Criminal Liberty and Civil Liability; J. Orient

Jane M. Orient Criminal Liberty and Civil Liability: Can Free Enterprise Survive? A lame, gray-haired contractor com plains that a lumber company em ployee is dilatory in serving him. The burly young man thereupon shoves his customer down the stairs. The public prosecutor doesn't think it worthwhile to press assault charges, so the culprit remains unpunished. A domestic employee decides on her own to go down to the cellar, and falls on the stairs. She claims she was not warned of some hazardous condition, and the court awards her a hefty sum, with a generous share for her lawyer. A "sting" operation by the Tucson Police Department, costing $60,000, led to the solution of hundreds of Jane M. Orient, M.D., is in the private practice of med icine in Tucson, Arizona. She also is adjunct assis tant professor of internal medicine at the University of Arizona College of Medicine. burglaries and the conviction of 34 offenders. Fifteen were sentenced to prison; a few got short jail terms; thirteen received only probation, possibly with orders to pay restitu tion ranging from $20 to $1871, to talling $5129. 1 A 22-year-old woman suffered and recovered completely from toxic shock syndrome in 1980, the first year in which this disease was widely recognized. A jury awarded her a $10.5 million judgment against Johnson & Johnson, manufacturers of OB tampons, although the only brand implicated in causing a higher risk of this condition was Rely, which was voluntarily withdrawn from the market by Procter & Gamble. The message was supposed to be that companies should "please test their products before marketing them."2 259 260 THE FREEMAN May The exact meaning of this admoni tion was not specified; since the in cidence of the disease is approxi matelyone in 100,000 population per year,3 no economically feasible test would have detected it. The justifi cation for the size of the award was "to slap Johnson & Johnson's hands real good (siC.)."4 Nonproductive Versus Profitable Risks In 1912, Isaac Adler published a treatise on lung cancer, a previously rare disease, in which he speculated that tobacco smoke might be one of the causes. A controlled study in which cigarette smoking was shown to be associated with lung cancer was published in 1939. In 1964, the Sur geon General's report cautioned that cigarette smoking appeared to out weigh all other factors in the causa tion of lung cancer, increasing the risk by a factor of about ten, as well as contributing to other serious health problems. 5 No health benefits have ever been described. No suits are pending against the tobacco growers, but cigarette packages must now carry a warning on the label.

In 1907, the first report to suggest asbestos toxicity appeared, but the magnitude of the problem was not fully appreciated until the 1960s, due to the long latency period before dis eases manifest themselves. Heavy asbestos exposure increases the risk of lung cancer in nonsmokers by a factor of five.6 The material is widely used in construction and shipbuild ing for its insulating and fireproof ing properties. No completely satis factory substitute is available. Synthetic mineral fibers proposed to replace this natural product may not be safe; they have been found to in duce tumors in animals. 7 Lawsuits against companies in volved in any aspect of asbestos use (even just the paperwork) threaten many with bankruptcy. One small firm, which up until 1970 used as bestos in a few of its many insula tion products, faces 13,000 suits. 8 If continued at the present rate, asbes tos litigation will amount to $38 bil lion over the next 15 years, and may force large insurance companies to default, leaving their policyholders without coverage. 9 On the other hand, school districts, which compel children to attend school in build ings in which the decay of sprayed decorative and insulative materials exposes them to the carcinogenic fi bers, are not similarly imperiled. Nor is the U.S. government, which or dered substantial quantities of the material for warships.

Identifying the Agent In a criminal case, the prosecution must demonstrate beyond a reason able doubt that the accused inten tionally committed the act. Motive, means, and opportunity must be shown. So scrupulously are the rights 1983 CRIMINAL LIBERTY AND CIVIL LIABILITY 261 of the defendant protected that if a police officer or the court makes a procedural error, even an obviously guilty prisoner may be released. In a civil court, the defendant lacks the same advantages, and the stan dard of proof is far different. A prop erty owner need have no motive for injuring a guest or employee, nor prospect of benefiting from the mis fortune. Failure to prevent a calam ity caused by the law of gravity and a lapse of attention on the part of the victim may be punished more severely than breaking and enter ing. Entrepreneurs are assumed to have a motive, the seeking of profit. An intention to do harm need not be present. That workers and cus tomers also share in the compensa tory benefits of a product appears to be irrelevant.

