Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
design analysis of the Third Restatement are designed to encourage. Perhaps the jury’s outrage
arose out of the fact that General Motors seems to have been comparing its private benefits and
costs, rather than the social benefits and costs. What the jury thought precisely we will never
really know.
The second striking piece of the GM fuel tank case was the way it played in the media and
the culture. On July 10, 1999, the New York Times covered the huge jury verdict prominently in
its national page coverage. $4.9 Billion Jury Verdict in G.M. Fuel Tank Case, N.Y. TIMES, Jul.
10, 1999, at A8. A month and a half later the trial judge slashed the damages by over $3 billion,
reducing the punitive damages award from $4.8 billion to $1.09 billion. This time, the story was
covered in a small notice near the back of the Times’s front page. See G. M. Damages Cut by
Over $3 Billion in Gas Tank Case, N.Y. TIMES, Aug. 27, 1999, at A18.
Most readers presumably only saw the first story. Some readers may have noticed the
second. Both groups would have come away with a massively inflated sense of the dollars that
products liability cases transfer from defendants to plaintiffs. Because of course the case did not
end with the trial judge’s reduction of the damages. Four years later, after continuing appellate
litigation, General Motors and the plaintiffs settled.
The details of the settlement were private. But a GM spokesman said the company was
“pleased with the settlement.” This time, the story did not appear at all in the New York Times.
The Los Angeles Times covered the story in a short unsigned notice along with assorted A.P. wire
reports in its local coverage. See GM to Settle Case over Gas Tank Explosion, L.A. TIMES, Jul.
25, 2003, at 4.
What’s the lesson? First, settlement is pervasive, even after entry of an ostensible
judgment by a jury and trial judge, and these settlements are almost invariably private and
confidential. Second, news coverage of tort law systematically distorts the way tort law works.
It’s hard to blame any one newspaper. Newspapers barely survive these days anyway, and the
first story in the sequence is as interesting as the last one is boring. Nevertheless, the picture in
the press of how tort works badly misrepresents the actual system, and usually in the direction of
exaggerating the size and frequency of plaintiff-friendly verdicts. On this theme, see WILLIAM
HARTORN & MICHAEL MCCANN, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION
CRISIS (2004).
4. Warning Defects
As the Third Restatement indicates, there is a third category of product defect cases—one
that is beyond manufacturing and design defects, though some say it resembles design defect
cases. This third category involves cases of allegedly defective warnings. In recent years,
warnings cases have become hotly controversial. The basic problem is that viewed either ex post
(with the Second Restatement) or ex ante (with the Third), warnings are exceedingly inexpensive
to adopt. Failure to adopt a warning can therefore often seem to have been negligent if the
warning would have prevented even a modest number of injuries. On the other hand, warning
proliferation threatens to desensitize product users or perhaps risks overwhelming their cognitive
capacities.
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