Cato: A Rare Chance to Control Junk Science

[shanek]

http://www.cato.org/dailys/05-02-03.html

The first asbestos case was filed in 1966. There have since been 700,000 more -- 200,000 in the last two years alone. About 8,400 firms have been sued. The process already has cost $54 billion; the bill could eventually hit $270 billion or more.

The litigation has overwhelmed many companies: 67 firms have gone bankrupt. Observes a recent study by economists Joseph Stiglitz, Jonathan Orszag and Peter Orszag for the American Insurance Association, "The staggering costs of asbestos liabilities have pushed many defendant companies into bankruptcy or to the brink thereof."

Business failures hurt more than just corporate executives and shareholders. So far, asbestos bankruptcies have destroyed between 52,000 and 60,000 jobs and ruined innumerable 401(k) plans invested in company stock.

Liability law is necessary to hold companies and individuals accountable for their actions in the marketplace. Alas, the current tort system has turned into a legal lottery with little relationship to harm or justice. Fixing it remains extraordinarily difficult.

But with the sick going uncompensated and companies going bankrupt, we can't wait any longer to deal with the asbestos imbroglio. Congress must not waste today's opportunity to settle the issue.

[WildCat]

Unfortunately, all of the proposed legislation only deals w/ asbestos. What about lawsuits dealing with silicone breast implants, second hand smoke, etc. that is not supported by any science? Good luck getting a legislative body made up primarily of lawyers to put a stop to this nonsense. :(

[shanek]

While I don't want to put words in the author's mouth, I surmised he just focused on asbestos 1) as an good example and 2) because there are legitimate asbestos cases that are being hurt as a result, as well as a lot of people who didn't have anything to do with the asbestos damage (wasn't the concept of "corporate personhood" ostensibly supposed to prevent that?).

[GrapeJ713]

Sometimes I think the world is just screwed up and dream of a freedom terrorist squad that would scare trial lawyers and politicians into acting like human beings, or else!

Kind of long, but well written article on how both world trade centers would have withstood the abuse if they were allowed to use asbestos in a safe way. Here is the first part of it.

"Did Litigation and Junk Science Help Bring Down the World Trade Center?" (http://www.oism.org/ddp/wtc.htm)

Andrew Schlafly, Esq., July 27, 2002, 20th annual meeting of the Doctors for Disaster Preparedness, Colorado Springs

On 9/11, I was scheduled to argue a case in federal court in Newark, New Jersey, which had a clear view of the WTC. That hearing, like everything else in the NYC area, was cancelled in the wake of the fateful news. At 8:45 am local time, a hijacked 767 commercial jet airplane rammed into One World Trade Center, the North tower, fully loaded with fuel for a trans-continental flight.

My immediate reaction was that the attack occurred too early for the office building to be completely filled with workers. Unlike most places, Manhattan is not in full swing until 9:30 am local time. NYC workers are late risers and long commuters. Had the terrorists struck an hour later, the loss of life would have been far greater.

We are all stunned by the second crash. 18 minutes after the initial impact, at 9:03 am, a second jet crashed into Two World Trade Center, the South tower. (As you know, additional terrorist crashes occurred at the Pentagon at 9:43 am, and in rural Pennsylvania at 10:10 am.)

The initial impact into the WTC killed relatively few people. The planes were not filled with passengers, and the floors were not filled with workers. A few workers on the impacted floors even survived. It was the premature collapse of the towers that caused the thousands of casualties.

The South tower, which had been hit second, was the first to collapse. It fell at 10:05 am, a mere 62 minutes after being struck by the jetliner. The North tower collapsed at 10:29 am, 104 minutes after being hit. Seven World Trade Center, an adjacent 48-story building, totally collapsed around 5:20 pm despite never being hit.

The WTC was expressly designed to withstand the impact of a large commercial jetliner having comparable weight and fuel capacity as the 9/11 aircraft. Every architect of skyscrapers is familiar with the collision of the B-25 bomber into the 79th floor of the Empire State Building in heavy fog in 1945. That crash killed 14 people, but caused only $1M in damage. The structure of the building easily survived the impact and the resultant fire.

Given the design parameters and the experience with the Empire State Building, why did the WTC collapse so quickly on 9/11? And why did the North Tower remaining standing 68% longer after impact than the South Tower did?

There is one more unanswered question: why did a 48-story tower in the same complex, known as "building 7," later collapse even though it was not struck by a jetliner nor hit with significant jet fuel?

The families of the victims of the WTC attack deserve honest answers. I live in a commuter town in New Jersey, and many of the victims' families are in my church and neighboring communities. These families are not likely to receive honest answers from the ongoing $16 million government-funded investigation. Like so much of science today, politics and money distort the truth. Fortunately, we are not so constrained here.

