply poisoned, injured, or killed, with generally no legal recourse against the manufacturer. They could pursue legal action against a negligent pharmacist or doctor, but the law generally recognized no duty of care for manufacturers up to that point.
The Rise of “Duty of Care” and a New Way of Thinking
It took about 60 years of continuous arguments and ambiguity before that duty of care would solidify in MacPherson v. Buick Motor Co. In that case, a man bought a Buick and was driving it when it collapsed, throwing him from the vehicle and injuring him. The cause was defective wood used in the wheels. Even though the wheel was made by another manufacturer, the court ruled that Buick was responsible for the finished product and owed a duty of care to inspect the product – the more probable the danger, the more caution was required.
Thus, modern product liability law came fully into being. (I never said change was fast, and the law rarely is.) But the Buick case set the stage for legal actions that have kept drivers safer and allowed injured people to collect for injuries received from dangers like Takata airbags that exploded even on light impact, sending shrapnel through the people they were intended to protect. Or faulty Firestone tires that came apart and caused SUVs to crash. Or crash-prone suspension designs in dangerous-at-any-speed Chevrolet Corvairs.3 The list of dangerous and defective products is staggeringly long – and growing.
Cars Are Just the Tip of the Iceberg
But it’s not just car manufacturing defects. Add to that lead paint, leaded gas, and many other non-car dangers.
Even, children’s pajamas were once unsafe before legal intervention. After lawsuits, the government required the pajamas to be made flame resistant for safety – presumably because children catching on fire was a real problem.
The industry answered by treating the garments with a flame retardant chemical. It was later found that the chemical caused cancer through both skin contact and kids “mouthing” the material. The chemical treatment was halted thanks partly to a lawsuit from the Environmental Defense Fund.
So, the fact that your car is safer, your house isn’t full of lead paint (among many other things), the products you buy are accurately labeled on what they contain, and your kids’ pajamas aren’t giving them cancer? Lawyers helped make that happen.
Drugs Are Safer Because Pharmaceutical Makers Must Clearly Label Them and Disclose Side Effects
There are almost too many instances here to mention, but let’s discuss a few catastrophes and how lawyers fought back against them. There is no “biggest case” or “worst offense” – they’re all big, and they’re all bad. For example, let’s take thalidomide.
What seemed like – and was marketed as – a miracle drug was, in truth, deeply flawed. Pregnant women who took thalidomide as a sedative and to curb nausea suffered terrible harm. The side effect of the drug was damage to their unborn children – many of whom did not survive long after birth. And the drug makers didn’t merely ignore the side effects, they barely attempted to discover them. While regulators and companies discussed the effects, people suffered – until lawsuits helped make the situation too costly for the makers. Almost nothing changes company or public policy more readily than litigation.
Many pharmaceuticals have come and gone over the years, and negligence or outright fraud continue to happen. Replacement isn’t simply because a better drug is developed. It’s often because something is wrong. Fen-Phen, Baycol, and Vioxx all come to mind. Let’s zero in on Fen-Phen.
It’s not just one drug, but two. Combining them together appeared to be a magic weight-loss elixir. It wasn’t just widely-prescribed; it was a phenomenon. Millions of people clamored for it, and some doctors – looking to turn a profit quickly – essentially became prescription mills for it. Unfortunately, Fen-Phen’s dark secret was that it could damage the valves of the heart.
Once again, lawsuits from harmed consumers helped create the wave of change, and the damages won from those suits not only offered a measure of justice for victims and punishment for the drug makers, it helped set future precedent and served as a warning to those who would pursue profit while harming others.3
Dangerous drugs being marketed and sold without ample warning to consumers of their side effects are still a problem. Even Zantac is no longer on shelves for a reason, despite being a go-to for two decades. The fight is far from over.
Mind you, the government can fine companies for wrongdoing. The FDA can suggest and press for a recall. Eventually, a drug may even be banned. But victims can often only truly get justice with lawsuits and by forcing companies to pay for the harm they cause.
Only by making their mistakes, failures to disclose, and lackluster testing costly to the makers and sellers can victims and their lawyers try to force companies to edit their behavior.
And everyone is a bit safer for it.
The Environment Is Cleaner Because People Can and Do Sue Over Dangerous Pollution and Contamination
Whether it’s a mining process, manufacturing process, or any other industry, polluting the environment does more than hurt the ozone layer or create smog. It can and has hurt people. The effects can be quick and painful or slow and deadly.
The Erin Brockovich drinking water contamination case comes instantly to mind, but there are many more. There was the Woburn, Massachusetts case against W.R. Grace Co. in 1982. Families sued the company, among others, for contaminating their wells and drinking water with carcinogens. The lawsuit was eventually settled out of court.
The 1989 Exxon-Valdez case comes to mind, as well. Close to 40,000 people sued for compensation after millions of barrels of oil were spilled into Prince William Sound. A jury awarded them millions in actual damages and billions in punitive damages for, among other things, a drunken captain who handed the ship over to a sleep-deprived, unqualified third mate in treacherous waters with a radar system that had been broken for a year or more. Gross negligence, in other words.3
Holding businesses and manufacturers responsible for what they put out into the world makes it better.
That includes not just products, but services. Companies who hire people to be in charge of or responsible for the safety of others can be held liable. That’s why, for example, rideshare services do background checks. Letting someone who has a history of sexual assault pick up potential victims thanks to your app isn’t just a bad look, it is also very likely a breach of a duty of care – all thanks to Thomas v Winchester.
When Environmental Contamination Hits Close to Home, Lawyers Can Fight Back
Even in just the last several years, my firm has been working to seek accountability for disastrous failures by businesses and the government very close to home. We are in litigation regarding water contamination at Camp Lejeune. To have the government aware of dangerously polluted water for decades and do nothing while service members, their families, and civilian workers paid the price with their health is mind-boggling and infuriating.
We’re also deep into a case against Chemours and DuPont over dangerous pollutants in the Cape Fear River – GenX and PFOA, specifically. These chemicals can and have caused cancer and other illnesses to those exposed. That fight continues as well.
The more these cases succeed, the more economically attractive it is for companies (and even governments) to monitor pollution and control and prevent it.
Put another way, when laws do not level ample punishment to correct behavior, a mass tort or class action judgment may do it instead. One thing is certain: The air you breathe and the water you drink are at least a bit cleaner thanks to people fighting pollution and contamination with lawsuits.
Better Living Through Litigation
Our lives are appreciably better thanks to lawyers who challenge individuals, companies, and the government on behalf of their clients. This happens every day. It needs to.
For some of us, it’s not exactly a grind made for the silver screen. We’re dealing with auto accident cases, workers’ compensation cases, and the like, helping regular people try to take back control. Not glamorous, perhaps, but rewarding.
And in our hearts, we know we’re doing the right thing and standing up for someone who might otherwise not get a fair shake. We don’t take cases unless we feel we’re trying to right a wrong or correct an injustice. We’re not laughing maniacally. And we’re not chasing any ambulances. We’re fighting to make someone’s life better. Maybe even yours.
So take a second look at your lawyer definition. Would you change anything?
3 Cases not handled by the Law Offices of James Scott Farrin