Academic journal article Defense Counsel Journal

The MTBE Controversy: Defending Mass Tort Claims: The Forces of the Plaintiffs' Bar, Commercial Competitors, and "Junk Science" Must Be Met "Head On" with Coordinated Efforts

Academic journal article Defense Counsel Journal

The MTBE Controversy: Defending Mass Tort Claims: The Forces of the Plaintiffs' Bar, Commercial Competitors, and "Junk Science" Must Be Met "Head On" with Coordinated Efforts

Article excerpt

A NEW tyranny is growing in the United States. It threatens not only domestic businesses, but also international enterprises on a global scale. Fueled by billions of dollars in settlements in the tobacco and other mass tort controversies, American plaintiffs' lawyers have been transformed into major "venture capitalists." These well-financed investors, whom some refer to as the new American Aristocracy, are looking to invest in new and profitable products, but those "products" are not produced by the "brick and mortar" or even the "high technology" sectors of the global economy. Instead, the product is litigation.

The ultimate goal is not the general public interest, but rather profits derived from exploiting public fear, media hype, political influence, junk science and the complexities and financial burdens of litigation--profits realized from creating massive controversies that judicially extort major corporations and small businesses into massive settlements without ever resolving the validity of the claims on the merits--profits funded by virtual liquidation of productive corporate assets to yield even more "venture capital" to fuel further campaigns to gain--more money.

This outrage goes beyond "taxation without representation," one of the evils that prompted the American Revolution. Here, the tribute is not even paid to a government, but instead to plaintiffs' counsel who unilaterally select target industries that will yield the greatest return on new litigation products. Many people are concerned that governmental oversight of the U.S. judicial process has been diluted by political contributions by these same lawyers. These lawyers make no pretense of political accountability and, more important, pay no attention to national boundaries. The end result is a closed and unregulated global marketplace where a few opportunists promote "products" comprised of predatory ideas for the purpose of serving their own selfish interests.

Unfortunately, these destructive efforts may destroy otherwise productive products and threaten entire sectors of the global economy. Accordingly, national and international businesses must not only be aware of this threat, they must be prepared and committed to defend themselves and their products against these well-financed and wide-ranging assaults.

The ongoing controversy regarding the gasoline additive methyl tertiary butyl ether (MTBE) is one of the most recent speculative products of the American legal industry. MTBE, an award-winning additive that has been proved to reduce air pollution from gasoline combustion, has been demonized through a co-ordinated effort by American plaintiffs' lawyers, commercial competitors and some opportunistic water agencies, who claim that the additive pollutes groundwater when it leaks from underground storage tanks (USTs). These claims have spawned class actions and mass tort cases involving every state where MTBE was used.

Some of the MTBE litigation has been consolidated into a large multi-district proceeding in New York, but a great deal remains pending in state courts, most notably in California, where a few municipalities and water agencies seek massive damage awards for allegedly polluted water supplies in order to replace current aging, out-of-date and dangerous facilities. The onslaught of litigation has prompted massive adverse publicity; false, inaccurate and unreliable scientific speculations regarding health risks; and strong lobbying by manufacturers of competing products, environmentalists, and state officials.

As a result of the hysteria brought on by these activities, overreaching efforts by state officials to "ban" MTBE, dozens of bills introduced in the U.S. Congress, and investigations of MTBE in a number of other nations, including the entire European Community and many of its members, began to occur. All of these activities were "encouraged" by commercial competitors, the plaintiff attorneys and their clients. …

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