[Nikk]

Originally posted by WildCat
Unfortunately, all of the proposed legislation only deals w/ asbestos. What about lawsuits dealing with silicone breast implants, second hand smoke, etc. that is not supported by any science? Good luck getting a legislative body made up primarily of lawyers to put a stop to this nonsense. :(

The problem could be reduced in scale if you abolished trial by jury in civil actions ( e.g. tort cases ) and gave defendents the right to recover a significant part of their costs when the plaintiff lost. This approach works, after a fashion, in the UK.

Really, more fundamental changes are needed in our whole attitude as citizens to risk if we are not to waste vast amounts of money and time either in the courts or in reducing already low levels of risk even further.

[shanek]

Originally posted by Nikk
The problem could be reduced in scale if you abolished trial by jury in civil actions ( e.g. tort cases )

That's a really really bad idea, not to mention unconstitutional.

and gave defendents the right to recover a significant part of their costs when the plaintiff lost.

I'm very much in favor of some sort of "loser pays" system; we've discussed that here before. I like the idea of the loser paying the winner what the LOSER paid in legal costs.

[GrapeJ713]

I think all Civil Law should be replaced by arbitration. The government could set up a 'blind' system so there would be no way to influence whichever private company heard the case. Wouldn't be a need for expensive lawyers or appeals, just 3 qualified judges would hear both sides then vote on who should win and how much they should be compensated, then loser pays, plus all arbitration costs. Seems to me it would be quicker and more fair to everyone.

[WildCat]

Originally posted by GrapeJ713
Sometimes I think the world is just screwed up and dream of a freedom terrorist squad that would scare trial lawyers and politicians into acting like human beings, or else!

Kind of long, but well written article on how both world trade centers would have withstood the abuse if they were allowed to use asbestos in a safe way. Here is the first part of it.

"Did Litigation and Junk Science Help Bring Down the World Trade Center?" (http://www.oism.org/ddp/wtc.htm)

Andrew Schlafly, Esq., July 27, 2002, 20th annual meeting of the Doctors for Disaster Preparedness, Colorado Springs

The WTC was expressly designed to withstand the impact of a large commercial jetliner having comparable weight and fuel capacity as the 9/11 aircraft. Every architect of skyscrapers is familiar with the collision of the B-25 bomber into the 79th floor of the Empire State Building in heavy fog in 1945. That crash killed 14 people, but caused only $1M in damage. The structure of the building easily survived the impact and the resultant fire.

Given the design parameters and the experience with the Empire State Building, why did the WTC collapse so quickly on 9/11? And why did the North Tower remaining standing 68% longer after impact than the South Tower did?

There is one more unanswered question: why did a 48-story tower in the same complex, known as "building 7," later collapse even though it was not struck by a jetliner nor hit with significant jet fuel?

The families of the victims of the WTC attack deserve honest answers. I live in a commuter town in New Jersey, and many of the victims' families are in my church and neighboring communities. These families are not likely to receive honest answers from the ongoing $16 million government-funded investigation. Like so much of science today, politics and money distort the truth. Fortunately, we are not so constrained here.
To compare a 767 w/ a B-25 is ridiculous. The stats:

North American B-25 Mitchell (D-model)
Max. weight: 35,000 lbs.
Max speed: 272 mph
Max fuel: 670 gal.

Boeing 767:
Max weight: 395,000 lbs.
Cruise speed: 530 mph (the terrorists were going considerably faster)
Max fuel: 23,980 gal.

While the WTC was designed to withstand the impact of a 767 (and it did), it was not designed to withstand the impact of a 767 w/ a suicidal pilot. It was the burning jet fuel that brought down the WTC, not the impact. A pilot in trouble would have dumped all unnecessary fuel, obviously the terrorists did not. In short, the WTC was designed to withstand an accidental impact w/ a jet, not an intentional one.

Would asbestos insulation have withstood the burning jet fuel better than the concrete insulation used? Probably not, since the asbestos insulation would have been applied w/ the same burn resistance tolerances used for the concrete insulation.

Building 7 had 100+ stories of WTC falling on it, no mystery there.

The fact that the article was written by a lawyer explains a lot.

[shanek]

Originally posted by GrapeJ713
I think all Civil Law should be replaced by arbitration. The government could set up a 'blind' system so there would be no way to influence whichever private company heard the case. Wouldn't be a need for expensive lawyers or appeals, just 3 qualified judges would hear both sides then vote on who should win and how much they should be compensated, then loser pays, plus all arbitration costs. Seems to me it would be quicker and more fair to everyone.

Except for that pesky Constitution and human rights thing...

