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Wednesday, July 27, 2005

A False Claim We Hope Won't Stick

"I don't have to prove that it causes cancer," an attorney told the Associated Press. "I only have to prove that DuPont lied in a massive attempt to continue selling their product."

So reports Michael Fumento in this excellent report on the latest example of rich lawyers trawling for big corporate pockets to plunder. Fumento notes that two law firms have filed a class action lawsuit against Dupont, Inc., makers of Teflon, for $5 billion. Their claim: that a chemical called perfluorooctanoic acid, which is used in the production of Teflon, is dangerous to humans because it causes cancer in rats when administered in dosages just short of instantaneously poisonous levels.

The purpose of the tort system, of course, is to provide redress to individuals harmed by other persons within the society. And if anyone has truly been harmed by Teflon, they have a right to sue the persons responsible.

As the lawyer's comment above demonstrates, however, the nation's tort system has been perverted into a proxy for the criminal justice system: a means of punishing supposed wrongdoers through the use of a weaker standard of proof—preponderance of the evidence instead of proof beyond a reasonable doubt.

Frankly, abusing the tort system in this way is a crappy, cowardly thing to do.

Any decent judge in a reasonable system would throw such a suit out immediately. Unfortunately, that probably won't happen. Read Mike's account here.


Tlaloc said...

Uh, no. If a company chooses to engage in FRAUD by lying about their products then they absoilutely deserve to be sued up, down, and sideways. How can you possibly see that as an abuse of tort laws?

I'm still amazed that after decades of perjury the tobacco companies are still in business. They should have been completely dismembered and the executives who lied to congress repeatedly jailed. That's how you deal with corporations who endanger people to make money and then lie about it. You destroy them utterly.

Tom Van Dyke said...

Fortunately, since Daubert (1993), junk science and phony experts have much more trouble getting traction in the courtroom.

S. T. Karnick said...

Tlaloc: If a company engages in fraud, that is a criminal activity that should be punished in the criminal courts.

You say that the tobacco execs should have been jailed—which is precisely why they should have been taken to criminal courts. The criminal courts are for punishing wrongdoing; civil courts were set up for compensation for harm done to others, and only for compensation, not punishement. Punishment is a matter for criminal courts.

Kathy Hutchins said...

Daubert is a federal rule of evidence. A lot of states either incorporate federal rules or base their state rules of evidence on the federal ones, but some do not. Here's a paper by Bernstein and Jackson on Daubert-style rules in the states.

Tlaloc said...

"You say that the tobacco execs should have been jailed—which is precisely why they should have been taken to criminal courts."

Indeed they should have, unfortunately it's also well known that the federal criminal court system is extremely light on corporate offenders. Not to mention that the Federal government rarely prosecutes such cases to the extent they warrant. The recent Justice Department cowardice in asking for one tenth the appropriate punishment of tobacco industry is a perfect example.

"The criminal courts are for punishing wrongdoing; civil courts were set up for compensation for harm done to others, and only for compensation, not punishement. Punishment is a matter for criminal courts."

I have to disagree with you there, the civil courts most certainly allow for punitive damages in cases of extreme negligence and I see no reason they should not. Given some of the truly monstrous actions by corporations eager to kill people in order to make money what we need is far more ability to use both tort and criminal cases to bring them to heel. I'm speaking here of companies like WR Grace which knowingly sold asbestos contaminated products and tried to hide it.

S. T. Karnick said...

Then we disagree. Amen.

Tom Van Dyke said...

Thanks for the Daubert update, Kathy.

As a headhunter for lawyers, I know that products liability is still an active field. But my attorney friends do tell me that Daubert did tend to kick out the most egregious stuff.

These twenty-six states have accepted the essential principles of Daubert, either because they were persuaded by the Supreme Court's reasoning or they already adhered to asubstantially similar test: Alaska, Arkansas,Connecticut, Delaware, Georgia, Idaho,Indiana, Iowa, Kentucky, Louisiana, Maine,Massachusetts, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Vermont,West Virginia, and Wyoming.

Tom Van Dyke said...

As to the more substantive point, IMO, there should be far more criminal liability for business executives who knowingly endanger or injure human life. I think the threat of 20-30 years in the slammer would straighten a lot of this out.

This would include the growing problem of unconscionable limits, stalls, and rationing of care as practiced by HMOs. (And the government of Canada, come to think of it...)

James F. Elliott said...

Or Blue Shield. Or Blue Cross... We can go on and on about how the PPOs are just as egregious as the HMOs.

Hunter Baker said...

I like the idea for criminal sanctions for business fraud and abuse of contractual obligations. Cuts out the wealth incentive for trial lawyers and brings police power to bear on bad conduct. I think there may be more room for justice in that.

James F. Elliott said...

I think we can all reasonably agree that the tort system no longer works as intended, and a great deal of class-actions filed at the federal level are done so because of more lax evidentiary standards.

My father, a tort lawyer, holds most other tort lawyers in contempt for this very reason: they do just want the money.

While criminal prosecution for businesses would be wonderful to see, we'll never see it while corporate lobbying and campaign funding are allowed.