LEFT OF DAYTON

SHADOWS ON HIGH: LET THEM EAT PAINT | September 7, 2007

 

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For Cheung Shu-hung, the cultural humiliation was too much.

A Chinese manufacturer who co-owned Lee Der Industrial Co., he was faced with the recall of millions of toys including Big Bird, Elmo and Dora the Explorer products. Why? Because lead paint was discovered by the American companies that outsourced manufacturing to his Beijing facility.

On the heels of an already alarmed U.S. public over trade issues abroad, and a much publicized tainted pet food scandal last winter, Chinese authorities were cracking down by banning his company from exporting products and requiring a recall worth a financial loss in the area of $30 million dollars, according to the Associated Press.

Soon after the problems were disclosed, Cheung Shu-hung committed suicide.

AP reported that Cheung’s best friend’s company supplied the tainted paint. Since then, over 9 million toys have been recalled, including Barbie items and Thomas the Train wood products.

A world away in Ohio, we have no such cultural shame. A lame duck session of legislators last December, over the objections of then ruby red Ohio Attorney General Jim Petro and current cobalt blue Attorney General Marc Dann, put a cap on Ohioans’ rights to sue over lead paint exposure in their homes. Out-going Gov. Bob Taft had his own reservations but let it – he thought—become law.

Ted Strickland then vetoed the bill on his first day in office. The Ohio Legislature quickly sued, saying the Secretary of State had no right to give the bill back to the new Governor for his veto. The Ohio Supreme Court disagreed and reversed the veto.

In Ohio, there isn’t shame over lead poisoning – our leaders have effectively said, “Let Them Eat Paint.” Which leads to the rather embarrassing question; how is it that in Communist China, they can crack down on product liability and thrive economically – but in the name of jobs – our own Ohio legislative lemmings seek to look the other way?

And why is it that we care more about paint chips flaking on Barbie and Tickle Me Elmo than the paint on your window sill – when both are abundantly edible to our young children?

A legislative analysis of the bill passed in the whirlwind session last year, S.B. 117, states that “a manufacturer may not be held liable in a product liability action based on market share, enterprise or industry wide liability.” Even if you could sue a paint company in Ohio, the law limits consumer sales lawsuits to actual economic damages, plus an amount not exceeding $5,000 in noneconomic damage, or three times the consumer’s actual economic damages.

It further requires proof that the company is directly responsible for the damaged consumer product – provided some much-needed wiggle room in an age of limited liability companies and outsourced manufacturing.

    “The act requires the claimant, in order to subject a manufacturer to liability for compensatory damages based on a product liability claim, to prove, in addition to the defective nature of the product and proximate cause as described in (1) and (2) above, that the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product that was the cause of the harm for which the claimant seeks to recover compensatory damages. The act provides that proof that a manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the type of product in question is not proof that the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual defective product in a claim. (R.C. 2307.73(A)(3) and (C).)”

The Ohio law would appear to allow in the case of these tainted toys, for the American company selling the item to pass of liability to the outsourced manufacturer a world away under this new language. Even the notorious toy-hater BurgerMeister MeisterBurger in the classic Christmas cartoon would have to marvel at that little piece of real Ohio law – (we can only wish it were a cartoon.)

In short, it appears to be a sad fact that Communist China takes consumer product liability more seriously than our Grand Ol’ Ohio Democracy here in Ohio’s legislature and Supreme Court. Hoo-Ahh – now there’s a gut punch to our Ohio pride.

Of course in Ohio, it’s always about cash in the system.

Earlier this year, Ohio Citizen Action researched fundraising from both the paint industry and the lobbyists and organizations representing paint companies (law firms, manufacturer’s association and chamber of commerce). The study included money paid to judicial candidates in the years preceding their Supreme Court elections. Obviously, some of these organizations represent other clients and interests – but the study clearly showed large corporate interests were not shy about advocating for the paint industry.

1999-2000—Justice Terrence O’Donnell [lost, later appointed and elected] (Total: $25,450 ($8,000 total from Jones Day, $7,950 total from Sherwin-Williams, $3,000 from OMA)

2001-2002 Evelyn Lundberg Stratton and Maureen O’Connor were running for the Supreme Court in this election cycle.

  • Stratton Total: $34,100 ($20,750 total from Jones Day, $6,400 from OMA, $3,250 from OH Chamber, $3,700 from Sherwin-Williams)
  • O’Connor Total: Total: $24,450 ($3,250 from the Ohio Chamber, $6,400 from the OMA, $12,700 from

Jones Day, $2,100 from S-W)

2003-2004 –Thomas Moyer, Terrence O’Donnell, and Judith Ann Lanzinger were all elected or re-elected to the Supreme Court in this election. Although Maureen O’Connor wasn’t running, contributions to her are present in this election cycle. All of her contributions are recorded as being received prior to March 6, 2003.

  • O’Connor Total: $5,450 ($3,450 from Jones Day)
  • Moyer Total: $27,551.67 ($1,526.67 from OMA, $21,525 from Jones Day, $2,000 from S-W)
  • O’Donnell Total: $29,051.67 ($6,250 Chamber, $2,526.67 OMA, $15,775 Jones Day, $4,500 S-W)
  • Lanzinger Total: $22,876.67 ($5,650 Chamber, $5,526.67 OMA, $7,450 Jones Day, $4,250 S-W)

2005-2006 — Terrence O’Donnell and Robert Cupp won election or re-election to the Supreme Court this cycle.

