Criminal Liberty and Civil Liability: Can Free Enterprise Survive?

Jane M. Orient, M.D., is in the private practice of medicine in Tucson, Arizona. She also is adjunct assistant professor of internal medicine at the University of Arizona College of Medicine.

A lame, gray-haired contractor complains that a lumber company employee 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 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 restitution ranging from $20 to $1871, totalling $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tampons, although the only brand implicated in causing a higher risk of this condition was Rely, which was voluntarily withdrawn from the market by Procter & Gamble.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] The exact meaning of this admonition was not specified; since the incidence of the disease is approximately one in 100,000 population per year,[3] no economically feasible test would have detected it. The justification 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 outweigh all other factors in the causation 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 diseases 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 shipbuilding for its insulating and fireproofing properties. No completely satisfactory substitute is available. Synthetic mineral fibers proposed to replace this natural product may not be safe; they have been found to induce tumors in animals.[7]

Lawsuits against companies involved in any aspect of asbestos use (even just the paperwork) threaten many with bankruptcy. One small firm, which up until 1970 used asbestos in a few of its many insulation products, faces 13,000 suits.[8] If continued at the present rate, asbestos litigation will amount to $38 billion 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 buildings in which the decay of sprayed decorative and insulative materials exposes them to the carcinogenic fibers, are not similarly imperiled. Nor is the U.S. government, which ordered substantial quantities of the material for warships.

Identifying the Agent

In a criminal case, the prosecution must demonstrate beyond a reasonable doubt that the accused intentionally committed the act. Motive, means, and opportunity must be shown. So scrupulously are the rights 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 standard of proof is far different. A property owner need have no motive for injuring a guest or employee, nor prospect of benefiting from the misfortune. Failure to prevent a calamity 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 entering. Entrepreneurs are assumed to have a motive, the seeking of profit. An intention to do harm need not be present. That workers and customers also share in the compensatory benefits of a product appears to be irrelevant.

To prove that a certain product caused an injury may be straightforward in a few cases, such as septic shock resulting from bacterial contamination 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. Probably, 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 Procter & Gamble), alerted potential victims, 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 pervades the epidemiological studies, which rely heavily on human memory. A prominent statistician con siders the case against tampons to be still the Scottish one: not proved.[10]

Evidence ]inking occupational exposures to disease is also statistical and largely circumstantial. For obvious reasons, one cannot do a controlled experiment, in which some human beings are deliberately exposed to a suspected toxin, and others not. One must look back on situations 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 handling of confounding factors (such as exposure to other carcinogens, notably cigarettes).

Establishing Responsibility

Even if an individual is known to have committed a criminal act, he cannot necessarily be held responsible for it. If psychiatrists testify persuasively that the accused was unable to exercise free will, due to mental disease, he must be acquitted. The criminal is often portrayed as the victim of society, perhaps through having unloving parents, or experiencing poverty or social discord. Compelled by his early influences, 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 apparently his freedom is to be considered impaired if he is not fully informed 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 foreseen 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 unemployment 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, despite the warning message in the box.[11]

Ability to Pay

Allocating responsibility is a treacherous task, but several principles seem discernible in court decisions. Ability to pay is a key qualification for assuming liability. Although hesitant to demand that lawbreakers take the consequences of actions which they perform, courts readily blame prosperous, well-insured individuals or corporations for forces over which they have little control. While the adjective “obscene” may be applied to profits resulting 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 unaware, workers and union representatives are not imagined to be capable of asking a reference librarian or a competent physician for information about the dangers of the workplace.

Who Pays?

The costs of crime are borne almost 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 misdeeds 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 opportunities. The costs of litigation and of increased premiums for liability insurance must ultimately be paid by customers. An incalculable cost is funds lost to research and development. 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 unlimited liability for corporations is the prospect of unlimited jurisdiction for government. Added to consumers’ clamoring for protection is the corporation’s plea for regulation. Compliance with a legislative standard neatly shifts the responsibility for disasters to the government. This dishonorable escape route may possibly 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 during his lifetime that might be related to the workplace, the corporation must pay whatever compensation 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 proposition applies in criminal law: the criminal who cannot choose is not responsible.)

