Editore"s Note
Tilting at Windmills

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February 8, 2006
By: Stephanie Mencimer

TORT REFORM, CORPORATE STYLE....After the Sago coal mine disaster killed 12 West Virginia miners last month, the Mine Safety and Health Administration (MSHA) came under widespread criticism for failing to adequately regulate the coal industry and protect mine workers. Critics blamed the Bush administration for stocking the agency with coal industry cronies who wanted a more cooperative approach to safety regulations rather than serious enforcement. Now, one more group has joined the chorus of MSHA critics: the very coal companies that worked to gut the agency in the first place.

Here's the story. Back in 2003, West Virginia suffered its worst coal mining accident in a decade when an explosion in a mine owned by CONSOL Energy killed three miners and disabled two others. The families of the dead and injured miners sued CONSOL, alleging that it had demonstrated a willful disregard for its workers safety and was ultimately responsible for the accident. The trial is set for June. But with all the recent publicity about MSHAs failures, CONSOL apparently saw an opportunity for a novel legal defense.

This week, after three years of litigation, CONSOL and the other defendants filed a motion stating their intention to sue MSHA, which they argue is really to blame for the mine explosion. The negligence of CONSOL, if any, was the result, in whole or in part, of the negligence of the Mine Safety and Health Administration, they write, demanding that the federal government pay any jury award against the companies that might result from the litigation, along with all their legal fees.

Big drug companies and automakers have been arguing for years that simply being regulated should immunize them from lawsuits. But suing the regulators for doing a bad job of it is a novel innovation. CONSULs complaint reads like a stop me before I kill again defense, akin to blaming the police for an accident because they failed to stop you from speeding in the past.

If it works, you can imagine the creative possibilities for companies in the midst of expensive litigation: Merck sues FDA for letting it sell Vioxx! Ford sues the transportation department for not demanding roll-over tests for SUVs! DuPont sues EPA for failing to notice when it dumped toxic chemicals into peoples drinking water! And if the companies win, the federal government can pay all those big jury verdicts. Its amazing they didnt think of this sooner....

Stephanie Mencimer 12:20 PM Permalink | Trackbacks | Comments (20)

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Comments

Um, who is the guest?

Posted by: halle on February 8, 2006 at 12:26 PM | PERMALINK

Its amazing they didnt think of this sooner....

Yes, but imagine if this works, and you get an administration that is really interested in regulation. This could be an own-goal of epic proportion...

Posted by: craigie on February 8, 2006 at 12:35 PM | PERMALINK

Well, under the general welfare clause which so many liberals adhere to, anybody can sue the American taxpayers if there is some small amount of discomfort in their lives.

Posted by: Matt on February 8, 2006 at 12:48 PM | PERMALINK

If this legal theory proves successful, it will be a gold mine for lawyers everywhere--blame the government for failing to do its job. Wouldn't it be the ultimate irony that the Bush administration's failure of its duty to regulate would enrich the legal profession Bush so claims to despise by creating more billable hours?

Posted by: Courtney Dow on February 8, 2006 at 12:49 PM | PERMALINK

And I'm sure that the Bush administration, which so carefully protects federal immunity from prosecution in national security cases, wouldn't roll over like a little puppy dog if this were to happen.

Maybe some "states' rights" argument...

(And somewhat off-topic, why do troll posts like Matt's regularly make me scratch my head and say "WTF?" I mean, are these people really that dumb?)

Posted by: bleh on February 8, 2006 at 1:23 PM | PERMALINK

halle: see this link for some of Ms. Mencimer's other work.

Posted by: Joe Buck on February 8, 2006 at 1:24 PM | PERMALINK

Wouldn't it be the ultimate irony that the Bush administration's failure of its duty to regulate would enrich the legal profession Bush so claims to despise by creating more billable hours?
Posted by: Courtney Dow on February 8, 2006 at 12:49 PM | PERMALINK

The same type of irony that the Bush administrations failure to do its duty to bring OBL to justice and stamp out terrorism enriching the terrorists Bush so claims to despise by creating more terrorists and making the US look like the keystone cops.

Posted by: clyde on February 8, 2006 at 2:34 PM | PERMALINK
But suing the regulators for doing a bad job of it is a novel innovation.

Well, as there is no link to the complaint, its hard to evaluate it, but its, if novel, at least a colorable argument in a few situations I can think of.

For instance, if an action that CONSOL intended to take that would have been safer was foreclosed by MSHA action, or if MSHA negligently provided CONSOL misleading "safety information" on which it relied in pursuing a course of action which was hazardous and which it otherwise would not have pursued.

Even if MSHA mandated negligently lax corrective standards in response to past violations, I think there is a case that might be made.

In any case, its unlikely that, in fact, MSHA's liability would wipe out all of CONSOL's liability, but its not uncommon to file a complaint that someone is completely at fault when you are relatively certain they aren't going to found completely at fault, but you don't want to constrain the degree to which they might be found to be at fault.

