What If Pigs Fly? (Republish)

“Why if pigs fly?” as my boss always asks.

Dan at China Law Blog beat me to blogging about the New York Times articleCourts Compound Pain of China’s Tainted Milk.  Doubting that I can say anything more eloquent about this topic, I quote Dan in full here:

This New York Times article does as good a job of any at setting out the issues China is facing in deciding whether to allow milk taint victims to pursue their claims in court. The article is, somewhat wrongly entitled, “Courts Compound Pain of China’s Tainted Milk.” It does a nice job dealing with the issues of whether China’s courts are set up for these sorts of mass tort cases and also whether the rejection/acceptance of such lawsuits is being driven from Beijing or locally.

I would think most Western lawyers would agree China eventually needs a system that can handle class action torts (or just mass tort cases), but the much tougher question is what it should do in the meantime.

The fact in China is that there is no recourse or redress for the wrongs committed against them.  More than sixty thousands were sickened; four babies, as far as I can remember, lost their lives to baby formula made with tainted milk; hundreds of hours of work were missed, therefore, wages lost; and countless tears shed on top of nauseating pain, suffering and mental anguish.  The list of wrongs and grief can go on and on, but, other than limited compensation from the Chinese government, there is no recourse against the individuals, companies, and entities responsible for the atrocities committed against so many innocent people.  For so many of them, money is not what they seek.  They probably seek justice, in the American vernacular–their day in court.

As Dan so nicely put, ” China eventually needs a system that can handle class action torts…”  But, no one knows, none in China, none in America, none in Europe, none in the rest of the world knows when that day will arrive.  Nobody knows when people so wronged like the families of those sicked children can seek their day in court to be heard.  So, instead of going after reality, I want to imagine what it might be like when that day finally arrives.  I want to imagine the day when “pigs fly.”  Of course, my rendition is totally based on my legal training in a common law jurisdiction as unique as that of the United States (throw in some Texas law as well because I currently clerk for a Texan lawyer).

A.  Parents Can File a Class Action against the Government.

The government entity in charge of quality control failed the suffering children, and they need to be held accountable.  As a government entity, it had the nondelegable duty to supervise, manage and control the quality of consumer products as mandated by law.  Consumers at large rely on the government’s efforts in choosing products endorsed by the government as safe, secure and of high quality.  Sanlu was endorsed by the government as a brand that was exempt from quality supervision and scrutiny, which conveyed a message to consumers that it was of superior quality and reliability.  Based on that reliance, consumers suffered paid a heavy price–their health, lives in some instances, and their blind trust in the government.  Due to this breach of its duty, the government caused injuries and damages to consumers at large, for which the government should be held responsible.  (assume that sovereign immunity is a non issue here; assume also that numerosity, typicality, adequacy of class representation, and commonality of claims are satisfied).

B.  Parents Can File a Class Action against the Manufacturers.

Filing and winning a lawsuit against the manufacturer–Sanlu should be a “slam dunk.”  Slam dunk does not mean any kind of guarantee, of course.  But, it should not be a terribly difficult case to win given the obvious duty, breach thereof, causation, and damages.  In a jury trial, it is hard to imagine a jury not giving the plaintiffs a favorable verdict.  The sticky issue might be the amount of damages, which will be addressed below.

C.  Parents Can File a Products Liability Action against the Distributors/Sellers of the Tainted Milk.

The theory of strict product liability holds all players in the chain of product manufacturing and distribution liable for defective products.  In an action regarding the tainted milk, obviously many companies sold and/or distributed defective and toxic products to consumers and caused unbelievably enormous damages to them, so they should be held liable for doing so. 

D.  Parents Can Recover under Implied Contract/Warranty and Fraud Causes of Action.

Plaintiffs may argue that manufactures, like Sanlu, breached the implied warranty that the products are fit for consumption.  Further, they can argue that when the manufacturers made products with substandard and adulterated raw materials, with knowledge that they are substandard, they engaged in fraud.  Of course, as in all fraud cases, the standard of proof is higher, but it should not be difficult to prove the massive fraud within Sanlu.  Furthermore, Plaintiff can advance the theory that manufacturers, like Sanlu, intentionally failed to disclose that their product was defective.  Evidence can establish that the management at Sanlu knew months before the scandal that the milk used in their products were tainted with melamine; yet, they chose not to disclose or recall their product.  Consequently, consumers sustained injuries and damages.

E.  Parents Can Recover Damages on Multiple Grounds.

1.  Actual damages, including but are not limited to, medical expenses, lost wages;

2.  Pain and suffering in the past and future;

3.  Mental anguish in the past and future;

4.  Exemplary damages due to intentional conduct;

5.  court costs;

6.  Attorneys’ fees; and

7.  A public apology by all defendants to the consumers at large for their wrongful acts and/or omissions (uniquely Chinese).

Even if you discount the 33% that plaintiffs’ lawyers take, Plaintiffs will still be compensated for their huge losses to a certain degree.  But what is most important to the Plaintiffs is not the money; rather, it is the very fact that they lodged their complaint, they got heard, and they found justice.  And that is the day when pigs actually flew high up in the air.

(Obviously, I am not even going to try the criminal size of the story.  That belongs to another day. )