Does Diminished Freedom Buy Security?

Loss of liberty might arguably be acceptable if traded for improvements in safety. Thus far, the intentions of government agencies have often had the opposite result. Herbert Spencer gives many examples: despite the exertions of the British Shipwreck Committee, the loss of lives and of ships worsened, as administrative 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 occupational hazards are in the limelight, “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 function, 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 relatively safe nuclear reactor shut down in order to investigate its psychological 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 Administration (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 holdups 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 believe that pleasure or convenience outweighs the risk. Many proposed remedies have the long-term effect of actually reducing safety, both directly and indirectly in discouraging innovation. Are they favored simply through shortsightedness, or do they appeal to a deeper motive?

Courts are reluctant to hold miscreants individually responsible for their deeds. Consumers and workers deny their responsibility for products 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 innocence. 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 plea to the legislatures and the courts, despite the clearly visible consequences of surrendering their self-reliance, because not just security, but relief from responsibility, is the real goal. In the past, they referred 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]

1.   Mark Turner, “Burglary ‘Sting’ Yields over 35 Convictions, Praise from Law,” Arizona Daily Star, Dec. 25, 1982, p. 1C.

2.   Carrie Dolan and Paul Ingrassia, “Toxic Shock Victim Awarded $10.5 Million Injury Verdict Against Johnson & Johnson,” Wall Street Journal, Dec. 24, 1982, p. 24.

3.   Arthur L. Reingold, Nancy T. Hargrett, Kathryn N. Shands, et. al., “Toxic Shock Syndrome Surveillance in the United States, 1980 to 1981,” Annals of Internal Medicine, vol. 96, 1982, pp. 875-880.

4.   Dolan, op. cit.

5.   Robert S. Fontana, Lung Cancer and Asbestos Related Pulmonary Disease (Park Ridge, Il- linois: American College of Chest Physicians, 1981), pp. 2-5.

6.   Ibid., pp. 23-27.

7.   Helen A. Dickie, “Asbestos and Silica: Their Multiple Effects on the Lung,” Disease-a- Month, vol. XXVIII, Sept., 1982.

8.   Laurel Sorenson, “A Small Firm’s Answer to Suits Over Asbestos,” Wall Street Journal, Sept. 24, 1982, p. 27.

9.   W. Keith C. Morgan, “The Adversary System: Cui Bono?” Annals of Internal Medicine, vol. 97, 1982, pp. 919-921.

10.   Mary Harvey, Ralph I. Horwitz, and Alvan R. Feinstein, “Toxic Shock and Tampons: Evaluation of the Epidemiologic Evidence,” Journal of the American Medical Association, vol. 248, 1982, pp. 840-846.

11.   Michael T. Osterholm, Jeffrey P. Davis, Robert W. Gibson, et. al., “Toxic Shock Syndrome: Relation to Catamenial Products, Personal Health and Hygiene, and Sexual Practices,” Annals of Internal Medicine, vol. 96, 1982, pp. 954-958.

12.   Herbert Spencer, The Man Versus the State (Indianapolis: Liberty Classics, 1981), p. 95.

13.   Office on Smoking and Health, “Smoking and Cancer,” Morbidity and Mortality Weekly Report, vol. 31, 1982, pp. 76-80.

14.   Susan P. Baker, Judith S. Samkoff, Russell S. Fisher, et. al., “Fatal Occupational Injuries,” Journal of the American Medical Association, Vol. 248, 1982, pp. 692-697.

15.   Ibid.

16.   Fyodor Dostoyevsky, The Brothers Karamazov (New York: Modern Library, n.d.), p. 269.

Further Reading