Any Recourse for the Slaying of American Tourist in Beijing? (Republish)

By now, I think everybody knows about the brutal attack and killing of Mr. Todd Bachman, an American tourist at the Bell Tower in Beijing on the first day of the Olympic Games. 

Caijing has a nice rendition of what happened:

Workers at a Hangzhou instrument gauge factory in eastern China’s Zhejiang Province remember Tang Yongming as an ordinary colleague who liked to joke and play cards at a local tea house.

Tang could be talkative, opinionated and moody, his former workmates told Caijing. But none thought he could kill in cold blood.

Police, however, have identified 47-year-old Tang as the knife-wielding man who shattered the peace of the Beijing Olympics’ first day by attacking an American couple and their Chinese tour guide before killing himself. The U.S. Embassy in Beijing said the couple’s adult daughter was also at the scene but escaped injury.

The husband, however, didn’t escape Tang’s blade and  died at the Drum Tower tourist site near central Beijing. U.S. news agencies identified the man as the father-in-law of the coach of the U.S. men’s volleyball team. The wounded wife and tour guide are expected to recover.

After the stabbing spree, police said, Tang killed himself by leaping from the tower’s upper level.

The August 9 incident came less than 24 hours after the capital city successfully opened the games with a Bird’s Nest stadium gala a few miles away. An embassy statement said the attack was “what appears to be a senseless act of violence.”

I agree that this is a “senseless” killing of a man and violent attack of  a few more people, right there in the heart of Beijing, where the 2008 Summer Olympic Games were unfolding.  But, I cannot brush aside my thoughts as to who should be held responsible, other than the assailant. 

Yes, you are right–I am asking if and how the family of the aggrieved can be justly compensated for the loss of their loved one.  To me, someone has got to be held responsible.  But who and how? 

Thinking from a U.S. perspective, I am trying to figure out causes of action against the parties responsible for providing security at the Bell Tower.  The Beijing city government?  The Beijing Police?  And/or whoever was providing security. 

“Sure, the defendants will argue that criminal activities committed by Mr. Tang was a superseding cause of Mr. Bachman’s death.  But, don’t we have a special and unique circumstance here?  Does the defendant(s) owe the deceased a heightened level of duty of care?  Mr. Bachman was an invitee, and those in charge of securing the Bell Tower had a duty to make that place reasonably safe and secure for folks like him.  Further, those in charge had a duty to adequately train their security personnel so that the popular tourist destination would be reasonably safe and secure.  In addition, since those in charge of security knew or should have known that more visitors were coming to the Bell Tower, which enhances the odds of harm and danger to invitees like Mr. Bachman, they have the duty to provide adequate security as reasonably prudent men would.  

But, they failed, miserably.  An attacker was able to get into the crowd, injure a few individuals, and fatally attack another before he committed suicide.  Where were the security guards?  What were they doing when the attack was happening?  Had there been adequate security Mr. Bachman would not have been fatally attacked and killed consequently.  Had there been adequate security personnel with adequate training Mr. Bachman would not have been so brutally killed by his assailant.  Therefore, it was the negligence of the parties providing security at the Bell Tower that proximately caused Mr. Bachman’s death.”

That is kind of what and how I would have argued on behalf of the deceased. 

What do you think?

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. )  

Families Victimized in the Melamine Scandal: Will You Ever Be Heard? (Republish)

The NY Times reported that some family members related to the victims of the melamine scandal have filed a products liability class action lawsuit.

This latest lawsuit is intriguing in a number of ways, which will be discussed below:

A.  Plaintiffs Sued in the The Supreme People’s Court of China.

Despite repeated efforts to bring lawsuits in various local courts in China, Hubei Province, Henan Province, etc., plaintiffs have failed to be heard because those courts simply refused to accept the cases.  Due to political reasons and pressure, the courts did not want to take political and social “hot potatoes” into their own hands.  

Very recently, dairy companies, under the auspice of the China Dairy Product Association, offered to settle all claims, present and future, for a sum widely reported in China and abroad.  That effort, to a large degree, has failed because many victims and their families refused to be “bought” by the paltry amount offered in the settlement proposal.  Therefore, the families still actively seek redress through other channels, courts, petitions, and the media.  Of course, suing the perpetrators in the highest court of the land would be the ideal thing to do, but probably the last resort given the fact that other courts have shut their doors at plaintiffs’ face.

The legal question, naturally, is whether the Supreme People’s Court has proper subject matter jurisdiction.  In all lawsuits, this is the first order of business and probably one of the most important questions because a court without proper subject matter jurisdiction cannot adjudicate a case, period.  In this case, according to the Chinese Civil Procedure Law (and subsequent judicial opinions), the Supreme People’s Court can have jurisdiction and be the First Instance Court over matters of national significance, and over cases that it deems ripe and proper for adjudication by the Court.

