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August 31, 2005



Prof. Twerski has written about Agent Orange, product liability including toxic torts, causation, consumer injury,and tort reform. Excerpted below are some of law review writings that pertain to toxicality and corporate ethics. Plus, one Jewish joke. The excerpts won’t be easy for non-lawyers, but they prove Dean Twerski’s familiarity with toxic product and pollution concerns. Let’s start with his essay on Agent Orange:


“The Agent Orange litigation began in early 1979 when several individual veterans and their families commenced actions against the United States and the chemical companies that supplied the military with the herbicide "Agent Orange." This herbicide was used by the military to defoliate the jungles in Vietnam so that the Viet Cong could not hide and ambush American and South Vietnamese troops. Barrels of the herbicide were marked by the chemical companies with an orange stripe -- hence the name Agent Orange.

The complaint alleged that Agent Orange was contaminated with the highly toxic by-product 2, 3, 7, 8 tetrachlorodibenzo-p-dioxin (TCDD or dioxin). The plaintiffs alleged causes of action in negligence, strict liability, breach of warranty, intentional tort and nuisance. These causes of action were tied to each of the three product liability categories: production defect, design defect and failure to warn. According to the plaintiffs, the veterans' exposure to the TCDD contaminated herbicides in Vietnam resulted in a host of injuries, such as chloracne, and various systemic diseases including soft tissue sarcoma and prophyria cutanea tarda. The plaintiffs also claimed that exposure resulted in miscarriages to their wives and birth defects in their children.”

…. Since all defendants had some dioxin in their Agent Orange, the manufacturers of the more highly contaminated herbicide had a duty to warn that using their highly contaminated product with other lesser contaminated products would make the others more dangerous.

There was yet another dimension to this argument based on classic failure to warn decisions. Not only was the commingling of the Agent Orange in question in this case, but the cumulative effect of the various dose levels of the Agent Orange that were sprayed in Vietnam were at issue as well. If the defendants knew that their dose levels differed drastically, they had a duty to warn about the inappropriateness of use in an environment where such varying dose levels existed.


… The plaintiffs argued that the following facts suggested that the government had a right to expect the defendants to come forward with information concerning the products of other companies that defendants knew to be seriously contaminated with dioxin: 1) The special expertise of several with regard to testing for dioxin. This technique was available to the defendants and not to the government. 2) The knowledge to substantial certainty that the products of the others would be intermingled and sprayed as if they were fungible. The defendants knew that the products were different in that they contained varying amounts of dioxin. The government did not know and treated all the Agent Orange as fungible. 3) The unprecedented exposure of hundreds of thousands of soliders to the dioxin hazard. This was the largest spraying of herbicides in the history of mankind. 4) The "take charge" attitude of Dow and other defendants with regard to the information that was to be disseminated and the attempt to jealously guard it from public view.

The implication for the causation issue is obvious. By hypothesis, the breach of the duty to inform the government was specifically directed to the highly toxic product of all co-defendants. The very product that caused the harm was allowed to be deployed because the defendants failed to warn not only of the dangers indigenous to their own products but also of dangers inherent in the products the entire industry was selling.

The defendants' response to this argument followed their responses as discussed earlier. They contended that no independent duty to warn of industry-wide problems has ever been recognized short of conspiracy or enterprise liability.     ….”


“Blankenship v. Cincinnati Milacron Chemical, Inc. illustrates the very high cost of failing to identify and value the range of options denied plaintiffs. In that case, eight former employees of Milacron sued their employer for subjecting them to noxious chemical fumes which caused them injury. The plaintiffs alleged that the defendant, though it had knowledge that the situation existed, "failed to correct said conditions, failed to warn appellants-employees of the dangers and conditions that existed and failed to report said conditions to the various state and federal agencies to which they were required to report by law."

