In an earlier post today, “Export Bill Marler to Germany,” I spoke about what is a significant increase in large, devastating E. coli outbreaks (non-O157) hitting the world, while we are seeing a generalized decrease in E. coli cases in the United States.  Of course, I am quite sure that the reason we are seeing fewer and smaller E. coli outbreaks in the United States are the 18 years that I hammered away at industry to “stop poisoning your customers.”

As you may recall, a few weeks ago Japanese police raided a low-price Korean-style barbecue restaurant chain to investigate the deaths of four people from food poisoning after they ate raw beef at its outlets. Police officers searched the head office of the chain’s operator Yakiniku-zakaya Ebisu barbecue chain and its supplier, Food Forus Co in Kanazawa in central Japan.  Ninety diners had fallen sick with E. coli O111 after eating raw beef at eateries in near Tokyo and on Honshu Island since April 19, the health ministry said, of whom 23 were seriously ill with Hemolytic Uremic Syndrome.

japansafe.jpgSo, after cleaning up the food industry in the United States (O.K., well, almost), I really see that a trip to Japan may well be were I get exported next (after Germany).  However, in addition to the language barriers, there are a few issues in the legal system that might be a challenge as well.

In the mid-nineteenth century, Japan modernized its laws and in doing so, adopted certain aspects of Western law. Today, their legal system consists of 6 codes, which together are referred to as roppo. Among those 6 codes is the Japanese Civil Code or Minpō. Enacted in 1896, the Minpō was heavily influenced by the civil code in both Germany and France. It is broken down into 5 main parts or books including general provisions, real rights, the law of obligations, family law, and succession.

For a claimant seeking compensation for personal injuries resulting from a defective product, he or she would first look to Japan’s Product Liability Law or Law No. 85. Product Liability Law in Japan is now the primary mechanism for bringing a cause of action for a defective product, such as contaminated food. Article 3 of the Product Liability Law employs liability without fault principle, meaning a manufacturer is liable for damages if the injury is caused by a defect in the product regardless of whether it was his intention or fault. However, it is important to point out that the claim must involve a defect in a “product.” In Japan, a product is defined in Article 2 of the Product Liability Law as “movable property manufactured or processed.” Agricultural, forestry, marine and mineral products, which are not processed artificially, are not the objects of the Law. Here, the claimant has the burden of proving damages, the defect in the product, and the causal relationship between defect and damage.

However, under Article 6, if the Product Liability Law “does not provide otherwise, the liability of the manufacturer, for damages caused by a defect in the product shall be subject to the provisions of the Civil Code.” This means that if a claimant cannot satisfy the elements of a strict products liability claim, he or she may turn to the Civil Code for additional remedies.

Book 3 of the Civil Code or Minpō contains the relevant tort liability regime. Like traditional negligence in the United States, Japan uses the Fault Liability Principle. Accordingly, a claimant must establish fault on the part of the tortfeasor. Minpō Article 709 sets forth the law, “A person who has intentionally or negligently infringed any rights of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.” In addition, the claimant bears the burden of proving causation and damages.

Japanese law allows successful claimants to recover damage awards for both economic and non-economic, or pain and suffering. However, often damages will be based on the claimant’s proven expenses and losses with only a small additional component for pain and suffering. Significantly, Japan does not permit recovery of punitive damages.

Although this the basic product liability scheme in Japan, it is important to note that litigation is not a commonly used tool in the resolution of a claim. Instead, injured parties typically rely on mediation or other forms of alternative dispute resolution. There are several possible reasons for this. First, Japanese courts does not utilize a jury system. Rather, decisions are left entirely up to judges who may not be sympathetic to the claimant’s alleged injuries. Second, Japan does not use a contingency fee system. Attorneys’ fees are usually based on the amount of damages sought in a lawsuit and not the actual damages received. As a result, many individuals choose not to sue unless they have a very strong case or sue for very small amounts. Third, the Japanese tort liability system is said to have certain shortcomings and obstacles, which make it difficult for victims to use the justice system to resolve their claims. Accordingly, Japan has adopted several administrative compensation schemes for certain types of victims in order to avoid the complexities of litigation.

It will be a busy year.