SAFETYLEX

TORT LAW & LEGAL NEWS: LEAD PAINT MANUFACTURERS FOUND LIABLE

Yesterday, a Rhode Island jury found three manufacturers of lead paint liable for creating a public nuisance that continues to harm children living in homes where the paint was used.  The case was first brought by the state's Attorney General in 1999 and in 2002 resulted in a hung jury.  Yesterday's verdict will require the three culpable defendants (a fourth defendant was found not liable) to abate existing lead paint hazards remaining in thousands of homes throughout the state. 

TORT LAW & LEGAL NEWS: NEW YORK'S HIGHEST COURT AFFIRMS RIGHT OF INJURED WORKERS TO RECOVER LOST WAGES

In a decision handed down today, the New York Court of Appeals held that illegal immigrants can recover lost wages when injured or killed by negligent conduct.  (See Newsday story here). The case arose from facts where Goronio Balbuena, an undocumented worker, suffered multiple skull fractures when he fell from height at a construction site in Manhattan.  In the lower court, Mr. Balbuena's employer brought a motion to dismiss claims for lost wages based on the plaintiff's status as an illegal immigrant.  The employer advanced the duplicitous argument that allowing recovery for lost wages would encourage illegal workers to continue seeking jobs in the United States.  The trial court denied the employer's motion.  An intermediary appellate court however held that plaintiff was only entitled to the amount of wages that he could have earned in his native country.  On further appeal, the New York Court of Appeals reinstated the lower court ruling. (Decision here).

HEALTH & SAFETY RIGHTS: APARTHEID VICTIMS SUIT ON APPEAL

Recently, oral arguments were held before the U.S. Court of Appeals, 2^nd Circuit in a lawsuit brought by South African victims of human rights abuses during the apartheid era.  A decision on the appeal is pending.  (The amicus brief of Earth Rights International is available here). In the consolidated actions, three groups of victims filed claims against various multinational corporations under the Alien Tort Claims Act (ATCA) and Torture Victims Protection Act (TVPA), based on violations of international law by the South African government of that era.  Plaintiffs pleaded violations of international law, including forced labor, genocide, torture, sexual assault, unlawful detention, extrajudicial killings, war crimes, and racial discrimination.  Plaintiffs alleged that defendants were linked to the violations of international law by their directly committing violations under color of law, by aiding and abetting the apartheid regime in the commission of violations, and by the corporation’s business activities in the country.  In 2004, the suits were dismissed by the United States District Court, Southern District of New York.  The lower court found that plaintiffs failed to state facts supporting its color of law and aiding abetting allegations and that the corporation’s business activity with the outlaw regime did not violate international law under the ATCA or TVPA. (See In re South African Apartheid Litigation, 346 F.Supp.2d 538).

TORT LAW & LEGAL NEWS: SHIFTING THE COSTS OF UNSAFE CONDUCT

After passage by the consistently compliant Senate Judiciary Committee, the full Senate is considering another Orwellian named bill - the Fairness in Asbestos Injury Resolution Act. As reported by the Houston Chronicle, the bill:

[T]ramples on consumer rights by eliminating many patients' access to the courts; it makes ineligible for damages those who suffered exposure to asbestos in settings outside the workplace; and it mandates an inadequate, privately funded $140 billion compensation mechanism.

Much like the tobacco industry, the asbestos industry long insisted its products were safe and sought to prevent public disclosure of the many harms caused by the product.  In the Hartford Courant, Nancy Rossi, whose husband died at the age of 33 from mesothelioma, observes:

The legislation would end all asbestos litigation against private entities. Except for claims being deliberated right now by a jury and judge, with an imminent decision expected, all claims in the court system - even those that have been waiting on the docket for years and have a court date will be forced to turn instead to this new government-run compensation program. The defendant companies would avoid having to face up to their asbestos liabilities to the victims.

Despite widespread calls for a worldwide ban on the deadly and largely unnecessary product, the bill seeks to bailout the asbestos industry.  Aside from the moral implications (which are immense), the bill grants an economically unwise and inefficient subsidy to the declining industry.  The subsidy is granted by externalizing the social costs of the product. The bill achieves its subsidy by shifting the costs of harm from industries, who have long profited from the manufacture of asbestos, to victims and taxpayers who will be required to pay all costs not covered by inadequate awards and underfunding of the bill’s inadequate compensation scheme. In so doing, the bill effectively taxes citizens to prop-up asbestos manufacturers.  As a result, the costs of manufacturing asbestos are artificially lowered, thereby encouraging overproduction and overuse of the deadly product.

WEBTROLLING: TAXING VICTIMS

As noted in previous posts, federal agencies have been at work seeking ways to shift the social costs of potentially harmful business practices to injured victims and the communities in which they live.  Last month, the U.S. Food and Drug Administration issued a new rule that seeks to preempt (i.e. eliminate) many state court lawsuits against drug manufacturers for inadequate and misleading warnings given with their products.

Not satisfied to curtail citizens’ right to safety when harmed by careless or reckless conduct, the Oklahoma state legislature is considering a bill to limit victim's right to a remedy when intentionally harmed by their employers.  The proposed bill would restrict an exception to the employer’s immunity from lawsuits under state workers compensation laws.  The exception presently allows citizens to seek additional damages through tort lawsuits when they are intentionally harmed by their employer.  Intentional harm is found where the employer knew or should have known with 'substantial certainty' that their conduct would cause injury or death to workers.  Democratic state senator Ben Sherrer’s bill would change the standard of intentional conduct from the ‘substantially certain' standard to a more difficult to prove 'specific intent' standard.

Florida legislators are considering elminating the long-recognized principle of joint and several liability in tort actions.  The bill was reported out of committee last month and is now before the state house of representatives.  The bill eliminates the principle that defendants found to be jointly at fault for a citizen’s injury must pay on behalf of insolvent defendants to ensure full compensation to the injured victim.  Under existing law, defendants who make such payments then typically acquire rights to proceed against nonpaying defendants.

TORT LAW & LEGAL NEWS: BUSINESS NORTH CAROLINA ARTICLE ON TORT REFORM

In a cover story from Business North Carolina, Edward Martin provides a well written piece on calls for restricting tort claims in that state and discusses some of the misinformation generated by proponents.  He writes:

There’s political hay to be made with the issue. In a campaign speech to a women’s business group in Charlotte in 2004, George W. Bush referred to a flood of lawsuits stifling economic growth. Stumping for U.S. Senate candidate Richard Burr, the president vowed that the Winston-Salem Republican would help him rein in “junk lawsuits that are threatening the small-business owner.” ... The number of negligence lawsuits filed in Superior Court has declined since the late 1990s ... A statistician for the N.C. Administrative Office of the Courts says figures for the most volatile battleground — medical malpractice — show the number bobbing up and down since 1998, when 559 lawsuits contained at least one malpractice issue. It peaked at 680 in 2001 but dipped to 616 in 2004. Through November, it stood at 515, unlikely to hit even the 1998 level. General-negligence lawsuits involving such allegations as product defects followed a similar pattern. ... And his claims that doctors are fleeing the state because of malpractice awards don’t hold up under scrutiny .... In Tar Heel courts, businesses — not individuals — sue most often. In the latest fiscal year, ended in June, contract disputes and collection actions, which court officials say are largely filed by businesses, outnumbered general-negligence lawsuits more than 3-to-1. North Carolina Lawyers Weekly reported that five of the 10 largest lawsuit settlements and jury verdicts in the state in 2004 involved businesses suing other businesses. They totaled more than $701 million. The largest — involving three Japanese companies that contended a Burlington reinsurance company had defrauded them — awarded them $400 million.