Asian Nations Experimenting with Jury Trials in Criminal Cases

Perspective matters. In the US, we hear a fairly steady stream of criticism of civil and criminal juries. It's interesting, then, that in some Asian nations, they are experimenting with implementing jury trials as perhaps desirable legal system changes. In general, the proponents argue that juries serve as a bulwark against the government and allow expression of the views of the "common man." The critics generally complain that juries are too unpredictable and do not understand complex issues.

For specifics, the NYT has a July 18, 2008 article about recent high-speed jury trials in criminal cases in South Korea. The International Herald Tribune also has published an article about the jury trial experiments in Korea, Japan and elsewhere. Likewise, a recent article on Law.com described US lawyers traveling to Japan to consult with Japanese lawyers in light of Japan's experimentation with jury trials for serious criminal cases. The experiment in Korea with juries for criminal cases also is the subject of Korean law blog commentary.

Interesting Opinions

2009 Wisconson Supreme Court opinion holding that manufacturers of white lead pigment could not be held laibile for design defect since the abensce of lead would change the product. The court resolved only the one limited issue and declined to adopt the Restatement (Third) of Torts.

More Asbestos Claiming ? British Government Asks for Views on Pleural Plaques Compensation Issues

Global tort litigation issues continue to evolve. Last fall, the UK's highest court decided that it would not permit recovery of money as compensation for persons found to have "pleural plaques." Pleural plaques are generally deemed benign markers of past inhalation of asbestos fibers. Now, on July 9, the British government issued a request for comments on whether to use legislation to overturn the decision precluding damages.


Specifically, the "consultation" process calls for interested persons to submit views on whether persons with "pleural plaques" should be allowed a chance to recover damages for the physical change in the lungs or anxiety. The consultation paper, number 14/08, is viewable here.

So, what's at stake? In dollars, it's some number of billions; current estimates probably will prove to be too low, just like most other estimates of asbestos costs. In lives, the issue may or may not have significance. Pleural plaques generally are thought not to impair life function in any way, but they generally are considered a marker for past asbestos inhalation. Some may argue that finding those people now will help them later avoid premature deaths by leading them to annual health screenings with a focus on their particular risks.

Back to dollars. The consultation likely will become a fight between insurers and insureds as to which entities pay how much. Insurers and reinsurers will have issues between them. The process also will include battles between solvent entities and entities that claim to be insolvent or are pursuing "schemes of arrangement." Schemes of arrangement? They are end of corporate life financial engineering tools. Insurers like to say that the schemes free up capital to return to the marketplace and stimulate business. Insureds like to say that schemes improperly allow insurers to avoid IBNR claims, which are claims that are foreseeble based on past events, but that have not yet been filed because, for example, the future claimant does not yet know that a mesothelioma tumor already has formed and is growing, at a microscopic level.

Note also that government agencies will have a financial stake. Legislation may help them avoid paying the massive health care costs that may accrue when a mesothelioma is found "early."

The issues also may be described more broadly. This could be a chance to find a fair compensation and medical treatment plan that avoids the many flaws in the current American systems, and to think carefully about how one defines who is "sick" or when they are "injured." This could be a chance to limit attorneys' fees to modest amounts. This could be a chance to take a long term view. This could be a chance to look for new answers.

Update - Japanese Asbestos Litigation Ramps Up - Suit by 178 Plaintiffs Names 46 Companies and Government as Defendants

In a prior article of May 18, we noted an asbestos lawsuit in Japan. Since then, the lawsuit has not received much press, nor has there been a public annoucment of the filing of the second lawsuit that was indicated when the existing lawsuit was filed. My efforts to obtain the complaint from the plaintiff's firm were turned down by that firm, citing ethical issues since I represent defendants. One wonders what issues are involved in providing a copy of a public document. In any event, it appears that the plaintiff's firm also is not sharing the complaint with Laurie Kazan Allen or others on the plaintiff's side since her website now refers to the lawsuit, but only to the original press release/article in Wikipedia. http://ibasecretariat.org/lka_jap_cause_effect.php. The complaint also has not appeared in Mealeys, HarrisMartin or other publications that follow asbestos litigation.

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Asbestos litigation is ramping up in Japan. The English language version of a Japanese newspaper article reports that a lawsuit was filed in Japan late last week on behalf of 178 contruction workers (or their heirs) against 46 building products companies and agencies of the Japanese government. The article does not identify the defendants, or the lawyers. The articel also says that "About 40 construction workers from Kanagawa Prefecture will also file a similar suit at the Yokohama District Court in June."

A parallel article on Wikinews adds some quotes from workers, but not much more.

Surprisingly, the website of the International Ban Asbestos Secretariat does not yet include an article on the topic. That may well change.

The Increasing Intersection of Criminal Law and Tort Law

A significant topic for at least the next decade will be the interesection of criminal law, tort law and civil law (including the law on punitive damages). The issue is growing in prominence for many reasons, including new UK legislation on corporate manslaugher and U.S. Senate hearings held a couple of years ago on possible new criminal law legislation in the US for product liability claims. The topic will be covered here in more detail in future articles.

For now, however, a recent news article makes the general point as it describes the manslaughter indictment of a Connecticut area swimming pool contractor (that is, a seller of a service and a seller of component products) for a child's drowning death said to arise from failure to install a mandatory drain cover.

Is the indictment fair or "right?" Various people can and will argue a range of positions on that topic. One interesting and arguably well-informed view is set out in the the May 1, 2008 American Lawyer interview of Robert Bennett. Mr. Bennett, of Skadden Arps, was interviewed in connection with his autobiographical new book about his work as a white-collar defense lawyer, which included working for the Seante Ethics Commitee in prosecuting the Keating 5 and defending numerous cases for corporate America. Bennett expressed the view that indeed criminal law sanctions can and do change corporate behavior. He is quoted as having said:

R: You write that you are shocked by the rise in white-collar prosecutions. Why do you think it's happening? Are corporations more corrupt? Have prosecutors gotten bolder?

B: I don't think that companies have gotten more corrupt. I think it's more the approach taken by law enforcement. Years ago, when I was a federal prosecutor, a lot of these corporate issues were handled by regulatory agencies. Now, law enforcement is trying to reform how business is done. There is probably less corruption today because of the government's aggressive approach. [Corporate executives] know it's not just a matter of paying fines anymore.

Reduced Ability to File in Eastern District of TX?

Apparently Volskwagen has challenged the ability of judges in Marshall TX to refuse to transfer a case out of that jurisdiction. Though the case is not asbestos-related (it's a product liability case for allegedly faulty car seats) it may have a broader impact on cases in what has been referred to as Texas's "Rocket Docket."

See WSJ Law Blog

Nanotube technology causes asbestos-like lung diseases?

The NY Times has a great opening paragraph on this:

"Nanotubes, one of the wonder materials of the new age of nanotechnology, may carry a health risk similar to that of asbestos, a wonder material of an earlier age that turned into a scourge after decades of use when its fibers were found to cause lung disease ..."

Full article:

NY Times - Health Risks from Nanotubes