Notwithstanding the seriousness of the allegations, the trial court dismissed plaintiffs' actions because workers' compensation covered the employer, and thus immunized the employer from tort liability. On appeal the Ohio Supreme Court noted the allegations that Milacron had intentionally failed to warn its employees of the dangers of the toxic chemicals. The court held that the Ohio Legislature did not intend the Ohio worker compensation statute to immunize employers from intentionally tortious conduct, and thus, recognized a common law right to tort recovery. In a sharp partial dissent, Justice Locher took issue with the majority's intentional tort analysis. He argued that if the employer did not act with "knowledge to substantial certainty" that harm would result, then mere knowledge on the part of the employer that it was subjecting plaintiffs to a risk of harm did not constitute an intentional tort.   Source:  1988 U. Ill. L. Rev. 607  INFORMED DECISION MAKING AND THE LAW OF TORTS: THE MYTH OF JUSTICIABLE CAUSATION   w/ Neil Cohen


“This essay first sets forth the causation principles that govern tort cases generally and shows how products liability causation issues fit within this broader context. It then focuses on the special way causation principles play out in product design litigation. [We favor…] a risk-utility test that asks whether a safer, reasonable alternative design could have been adopted that would have prevented plaintiff's harm. Under the risk-utility test, the "would have prevented" aspect, missing from consumer expectations, introduces an important element of but-for proximate causation that, relying on technology rather than intuition, plays an important role in constraining design-based liability.” Source: 88 Geo. L.J. 659  ESSAY: Intuition and Technology in Product Design Litigation: An Essay on Proximate Causation


“I said at the beginning of this [Restatement of law] project that we would be vilified, not for what we said, but because we said it. There is a Jewish joke about an orthodox Jew whose wife once wanted to eat ham. He felt guilty about it and walked into a delicatessen. He pointed to a piece of ham on the counter and he told the clerk, he said, "Give me a piece of that." He says, "You mean the ham, sir?" He said, "Who asked you to name it?" Our sin was not that we created new law, but that we clearly identified the law that was there. That, and in many areas, in a whole lot of areas, moved the law up and in favor of consumers in very significant ways and opened lots of doors. We are fiercely proud of our work.” Source: 10 Kan. J.L. & Pub. Pol'y 55




“The charge that the Products Restatement constitutes the ALI equivalent of "tort reform" legislation is simply ludicrous. Consider the following positions that the Products Restatement takes that have been strongly opposed by business and manufacturing interests. …

C. Reasonable Design Rather than Warnings Is Necessary for Optimal Product Safety


….This position illegitimately gives primacy to the role of warnings. It allows a defendant to escape liability for inadequate design by simply warning against risks. The Products Restatement rejects this primitive notion decisively. Section 2, comment l provides:

Reasonable designs and instructions or warnings both play important roles in the production and distribution of reasonably safe products. In general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks. For example, instructions and warnings may be ineffective because users of the product may not be adequately reached, may be likely to be inattentive, or may be insufficiently motivated to follow the instructions or heed the warnings... n59  …


E. Compliance with Statute Does Not Create a Presumption of Non-Defectiveness
”…. The Products Restatement adopts the traditional view and rejects the position that compliance with a statute or regulation creates a formal presumption of non-defectiveness. Furthermore, the Products Restatement takes the position that a product that is in violation of a governmental standard is defective per se and that there exists no "justifiable excuse" defense for violating a governmental safety standard.”



Note: These excerpts were drawn from Lexis-Nexis. Hopefully this non-commercial post is covered by fair use of the copyrighted materials.

Tom Wickwire

Dean Twerski,
Congrats, late, on the Hofstra Dean job. Tried to get your "Rethinking Self-worth in the Context of Recession" online. Couldn't. help? Much interest in last 10 years in lessons from Holocaust.

Tom Wickwire,
A Goyum from St Louis who went East. Hofstra 1967; B.L.S. 1969. Nearing 40 years of Lawyer ing in Fairbanks, Alaska. Still going at plaintiff civil litigation full time, but will find time to read your stuff.

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