AUSTIN, Texas -- Sometimes the ironic timing of events in our public
life is so striking as to cause one to wonder if the Great Scriptwriter
in the Sky isn't trying to make a point. Thus, the word that the U.S.
Senate voted for tort deform last week came just a few days after the
news that seven executives of W.R. Grace and Co. were indicted on
criminal charges for knowingly exposing their workers and the public to asbestos ore.
Hundreds of miners, their family members and townsfolk in Libby,
Mont., have died, and at least 1,200 more are sick from breathing the air
polluted by the mine. Since the ore was shipped all over the country and
was used as insulation in millions of homes, the total health effects
are incalculable. The Seattle Post-Intelligencer deserves credit for
bringing Grace to public attention with a series back in 1999.
The executives and the company were indicted on 10 counts of
conspiracy, knowing endangerment, obstruction of justice and wire fraud.
W.R. Grace & Co. "categorically denies any criminal wrongdoing," said
a spokesman.
The indictments and the P-I's series were based on tens of thousands
of internal communications among the top health, marketing and legal
managers at Grace about how to conceal the danger of asbestos in both the
ore from the Libby mine and the products that were made from it. Their
memos include discussion of how to keep investigators from studying the
health of the miners, how to keep safety warnings off their products
and how to hide the hazards of working with asbestos ore.
A lawyer with a Montana firm that has been trying to help families of
the dead and dying for years said: "The prosecution cannot eliminate
the death and disease in Libby. But there is comfort in the hope that
criminal convictions will say to corporate America: Managers will be held
criminally accountable if they lie and watch workers die."
According to an article in the St. Louis Post-Dispatch, W.R. Grace
filed for Chapter 11 bankruptcy in 2001 because of a "sharply increasing
number of asbestos claims." However, in 2002, the Justice Department
intervened in a bankruptcy proceeding for the first time ever, alleging
that before Grace asked for Chapter 11, it concealed money in new
companies it bought. The Justice Department said it was a "fraudulent
transfer" of money to protect itself from civil suits.
Just before the bankruptcy trial was to begin, Grace returned almost
$1 billion to the bankruptcy court. The company currently has annual
sales of about $2 billion, more than 6,000 employees and operations in
nearly 40 companies.
On Feb. 2, President Bush again referred to "frivolous asbestos
claims."
Against this timely reminder of what the tort system is designed to
deter or punish, the Senate voted for the "Class Action Fairness Act"
(love those cute names they keep giving rotten bills) 72 to 26. There is
no "flood of frivolous lawsuits" -- in fact, tort claims are declining
and only 2 percent of injured people ever sue for compensation to begin
with.
Public Citizen did a study showing that corporations themselves file
four times as many lawsuits as do individuals, and they are penalized
much more often by judges for pursuing frivolous litigation.
"Corporations think America is too litigious only when they are on the receiving
end of a lawsuit," said Joan Claybrook, president of Public Citizen. "But
when they feel aggrieved, businesses are far more likely to take their
beef to court than are consumers."
The administration came up with a weird fix for this nonexistent
problem (so reminiscent of nonexistent WMDs, the "crisis" in Social Security
and other non-problems): It severely limited the right of individuals
to file class-action suits against corporations by moving such cases
from state courts to federal courts.
If the aggregate claim is over $5 million or the defendants and the
plaintiffs are in separate states, the suit goes into the federal system
-- and that definition pretty well encompasses all class-action suits.
And federal judges are less likely to certify a group of aggrieved
consumers as "a class" because such cases often involve conflicting state
laws -- victims of a bad product can live in any state, and the company
that made the product is often in another state.
On top of that, in case you haven't talked to any federal judges
lately, the whole federal system is under-funded and overburdened now. The
net effect is less accountability for corporations that violate health,
safety, consumer and civil rights, and environmental laws. Happy Enron,
WorldCom, Tyco and W.R. Grace to all.
This abominable bill was also much-sought by Republicans for nasty
political reasons, which makes their rhetoric about justice all the more
nauseating. It's a big win for the insurance industry and for big
business, both heavy donors to Republicans. It also strips potential cases
from trial lawyers, a group notoriously given to supporting the
Democrats. How clever of Karl Rove.
Frankly, I think both the trial lawyers and big business can take care
of themselves -- it's the rest of us I worry about.
***
CLARIFICATION: Writing about Social Security last week, I apparently
confused some readers by saying that the money in the private accounts
proposed by President Bush could, in fact, be taken away from you by
means of the "clawback," the reduction of your Social Security benefits in
direct ratio to the "loan" given you by the government plus 3 percent
interest.
It is true, however, that the money in your private account is yours
in the sense that should you be lucky enough to croak before you ever
draw a nickel of Social Security, you can bequeath all the money in your
private account to your heirs. The same is true of whatever is left in
the account after you have been on Social Security for years.
You are the only one who experiences clawback through reduction of the
amount you otherwise would have gotten from Social Security.
Read more in the Molly Ivins archive.
Molly Ivins is the former editor of the liberal monthly The Texas Observer. She is the bestselling author of several books including Who Let the Dogs In?
