The Increasing Intersection of Criminal Law and Tort Law

Posted on May 30, 2008 by Kirk Hartley

A significant topic for at least the next decade will be the interesection of criminal law, tort law and civil law (including the law on punitive damages). The issue is growing in prominence for many reasons, including new UK legislation on corporate manslaugher and U.S. Senate hearings held a couple of years ago on possible new criminal law legislation in the US for product liability claims. The topic will be covered here in more detail in future articles.

For now, however, a recent news article makes the general point as it describes the manslaughter indictment of a Connecticut area swimming pool contractor (that is, a seller of a service and a seller of component products) for a child's drowning death said to arise from failure to install a mandatory drain cover.

Is the indictment fair or "right?" Various people can and will argue a range of positions on that topic. One interesting and arguably well-informed view is set out in the the May 1, 2008 American Lawyer interview of Robert Bennett. Mr. Bennett, of Skadden Arps, was interviewed in connection with his autobiographical new book about his work as a white-collar defense lawyer, which included working for the Seante Ethics Commitee in prosecuting the Keating 5 and defending numerous cases for corporate America. Bennett expressed the view that indeed criminal law sanctions can and do change corporate behavior. He is quoted as having said:

R: You write that you are shocked by the rise in white-collar prosecutions. Why do you think it's happening? Are corporations more corrupt? Have prosecutors gotten bolder?

B: I don't think that companies have gotten more corrupt. I think it's more the approach taken by law enforcement. Years ago, when I was a federal prosecutor, a lot of these corporate issues were handled by regulatory agencies. Now, law enforcement is trying to reform how business is done. There is probably less corruption today because of the government's aggressive approach. [Corporate executives] know it's not just a matter of paying fines anymore.
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Reduced Ability to File in Eastern District of TX?

Posted on May 23, 2008 by Steve Sellick

Apparently Volskwagen has challenged the ability of judges in Marshall TX to refuse to transfer a case out of that jurisdiction. Though the case is not asbestos-related (it's a product liability case for allegedly faulty car seats) it may have a broader impact on cases in what has been referred to as Texas's "Rocket Docket."

See WSJ Law Blog

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Nanotube technology causes asbestos-like lung diseases?

Posted on May 21, 2008 by Steve Sellick

The NY Times has a great opening paragraph on this:

"Nanotubes, one of the wonder materials of the new age of nanotechnology, may carry a health risk similar to that of asbestos, a wonder material of an earlier age that turned into a scourge after decades of use when its fibers were found to cause lung disease ..."

Full article:

NY Times - Health Risks from Nanotubes

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Medical Malpractice Crisis - Yes or No ?

Posted on May 19, 2008 by Kirk Hartley

The "medical malpractice" crisis has received much press. Over the last few years, more data has started to emerge that allows some testing of the arguments.

Two recent articles are interesting and suggest that some of the draconion "tort reform" efforts may be too much. One is a a Suffolk University article on May 13, 2008 that reports a study on malpractice cases in Massachusetts. It suggest that the "medical malpractice crisis" is overblown. Another is a May 18, 2008 New York Times article by Kevin Sack that reports favorable results for hospitals and doctors who disclose errors and offer to settle, at reasonable numbers.

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Japanese Asbestos Litigation Ramps Up - Suit by 178 Plaintiffs Names 46 Companies and Government as Defendants

Posted on May 18, 2008 by Kirk Hartley

Asbestos litigation is ramping up in Japan. The English language version of a Japanese newspaper article reports that a lawsuit was filed in Japan late last week on behalf of 178 contruction workers (or their heirs) against 46 building products companies and agencies of the Japanese government. The article does not identify the defendants, or the lawyers. The articel also says that "About 40 construction workers from Kanagawa Prefecture will also file a similar suit at the Yokohama District Court in June."A parallel article on Wikinews adds some quotes from workers, but not much more.Surprisingly, the website of the International Ban Asbestos Secretariat does not yet include an article on the topic. That may well change.

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The Next "Asbestos" - Dust from Mammoth Tusks !

