The Positive Sum Strategy Harnessing Technology for Economic Growth (1986) / Chapter Skim
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The Bhopalization of American Tort Law
The Bhopalization of American Tort Law
Pages 191-212
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From page 191... ...
New legal arguments have been prepared, tested, honed, and developed on a wide variety of accidents, nonaccidents, illnesses, and cures. Bendectin, Agent Orange, Love Canal, Three Mile Island, the Dalkon Shield, and the pertussis vaccine have all figured in the training.
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From page 192... ...
TORT LAW, OLD AND NEW "Public" risks are perhaps not self-defining. When I use the teen, I mean risks that are centrally produced or mass-produced, broadly distributed, often temporally remote, and largely outside the individual risk bearer's direct understanding and control the hazards of large-scale electric power plants, air transport in jumbo jets, mass-produced vaccines, chemical additives in food, hazardous wastes, and recombinant DNA technology.
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From page 193... ...
a lawyer initiating such litigation may have to notify his "clients" of the very existence of "their" lawsuit. And as the recent Agent Orange settlement is now demonstrating, distributing the damage awards that may be won in such suits can require administrative facilities and technical expertise comparable to those typically available only to a large city or state government.
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From page 194... ...
Powerful forces are pushing, often to receptive audiences in the courts and legislatures, for what has been called a "proportional causation" rule of liability. This would permit me to sue you for my cancer if ~ could show even 1 percent likelihood that your power plant in fact caused it.
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From page 195... ...
And also later and later. We have established, to start with, comprehensive administrative licensing systems for such things as drugs, food additives, nuclear power plants, hazardous waste dumps, aircraft, new chemicals, and the like.
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From page 196... ...
There is still a concept of "ripeness'' in administrative law litigation of this type, but it has grown pathetically weak. Similarly, tort plaintiffs seeking injunctions against what they view as unacceptably risky activities are no longer required to establish that hanns are imminent.
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From page 197... ...
The new tort system, to start with, can sweep into any particular risk controversy large fractions of a community, or the population of a state, or even the population of the country. With asbestos, Agent Orange, the Dalkon Shield, the whooping cough vaccine, and so on, tort lawyers can deal directly with hundreds of defendants and millions of plaintiffs; indirectly, they can affect millions more.
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From page 198... ...
As the Nuclear Regulatory Commission (NRC) has systematically identified, analyzed, and quantified the hazards of nuclear power plants, the plaintiffs' bar has licked its collective chops in anticipation of great meals to come.
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From page 199... ...
To pick one recent and extreme example, the plaintiffs' bar has come close to saving Americans from the `' scourge" of vaccinations because judges and juries (unlike an almost unanimous American medical community) are still undecided about whether the Sabin polio vaccine is preferable to the Salk vaccine, or whether whole-virus pertussis vaccine is preferable to a vaccine prepared from virus extract.
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From page 200... ...
But with diffuse, low-level, public risks, the balance between risk created and risk averted is much more subtle. Anyone can declare with confidence that drunk driving contributes unfavorably to the state of our risk environment.
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From page 201... ...
Kindling the Flames Finally, the new tort law does not offer one useful social function that was certainly provided under the old tort law: resolving fresh, focused, bipolar disputes. Some method must exist for resolving civil controversies, and as a sociological matter it is probably best that ordinary two-person quarrels be resolved by neutral nonexperts and lay junes.
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From page 202... ...
For years state legislatures have seen fit to place liability limits on employee tort recoveries from employers.7 The United States, aloe:, with 130 other governments, has determined that international civil aviation requires liability limits;8 likewise, nuclear power has been thought to require liability-limiting legislation..9 Congress Wanted tort immunity to pharmaceutical companies in order to assure their participation in the swine flu vaccination program; currently, both Congress and the Reagan administration are looking at a proposal to limit manufacturer liability for all types of vaccination. Other activities that have been granted partial or complete tort immunity include cleaning up a hazardous waste dump,~° cleaning up accidental discharges of oil and hazardous substances, participating in "unusually hazardous or nuclear" activities on behalf of the Department of Defense, and participating in the Space Shuttle program.
