Shining a Light

09 February 2016

Three of the most important purposes of tort law are:

  • To compensate those who have been wrongly injured;
  • To disclose the acts of wrongdoing that caused or cause harm;
  • To deter wrongdoing in the future.

Many of the exhibits at the American Museum of Tort Law reveal how powerful the second factor – disclosure – is, in exposing wrongdoers, and holding them accountable. This means more than just compensating the injured victim or victims (although that is important, too.) It means that time after time, lawsuits filed against corporations have led to the disclosure of knowing, intentional conduct by the corporate defendants. In other words, people have been injured or killed not by mistake, but as a result of conscious, deliberate decisions.

The list is long – the Ford Pinto, the Asbestos cases, the tobacco litigation; the McDonald’s coffee. In fact, the list is long enough so that you’d think that corporations would learn the lesson: The tort system works very well to expose deliberate acts of wrongdoing; and wrongdoers will be held accountable for hurting or killing people.

And yet despite this, corporations continue this pattern of wrongdoing, followed by concealing, and denying, hoping that the truth will not come out.

Here are two recent examples:

On January 10, 2016, The New York Times Magazine published “Poisoned Ground: Rob Bilott v. DuPont”, which documents one lawyer’s dogged fight – over 16 years – to prove that DuPont had unsafely disposed of a cancer-causing chemical (called PFOA or C8), and then had tried to conceal its knowledge of the terrible health risks that the chemical caused.) It took 16 years, and incredible persistence by the lawyer, Rob Bilott, and his law firm, Taft Stettinius & Hollister, but the truth came out, and it cost DuPont millions of dollars. Why? Why would Dupont put the health, safety and welfare of thousands of people at risk? And then why would it fight, and deny and delay for so long? The cost – both in human life, and to DuPont – was enormous. And worse, this corporate behavior was wrong. Indefensible.

Recently, too, Arthur Bryant and the outstanding civil action group Public Justice took on Remington Arms, and learned that for decades, Remington has known of a defective and unsafe trigger mechanism. There have been at least 130 lawsuits claiming the people had been hurt or killed when the gun fired even though no-one pulled the trigger. Remington publically denied that there was a problem with trigger mechanism, and quietly settled cases brought against it, with the requirement that the records be sealed, to keep others from finding out.

But Public Justice, working with plaintiff’s lawyers who brought a class action, managed to unseal thousands of documents that show that “Remington knew that the rifle was defective, lied about it and covered up the defect.”

As Arthur Bryant states:

We now know that Remington knew about the defect for over 50 years, did not fix it, and denied its existence. When lawsuit after lawsuit after lawsuit was brought, Remington hid the truth. When a lawsuit uncovered some of the truth, Remington settled the case secretly and swore the plaintiffs to secrecy. Incredibly, Remington is still claiming that these rifles are safe – but its own documents show that’s not true and that Remington knows it.

The story, as reported online at Corporate Crime Reporter, is as interesting as it is shocking.

For example, in 2010, CNBC did a story on the dangers associated with the Remington Rifle. In response, Remington spent over two million dollars to produce and broadcast a rebuttal. But, as Bryant stated in the interview, the documents show that

Remington knew that most of the things it was saying in its rebuttal to CNBC weren’t true.For example, Remington claimed that it had never been able to make these guns fire without pulling the trigger and that none of its experts had ever been able to make these guns fire without pulling the trigger. The documents show that isn’t true — and that both Remington and its experts were able to get these guns to fire without a trigger pull.

In short, as Bryant puts it, the documents he and his team obtained

show that, since shortly after this gun was marketed in the 1940s, Remington knew it was defectively designed and could fire without anyone pulling the trigger. As time went on, it knew the gun was firing without a trigger pull and killing and injuring people. But Remington denied there was a problem, fought the lawsuits, looked into possible fixes and refused to implement them. It just kept selling the product and hiding the truth.

Does that seem like responsible corporate behavior? To spend millions of dollars to broadcast something that is entirely misleading? To settle cases, but insist on secrecy, so that others do not learn of the dangerous problem with the product? To fight, rather than to fix?

Fortunately, our system of law – tort law, and trial by jury – are there, to keep watch on the wrongdoers, and so disclose their wrongful acts.

“Arthur Bryant, Rich Barber And the Campaign to Bring Remington to Justice,” Corporate Crime Reporter, January 19, 2016