If you're advocating this as a voluntary alternative to a jury trial, though, then I can get behind it.

[Iconoclast]

Originally posted by WildCat
To compare a 767 w/ a B-25 is ridiculous.
Just to add to WildCat's excellent analysis, the North tower was struck near the centre of it's north face, the South tower was struck in a corner, and that is the main reason the South Tower collapsed first. Final reports for the collapse are in, and it has been shown that neither the truss flooring system nor the asbestos fireproofing contributed in any way to the collapse, and in fact the engineers were praised for the strength of the building they designed.

Each floor of those towers had 1 acre of open plan space, an area unheard of for a skyscraper, the building's strength to weight ratio is still unsurpassed for any tall building built before or since.

While GrapeJ is free to continue peddling conspiracy theories, he should be asking why the World Trade Centre stayed up, not why it fell down.

http://www.construction.com/NewsCenter/Headlines/ENR/20021025b.asp

[GrapeJ713]

Originally posted by shanek


Except for that pesky Constitution and human rights thing...

If you're advocating this as a voluntary alternative to a jury trial, though, then I can get behind it.

Just the civil courts, not criminal courts. Arbitration is becoming more and more widespread, and is a voluntary solution right now. But in a government run civil court, sometimes the party with more money and better lawyers can out wait and out spend another party. Aren't these long drawn out civil lawsuits interfering in the right to a speedy trial.

[GrapeJ713]

It's not a 'conspiracy theory' it's showing what happens when junk science backed up by greedy unethical trial lawyers takes away a helpful substance.

Originally posted by Iconoclast
While GrapeJ is free to continue peddling conspiracy theories, he should be asking why the World Trade Centre stayed up, not why it fell down.
http://www.construction.com/NewsCenter/Headlines/ENR/20021025b.asp

If you read the entire link it goes on to describe how weakened the structural integrity of the building was without sprayed asbestos and how the steel would melt faster (all that burning fuel) in a fire.

Its main flaw was its lack of safety. The decision to use mostly steel (60/40) in the WTC made it vulnerable to fires. Concrete, which dominates the Empire State Building (60/40) withstands fire far better than steel does, and experts are confident that the Empire State Building would not have collapsed after a 9/11-type of attack. Nor would the Sears Tower, which uses 9 structurally separate tubes rather than merely one tube used by each WTC tower. I used to visit the WTC frequently: one shaft, straight up. The original design and construction of the WTC included fire-proofing of the steel. The longstanding industry standard for steel skyscrapers was to use spray-on asbestos in order to fire-proof the steel. Otherwise, unprotected steel will warp, melt, sag and ultimately collapse when heated to normal fire temperatures around 1100 to 1200 degrees Fahrenheit.
By mixing dry asbestos with water and spraying the mixture onto the steel beams as well as the floors and ceilings, the asbestos adds resilient strength and insulation against fire to the structure.

Your link stated that the impact of the crash, knocked the inferior fire proofing away from the steel so it could melt. The stronger abestos would not have been able to been knocked off like concrete because it would have been sprayed on.

[Bentspoon]

The real problem with tort lies with the lawyers. Loser pays is a fallacy because it protects the lawyers - yea doesn't even addrss them.

Loser pays assumes that those that bring a lawsuit and lose it are guilty of some sort of misconduct. That just isn't fair and pushes the legal system further away from the average Joe that deserves justice just as much the rich.

One of the big problems with tort are frivolous lawsuits. I assume that loser pays is supposed to prevent that somehow. But the fact is that, given the alledged injured party and their lawyer, of the two, there is only one really qualified to identify a frivolous lawsuit - the lawyer. Yet frivolous lawsuits continue.

Sure it is easy to imagine the red-hot neighbor upset over nothing forcing a reluctant lawyer into the courtroom regardless of the warnings to inflict judicial pain on the guy next door.

For me it is easier to imagine the thoughtful injured party asking a lawyer for advice on a dicey situation and being advised of the unquestionable validity of a suit.

In the latter situation, when it comes to trial, and the judge scolds the lawyer in front of the client for his lack of preparation and unsupported theories, who then is really the culprit in this frivolous lawsuit.

Anyone who has been involved in a civil suit should understand that the law - particularly civil law - does not necessarily yeild to logical reasoning. That is why people are strongly advised not to go it without a lawyer. Lawyer know the ins and outs of the layers of jurisdictions, restrictions, etc - the rules of evidence.

Only lawyers can figure it out and not all of them are good enough or educated enough or ehtical enough to do the job. Many are unscrupulous and would take on a fivlous lawsuit in a minute and encourage a reluctant party to bring it to fruition.

Yet whenever there are discussions about tort among legislators you never hear the lawyers brought up. They need to be held accountable.