In light of the procedural law as stated above, the inquiry is then whether the case in question is of “national significance” or if it is the type of case that the Court feels it can properly adjudicate.  I’d argue “yes” to both questions.  First, the scale of the tort was unprecedentedly large.  Melamine tainted milk has so far killed six children and sickened thousands, all over the country.  Victims are mostly children, from different family background, poor, rich, and middle class.  Second, tainted milk was sold all over the country, thus spreading the impact of tort liability all over the nation.  Third, products safety and liability, given their importance, are national issues, dogging manufacturers, distributors, and consumers across the nation.  In sum, the case at bar involves claims of national significance.  

Further, the Court should accept the case because of the large stake in question.  Social harmony is in jeopardy as a result of this massive scandal because of the number of people sickened.  It is the egregious tort committed by the defendants that breached social harmony, not  the resultant lawsuits that will allegedly harm social harmony.  Many victims have so far not been able to seek justice in a court since lower courts have, without exception, refused to accept these type of cases.  As the highest court of the People’s Republic of China, it is the time for the Court to step up and lead the way when the lower courts are directionless and victims have definitely suffered injuries that call for adjudication and redress.  

In addition, civil liability should be imposed in addition to criminal liability.  Some involved in the scandal have been held criminally liable for their intentional acts.  Even though criminal liability serves its purpose in addressing the wrongs committed, it is not complete and thorough justice for those hurt for no faults of their own.  Many suffered permanent losses, and many will continue to suffer in the future.  For their losses and damages, they should be compensated.  Such compensation, in addition to criminal liability, will work together to form a formidable deterrent for future tortious acts and/or omissions.

B.  Plaintiffs Filed a Class Action Lawsuit.

[check back later for updates.]

Death of a Migrant, Pregnant Woman

Ms. Liyun Li (李丽云), a migrant worker from Hunan Province, met her boyfriend Zhijun Xiao (肖志军) in Beijing and had dated him for three year. Like so many other young Chinese ladies, she went to Beijing in search of better paying jobs and a future. Unfortunately, her pursuit of happiness ended abruptly in November 2007, along with her short hopeful life and her unborn child.

She felt under the weather for two weeks in early November, and probably for lack of funds, she avoided expensive doctors in hospitals. Instead, she went a private clinic where she was treated for a common cold. But, her health deteriorated afterwards and her boyfriend had to send her to the Beijing Chaoyang District Hospital (West District), where doctors found her to be in a dire medical emergency—her heart was failing in addition to a host of other symptoms. In order to avert a disaster, she must undergo a C-section and other emergency care immediately.

She did not have a penny on her; nor did her boyfriend. But, the hospital staff offered to operate first on credit, which rarely happens in China.

Money was not the issue on that day when she died. It did not matter; what mattered, what would have mattered was her boyfriend’s signature on an agreement for the hospital to operate and do what it needed to do to save her and her baby’s life. Before any medical operation, the hospital had to have informed consent, by law, in the form of a signature from Ms. Liyun Li, her family member, or persons related to her. But her boyfriend, the only person who could have given the consent refused, repeatedly.

As the clock ticked on, her breath grew fainter; as hours vanished together with the precious heart beat of the baby in her womb, doctors, nurses, administrators begged for his signature. But he still wouldn’t do it. In stead of signing his signature on the consent form, he wrote: “I refuse the C-section, and I shall be responsible for all consequences.” With that, the emergency care staff, in despair, witnessed the death of Ms. Liyun Li and her unborn baby, in a span of about three hours.

That sums up the griping story of Ms. Liyun Li’s death in a Beijing hospital on November 21, 2007.

Bad things happen every day, everywhere; tragedies occur all the time in China, many of which go unreported. But, Ms. Li’s story is different—it bothered me and it still does. I cannot help but think about other possible outcome to her emergency visit to the hospital. What would have happened had her boyfriend just signed the damn consent form? What if there had been no legal requirement for the consent of a boyfriend under that kind of medical emergency? And what if the hospital took matters into its own hands and operated without his consent? And what might have been had her boyfriend simply been absent from the entire situation in the hospital?

Unpleasant as it might be, death often awakens social conscience and engenders action. Ms. Liyun Li’s death was no exception. Her death has sparked a flurry of debate in the medical and legal communities in China. They are asking the same “what if” questions; they want to know whom to hold responsible for the tragic loss of two lives, one of whom never had a chance to behold the wonders of the world. They want to avoid any repetition of such a gut-wrenching tragedy.

(Please check back later for the legal issues in and possible ramifications of this story.)