Compassion by Consent
THE MOST POWERFUL agent of change in tort law has always been sympathy. The case for the new tort jurisprudence begins and ends with a heartrending catalogue of tragedy.
This, for example, about an asbestos worker: "He went through all kinds of tests at the hospital, and then another doctor operated on him and sewed him right up, and told me that he had just two months to live. . . . Each day he ate less and lived for the hypos to kill the pain. . . . He tried to get well. He loved life and he wanted to live for me and the kids. He laid down and when his last breath went out, he called me and said, 'Honey, I'm dying.' Then he died." Or this about a user of the Dalkon Shield: "Mary was first fitted with a Shield in February 1972, when she was eighteen. She began having dangerous, extremely painful, and recurring pelvic infections within a few months. . . . After seven terrible years of misdiagnosis and illness she was finally deprived of her ability ever to bear a child." Or this about a child who fell sick after being vaccinated against whooping cough: "My husband and I both remember the agony Steven was in after his DPT shots. . . . I just held him in my arms while he was screaming. I'd call the clinic and say, 'He is really sick,' and all they would tell me was to give him more Tylenol."
Of course the Founders did not at all expect the system to run on the fuel of raw emotion. For the most part their approach was coolly analytic