[Congressional Record Volume 141, Number 64 (Thursday, April 6, 1995)]
[Senate]
[Pages S5300-S5301]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    REPORT OF THE BUREAU OF JUSTICE STATISTICS ON TORT CASE FILINGS

  Mr. GRASSLEY. Mr. President, today I want to discuss a Bureau of 
Justice Statistics special report that is supposed to be released in 
the very near future. I am very disturbed about what I consider to be 
the political manipulation of a Government report.
  This draft report concerns tort cases in State courts. One of the so-
called findings of what is, undoubtedly, a flawed report, is that tort 
case filings have remained steady and that there is no tort litigation 
explosion.
  I believe this document by the Bureau of Justice Statistics was 
clearly prepared for political reasons. This is underscored by the fact 
that the study conveniently omits any study of the cost of torts; it 
omits all Federal liability suits; and it is a scientifically flawed 
telephone-based survey on only a fraction of the counties in the United 
States. In addition, the report does not even address many of the 
important issues regarding tort reform.
  Included in this report are some of the results from a study of tort 
cases in State courts. The study claims that the basis of this report 
is a representative sampling of the courts in which half of all tort 
cases nationwide are adjudicated. I disagree with that, Mr. President.
  First of all, the report only involves 16 States and a total of 75 
counties out of our more than 3,000 counties, but there is nothing 
scientific about their selection. They are simply the 75 most populous 
counties, and even if they were selected randomly, the results would 
not have been much better. Filings are not random occurrences; the 
number of filings in any set of counties cannot possibly represent 
anything but the counties that are being surveyed.
  Worse, this study does not even involve the use of the most 
rudimentary sampling techniques. It relies on only the 75 largest 
counties and further stratified them so that only samples of the data 
in some of the counties were used.
  After reading over this study, you will find that there is a lack of 
rational sampling methodology in selecting which counties would be 
used. There is absolutely no evidence contained in this Bureau of 
Justice Statistics special report that the counties selected are in any 
way representative of the entire United States.
  However, once the counties were selected, only a few of those were 
used to select various kinds of data. The counties were divided into 
four strata, although it is not clear how the strata were defined. In 
the first strata, all 14 counties were selected for the first stage of 
the study; in the second strata, only 12 of 15; in the third, only 10 
of 20; and in the fourth, only 9 of 26. In the second phase, the study 
relied on interval or random samples. It seems unusual to use more than 
one sampling method as they have here.
  In this study, it reads:

       Contrary to the belief that there has been an explosion of 
     tort litigation, tort case filings have remained stable since 
     1986 according to multi-State data.

  Now, there is no rational way to identify whether there has been an 
explosion in tort filings or not from this study, since the data is 
limited to 1990 for the first phase of the study and for a 1-year 
period from mid-1991 to mid-1992. It should also be pointed out that 
the study was based on phone interviews in only 45 of the 75 largest 
counties.
  Now, to determine whether there was an explosion in tort filings, it 
seems to me that you would need to start with data at least as far back 
as 1970, or maybe as late as 1980, and run a longitudinal analysis to 
see what happened. The study simply declares out of thin air that 
``multi-State data'' since 1986 proves that there has not been any such 
explosion. Another concern I had was the fact that no financial data of 
any kind was shown anywhere in the report. Let me stress that again. In 
this whole study of tort liability explosion, there is no financial 
data of any kind involved in the report.
  This means that there is no way to identify the most important of all 
indicators. The report simply omits any discussion of whether the size 
of tort awards had changed over the years.
  Because there are no financial data, there is no way to see if venue 
shopping is real or not. For example, we know that awards in certain 
counties in Texas are extreme. However, you would not know that from 
this report.
  The report also conveniently fails to provide any information on the 
effect of large tort awards on settlements. In other words, one could 
ask, are settlements made more often now without regard to the merits 
of the case because of the threat of an expensive suit? This study does 
not answer that question, and it does not do it, of course, because it 
also conveniently failed to include any data on award amounts.
  Lastly, this report does not limit itself to the torts with which we 
are most concerned, those that affect products, like product liability, 
those that affect premises liability and medical malpractice. It does 
not include any of those. Instead, it includes auto torts, which make 
up more than 60 percent of all tort cases considered. This seems to 
make every other tort look minor, even though auto torts are very 
common. Generally, they are very quickly settled and, generally, they 
involve only one or two parties and relatively small amounts of money. 
By adding auto torts, the average time for the disposition of all torts 
falls to about 19 months, whereas the auto torts average less than 17 
months.
  Yet, all other torts average more like 2 years, involve more parties 
and they involve much larger amounts of money.
  These are just a few of the criticisms that can be leveled at this 
flawed and ill-conceived report. But the more telling criticism has to 
do with the timing of its release. I am concerned about the possible 
political manipulation behind the report. We all know that President 
Clinton, and one of the most powerful special-interest supporters, the 
Trial Lawyers Association, opposes tort reform. Apparently, the 
original plan was to have the report out before the House considered 
tort reform. The goal now seems to be to release it before the Senate 
takes up tort reform. The Bureau of Justice Statistics claims the study 
has been in the system for several years. If this is so and they, 
indeed, had several years to compile this study, why is it so limited 
and so conveniently timed?
  I strongly believe that this document by the Bureau of Justice 
Statistics was clearly prepared for political reasons. Once again, this 
is underscored by the fact that the study conveniently omits any study 
of the cost of tort, no study of the cost of torts. It omits all 
Federal liability suits and is a scientifically flawed telephone-based 
survey of only a fraction of the counties in the United States.
  In addition, the report does not address the real issues, such as 
what effect do large awards have on settlements, and is there extensive 
venue shopping for those counties which consistently make the most 
outrageous awards?
  You could hypothesize about the answers to these questions. That is 
why 
[[Page S5301]] our civil justice system is in need of reform, and 
studies like this, I think, cloud the issue. If this report comes out 
as written, the Justice Department should be embarrassed, the people in 
the Bureau of Justice Statistics should be ashamed that they allowed 
themselves to be used for political purposes, and I hope the Justice 
Department will try to reestablish some credibility and integrity by 
refusing to release this report or at least require it to meet minimum 
scientific standards.
  I also hope and even challenge the media to look into this matter and 
shine some light on the political maneuvering that is going on over at 
the Justice Department.
  The Assistant Attorney General, or Associate Attorney General, Mr. 
Schmidt, will be briefed on this tomorrow. He has an opportunity to 
make sure this study, if it is going to be used as a basis, is done in 
a more scientific and intellectually honest way and, most importantly, 
it seems to me, since this study has been supposedly going on for a 
long period of time, that we do not let it come out at just about this 
time that the Senate is going to discuss the issue of tort reform.
  There has to be the integrity of an agency, as the Justice 
Department, particularly under this Attorney General, seems to have a 
great deal of independence and integrity, to make sure that there is 
not this sort of manipulation that is going to undercut the principal 
approach to running the Department that our Attorney General has 
assumed.
  I hope that my speaking at this point will encourage another look-see 
at this report, and I hope that the report that I have seen will not be 
the one that comes out. I think there are plenty of checks and balances 
within our system to see that it does not, and I hope those checks and 
balances will work in this instance. I yield the floor.


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