A Look at Japan’s Efforts to Discourage Lawsuits

January 16, 2013

COLUMN ONE : Long Haul for Japan’s Plaintiffs : A town’s effort to seek redress for arsenic poisoning illustrates how citizens are discouraged from aggressively pursuing valid legal claims.

January 14, 1991|LESLIE HELM | TIMES STAFF WRITER

TOROKU, Japan — Deep in the mountains of Kyushu, a small group of elderly villagers huddled around a kerosene stove last month to talk about their long battle with arsenic, bureaucracy and the courts–in their view, three equally virulent strains of poison.

Their experiences tell a sorry tale about the state of justice in Japan today.

Forty-one villagers filed suit against Sumitomo Metal Mining Co., owner of a primitive arsenic manufacturing operation whose fumes had polluted the narrow river valley for nearly half a century. As the case dragged on for 15 years, 23 of the plaintiffs died, most as a direct effect of the arsenic. The others saw little choice but to settle.

“Why keep fighting in court if you have only so many years left to live?” asked Tone Sato, who lost her husband to cancer and has felt the poison numb her hands and feet and take away her sense of smell.

The Toroku case defies the conventional wisdom that the Japanese avoid the courts because they are a harmonious people, culturally averse to free-swinging, American-style litigation.

The Japanese court system encourages claimants to seek mediation, generally eliminating the prospect of big, unpredictable awards by judges or juries. In the process, Japanese are forcefully discouraged from pursuing lawsuits, no matter how valid their claims.

To sue, for example, Japanese plaintiffs must pay courts up front as much as 1% of the damages being sought. They face a far heavier burden than their American counterparts in proving their case. There is no “discovery” process for rooting out confidential information they might need.

Custom and precedent dictate that any awards granted by Japanese courts be kept low. And pain and suffering count for little or nothing in determining damages.

It is no wonder then, experts say, that Japan has fewer lawsuits than the United States (a 10th or 20th of the number) and fewer lawyers (one per 9,300 people compared with one per 360). And it is no wonder that Japanese companies pay one-fifth the liability insurance U.S. firms do.

Just how frustrating the Japanese judicial system can be was driven home last month by the hanging suicide of Toyohiro Yamanouchi, an Environmental Planning Agency official in charge of fighting lawsuits involving 2,000 victims of mercury poisoning in Minamata, a port on the southwest coast of Kyushu.

Lower court judges noted that, since 35 years had passed since the Minamata disease was discovered and with 1,167 dead, it was time for the government to settle. The government, which had been accused of negligent conduct in regulating and responding to problems in Minamata, refused.

Those close to Yamanouchi say he couldn’t reconcile his sympathy for the victims with a government decision to extend a trial that would outlast many of the plaintiffs.

“We see their suffering,” said Morihiro Hosokawa, the Kumamoto prefecture governor who recently took the unprecedented step of breaking with the central government to push for a quick settlement with the victims. “The government is so far away they don’t see the pain.”

The Toroku case illustrates how difficult it continues to be for Japanese to get a fair shake.

Tazuyuki Kawahara quit his job as a reporter for Asahi Shimbun a decade ago to support the Toroku villagers in their lawsuit. Now he said, “If somebody asked me to do it again, I would say forget it, it isn’t worth it.”

Dan Henderson, an expert on Japanese law at the University of Washington, said: “This is not justice. By the time you get recovery, it just buys your tombstone.”

The Toroku region once was prosperous and held a special place in Japanese mythology. A god is said to have descended to these mountains to become the first in an unbroken line of Japanese emperors. Toroku farmers prided themselves on producing prize-winning cattle, horses, honey and shitake mushrooms.

Toroku’s fortunes turned in 1921 when an arsenic mine was built in the middle of the village. The government used arsenic to produce poison gas. Farmers put it in rice balls to poison rats.

Ore containing arsenic was burned in great kilns, the smoke passing through chambers that were then scraped for arsenic crystals. But unfiltered smoke also wafted out and, sandwiched between the mountains, formed a death cloud over the village. Toroku farmers remember days when arsenic fell like snow and dead birds were a common sight.

The village population quadrupled to nearly 1,000 in a few years but the poison began to take its toll. Besides the birds, the first victims in the 1920s were horses and cattle. In 1935, a family of seven living close to the mine died over three years. Trees and shrubbery began to die.

