Christopher J. Robinette, at TortsProf Blog, thoughtfully provided a link to a new paper, in press, by Professor Robert Rabin. The paper is a short romp through the last few decades of toxic tort law. Robert L. Rabin, “Harms from Exposure to Toxic Substances: The Limits of Liability Law,” 38 Pepperdine L. Rev. 101 (2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747907
Having lived and practiced law through the romp, I thought it would make for an interesting read.
Professor Rabin describes the growth and contraction of judicial activism in response to popular enthusiasm for environmental and products liability. As part of historical review, Rabin describes the growth of strict product liability, the advent of medical monitoring, fear, and increased risk damages, and the application of class action procedures to so-called toxic torts.
The story is familiar, but here it is told with enthusiasm for the very idea of liability. Although I may be misreading the piece, Rabin seems to share the popular enthusiasm for liability, and regrets missed opportunities to impose even greater liability. For instance, Rabin tells us that the “signals” sent by mass tort cases involving asbestos, Agent Orange, and Dalkon Shield, were “encouraging,” while the Bendectin litigation was one of the “notable litigation failures.” Id. at 105
The reader is challenged to imagine exactly what Professor Rabin has in mind by his scorecard of successes and failures. Why, for instance, would anyone consider the asbestos litigation encouraging? Asbestos litigation can take credit for dozens of bankruptcies, with the erosion of the country’s industrial manufacturing capability. Jobs have been lost. The asbestos litigation can take further credit for:
- disruption and destruction of insurance markets,
- procedural innovations, such as collusive class actions that sold out future claimants,
- collusive bankruptcies that favored powerfully positioned plaintiffs’ law firms,
- egregious consolidations
- magic jurisdictions known “easy law,”
- special rules for asbestos cases that deprived defendants of their opportunity to prepare defenses
Of course, procedural peculiarities of asbestos litigation pale in comparison with the substantive abuses:
- fraudulent product identification,
- fraudulent diagnoses,
- unlawful and unethical mass screenings,
- diluted causation standards,
- markets for junk medicine
- speculative damages for fear and risk of unrelated diseases
- governmental avoidance of liability for its widespread use of asbestos in shipyards, and elsewhere
A sensible reaction would be to condemn asbestos litigation, and similar enterprises, as grotesque failures, and to cede the control of risks, to the extent they are real, to federal and state police powers. Here, however, Professor Rabin goes to an even farther extreme: he tells us that “regulation has played virtually no role at all in reducing risk and compensating victims.” Id. 113. Rabin tells us that the regulatory failure was “especially evident in the case of asbestos,” which continued to be used in marketed products, and thus “remained unregulated in any meaningful sense, until the toll of death and disease had spiraled entirely out of control.” Id. at 113 & n 62.
Well, most (but not all) regulations of asbestos deal with mitigating risk, actual or potential, and not with providing compensation. So on that score, we can hardly fault EPA, OSHA, CDC, NIOSH, etc., in their handling of health risks from asbestos. The remainder of this assessment is equally difficult to understand. The landmark case of Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cited by Professor Rabin, came one year before asbestos-containing insulation products were banned. To be sure, EPA and OSHA have failed to ban all uses of asbestos, but their failure is driven by a lack of scientific knowledge that extremely low exposures to asbestos, and especially to chrysotile asbestos, are of any moment at all. Asbestosis has become a medical curiosity in the last decade or so. Lung cancer continues of course because men and women continue to smoke tobacco products. Mesothelioma rates have stabilized or decreased, and the orthodoxy that asbestos causes gastrointestinal cancers has been debunked by this country’s Institute of Medicine. Tellingly, Professor Rabin cites no support for his opinion that the failure to regulate low exposures to asbestos played any role in producing a spiral of death and disease.
And why was Bendectin litigation a failure? A new-age style of consolidated trials of multiple claimants in federal court ended in a defense verdict on general causation. Although a few state courts were more hospitable to the plaintiffs’ claims, the Bendectin litigation taught the federal bench and most state courts about the quality and quantity of extremist advocacy on the part of claimants. We owe Havner and Daubert, and a host of lesser known cases to Bendectin litigation. So although much work needs to be done, one of Bendectin’s litigation successes was the education of American courts in the ways of statistical and epidemiologic evidence. Ultimately, the courts put their teeth into standard procedural devices, such as summary judgment and expert witness gatekeeping, to put the Bendectin claims to rest. Before the manufacturer, Merrill Richardson achieved vindication, however, it pulled an efficacious medication from the market, despite the absence of reliable evidence to support the claims that it caused birth defects. Perhaps Rabin suggested that Bendectin was a litigation failure because the litigation process could not shut down the unfounded allegations and claims in time to save a worthwhile medication.
Absent from Professor Rabin’s historical discussion is any mention of the silicone gel breast implant litigation, which took hold with the advocacy of expert witnesses, described by Judge Jack Weinstein as “charlatans,” B. Weinstein, “Preliminary Reflections on Administration of Complex Litigation.” The massive, toxic litigation inspired by silicone led to billions of dollars in settlements before a few courageous judges (including Judge Weinstein) were willing to pay attention to the science in a more discriminating fashion. Also absent from Rabin’s retrospective is any mention of the silica litigation, with its rampant fraud that has led to the defrocking of several physician witnesses. In re Silica Products Liab. Litig., MDL No. 1553, 398 F.Supp. 2d 563 (S.D.Tex. 2005).
In his final analysis, Professor Rabin seems to acknowledge that the enthusiasm of the 1970s and early 1980s had to give way to other institutional goals, values, and considerations. What Rabin does not say, about the abuses and excesses of toxic torts, and the toxic litigation it spawned, however, could fill volumes.
