Tort Reform, Corporate Style

TORT REFORM, CORPORATE STYLE….After the Sago coal mine disaster killed 12 West Virginia miners last month, the Mine Safety and Health Administration (MSHA) came under widespread criticism for failing to adequately regulate the coal industry and protect mine workers. Critics blamed the Bush administration for stocking the agency with coal industry cronies who wanted a more ?cooperative? approach to safety regulations rather than serious enforcement. Now, one more group has joined the chorus of MSHA critics: the very coal companies that worked to gut the agency in the first place.

Here’s the story. Back in 2003, West Virginia suffered its worst coal mining accident in a decade when an explosion in a mine owned by CONSOL Energy killed three miners and disabled two others. The families of the dead and injured miners sued CONSOL, alleging that it had demonstrated a willful disregard for its workers? safety and was ultimately responsible for the accident. The trial is set for June. But with all the recent publicity about MSHA?s failures, CONSOL apparently saw an opportunity for a novel legal defense.

This week, after three years of litigation, CONSOL and the other defendants filed a motion stating their intention to sue MSHA, which they argue is really to blame for the mine explosion. ?The negligence of CONSOL, if any, was the result, in whole or in part, of the negligence of the Mine Safety and Health Administration,? they write, demanding that the federal government pay any jury award against the companies that might result from the litigation, along with all their legal fees.

Big drug companies and automakers have been arguing for years that simply being regulated should immunize them from lawsuits. But suing the regulators for doing a bad job of it is a novel innovation. CONSUL?s complaint reads like a ?stop me before I kill again? defense, akin to blaming the police for an accident because they failed to stop you from speeding in the past.

If it works, you can imagine the creative possibilities for companies in the midst of expensive litigation: Merck sues FDA for letting it sell Vioxx! Ford sues the transportation department for not demanding roll-over tests for SUVs! DuPont sues EPA for failing to notice when it dumped toxic chemicals into people?s drinking water! And if the companies win, the federal government can pay all those big jury verdicts. It?s amazing they didn?t think of this sooner….

Stephanie Mencimer

Stephanie Mencimer is a reporter at Mother Jones and a contributing editor at the Washington Monthly.