In 1958, the mine reopened after a 15-year hiatus and villagers soon complained that their mushrooms, grown from spores placed in dead logs in the forest, were dying. The mine area grew so barren that villagers called it “bald mountain.”

Japan’s Department of Agriculture investigated and blamed poor farming techniques. “At the time, nobody knew it was an environmental problem,” Sumitomo spokesman Tasuro Kamata said.

The mine’s owners, a Nakajima company, closed the operation when it became unprofitable in 1962. By then, Sumitomo owned about 80% of the company and rights to the mine, and its employees held most of the top spots at Nakajima.

Villagers complained of ailments that doctors dismissed as unrelated to the arsenic kilns.

But in 1971, a schoolteacher noticed that children in his class from Toroku were smaller and thinner than their peers in the region and these results were published at a school gathering. The teacher was soon transferred. Still, coming right after the Minamata mercury poisoning cases, the study received wide publicity.

Sumitomo showed its concern by sending an employee to pass out boxes of seaweed, a delicacy, and gifts of $250 per household. “It was that large kind of seaweed you can only get in Tokyo,” recalled Jitsuo Sato, 80, who has arsenic-caused skin and respiratory problems. The company then donated $50,000 to the village.

The prefecture moved to cover up problems. It sent a doctor who conducted cursory examinations and concluded that only seven of the dozens of ill villagers had symptoms related to arsenic poisoning.

Among those left out was Shinzo Shimizu, now a masseur who had been working at the mine since he was 20. He lost his eyesight and much of his hearing by 37. Today, at 57, he looks closer to 80.

Both the company and the prefecture wanted to settle the issue quickly and outside the courts, so Hiroshi Kuroki, who was governor of Miyazaki prefecture, offered to mediate. “They were country people, they were in no position to negotiate, so I did it for them,” he said.

The villagers were herded to an isolated inn and, in separate rooms, offered $9,000 if they would sign a statement absolving Sumitomo. “Those villagers only made about $600 to $1,200 a year so it was a lot of money for them,” Kuroki said.

Of 144 villagers registered as having arsenic-caused illnesses, 82 accepted the money and signed waivers. A committee from the national lawyers association later called the waivers invalid because villagers had improper counsel.

The feeling of betrayal made some turn to the courts.

“When the governor first agreed to mediate, we saw him as god,” said Jitsuo Sato, who lost his wife and a sister-in-law to cancer and who has respiratory and skin problems himself. “Then he fooled us, he forced us to sign the documents. He betrayed us.”

Sato said each villager was told that others had signed and that nobody would get money until all agreed to the terms.

Among the more aggressive in seeking to litigate the case was Jitsuo Sato’s sister-in-law, Tsurue Sato, who while bedridden spent her days writing poetry about the valley’s sad history. With a group of villagers, she accepted offers of legal help from around Japan and decided to go to court in 1975.

A key obstacle for the villagers was finding the money to cover their court costs, which included fees up to 1% of the damages sought. They were able to pursue their case with financial aid from the small community of Roman Catholics in Japan and from the local teachers’ union.

Money worries frightened off many of those whom the prefecture recognized as having arsenic-related diseases.

“We were afraid of losing our homes” paying legal fees, one farmer said. He was part of a large group that created a “self-negotiation society” and instead sought compensation in the traditional way, by talking with Sumitomo and the prefecture.

Today, those villagers say Sumitomo promised that any damages it was forced to pay plaintiffs also would go to their group. Sumitomo now denies making such a pledge and has no intention of paying the group any sum.

In the trial, Sumitomo held two trump cards: time and money. With 1989 profits of $75 million on $4 billion in sales, and such powerful shareholders as Sumitomo Corp., NEC Corp. and Sumitomo Bank, the company could afford to bring in dozens of experts and prolong the trial indefinitely.

Sumitomo argued that it should not have to pay compensation because it never operated the mine, even if it had become majority owner. It also went to great lengths to question the causal link between the epidemic of Toroku cancer cases and the arsenic mine, even flying in an expert from the University of California San Francisco Medical Center to argue the point.

Prolonging a case, as Sumitomo sought to, is easy in Japan because, unlike in the United States, court hearings customarily are held just once a month or once every other month. Japan has only 2,800 judges, the same number it had 100 years ago and about 5% as many per capita as Germany, which has a similar legal system.

Japan’s highest court contributes to delays by accepting for review roughly 5,000 cases a year, compared with 500 for the U.S. Supreme Court.

