GlobalTort : Commentary from lawyers and experts on mass torts, law, insurance and science

Popular wisdom has it that that the types of tort litigation we have in the US are abhorred by the rest of the world. The reality, however, is that the world is changing, as is evidenced by today's news including an article from the Mainiachi Daily News regarding the filing of two new asbestos claims in Korea. The full text is set out below.

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Bereaved families of 2 South Koreans sue firms over asbestos deaths
SEOUL -- The bereaved families of two South Korean residents who died from mesothelioma after living near a factory producing asbestos have filed a damages suit against three parties including Nichias Corp., it has emerged.
In the suit filed at the Busan district court, plaintiffs demanded companies including Tokyo-based Nichias Corp. pay 200 million won (about 14 million yen) each in compensation.
It is the first time that local residents near an asbestos factory have filed a damages suit in South Korea. Local environmentalist groups and former residents near the factory have also joined hands in seeking relief measures.
The plant -- an asbestos spinning factory -- was run by Jeil Asbestos (present-day Jeil E&S), which was jointly established by Nippon Asbestos (forerunner of Nichias) and a South Korean company near Busan city hall in 1971. The plant continued to operate until 1992.
One of the male victims was living 900 meters away from the factory for seven years in the 1980s and subsequently died in 2006 from mesothelioma at age 44. The other victim was living 2.1 kilometers away from the factory for four years during the 1970s and died in 2002 from mesothelioma at age 62.
On Nov. 13 this year, their bereaved families sued Nippon Asbestos and Jeil E&S, as well as the South Korean government for "failing to take measures to improve the factory."
According to the complaint, the plaintiffs claim that Nichias established the joint venture while knowing the toxicity of asbestos but concealed it from the public.
"Nichias moved (its operations) to Busan after regulations against asbestos particulates were strengthened in Japan and it became difficult to produce asbestos in the country. The company now also operates plants in Indonesia and other Third World countries. We want to prevent the spread of pollution exports through the suit," said a representative of a Busan-based environmental group supporting the plaintiffs.
A representative of Nichias said, "We have not received the complaint and have not confirmed the suit. Those involved in the joint venture have already retired and we do not know the details."
In a related development in December last year, the Daegu district court in South Korea ordered Jeil E&S to pay 158 million won in compensation to a female former employee of its Busan factory who died from mesothelioma. The court case has subsequently prompted a series of damages suits against the company by its former employees.
Click here for the original Japanese story
(Mainichi Japan) November 18, 2008

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How should governments and courts decide/define when persons have a condition that should warrant payment of compensation through tort claims or through government agency programs ? The question is relevant in many settings, but the issues I know best relate to asbestos litigation. The question is presently the subject of discussion in a variety of jurisdictions and contexts.

Issues of this sort are under discussion in the UK. There, asbestos-related cancers are increasing significantly, and so are lawsuits seeking damages for the cancers. Paying compensation for cancer is easy to understand in many instances. However, some groups want to go further. Thus, some constituencies are urging the UK government (Britain and Wales, for this purpose) to use legislation to change recent case law so that payments may or will be paid to persons who can be deemed to have a condition known as "pleural plaques." Plaques are marks on a lining outside the lung, and the plaques are markers of past asbestos inhalation, but do not cause any impairment except, perhaps, in unique circumstances.


These issues arise because the House of Lords issued an opinion holding that common law compensation was not payable, concluding in essene that plaques do not constitute an injury. Subsequently, the UK Ministry of Justice issued a 9 July 2008 "Consultation" paper asking for views on whether the UK government should use legislation to allow or facilitate payment of compensation to persons with pleural plaques. The UK Consultation paper is a lengthy document setting out information about the issues, and five possible alternatives for government action, with a cost estimate for each of the five proposals. The government's Consultation paper is available online at: http://www.justice.gov.uk/publications/cp1408.htm.

Many papers were submitted on both sides of the issues, and the collection will be posted here as time permits. For now, I've posted online an image of the paper I submitted in opposition to the two most extreme aspects of the proposals set out in the Consultation paper.

The UK Government is expected to submit a reply to all the papers, and the reply is expected during November 2008.

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Lawyer friends from Europe (Hans-Josef Vogel) and the States (Dan Hull) tell me that many small and mid-sized American companies are not paying enough attention to the vast impact of Europe's new REACH regulations that apply to entities that send or import "substances" into the EU. "Substances" mainly means "chemicals" but is much broader in application since it applies to items such as incense or candles that involve chemical reactions produced by fire. So, in an article just published in Corporate Counsel magazine, I touched on the topic to try to help get the word out for those not yet paying attention to REACH and its important December 1 deadline to "register." The benefit of registering now is that it gives registered companies a chance to save potentially a lot of money down the line by avoiding regulatory hoops and instead being allowed to "piggyback" on information submitted by the large chemical companies and other.

For more specifics, go to the link above for "Hanjo's" law firm and search on REACH (yes, they have English versions), or click on the following link for a summary article explaining REACH and the rules regarding registration. Messrs. Gerhold and Roeder of the firm are the resident experts.

http://www.avocado-law.com/index.php?id=199&tx_ttnews[backPid]=119&tx_ttnews[day]=25&tx_ttnews[month]=10&tx_ttnews[tt_news]=705&tx_ttnews[year]=2007&cHash=97edacf350

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With election day in the US just 2 days away, this is a plea to all to get out and vote on Tuesday, if it's not already done.

This also seems an appropriate time to comment that it seems plain that both politics and tort litigation tend to inspire extreme views, generally to the detriment of society.

Our presidential campaign this year has been marked by ads and extremist emails too often filled with either outright lies or distortions of small nuggets of truth. On top of that come blatantly extreme attacks on each contender's personal life and views. I'll add my voice to the many who are asking for "better" from our politician and parties.



Sad to say, the same is too often true for discussion of tort litigation issues. Extreme views in tort litigation are illustrated by articles built around extreme cases instead of in depth looks at the overall facts. Extreme attacks on individuals are illustrated by comments posted beneath a Wall Street Journal blog post that noted the much too young death of Fred Baron, a very successful but sometimes controversial plaintiff's lawyer who spent decades on asbestos litigation, with his early work shaped and informed by his work related to cases arising from an infamously dirty place commonly known as the Tyler Texas pipe plant. In my view, debate about tort litigation issues also needs "better" than extremism.

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A prior post here noted that Canadian scientists recently criticized the Canadian government for continuing to support global sales of chrysotile asbestos fibers. The industry historically was very valuable for Canada in terms of jobs, taxes and revenues - the mining itself is graphically shown in a wonderful McCord Museum set of online photos of miners and the mines that show abysmal safety practices.


According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.

This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.

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