Nader's Museum

Ralph Nader's Strange New Museum

The consumer advocate has built a tangible counterweight to the claptrap about the evils of tort law.

By  John Culhane

Wow! A tort law museum. I can’t wait to take the family.”

That was the reaction of one Facebook friend—a lawyer, no less—when I proudly announced that I had interviewed Ralph Nader in advance of visiting the brand new American Museum of Tort Law in Winsted, Connecticut, which he cut the ribbon on last weekend after almost two decades of effort. Others were even less enthused, likely imagining a pedantic slog through the history of tort law—you know, the kind of unrelieved tedium that makes the Pennsylvania Lumber Museum seem like the Slingshot.

I had higher hopes. I’ve been teaching Torts (the law of compensation for wrongful inflicted injuries) since the Reagan Administration and the prospect of something, anything that might provide a fresh perspective—and maybe a little fun?—on the subject was welcome. My interest went deeper, too. Knowing something about the exhibits—and about the legendary consumer advocate who’d created the museum—I welcomed a tangible counterweight to the claptrap about the evils of tort law, and how runaway juries and huge damage awards were supposedly crippling businesses, driving doctors out of the business and generally threatening the American way of life.

There was another, weirdly unique, reason for my enthusiasm. While on sabbatical back in 2003, I came up with the idea of writing a graphic novel about the law of torts. At that point, Nader had already floated the idea of a tort museum, and my project was imagined as a tour through it. My illustrator bailed, though, and after struggling through a comix illustration class and barely managing to complete one very bad page, I got distracted and ended up doing a more traditional law review piece. My early attempt at public education about the legal system had failed.

So I’d hoped the AMTL would achieve what I couldn’t. And it pretty much does. By emphasizing cases where the civil justice system led not only to compensation for injured parties, but also to changes in corporate practice that made everyone safer, the museum reveals the truth about tort law—and likely leaves visitors with more sympathy towards it.

That, of course, was Nader’s intent. AMTL is meant, at least in part, to counter the narrative of the so-called “tort reformers.” Nader is puzzled and infuriated by their one-two punch, which has staggered the civil justice system by reducing the number of cases brought, and slashing the recovery of the plaintiffs who remain. Given the deterrent effect baked into tort law, these high barriers to litigation bleed off the incentive to make products, safety protocols and medical practice better.

The first step of the tort reform movement was to demonize trial lawyers (and, amazingly, their injured clients) by depicting the whole lot as greedy collaborators, whose combined efforts drove up costs for everyone else. Next, state legislators took the baton and used it to beat back centuries of progress—setting limits on damages, making it harder to recover against malpractice by doctors and protecting wrongdoers from having to make up losses to injured plaintiffs when other defendants go broke. (They’ve even had some success on the national level, most notably with the Protection of Lawful Commerce in Arms Act, which makes it almost impossible to sue gun sellers, no matter how egregious their practices.) That’s not reform, it’s retrenchment.

In 2009, Patricia Haramyar exhaustively dug into tort claim filings in Oklahoma after substantial new restrictions were put into place, and found across-the-board drops. And the restrictions on recovery for non-economic loss fall particularly hard on cases involving women, the elderly—and, particularly tragically, dead or seriously injured babies.

This turn amazes Nader: “The civil justice system is the most open, refereed public decision-making forum in the world. Everyone else works behind closed doors. A court of law is open to the press. There’s a verbatim transcript, cross-examination, and a trial by jury. There’s even an appeal, in front of the media. And [the trial lawyers] are on the defensive?!”

The AMTL fires back—by chronicling how tort law has made the world a better place. Part of the reason for the museum’s success is the visual pop it achieves with outsized, dramatic illustrations of the cases. This dynamism isn’t surprising considering how Eisterhold Associates, the firm responsible for the National Civil Rights Museum and the Jurassic Park exhibit at Universal Studios, designed the AMTL.

My favorite illustration is the Looney-Tunes-inspired depiction of a nameless tobacco executive, whose mouth is stuffed with soon-to-explode internal industry documents. The life-size panel luridly brings home the value of the personal injury lawsuits that forced the companies to cough up the information they’d been withholding for decades. The documents that were uncovered during the litigation were used by state attorneys general to get Big Tobacco to cough up hundreds of billions of dollars to reimburse states for money they’d spent on dealing with the effects of the products, and to agree to major marketing concessions.

The museum also has fun with cases where there’s no real villainy—just interesting questions about the outer reaches of responsibility, such as the infamous flaming rat case. Joseph Page, a Georgetown law professor and a law school classmate of Nader’s chose the cases to be used in the museum, and this exhibit shows a way forward for torts geeks who want to show how interesting the law can be. (My ten-year-old twins found the rat story compelling bedtime fare.)

The display is even funny—in a twisted, Wile E. Coyote sort of way. (The very name of the case seems Acme-inspired: United Novelty Co. v. Daniels.) A worker was cleaning a coin-operated machine in the defendant’s workplace. He was using gasoline, which ended up igniting a gas heater in the same, small room. What happened next ensured the case’s immortality: A rat had been living under the machine being cleaned. After getting doused with gas, it ran to the heater in what the court wryly called its “disappointing attempt to seek sanctuary,” was thereby set ablaze. Then—stupidly, because it was a rat—the bewildered rodent ran back to the gas-soaked machine. Ka-boom! The worker was fatally burned.

The employer was found responsible for the worker’s death, and the case dramatizes the rule that if a certain kind of injury is foreseeable—death by fire from gasoline—it doesn’t matter that it happened in a very weird, unforeseeable way. The defendant responsible for creating the danger—in this case, by not properly training the worker on how to safely carry out the job—will still be accountable. If this doesn’t interest the kids in the museum’s virtues (and admission is free for children under age 10!), you can either give up, or try bribing them with a tee-shirt bearing the unfortunate rodent’s image. (The tees are a rare light note in a gift shop mostly crammed with dense reading, including a cottage industry’s worth of books lamenting the demise of tort.)

The most provocative exhibit in service of the rehabilitation project is the one on  the infamous McDonald’s coffee case, which is still trotted out—more than twenty years after the event—as the best evidence of tort law gone mad. It’s a great counter to the “frivolous case” narrative, because it takes the case most cited for that meme, and upends it.