Delays also can be more burdensome for Japanese plaintiffs. That’s because their lawyers normally do not work on a contingency basis–an American practice in which attorneys carry a case forward at relatively little cost to plaintiffs with the understanding that they will take a percentage of a significant, final judgment. Instead, the Japanese bar association requires lawyers to demand that plaintiffs pay half of their legal fees in advance.

Further complicating the Japanese plaintiffs’ plight, they must prove their claims according to the most rigorous legal standards, akin to those imposed on U.S. criminal prosecutors, who must establish that their cases are true “beyond a reasonable doubt,” experts say. While plaintiffs in American civil cases are only required to show that the evidence tilts “51%” their way–that a “preponderance of evidence” favors their claim–in Japan “the judges want 110% proof,” the University of Washington’s Henderson said.

Evidence is hard to gather, without a procedure comparable to the American “discovery” process in which courts work with plaintiffs and defendants to secure relevant information for a case.

The Japanese also lack a tradition of thinking in legal terms and of lawsuits. Soon after reports of problems in Toroku were published in the local press in 1971, the kiln for burning arsenic ore was destroyed by Sumitomo under orders from the Ministry of International Trade and Industry. That piece of evidence could have helped disprove Sumitomo claims that smoke from the kilns never contained arsenic.

Nine years after filing suit, the villagers managed to win the first trial.

But because judges are transferred every three years, by the trial’s end, not one of three who had heard witnesses testify were involved in writing a final judgment. Especially in the case of plaintiffs’ testimony, this meant that “the tears don’t remain, the only record is of their words,” Kawahara said.

Suffering counts for little or nothing in Japanese court cases. Judges–who are encouraged to keep awards consistently low, in keeping with precedents–determine the damages largely based on plaintiffs’ wages.

“The value of life is only about $80,000,” said Masaatsu Okamura, an attorney for the villagers, 23 of whom collectively won $3.5 million.

The villagers also won on appeal, a process that this time took only four years.

But the judges decided that any medical expenses the government had paid through a pollution victim’s compensation fund should be subtracted from the award, thus reducing it to about $2.3 million. (A limited number of the Toroku villagers had received compensation from the fund, which the government set up after the Minamata case to try to dissuade pollution plaintiffs from litigating.)

By now, the villagers’ three-hour trips to and from the court, month after month, began to take their toll.

When Sumitomo made its last appeal, this time to Japan’s Supreme Court, and villagers discovered that a decision would take four to five more years, they settled.

Families of the dead will receive about $65,000 while other affected villagers will receive as little as $25,000 each. Under the agreement, Sumitomo is absolved of any responsibility.

Shinichi Sato, 37, cannot remember a time when arsenic did not wreck his life in some way. When he was 20, his father died of lung cancer. Two years later, his mother, with a long list of symptoms, committed suicide. His aunt was bedridden for 15 years before dying recently.

Does he feel he got justice? In one way he did:

“Before, we knew we couldn’t grow mushrooms because of poison from the mine, but they (administrators) told us it was because we weren’t good farmers. Through the court, we were able to show others the truth.”

A COMPARISON OF LEGAL SYSTEMS

Some ways the legal systems of Japan and the West differ: * Japan has one lawyer per 9,300 people.

* Germany has one per 1,486.

* The United States has one per 360.

* In Japan, only 500 applicants a year may pass the equivalent of the bar examination, but reforms will soon raise that number to 600.

* In Los Angeles County alone, 4,056 passed the bar in July, 1990, the most recent administration of the twice-a-year exam.

* Japan has roughly the same number of judges it had in the early 1890s, about 2,800.

* Germany, with a similar court system and a little more than half the population, has 18,000 judges.

* Experts estimate that the number of lawsuits filed in Japan is only 1/10th, or even 1/20th, the number filed in the United States.

Leslie Helm

About the Author

Leslie Helm

Leslie Helm was born and raised in Yokohama, Japan, where his family has lived since 1869. He has worked as Tokyo correspondent for Business Week and the Los Angeles Times. It was during his years abroad that he adopted two Japanese children and began the research that would result in Yokohama Yankee. Helm is currently editor of Seattle Business magazine. Leslie graduated from the University of California, Berkeley with a B.A. in political science and an M.A. in Asian studies. He attended the Columbia University Graduate School of Journalism on a U.S. Japan Friendship Commission fellowship. Helm is currently editor of Seattle Business magazine.

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