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The increasing burden imposed by the torts system on corporate and professional America is not, as a matter of substantive tort doctrine, a new phenomenon. We have experienced a steady and continuous expansion of liability for more than 50 years.
During this period, and particularly in the mid-1970s and again in the mid-1980s there were half-hearted attempts through tort reform legislation to reduce the subsidies being imposed on industry. Notwithstanding, the creep of liability has continued, and to a large extent the doctrinal indeterminacy that is now so frequently embraced by the judiciary must be viewed as an enabler or accelerator of this increased liability exposure.
As we enter the second millennium the cumulative effects of pro-plaintiff doctrine and the diminution of the effects of tort reform (and its attendant, positive impact on the jury pool) are being exacerbated by three serious developments. First, novel theories of civil liability (such as claims made under RICO or ERISA) are being successfully layered on top of traditional tort claims. Second, there has been a palpable shift in the strategy of the plaintiffs bar in commandeering public officials and public causes to put a different spin on heretofore private actions; in this regard the impact on the jury pool of adding state attorneys-general, municipalities or (in the case of tobacco litigation) health insurers as co-plaintiffs cannot be underestimated. Finally, and as discussed elsewhere in this book, there are detectable and serious indications of tactical shifts by major plaintiffs law firms. They are better financed, frequently by funds transferred from previous corporate victims, better organized and cognizant of the power of technology to increase their reach.