To prove that a certain product caused an injury may be straightfor ward in a few cases, such as septic shock resulting from bacterial con tamination of intravenous fluids. However, guilt by association is more usual. Tampons do not directly cause toxic shock, nor do they carry the bacteria that are implicated. Proba bly, they facilitate in some way the growth of a strain of Staphylococcus, which became more prevalent in isolates from surgical wounds and burns around 1960. In 1979 or 1980, this strain underwent a genetic change, increasing its virulence. Men, children, and women who never use tampons can also be afflicted, but tampons were associated in about 85 per cent of the reported cases. The extensive publicity accompanying the discovery (partly sponsored by Proc ter & Gamble), alerted potential vic tims, but also biased researchers. In a criminal case, if a hypnotist suggests to a witness that he might have seen a blue car, subsequent testimony about a blue car must not be admitted. A similar fallacy per vades the epidemiological studies, which rely heavily on human mem ory. A prominent statistician con siders the case against tampons to be still the Scottish one: not proved.10 Evidence linking occupational ex posures to disease is also statistical and largely circumstantial. For ob vious reasons, one cannot do a con trolled experiment, in which some human beings are deliberately ex posed to a suspected toxin, and oth ers not. One must look back on sit uations in which this has already occurred in a "natural" experiment.

Many pitfalls await investigators. Important issues are the selection of an appropriate comparison group, elimination of bias, and proper han dling of confounding factors (such as exposure to other carcinogens, no tably cigarettes). Establishing Responsibility Even if an individual is known to have committed a criminal act, he cannot necessarily be held respons.i262 THE FREEMAN May ble for it. If psychiatrists testify per suasively that the accused was un able to exercise free will, due to mental disease, he must be acquit ted. The criminal is often portrayed as the victim of society, perhaps through having unloving parents, or experiencing poverty or social dis cord. Compelled by his early influ ences, he is not really free to choose. In civil law, it is not necessary to identify an act that directly caused injury. Omissions (negligence) rather than commissions are generally at issue. Presumably, a manufacturer is free to choose what he will make.

One might argue that a worker is free to decline employment, but ap parently his freedom is to be consid ered impaired if he is not fully in formed of all the risks (even if they are not fully known). A court must inevitably try to evaluate risks in retrospect. A worker afflicted with asbestosis would probably say he wouldn't have taken the job if he could have fore seen his present condition. Yet, at the outset, he might have made the same decision if he weighed the risk of lung disease 25 to 30 years in the future against the drawbacks of un employment or the chance of early violent death faced by taxi drivers. Similarly, a woman who complains after her episode of toxic shock might still have elected to use tampons at the point when illness was a slight risk rather than a reality, just as 70 to 75 per cent of women in the most susceptible age group continue to do, despi te the warning message in the box.11 Abilityto Pay Allocating responsibility is a treacherous task, but several prin ciples seem discernible in court de cisions. Ability to pay is a key qual ification for assuming liability.

Although hesitant to demand that lawbreakers take the consequences of actions which they perform, courts readily blame prosperous, well-in sured individuals or corporations for forces over which they have little control. While the adjective "ob scene" may be applied to profits re sulting from useful production, it is not used in the context of profits from being a victim or representing those perceived to be unfortunate. That the producer bears greater responsibility than the consumer, and the owner than the worker, is justified to some extent by the greater knowledge and capability of the former. However, the disproportion is increasing to the point that the producer is supposed to be omni scient, and the "little guy" feeble and stupid. For example, the desiccant in pill bottles is stamped "Do Not Eat," lest someone try to swallow it despite its large size and cylindrical shape. Although owners may be held liable for not warning workers of hazards of which even they were un1983 CRIMINAL LIBERTY AND CIVIL LIABILITY 263 aware, workers and union represen tatives are not imagined to be capa ble of asking a reference librarian or a competent physician for informa tion about the dangers of the workplace.