  • O’Donnell Total: $22,675 ($5,625 OH Chamber, $2,100 OMA, $12,450 Jones Day, $2,500 S-W
  • Robert Cupp Total: $14,875 ($5,675 Chamber, $2,200 OMA, $5,500 Jones Day, $1,500 S-W)

When the decision to overrule the governor’s veto and preserve the lead paint lawsuit limits came down last month from the Ohio Supreme Court, it was written by Justice Cupp and supported by Chief Justice Moyer and Justices Stratton, O’Connor and O’Donnell. Rather uncharacteristically, Justice Lanziger dissented, disagreeing over the way days are counted leading up to a veto. Justice Pfeiffer strongly dissented.

This, of course, shouldn’t surprise Ohioans. Less than a year ago the New York Times wrote an article by Adam Liptak and Janet Roberts titled, “Campaign Cash Mirrors a High Court’s Ruling” in which Ohio’s notorious pay-to-play system took yet another inglorious black eye, front and center, as national news.

And just what exactly does this mean to Ohio kids whose Barbies and Doras are quarantined, but who still have flakes of paint lying around?

According to the National Safety Council, young children under the age of six are especially vulnerable to health problems because of the development of their brains and central nervous system. “For them, even very low levels of exposure can result in reduced I.Q, learning disabilities, attention deficit disorders, behavioral problems, stunted growth, impaired hearing and kidney damage. At high levels of exposure, a child may become mentally retarded, fall into a coma or even die from lead poisoning.

In the last ten years, cases of death from lead poisoning have been reported in New Hampshire and Alabama. In adults, the NSC reports that lead poisoning can increase blood pressure, cause fertility problems, nerve disorders, muscle and joint pain, irritability and memory or concentration lapses. In pregnant women, lead poisoning can be transferred to a fetus.

The Department of Housing and Urban Development reports that about 25% of the nation’s housing stock or some 24 million homes contain significant lead paint hazards largely from older homes with deteriorating lead paint or lead-contaminated dust.

Back in December, when the Ohio Legislature passed the cap on damages, Maureen Martin, senior fellow for legal affairs for the right-wing Heartland Institute, told Environment News, “There are relatively simple and inexpensive methods available to homeowners and landlords to keep lead paint intact or to fix it if it deteriorates. So unless there is reason to suspect deteriorated lead-based paint is present in Akron houses and apartments, such inspections might not even be legal. They certainly are not necessary” – HUH?

Doesn’t that just smack of a modern day Marie Antoinette “Let-Them-Eat-Paint” attitude?

Translated to our Chinese Toy crisis, unless you see a toy begin to have paint chip away or pieces start to flake – just let those kids gnaw away – right Ms. Martin? It’s about the free market correcting itself – and hey a few kids mentally afflicted will correct the market in a hurry. Quite a socially responsible and economically responsible attitude.

Apparently, when it comes to China and imported toys, free market ideology takes a backseat to practical public perceptions. Just last week, both U.S. Senator Dick Durbin of Illinois; and Rep. Mike Ferguson, a Republican from New Jersey, weighed in with their concerns about product safety. Rep. Ferguson told AP that companies in China have to make sure their products meet our American standards. “If they don’t, I believe Congress must give federal regulators the authority to ensure our kids’ toys won’t actually harm them.”

It makes you wonder – did Rep. Ferguson ever think of pointing that searchlight on our own product liability standards? It sure seems like under the Ohio law, if an Ohioan sued Mattel or any other American toy company, they likely would kick the product liability responsibility to the Chinese manufacturer. Even if you prevailed, even with catastrophic effects on your child’s mental development, your damages for a life of diminished skill would be capped – and this after years of litigation.

But it sure didn’t take years of litigation for the Chinese to correct their toy problem, or for the Consumer Product Safety Commission to force a recall.

But back in Ohio there is just a callousness about the way in which this liability cap issue was passed in a lame-duck session of legislators and a Governor both stuck in their waning days, and on the part of the Ohio-based manufacturers who pushed the issue so expeditiously.

In early August, the Ohio Alliance for Civil Justice — a coalition of businesses — told the Columbus Dispatch after the Governor’s veto was overturned that the law “benefits all Ohioans by protecting jobs and our economy and keeping the state’s businesses competitive.” But you have to wonder about that, given the fact that the Chinese economy does not seem to be slowing down – and if anything, it was the American importer’s lack of quality control that allowed these toys to go into the American market.

Could it be that it was our American callous view of the bottom line that imposed this laisse faire attitude on the Chinese manufacturer? After all, clearly American culture does not react culturally to business improprieties in the same manner as many pan-Asian cultures.

And it raises even more troubling societal issues for each of us as Ohioans.

Do we not care about lead-paint in houses because it mostly deals with older, urban and rural housing where lower-income residents frequent? Do we care more about toys made in China because all kids are exposed, including those in suburbia whose post-1978 housing has no lead-based paint?

Are we xenophobic to the point that we can make the Chinese manufacturer a villain here, which is easier than digging the depths of our souls about the behavior of our own Ohio manufacturers and legislators?

And most of all, although the act itself is not condoned — and at some level a by-product of the totalitarian system in which he lived — there was some sense of cultural duty and humiliation that Cheung Shu-hung felt that August day that he took his own life.

Why here in Ohio, is there no such corporate humility about past actions? Have we really gotten to the point that Ohio legislators and manufacturers are so caught up in their own profit-based ideologies that health of the customer be damned?

The one thing factually certain is that, in China last month a totalitarian Communist regime found a manufacturing scoundrel and moved quickly to shut it down. But in Ohio, we just watched our Ohio Supreme Court re-define our Ohio Constitution to instead say essentially to the same situation: “Let them eat paint.”

It makes you wonder what the purpose of government in Columbus is for, if it’s not to protect our kids health and mental development.

Read more Brian Rothenberg @ progressohio.org

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61 Y/O VIET VET WORKING FROM THE LEFT OF CENTER

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