I believe that the loser pays idea relegates the judicial system to the rich, does not place accountability on the accountable and is therefore a bad idea.

Bentspoon

[shanek]

Originally posted by GrapeJ713
Just the civil courts, not criminal courts.

Doesn't matter. The civil courts can deprive you of your property, therefore you have the right to trial by jury.

Arbitration is becoming more and more widespread, and is a voluntary solution right now.

Yes, but not everywhere.

But in a government run civil court, sometimes the party with more money and better lawyers can out wait and out spend another party. Aren't these long drawn out civil lawsuits interfering in the right to a speedy trial.

I would say so.

[shanek]

Originally posted by Bentspoon
The real problem with tort lies with the lawyers. Loser pays is a fallacy because it protects the lawyers - yea doesn't even addrss them.

Granted. But behind every lawyer pushing a case is a client pushing a case.

One of the big problems with tort are frivolous lawsuits. I assume that loser pays is supposed to prevent that somehow. But the fact is that, given the alledged injured party and their lawyer, of the two, there is only one really qualified to identify a frivolous lawsuit - the lawyer. Yet frivolous lawsuits continue.

Because there's no incentive for the lawyer not to seek the lawsuit.

Besides, it's not about that—it's about preventing parties with rich lawyers from bankrupting the other party even if the other party wins the case. That's a big problem.

[GrapeJ713]

That is why I think replacing civil courts with arbitration would be more fair. The plaintiff could explain his complaint against the defendant, the defendant would explain his defense, then the three judges on the arbitration panel could ask the plaintiff and defendant questions, look at evidence and make a judgement based on the facts, not based on who has the better lawyer. Lawyers could be relegated to advising people wether they have a case and recommend wether to take the matter to arbitration and helping gather evidence so thier clients could present thier case. Loser pays the court costs to the arbitration company. The government could oversee the system to make sure neither party could influence the outcome. Maybe the government could liscence each arbitration company and the plaintiff and defendant could agree to arbitration and somehow not know who exactly is going to rule on their case, much like they aren't sure what kind of judge they are getting in most cases now. And possibly make the finding from arbitration public like civil court, I think in most cases arbitration findings can be private now.
I remember reading about allegations that the "Erin Brockovich" case that was settled by arbitration. Someone claimed that the winning side somehow influenced the arbitration company to rule in it's favor.

[shanek]

Originally posted by GrapeJ713
That is why I think replacing civil courts with arbitration would be more fair. The plaintiff could explain his complaint against the defendant, the defendant would explain his defense, then the three judges on the arbitration panel could ask the plaintiff and defendant questions, look at evidence and make a judgement based on the facts, not based on who has the better lawyer.

Have you seen the decisions some of these judges have handed down in the past? Some of them put even the worse jury decision to shame. It's just too much power in the hands of a few individuals. With jurors, they usually only serve once or twice in their life so they usually take it seriously, and they don't have a lot of power vested in them individually. They can only help decide one case, as opposed to case after case after case every day of their lives the way judges do.

Not to mention the fact that judges are usually quite unwilling to nullify the law. Jury nullification is one of the vital aspects of the trial by jury system.

[RandFan]

The EPA Comes Clean on Asbestos (http://www.massrha.com/asbestos.html)

But on September 11, as with so many things, the EPAs world changed. Faced with a public health scare that could have sent thousands in Manhattan fleeing the city or jamming public hospitals, the EPA decided to cough up the truth about asbestos. Its officials bent over backward to get out the message that asbestos was harmful only if breathed at high levels over a sustained period of time. When reporters pointed out that some of the tests exceeded the EPA's safety levels, the agency hurried to explain that this was a stringent standard based on long term exposure and repeated that the public was not at any real risk.

The EPA's truthful words went only so far to contain fear. Some have still refused to move home or return to work. But that's not surprising, given the agencies history with asbestos. Over the past few decades, there probably has not been a substance more likely to strike fear in a public's heart, and the EPA bears a lot of the blame.

The war against asbestos started in the 1950s, when a scientist Irving Selikoff, found links between cancer and workers in the asbestos using industries. Asbestos was used in everything from walls and floors to hot pads and hairdryers. The EPA jumped in by the 1970s, with dire warnings that asbestos should be eradicated. Schools, public institutions, and home owners spent billions in removal. By the 1980s, better science said that the claims were exaggerated. But the EPA continued to insist on tough rules for everyone from building planners to haulers.

In the 1990s, even the EPA was beginning wonder what it had unleashed. A report the EPA did itself in 1992 suggested the agency had mishandled the affair. But by this time the fearful public, buttressed by a bureaucracy of labor unions, parental groups, plaintiff's lawyers and school officials, was resisting any backing off in the war.