Who Pays? The costs of crime are borne al most entirely by the victims. The law-abiding citizens may lose their property or even their lives, and yet must also support criminals in prison and pay for the safeguards to their rights. Less obvious is the fact that the penalties for the alleged mis deeds of corporations are also borne by society. Bankruptcy may be most painful for the stockholders who lose their investment (including retired people dependent on pensions), but also means fewer employment op portunities. The costs of litigation and of increased premiums for lia bility insurance must ultimately be paid by customers. An incalculable cost is funds lost to research and de velopment. How much of the legal expenses of Johnson & Johnson will be diverted from its investigations of the Staphylococcus, a widespread and lethal bacterium? Besides the financial impact, a more serious consequence of unlim ited liability for corporations is the prospect of unlimi ted jurisdiction for government. Added to consumers' clamoring for protection is the cor poration's plea for regulation. Compliance with a legislative standard neatly shifts the responsibility for disasters to the government. This dishonorable escape route may pos sibly be justified as self-defense. For who would voluntarily sign such a contract as is implicit in many court decisions: The employee agrees to work for a predetermined sum; but if some misfortune befalls him dur ing his lifetime that might be re lated to the workplace, the corpora tion must pay whatever com pensation pleases the court up to the limit of its assets.

Regulation naturally diminishes choice. The price paid for avoiding responsibility is forfeiting the right to choose. (The converse of this prop osition applies in criminal law: the criminal who cannot choose is not responsible.) Does DiminishedFreedomBuy Security? Loss of liberty might arguably be acceptable if traded for improve ments in safety. Thus far, the inten tions of government agencies have often had the opposite result. Her bert Spencer gives many examples: despite the exertions of the British Shipwreck Committee, the loss of lives and of ships worsened, as ad ministrative expenses multiplied. 12 Since the legal system is designed to attribute blame, its ineptitude in analyzing the cause of problems should· not be surprising. Though oc264 THE FREEMAN May cupational hazards are in the lime light, "lifestyle" factors are of much greater importance. While the federal government pays billions in compensation to coal workers whose minimal x-ray changes of black lung disease do not cause any impairment in lung func tion, the same government pays millions in subsidies to the tobacco industry, whose product does cause 30 per cent of the nation's cancer 13 and most of the disabling chronic lung disease. While the Nuclear Regulatory Commission keeps a rel atively safe nuclear reactor shut down in order to investigate its psy chological impact, power plants which are a hundred times more dangerous substitute for its output.

While being protected by the testing requirements of the Food and Drug Administration, victims of asthma and coronary artery disease have waited a decade for excellent drugs widely used in Europe. Criminal Acts Though regulation and litigation have not been shown to save lives, they do assign taxpaying companies the status of criminals. One small business in Tucson was cited by the Occupational Safety and Health Ad ministration (OSHA) for lacking a covered wastebasket in the restroom used by a single employee. However, OSHA has no jurisdiction over the most common causes of fatal occupational injuries, motor vehicles and firearms. In Maryland, 11 per cent of the work-related deaths were caused by shootings, mostly in hold ups of small businesses and taxi drivers. 14 Our society has frequently been characterized as risk-averse, but the label is not quite precise. Few of the people killed while driving vehicles on the job were wearing seatbelts. 15 People continue to use products known to be hazardous, if they be lieve that pleasure or convenience outweighs the risk. Many proposed remedies have the longterm effect of actually reducing safety, both di rectly and indirectly in discouraging innovation. Are they favored simply through shortsightedness, or do they appeal to a deeper motive?

