The common law has provided predictability in the products liability system for decades. Despite this historically sound conclusion, proponents of legal reform, intent on reducing unnecessary legal costs and using “predictability” as their mantra, have sought ways to alter this landscape through caps on both compensatory and punitive damage awards, abolishing joint liability, eliminating the collateral source rule, limiting a seller’s liability for express warranties or direct negligence, creating comparative fault for product misuse and setting a statute of repose within the ordinary use-life of most products.
While the call for tort reform is a continuing cry by opponents of our civil justice system, the necessity for reform and the scope of reform remains largely debatable. Most legal scholars and courts have resolved the notion that legislation in the area of tort reform can meet constitutional muster — if written correctly and substantively warranted. Analysis does not question whether such legislation can be written, but rather whether such legislation should be written and, if so, where the line should be drawn between legislative tort reform and judicial control of stare decisis.
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