Posted by: cmdicely on February 8, 2006 at 4:36 PM | PERMALINK

In any case, its unlikely that, in fact, MSHA's liability would wipe out all of CONSOL's liability, but its not uncommon to file a complaint that someone is completely at fault when you are relatively certain they aren't going to found completely at fault, but you don't want to constrain the degree to which they might be found to be at fault. Posted by: cmdicely on February 8, 2006 at 4:36 PM


After reading that paragraph, cmdicely, I have to say I'm glad your the lawyer and not I. That was one sematically dense paragraph.

Posted by: Dr. Morpheus on February 8, 2006 at 4:46 PM | PERMALINK
After reading that paragraph, cmdicely, I have to say I'm glad your the lawyer and not I.

I'm not a lawyer, either; yet, at least.

That paragraph probably should have been at least two separate sentences, though.

Posted by: cmdicely on February 8, 2006 at 5:01 PM | PERMALINK

CONSOL's suit is pure bullshit. Governmental bodies are generally immune to suits over not adequately doing their job correctly, since we want to encourage the goverment to take on the work of keeping us generally safe, and not penalize them for simple negligence. Besides, there is usually a non-state actor that should be discouraged from acting in an unsafe manner, and that actor should not escape liability simply because the government played a role in the injury. The argument that an agency charged with oversight of an industry had a direct role in the day-to-day conduct of a business under it's oversight is laughable.

That said, this post raises two thoughts for me: one is, how everybody hates lawsuits until they need one (which makes me wish that everybody in favor of "tort reform" was severely injured due to the negligence of a large corporation, and then had no means of redress).

The second thought is that maybe corporations are figuring out that this is a way to get all those governmental subsidies without having to go through that messy legislative process. Appoint sympathetic jusges, file a motion for summary judgment, and boom - instant government subsidy.

Posted by: brewmn on February 8, 2006 at 5:18 PM | PERMALINK

I think this ties in well with Kevin's October post about the book 'The Law In Shambles' (http://www.washingtonmonthly.com/archives/individual/2005_10/007263.php).

CONSOL is essentially corroborating the evidence that those that really are serious about reducing the number of liability lawsuits should wholeheartedly embrace stiffer regulation of industry.

Posted by: crswa on February 8, 2006 at 5:22 PM | PERMALINK
Governmental bodies are generally immune to suits over not adequately doing their job correctly

Generally, sure, but there are a whole bunch of exceptions (otherwise, government bodies would be entirely immune to suit, since the only thing they are sued for is "not adequately doing their job correctly".

since we want to encourage the goverment to take on the work of keeping us generally safe, and not penalize them for simple negligence.

Not all negligence is simple. Again, without the text of the complaint, I can't tell what specifically is being alleged, but CONSOL could be alleging gross negligence here.

Besides, there is usually a non-state actor that should be discouraged from acting in an unsafe manner, and that actor should not escape liability simply because the government played a role in the injury.

If the government action compelled or even encouraged the private action, and the private actor reasonably relied on the public agency, there is certainly a good policy argument that the agency's wrong needs to be discouraged more than private individuals need to be discouraged (by the courts) from relying on the government's direction.

The argument that an agency charged with oversight of an industry had a direct role in the day-to-day conduct of a business under it's oversight is laughable.

If an oversight agency isn't playing a significant role in shaping the day-to-day conduct of businesses under its oversight, WTF is it doing?

Posted by: cmdicely on February 8, 2006 at 5:28 PM | PERMALINK

The reason companies can even consider rolling out such rubbish is: the Republican noise machine has so corrupted the framing of debates and debased the citizenry, that such gambits can be taken seriously by many voters and jurors.

Posted by: Neil' on February 8, 2006 at 5:58 PM | PERMALINK

Neil,

That may be true, but the theory presented isn't risible as a legal matter. My strong intuition is that it is laughable as a factual matter, but that's different.

I can easily imagine a scenario where a company was regulated into tortious conduct, and the regulatory body should indemnify them. But I have a good imagination, and courts at least attempt to be reality-based at the trial level.

Posted by: Pooh on February 8, 2006 at 7:34 PM | PERMALINK

I can't prove it, but my guess is that in the past, CONSOL has probably lobbied against regulation. If that's the case, then their argument is that the government failed to do it's job after CONSOL had fought to keep the government from doing it's job. Ok, then.

Posted by: crispy on February 8, 2006 at 7:53 PM | PERMALINK

Not just those big jury verdicts but those BIG LEGAL FEES which should soar from stratospheric to superorbital. Yes, it's amazing they didn't think of it earlier.

Posted by: lee on February 8, 2006 at 11:45 PM | PERMALINK

I can only applaud the audacity of the corporate defense team. You are right that this tactic is likely to spread to other litigation. If it works for the mine owners it should be just as viable in claims against other corporations that kill and injure us daily. Those evildoers in Washington will provide the deep pocket and ugly face that jurors love to hate.

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