Courts are reluctant to hold mis creants individually responsible for their deeds. Consumers and workers deny their responsibility for prod ucts or employment they select. If misfortune strikes, whether through carelessness or chance, the primary concern is right to compensation. Those able to pay are presumed to be guilty, in striking contrast to the criminal's presumption of inno cence. Individuals in our society are best described as responsibility averse, rather than risk-averse. In the inevitable difficulties and dangers of life, people have often lost confidence and courage, and turned to authority. Today, they make their 1983 CRIMIN AL LIBERTY AND CIVIL LIABILITY 265 plea to the legislatures and the courts, despite the clearly visible consequences of surrendering their self-reliance, because not just secu rity, but relief from responsibility, is the real goal. In the past, they re ferred their problems to the church, for the same reason. As the Grand Inquisitor understood: "They will be glad to believe our answer, for it will save them from the great anxiety and terrible agony they endure at present in making a free decision for themselves."16 , -FOOTNOTESIMark Turner, "Burglary 'Sting' Yields over 35 Convictions, Praise from Law,"Arizona Daily Star, Dec. 25, 1982, p. 1C.

2Carrie Dolan and Paul Ingrassia, "Toxic Shock Victim Awarded $10.5 Million Injury Verdict Against Johnson & Johnson," Wall Street Journal, Dec. 24, 1982, p. 24. 3Arthur L. Reingold, Nancy T. Hargrett, Kathryn N. Shands, et. al., "Toxic Shock Syn drome Surveillance in the United States, 1980 to 1981," Annals of Internal Medicine, vol. 96, 1982, pp. 875-880. 4Dolan, op. cit. 5Robert S. Fontana, Lung Cancer and Asbes tos Related Pulmonary Disease (Park Ridge, 11linois: American College of Chest Physicians, 1981), pp. 2-5. 6Ibid., pp. 23-27. 7Helen A. Dickie, '~sbestos and Silica: Their Multiple Effects on the Lung," Disease-a-Month, vol. XXVIII, Sept., 1982. 8Laurel Sorenson, ''A Small Firm's Answer to Suits Over Asbestos," Wall Street Journal, Sept. 24, 1982,p. 27. 9W. Keith C. Morgan, "The Adversary Sys tem: Cui Bono?" Annals of Internal Medicine, vol. 97, 1982, pp. 919-921. lOMaryHarvey, Ralph 1. Horwitz, and Alvan R. Feinstein, "Toxic Shock and Tampons: Eval uation of the Epidemiologic Evidence," Journal of the American Medical Association, vol. 248, 1982, pp. 840-846.

11Michael T. Osterholm, Jeffrey P. Davis, Robert W. Gibson, et. al., "Toxic Shock Syn drome: Relation to Catamenial Products, Per sonal Health and Hygiene, and Sexual Prac tices," Annals ofInternal Medicine, vol. 96, 1982, pp. 954-958. 12Herbert Spencer, The Man Versus the State (Indianapolis: Liberty Classics, 1981), p. 95. 130ffice on Smoking and Health, "Smoking and Cancer," Morbidity and Mortality Weekly Report, vol. 31, 1982, pp. 76-80. 14Susan 'Po Baker, Judith S. Samkoff, Russell S. Fisher, et. al., "Fatal Occupational Injuries," Journal of the American Medical Association, vol. 248, 1982, pp. 692-697. 15Ibid. 16Fyodor Dostoyevsky, The Brothers Kara mazov (New York: Modern Library, n.d.), p. 269. IDEAS ON LIBERTY The Abandonment of Responsibility IN proportion as each individual relies upon the helpful vigilance of the State, he learns to abandon to its responsibility the fate and well-being of his fellow-citizens. But the inevitable tendency of such abandonment is to deaden the living force of sympathy, and to render the natural impulse to mutual assistance inactive.

WILHELM VON HUMBOLDT Henry W. Vanderleest Hong Kong's Future Uncertain View of buildings in Central District (foreground) and the Kowloon peninsula from Victoria Peak. THERE is presently much concern among those involved in interna tional trade that the People's Re public of China will decide against renewing Great Britain's lease over Hong Kong when it expires in 1997. A decision by the PRC to reclaim a major portion of Hong Kong will un doubtedly lessen the Crown colony's premier status as a free port and world trading center. Uncertainty surrounding the up coming decision has already shaken the confidence of many Hong Kong business executives and govern mental officials. Economic indica tors, for example, as well as prices Dr. Henry W. Vanderleest is Professor of International Marketing at Ball State University, Muncie, Indiana, and a general partner in a firm of international mar keting consultants.