By: Robert Lackey
On December 3, 1984, Union Carbide’s Methyl isocyanate (hereinafter “MIC”), a poisonous compound with manifold applications in manufacturing in Bhopal, India, exploded and released forty tons of its product into the local atmosphere, killing over 2,500 people and injuring another 200,000.[1] Union Carbide’s main consequence from this disaster was a settlement to the Indian government on behalf of its victims for $470 million, which was to settle all past, present, and future claims arising out of the incident.[2] Not only did this settlement eliminate civil liability for Union Carbide, it terminated all criminal and contempt of court proceedings that had arisen from the incident and were pending in lower Indian courts.[3] In short, nobody went to jail, and Union Carbide only had to pay out about $160,000 per death—ignoring the injured.[4]
This is part of a pattern of indemnification for criminal acts committed as part of one’s official corporate duties. While the details, like the jurisdiction, the actual crime, and the death-count vary from incident to incident, the end result is usually the same—an inadequate settlement, horrifying death tolls, and nobody going to jail.[5] While there is potentially an element of respondeat superior shielding lower level employees from liability if they were generally acting in accordance with their employer’s wishes, when a company’s conduct negligently results in deaths it seems unlikely that nobody criminally responsible for a negligently caused death.
Two recent incidents which have the opportunity to break this pattern are the opioid crisis, and the camp fire in California. Throughout the Opioid Crisis, about in 2017 alone, 72,000 Americans died from opioid overdoses, which is more than all US deaths during the entirety of the Vietnam War.[6] Pending litigation against the Sackler family, the makers of Oxycontin, includes allegations by the Massachusetts Attorney General that the Sackler family aggressively sought the over-prescription of its product despite knowing its dangers.[7] It is unusual enough that this litigation has even been brought: It would be even more unusual still if the actual owners of this company were held criminally responsible opioid related deaths. If the Status quo (as upheld in the Bhopal incident) was upheld here, the Sacklers would merely owe a fine, but if it gets broken, then the owners of this company will spend time in jail.
As a comparison to the Opioid litigation, the California Camp Wildfire has also sparked litigation against PG&E for alleged negligence in causing the fire that killed nearly 50 people and demolished hundreds of homes.[8] This would not be the first time that PG&E has been responsible for starting devastating wildfires.[9] Unlike the Opioid litigation, this does not seem to be an instance where the shield of “official acts” seems likely to be dropped—the parties are seeking monetary compensation, they are not aiming to send any PG&E officers to jail. The litigation against them is civil, despite the seriousness of the property damages and loss of life that have resulted. At some point, someone made a negligent decision which resulted in this fire—but the consequences are not going to be born criminally, they will likely be covered by PG&E’s insurance.[10] The shield remains intact in this instance, though it might fail apart in the Opioid litigation.
These two cases exemplify
potential paths of future corporate criminal liability. If the path of the
California wildfires remains the norm, negligent killings will be resolved with
cash. But if the Opioid litigation manages to subvert the status quo, then
corporate officers might face criminal prosecution. But then again, if nobody
went to jail for the Bhopal disaster, maybe no officer ever will.
[1] Shyam Divan & Armin Rosencranz, The Bhopal Settlement, 19 ENVTL. POL’Y & L. 166, 166 (1989).
[2] Id. at 166-67.
[3] Id. at 167.
[4] Id.
[5] See generally id.
[6] Sackler Family, Makers of Oxycontin, Under Fire in Court, Managed Care Magazine (Jan. 16, 2019), https://www.managedcaremag.com/dailynews/20190116/sackler-family-makers-oxycontin-come-under-intense-fire-court.
[7] Id.
[8] Nick Carey, California Wildfire Victims Sue Utility PG&E Alleging Negligence, Reuters (Nov. 14, 2018), https://www.reuters.com/article/us-california-wildfires-lawsuit/california-wildfire-victims-sue-utility-pge-alleging-negligence-idUSKCN1NJ20G.
[9] Id.
[10] Id.