Posted on May 15, 2008 by Kirk Hartley
In Yakutsk, Russia, "the next asbestos" has been identified - it's dust generated from artisans carving up the mammoth tusks that are estimated to more or less litter the tundra at a rate of 600 skeletons per kilometer. Really ! See the May 13, 2008 Chicago Tribune article by Alex Rodriguez.

So, how is this "the next asbestos"? It turns out that tusk carvers use mechanical grinding tools and generate lots of dust, but do not want to wear masks. According to the article:

"At his workshop, the whir of grinding tools fills a second-floor room where 16 Yakut artisans painstakingly carve chunks of tusk into everything from figurines of bears and tigers to hilts for decorative daggers and swords. Mammoth tusk dust hangs heavy in the air, an occupational hazard that Petrov says he compensates for with a $130 bonus tacked onto the workers' $520 monthly salaries."

Now you see the linkage - a developing industry with workers anxious for jobs, and extra pay offered to work with a hazardous substance. And, the corporate CEO is aware of "the hazard" but thinks he is doing the right thing by paying a 25% bonus for "assuming the risk." But of course no one really knows the full extent of the risk. So, what happens in x years when some but not all of the artisans contract mammothosis or, worse yet, a malignant tumor linked mainly to working with mammoth dust, with cigarette smokers suffering the tumors at a 10X higher rate.

Mammoth dust, of course, is not really going to be the "next asbestos." The facts from the article, however, sound very much like the testimony one can hear from factory employees who worked in dusty factories, including people who worked even after OSHA took effect in 1971. The issues also take on new vitality because asbestos uses is spiraling upward in Asia and the former Russia, and the media has finally caught up to the fact that carbon nanoparticles appear to raise tumor risks akin to amphibole asbestos fibers. 

The policy question it seems is: what can/should/might societies  do to try to avoid future deaths, economic losses, societal losses, and litigation from hazardous materials ? Is an OSHA "top down command and control" regulation the only/best answer, along with less than extravagant workers compensation payments? Or, should the payments be raised to higher levels that are more actually likely to satisfy the injured and their families? Should the owner be offered some kind of creative new economic "Nudge" to keep the employees safe, as might argued by Messrs. Sunstein and Thaler in their wonderful book: Nudge, Improving Decisions About Health, Wealth, and Happiness. Or, should a present economic "Nudge" go directly to the employees? Or do we wait for and allow repetitive lawsuits against tusk finders/sellers who "knew or should have known of the "dangers of mammoth dust," and then fault the lawyers who bring the lawsuits for imposing a "tort tax" on society.



Issues of this sort abound,and in my view, receive too little attention in the "tort reform" fights.  Other issues arise because insurance is not what it used to be, which is a problem since one of the rationales for some product liability rules is that risk can be spread through insurance. In reality, however, insurers seek to exclude long-tail risks. Thus, asbestos exclusions and pollution exclusions were added to CGL policies in the 1970s and 1980s. Mold became an issue later and also is subject to exclusions. Business Insurance commented recently that such exclusions may encourage "little guys" to try to hide problems instead of fixing them, but ultimately some lawyers will come along and take everything when some people actually do become really ill. 

There is much room here for innovative thinking on all sides of the many issues. 


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Asbestos Pictures - Great McCord Museum Collection of Photos and Text on Canadian Asbestos Mining Circa 1890s -1930s

Posted on May 2, 2008 by Kirk Hartley


It's a long story as to why, but I stumbled across some online and historic pictures of asbestos-mining and processing. The collection is presented by the McCord Museum of Montreal, which looks to be quite an interesting place. Its online presentations include a great collection of photographs and text showing asbestos mining in Canada starting in the late 1800s and moving up through the 193os or so. The photos of the steps in processing the ore are especially interesting as they show clouds of fibers, and lots of work being done by women and children. The website has several very nice tools to view the photos as a film or individually, including a zoom feature. The presentation is well worth viewing simply as a history lesson even if you are not involved in asbestos litigation.
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