Tuesday, February 3, 2009

Weasels and Litigation

Weasels. Or, perhaps more appropriately, weasel-like behaviors on the part of humans who should know better is the reason why we need litigation. One of the lead stories in today's New York Times contains the information that the FDA had to seek permission from the Peanut Corporation of America in order to issue a recall of products known to contain Salmonella after a severe outbreak resulting in multiple deaths occurred in users. From information already available we know that officials at this Georgia-based company knew that their products were contaminated before they were shipped for human consumption. Now let me ask you a question; suppose that you were head of the FDA and knew that there was such a company shipping contaminated products, such as peanut butter eaten by most of the kids in the United States nearly every day, would you meekly approach that company and ask them if it is all right if you could send a recall notice to sellers of these products?

The answer to this question needs to be considered in the context of the role of litigation in our society in performing the vital conservative function of holding people and corporations responsible for their behaviors, including criminal wrongdoing. Big business, including the insurance and drug industries, have paid politicians and judges enough campaign money over the past twenty years in the conduct of a war on litigation that can best be characterized by their mantra 'nuisance lawsuits.' The public mind set, including brainwashed jurors, has been that every lawsuit brought is a nuisance lawsuit and that it is unfair to hold a giant corporation responsible for their conduct if the FDA said what they are doing is all right. The net result of this effort is that we now have a system that, by and large, says if the FDA has approved the marketing of drugs, medical devices and foods, this means that these substances are safe (unless, as in the present situation, the FDA is able to get a company to agree that there product may not be safe).

In the hours and days that passed while the FDA and the Peanut Company of America negotiated the language in the recall statement, how many children were killed? How many elderly people died? This is not the first and only time that this type of event has occurred. The list of catastrophes gone unpunished caused by the negligence and/or criminal behavior of the large industries in our society because they were protected by hiding behind the skirts of the FDA and bought judges and legislators would fill a note book, several note books.

The solution is simple; allow people hurt by a product to hold the manufacturer of that product responsible. I once represented a young man pro bono who was fired from his mid-level county government job because his hobby was writing letters to the editor of the local newspaper about the shenanigans of various elected county officials. The language of the appellate judge who reinstated this man to his job has stayed with me all these years because of the principle it supports; "If this is the way that [this county] treats letter writers, then we need more letter writers, not less." The analogy to the present discussion is apt; we need more litigation, not less, to restore the proper balance to our society. At the present time, the baby has been thrown out with the bath water.

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