There was a town in the U.S. with only one lawyer who was poor. Another lawyer moved into the town. Now both lawyers are rich.
Jokes, puns, and parodies about lawyers are plentiful. Perhaps that is because there are plenty of lawyers in America to tease. Per the American Bar Association’s National Population Survey, there were 1.35 million active lawyers in the U.S. beginning 2019, up 14.5% over the last decade. The U.S.’s labor force participation in February 2020 was 164.6 million. Run the numbers. For about every 122 Americans available for work, there is one active lawyer. The ratio of available workers to active lawyers in New York is about 50:1.
Too many lawyers?
Whether there is an overpopulation of lawyers in the U.S. is debatable. The more complex, diverse, and open a society is, the greater number of lawyers are necessary to help resolve disputes. Statista.com estimates, for example, that China’s 2018 labor force participation was about 806 million with an estimated 423,758 active lawyers; or a ratio about 1,900:1. What country best serves its business and society?
U.S. most litigious country?
Contrary to popular myth the U.S. is not the most litigious country in the world. Although dated, but often cited, Christian Wollschlager’s 1998 research, “Exploring Global Landscapes of Litigation,” found that the most litigious countries based on litigation rates per 1,000 people are: 1) Germany: 123.2/1,000; 2) Sweden: 111.2/1,000; 3) Israel: 96.8/1,000; and 4) Austria: 95.9/1,000. The U.S. came in at #5: 74.5/1,000. UK, Denmark, Hungary, Portugal, and France made up the rest of the top 10 most litigious countries.
Beyond OSHA regs: ISO 45001
U.S. OHS pros often fixate on OSHA regulations for legal requirements. Workplace health and safety legal considerations, however, extend far beyond OSHA. “Determination of legal requirements and other requirements” are found at Clause 6.1.3 at ISO 45001:2018 Occupational health and safety management systems – requirements with guidance for use.
Legal requirements listed at ISO 45001 Informative Annex A.6.1.3(a) include: 1) legislation (national, regional or international), including statues and regulations; 2) decrees and directives; 3) orders issued by regulators; 4) permits, licenses or other forms of authorization; 5) judgments of courts or administrative tribunals; 6) treaties, conventions, protocols; and 7) collective bargaining agreements.
Other requirements listed at Annex A.6.1.3(b) include: 1) the organization’s requirements; 2) contractual conditions; 3) employment agreements; 4) agreements with interested parties; 5) agreements with health authorities; 6) non-regulatory standards, consensus standards and guidelines; 7) voluntary principles, codes of practice, technical specifications, charters; and 8) public commitments of the organization or its parent organization.
Per Wikipedia, a tort is a “civil wrong that causes a claimant to suffer loss harm, resulting in legal liability for the person who commits a tortious act.” Tortious acts may cause many things including injury, illness, disease, and emotional distress.
Negligence is a key to tort liability. In its simplest concept, to prove negligence a plaintiff must show they were owned a “duty of care.” Duty was breached (care not sufficiently given). Breached duty directly caused injury, illness, or other harm or loss. Plaintiff suffered damage because of the breached duty. If the above hurdles are passed, an equitable remedy or compensation is owned the plaintiff.
U.S. workers’ compensation laws are the exclusive remedy for workplace injury or illness. WC’s exclusive remedy, however, may not hold and a tort action is possible if an employer “intentionally” caused an injury or illness to an employee. OSHA’s “General Duty Clause” begins with tort logic.
Can causation be proved? Occasionally, causation is just high stakes poker. This past June 2020, Bayer AG offered a settlement of $10.5 billion to satisfy a class-action lawsuit claiming Roundup weed killer, with active ingredient, glyphosate, caused cancer.
In January 2020, the U.S. EPA concluded after extensive review, and it is the agency’s current position, that “Glyphosate is unlikely to be a human carcinogen” and “there is no risks of concern to human health when glyphosate is used in accordance with its current label.” Check for yourself online. Majority of science facts backs up the EPA’s position. What gives, is glyphosate a human carcinogen or not?
Under Daubert and Frye standards for admissibility of expert opinion, generally a gateway to prevent entry of junk science into the courts, often comes down to battle of conflicting expert’s methodologies to assert quantitatively or qualitatively that they believe causation did or did not occur. In choosing between legitimate but conflicting scientific views, of which there is an abundance today, juries often side with the experts they find to be most credible. The expert(s) that are most persuasive, and not simply the weight of scientific evidence, is particularly important in today’s style of litigation.
Investment to sway your position is important, too. The U.S. Chamber for Legal Reform found that between 2015 and 2019, plaintiffs’ lawyers in Roundup litigation spent an estimated $103 million on TV ads promoting that use of Roundup causes cancer. Likely it was cheaper for Bayer to settle claims than to continue to battle to sway jurors’ views and public opinion.
This past May 2020, a couple of legal search firms contacted me to determine my interest in serving as an expert witness in upcoming COVID litigation claims, of which a couple thousand have already been filed in federal and state courts. I was contacted because my name appeared in public CIH® database. CIH® is considered a credible “exposure scientist” that may readily meet both Daubert and Frye standards as an expert witness.
Legislation may limit the tidal wave of COVID lawsuits. Ongoing lawsuits, however, are inevitable. Now is the time to ensure your employer’s OHS legal requirements (see ISO 45001 above) are sound. Particularly ensure that COVID actions meet legal reasonableness, which may or may not depend on conformance with OSHA and CDC guidelines.