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From page 203... ...
Institutional Competence The spheres of competence for the courts and the agencies mirror the division between private and public risks. The courts perform adequately in risk regulation when they deal with private risks—focused, high-probability, bilateral hazards that have ripened (or are about to npen)
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From page 204... ...
But industry serves very poorly in this representative capacity, because it has every incentive to claim risk-reducing and other social benefits from its activities whether or not they exist. In contrast, regulatory agencies, such as FDA, EPA, and NRC, can ground their assessment of public risks on a comparison of the hazards of the alternative drug, power plant, or pesticide already on the market Even in the agencies, comparative-risk regulation is not all that it should be.
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From page 205... ...
In short, the settled judicial refusal to defer to agency choices among public risks has spawned a never-ending cycle of truly perverse riskregulatory decisions.26 The FDA's experts may conclude after a careful examination of the substitutes that the Sabin polio vaccine is a better bet than the Salk vaccine, or the NRC may conclude that a nuclear power plant is safer than the available alternatives. But a mass-exposure lawyer and an injured or merely frightened client can effectively overturn the expert judgments by finding what is almost too easy to find: a judge who is of the view that the courts have something useful to offer in these matters, and a sympathetic and well-meanin~ jury.
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From page 206... ...
Requiring—or at least strongly encouraging- the courts to respect the comparative-nsk choices made by competent, expert agencies would inject a first, small measure of rationality into a judicial regulatory system that currently runs quite wild. The Nuclear Regulatory Commission's licensing of a nuclear power plant or reprocessing facility must be viewed for what it is—considerably more, in other words, than a routine and irrelevant pleasantry, to be forgotten as soon as the first tort plaintiff enters He courthouse.
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From page 207... ...
Thus the problems relating to "causation" and the definition of "on-thejob" injures encountered by the present system are not beyond resolution, most especially within an administrative forum that can learn from expenence. And the spillover from worker's compensation to product-liability liiigai~on and other areas can be curtailed, most especially if similar administrative compensation schemes are developed around the boundaries of worker's compensation statutes.
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From page 208... ...
The worker's compensation statutes and the Price-Anderson Act are not anomalies; in an increasing number of areas they are serving, as vital models. Perhaps the major risk in setting up new administrative compensation systems is that they may become the quintessential "deep pocket" targets for nuisance actions and fraudulent claims.
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From page 209... ...
But then, there has been much criticism in the scientific community of the fact that Bendectin and Agent Orange were thought to justify enormous tort settlements, notwithstanding underlying "evidence" of causation that ranged from the tenuous to the entirely fanciful. PUBLIC RISKS AND POLITICAL LEGITIMACY The expansion of tort law into public-risk areas provides a poor vehicle for compensating deserving victims of diffuse hazards, even while it provides some compensation to capriciously chosen, nonvictim members of the public, and a great deal of compensation to systematically self-selected members of the legal profession.
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From page 210... ...
But they are grave liabilities for decision makers who would address and determine Me broadest terms of Me social contract Our choices of "acceptable" public risks and the decisions we make to compensate- or not to compensate for the ha:Tns that may attend risks of this character ultimately must be made in the political arenas. Choices of this character that are made anywhere else will not, in the long term, prove acceptable to a people who have grown accustomed to governing themselves.
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From page 211... ...
1156 (1983) ; Schwartz & Means, The Need for Federal Product Liability and Toxic Tort Legislation: A Current Assessment, 28 Vill.
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From page 212... ...
26. The mo~ning-sickness drug Bendectin, for example, continues to enjoy FDA approval; there is no scientifically credible evidence that Bendectin does anything except what it is supposed to: relieve the misery of morning sickness that can threaten the health of both mother and child.
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