Sovereigns and Their Roles Related to Commercial Activities Involving Substances that Present Health
Here’s an invitation for readers to guest blog or comment on a question related to mass tort litigation, governments and substances that are extracted and exported despite known health risks and the absence of complete certainty regarding health effects. Feel free to reframe the question, but I see it as:
when, if ever, should government agencies and/or officials be held liable for statements or other actions taken in support of commercial mining, extracting, distributing or manufacturing of substances known to have some health risks. For example, mining , exporting and manufacturing involving chrysotile asbestos fibers.
Obviously various sovereign immnunity doctrines already exist and tend to draw lines between tradtional government activties, discretionary functions, and commercial activities. Those lines and these issues seem to me likely to face renewed scrutiny over the next few years due to increased globalization and explicit government outreach to and involvement in commercial activities with international impacts. For some context for the question, consider this prior post regarding “aiding and abetting” claims asserted against two goverments for assisting the Stanford ponzi scheme. Consider also a recent article regarding Canadian physicians accusing Canadian officials of issuing misleading statements about the absence or presence of health hazards from chrsyotile asbestos fibers. The text pasted below is from this February 12, 2010 article by Michelle Lalonde from the Canadian Gazette.
On hot seat over asbestos
Physicians attack Premier; Damning report rebuts his contention mineral can have benign uses
By MICHELLE LALONDE, The GazetteFebruary 12, 2010
Just as a group of prominent Canadian physicians accuse Premier Jean Charest of lying to the public about asbestos, another damning report on the mineral will be published today in the American Journal of Industrial Medicine.
Charest recently returned from a trade mission in India, where anti-asbestos protesters accused his government of hypocrisy for exporting the cancer-causing mineral to developing countries while removing it from Quebec schools and public buildings because of health concerns.
On the trade mission, the premier was quoted in La Presse as saying “Chrysotile (asbestos) can be used in a safe manner; this is what WHO reports say. It is not a banned substance. It is up to the government of India to put the necessary laws in place.”
In fact, the World Health Organization has said that all types of asbestos, including the type mined in Quebec (chrysotile) cause asbestosis, mesothelioma and cancer of the lung, and recommends against continued use of any form of asbestos. The International Labour Organization adopted a resolution in 2006 urging the elimination of use of all forms of asbestos and of materials containing asbestos.
A group of 14 Canadian physicians, including McGill University’s Abby Lippman and Dick Menzies of the Montreal Chest Institute, sent a letter to Charest yesterday expressing their “shock” at his statements and accusing him of misrepresenting the position of the World Health Organization.
“Premier Charest, you have the right to oppose the WHO position. However, and especially because of the public trust in your position, you do not have the right to misrepresent the WHO position as being what you perhaps wish it were, instead of what it is,” the letter says.
Menzies, a respiratory physician at the Montreal Chest Institute and one of the signatories of the letter, said selling asbestos to countries that clearly lack the resources to enforce workplace safety standards is like selling guns to children. You can say that you warned them about the danger, but it is still morally unacceptable.
“They simply do not have the same workplace safety standards we do here. To argue that it is not a carcinogen is ludicrous. To argue that it’s dangerous, but it is their responsibility to handle it safely is a moral question.”
The physicians have asked for a meeting with the premier on the issue, and also urged him to clarify his statement. Calls by The Gazette to the premier’s office were not returned.
Meanwhile, a report to be published today in the March issue of the American Journal of Industrial Medicine shows the devastating impact Quebec’s asbestos is having on the health of workers in Mexico who come into contact with the mineral.
The researchers looked at 472 Mexican workers, 119 of whom had been found to have pleural mesothelioma, a fatal lung disease. More than 80 per cent of those with the disease had been exposed to asbestos on the job.
“Our results show a clear relationship between industrial use of all types of asbestos and malignant pleural mesothelioma, and in Mexico the major type of asbestos is chrysotile imported from Canada, confirming that asbestos is a carcinogenic agent that has been recognized as such by the IARC (International Agency for Research on Cancer) since 1977,” the report says.
The cost of medical attention for each mesothelioma case during the first year of treatment was estimated at $8,238 U.S.
“The social and economic impact of these diseases and asbestos-related deaths should be absorbed by the industries that have generated the damage and not by the health institutions, as it occurs at present,” the authors conclude.
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