This Article is an inquiry into the gendered nature of tort remedies. Modem tort law provides increased protection for injuries suffered by women. Drawing upon a national study of punitive damages in products liability and medical malpractice, Professors Koenig and Rustad argue that tort remedies are bifurcated into "his" and "her" tort worlds based upon gender roles. Nearly half of the punitive damages verdicts awarded to women stemmed from injuries caused by household consumer products and dangerously defective drugs or medical devices. In contrast, the punitive damages awarded to males arose from accidents involving industrial and farm machinery, asbestos, chemicals, containers, and vehicles. Two out of three plaintiffs receiving punitive damages awards in medical malpractice litigation are women. Women employ this remedy primarily to obtain redress for mismanaged child birth, cosmetic surgery, sexual abuse, and neglect in nursing homes—gender-based injuries. Women are also far more likely than men to be awarded noneconomic damages in medical products liability litigation. Consequently, proposed restrictions on non-economic damages and the Food and Drug Administration defense to punitive damages will have a disparate impact on women's mass tort remedies. Similarly, limitations on medical malpractice remedies will disproportionately restrict pain and suffering awards as well as punitive damages to women. Without systematic analysis of the distinctive ways that tort law relates to gender, women's voices will not be heard in the tort reform debate.
Thomas Koenig & Michael Rustad,
His and Her Tort Reform: Gender Injustice in Disguise,
70 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol70/iss1/2