Lawsuits in China's milk scandal unlikely to be settled in court
By Edward Wong
Friday, October 17, 2008
BEIJING: The first sign of trouble was powder in the baby's urine. Then there was blood. By the time the parents took their son to the hospital, he had no urine at all.
Kidney stones were the problem, doctors told the parents. The baby died on May 1 in the hospital, just two weeks after the first symptoms appeared. His name was Yi Kaixuan. He was 6 months old.
The parents filed a lawsuit on Monday in the arid northwest province of Gansu, where the family lives, asking for compensation from Sanlu Group, the maker of the powdered baby formula that Kaixuan had been drinking. It seemed like a clear-cut liability case; since last month, Sanlu has been at the center of China's biggest contaminated food crisis in years. But as in two other courts dealing with related lawsuits, judges have so far declined to hear the case.
Tainted infant formula is the latest in a long string of food and drug safety problems that have exposed corruption and inefficiency among China's regulators. But the problem goes well beyond the inability of regulators to police a huge, dynamic economy. Companies that produce shoddy goods rarely face financial penalties from the legal system, run by the Communist Party.
Some lawyers and judges are making great efforts in China to establish the power of the courts. Still, courts often remain passive pawns in the party's efforts to handle big disputes behind closed doors.
"I felt myself falling apart when he died, and my wife even avoids thinking about it now," the baby's father, Yi Yongsheng, 30, said by telephone from the city of Xian, where he works menial construction jobs to send money home. "I don't place too much hope in the lawsuit. I just want to ask for justice."
Chinese officials, under pressure to promote fast rates of economic growth and to enforce social stability, routinely favor producers over consumers. Product liability lawsuits remain difficult to file and harder still to win, especially if the company involved is state-owned or has close connections to the government.
Officials also view high-profile lawsuits as a potential political threat and go to great lengths to silence the plaintiffs rather than allowing the wheels of justice to turn. In the milk crisis, officials in several provinces have put pressure on many involved, including parents, lawyers and judges, to drop the issue, said legal scholars and lawyers who have volunteered to help the parents.
Western lawyers would probably have lined up to sue Sanlu. One of China's largest milk companies, Sanlu, based in the city of Shijiazhuang, was the most prominent dairy producer found to sell milk products tainted with melamine, a toxic chemical illegally added to watered-down milk to artificially increase the protein count and fool safety tests. At least four babies have died from complications resulting from kidney stones, and 53,000 children have been sickened. Senior government officials and company executives were fired after evidence emerged of a wide-ranging cover-up.
In China, Yi and his wife, who are seeking $152,000 from Sanlu, are among only a handful of Chinese who have filed a lawsuit against a dairy company. The plaintiffs are all individual families; lawyers say there is almost no chance that any judge would consider a class-action lawsuit because those are strongly discouraged in China.
More than 100 lawyers across the country put themselves on a list of volunteers willing to give legal advice to anxious parents, but local government officials have put pressure on some not to take on any cases, several lawyers said. At least two dozen have since removed themselves from the list.
"This will move further away from the legal system," Zhang Xinbao, a law professor at People's University of China, said of the milk crisis. "The legal system and mechanism we have can't function in this case. This is what law experts are concerned about."
"This is a product liability case that in a Western country would turn into a class-action lawsuit," Professor Zhang said. In China, he said, "they don't want to see so many people getting involved in one lawsuit. This might threaten social stability."
Qian Weiqing, the head of the Dacheng Law Office in Beijing, said at a legal conference last week that the government, in continually suppressing such lawsuits, had "missed many opportunities to improve the system to deal with these problems, including perfecting the law enforcement system, the judicial system and the relief system."
Government officials have told parents and lawyers in the milk cases that their complaints can be resolved through out-of-court compensation payments.
Local governments in Sichuan Province employed the same strategy with grieving parents whose children died in school collapses during the May 12 earthquake. Over the summer, the officials compensated the parents if they signed individual papers agreeing to drop demands for investigations into shoddy school construction. Most of the parents accepted the money, but many said they were furious that no one had been held responsible for the deaths of their children.
As with the school collapses, the milk scandal involves a web of complicity linking company executives to government officials. Those connections make sorting out responsibility a delicate political task. Rather than allow the courts to weigh in, officials prefer to press complainants to take compensation, said Teng Biao, a lawyer in Beijing who is collecting material for a possible class-action lawsuit. "Traditionally in China, politics is always higher than the law," he said.
"To protect Sanlu is to protect the government itself," he added. "A public health crisis like this not only involves Sanlu. It involves many officials from authorities in the city of Shijiazhuang up to the central government. It involves media censorship, the food quality regulatory system and the corrupt deal between commercial merchants and corrupt officials."
In the milk scandal, judges are trying to decide whether to accept three lawsuits that have been filed separately in the provinces of Gansu, Henan and Guangdong. The Gansu lawsuit is the only one to involve a dead child, Yi's son. Courts in Henan have already rejected two other cases, said Chang Boyang, a volunteer lawyer in Henan representing parents whose 1-year-old son died in early September.
Lawyers in Henan, a poor backward province, have faced more harassment from local officials than lawyers elsewhere. At least 20 of the lawyers who have dropped off the volunteer list are from Henan. On Sept. 27, officials from the province's judicial bureau, which administers the courts and legal licenses, met with lawyers to discourage them from taking the cases.
A working brief issued Oct. 7 by the national volunteer group said the officials had directly told the lawyers not to give any legal aid to the parents.
Chang said the pressure actually took a subtler form. Officials told the lawyers to report to the government if they decided to handle a milk case. The officials also reiterated rules mandating that the lawyers tell the government if they take any cases centered on incidents involving many people or delicate issues.
Li Fangping, a human rights lawyer, said officials from the Beijing lawyers association met with lawyers in the capital last month to discourage them from filing milk lawsuits, especially suits with plaintiffs from multiple provinces. The lawyers were told not to publish working briefs on the Internet. At the time, the volunteer lawyers had already gotten more than 1,200 phone calls from concerned parents.
Many lawyers find it hard to ignore the entreaties of provincial judicial bureaus or lawyers associations, which they are required to join. Those groups are controlled by the Ministry of Justice, which ultimately makes the rules for licensing lawyers.
The All China Lawyers Association, the country's bar association, strongly discourages class-action lawsuits. In March 2006, the association put out a guiding opinion aimed at curbing cases involving 10 or more plaintiffs. There was no outright ban on class-action lawsuits, but the association put in place onerous rules, including a requirement that lawyers report conversations with clients to the judicial bureaus, said Jerome Cohen, a professor of law at New York University who specializes in the Chinese legal system.
On Oct. 10, a group of lawyers, law professors and a judge from the Supreme People's Court held a conference at People's University to discuss the milk scandal's legal issues. The judge, Chen Xianjie, said China's courts had little experience with class-action suits. "If the court accepts the Sanlu case as a collective lawsuit, consumers would end up with no legal protection," he warned.
Judge Chen said it would be better for the parents' complaints to be treated in the traditional manner. The government should handle them as an administrative issue and dole out compensation, he said. It has already agreed to pay medical bills, but has yet to offer more compensation.
Some Chinese have raised questions, though, about whether the government should be using taxpayers' money to compensate for private companies' mistakes.
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