Who Pays for the Damage?

Pintos, Agent Orange and asbestos await court answers

In a courtroom in Winamac, Ind., last week, former Watergate Prosecutor James F. Neal was asking prospective jurors in his Tennessee drawl what cars they owned and whether they had heard of Consumer Advocate Ralph Nader. When Raymond Schramm responded that a member of his family had a 1976 Pinto, the attorney, now representing the Ford Motor Co., asked him if that might affect his judgment. "I don't think so," Schramm replied. "I used to drive a Corvair."

Though the remark brought guffaws, the basic issue before the court is serious: What is a manufacturer's responsibility when injury results from the use of a product? That question is currently being addressed in a number of potentially far-reaching cases. To date, Ford has been the target of more than 50 civil suits involving allegations that Pintos made from 1971 through 1976 are unusually prone to catching fire when hit from the rear. But in the Indiana trial, the company is facing criminal charges of reckless homicide, the first such action ever brought against an automaker. The makers of Agent Orange, a herbicide used in Viet Nam, are being sued by ex-servicemen who say the chemical caused a variety of ailments. Asbestos producers face enormous claims for diseases caused by their product's dust.

In civil suits involving Pinto crashes, courts have awarded damages as high as $6 million. In the criminal case now being tried, Ford may be fined a maximum of only $30,000 if it is found guilty under the two-year-old Indiana law allowing corporations to be charged with reckless homicide. No jail sentences are threatened because no individual was accused. Yet a guilty verdict could affect the 23 pending civil suits. It could also trigger a rash of criminal charges against other companies involved in product-safety disputes.

The Indiana trial grew out of a 1978 accident involving a 1973 Pinto that was hit from the rear by a van; the Pinto's gas tank burst, flames erupted, and three teen-age girls in the car burned to death. To win his case, Prosecutor Michael Cosentino must prove that 1) the fuel-tank design was extremely dangerous, 2) Ford was aware of that fact but chose not to correct the problem, and 3) the design led to the girls' deaths. The judge is expected to rule this week on the critical question of whether the purported Ford documents that Cosentino has are authentic and therefore admissible evidence.

Ford's lawyers argue that states have no business hearing such cases because the auto industry is federally regulated Moreover, they say, Ford's cars have met all federal standards and have been on a par with their competitors in safety. The trial probably will last two months.

In the Agent Orange case now being brought in Westbury, N.Y., on behalf of 3,000 ex-servicemen, a veterans group is suing Dow, Monsanto and three other manufacturers of the herbicide. The organization, Agent Orange Victims International, charges that soldiers who came in contact with the herbicide in Viet Nam, where it was sprayed from airplanes to defoliate jungles, have had many resulting maladies, including skin disorders, cancer, sexual dysfunction and birth defects in their offspring. Former Medic John Wood, for example, went blind temporarily. He also fathered two children with birth defects; two daughters born before the war are in perfect health.

The plaintiffs want a portion of the companies' profits to be put into a trust fund whose proceeds would be channeled to those who can prove injury. Although Hyman Herman, one of the group's lawyers, insists, "We're not seeking to bankrupt these companies," the trust fund envisioned would amount to many millions of dollars.

The manufacturers argue that Agent Orange is harmless when properly diluted. Also, the companies now say that if the courts decide Agent Orange did do great harm, the Government should pay the costs, since it was the Pentagon that ordered the special compound and the Air Force that applied it in Viet Nam--and in a higher concentration than the companies recommended. For its part, the Government is likely to rely on a 1950 Supreme Court decision that an on-duty serviceman injured because of negligence by military personnel cannot sue the U.S.

The nation's asbestos makers have tried to get the Government involved in paying the potentially huge bill for treatment of abdominal and lung disease contracted by people who have inhaled asbestos particles. But a federal court in Norfolk has ruled that the companies alone must compensate workers who have contracted diseases after exposure to asbestos in a naval shipyard. If that ruling is followed by other courts, the cost to the industry could be enormous.

The asbestos manufacturers agree with some legal critics who argue that case-by-case resolution is not the best way to compensate victims. A swifter, simpler alternative, they say, is a "white lung" program patterned after the black-lung program that helps coal miners. A bill before Congress calls for just that--with financing by the asbestos makers and the Federal Government. So far, this bill has made little headway, and at least one industry critic, Dallas Lawyer Frederick M. Baron, argues that that is just as well. Says Baron, who won a fee of more than $ 1 million in one asbestos suit: "If the manufacturer does something wrong, should the taxpayer bail him out? Should we have a Pinto Act, a Cotton Dust Act, a Benzene Act, a Firestone 500 Act? Where will it all end?"

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