GlobalTort

Mr. Indispensable - The Epicurean Dealmaker Skewers Jamie Dimon, the Board and the Media

Kirk Hartley — Fri, 17 May 2013 07:04:36 -0600

Happy Friday. A new post by the Epicurean Dealmaker runs a skewer through pretty much every part of the media coverage of and the substantive issues related to JP Morgan Chase leadership and Jamie Dimon. Two excerpts follow to tempt you to click here and read it all:

"Seriously, folks, the brouhaha surrounding the upcoming nonbinding shareholder vote to separate the Chairman and Chief Executive Officer roles at J.P. Morgan is getting a bit silly. People are marshaling all sorts of weak, irrelevant, and disingenuous reasons on both sides to argue for and against the resolution. Hence we get ludicrous examples of access journalists asking a gaggle of powerful white men whether another powerful white man should lose his power. Gee, I wonder how that turned out, don’t you?

***

Still other FOJs contend Mr. Dimon’s delivery of $21 billion in record profits last year should silence his critics and put the kibosh on this petty attempt to strip him of rightful powers and duties. But I say the man or woman at the helm of a $2.4 trillion colossus which employs over a quarter of a million people around the globe damn well better produce some pretty amazing results, especially when so many of its largest competitors remain in disarray, the cost of funds for financial firms could not be cheaper if Ben Bernanke were backing up a dump truck full of dead presidents into J.P. Morgan’s lobby, and his privately held bank is implicitly backed by the full faith and credit of the United States government (and perhaps the European Union, too).1 The man is a CEO. He is supposed to create good results with the awe inspiring assets he has at his disposal. He did. Big whoop. Give the man a fucking fruitcake.2"

"Learning from Litigation" - Study by UCLA Law Professor Suggests Medical Malpractice Litigation Aids in Creating Transparency and Reduction of Malpractice

Kirk Hartley — Fri, 17 May 2013 05:48:40 -0600

A New York Times oped article today urges that medical malpractice litigation is serving a positive role in efforts to reduce the unfortunately vast amount of medical malpractice that occurs annually. Happily, the oped is backed up by a research paper and so it's not just opinion.

The author, Joanna C. Schwartz, is a UCLA law professor with no apparent ties to any of the usually advocating constituencies (plaintiff's lawyers, hospitals, doctors or insurers.) It appears instead she is interested in litigation and its impacts. Thus, Professor Schwartz' bio includes federal clerkships, pro bono work, overseeing clinical trial work by students and an article on the role of lawsuits in decision making by law enforcement officials: Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA Law Review 1023 (2010).

Professor Schwartz' oped, titled Learning from Litigation - includes the following observations:

"What accounts for these changes? Several factors appear to have overcome historical resistance to transparency, including widespread laws requiring disclosure to patients and confidentiality protections for internal discussions of error. Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.

My study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.

One might think that hospitals would have little to learn from lawsuits, given other requirements that hospitals report, investigate and analyze medical error. But participants in my study said that lawsuits can reveal previously unknown incidents of medical errors — particularly diagnostic and treatment errors with delayed manifestations that other reporting systems are not designed to collect."

The full article is on SSRN at this page, and also is reviewed and summarized at Jotwell Health Law. The article abstract provides more specifics:

Abstract:

Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disa-bility, and health care expenses. Conventional wisdom is that malpractice litigation does little to improve patient safety and, in fact, harms the cause. Lawsuits are believed to offer little useful information about medical error. And the fear of malpractice liability is believed to inhibit the kind of open-ness and transparency needed to identify and address the root causes of medical error. Critics of the conventional wisdom contend, in contrast, that malpractice litigation brings crucial information about medical error to the surface, and creates financial, political, and institutional pressures to im-prove. Yet both proponents and critics of the conventional wisdom offer scant evidence in support of their claims.

This Article sheds much needed light on this hotly contested debate by ex-amining the role that medical malpractice lawsuits actually play in hospital patient safety efforts. I conducted a national survey of health care profes-sionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country. Drawing on this research, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transpar-ency. In fact, the opposite appears to be occurring: the openness promoted by patient safety advocates is transforming hospitals’ relationship to law-suits and risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits are playing a productive role in hospital patient safety efforts – as a source of valuable data about weaknesses in hospital policy, practices, staff, and administration. These observations should inform open and pressing questions about medical malpractice re-form and the best ways to improve patient safety."

Judging by the abstract and the oped (I've not read the full article), the research findings appear to jibe with prior research on medical malpractice myths - as opposed to war stories. The research shows that medical malpractice suits are best avoided by acknowledging errors, apologizing, and paying compensation in appropriate cases.

Human Embryonic Stem Cells Now Cloned

Kirk Hartley — Fri, 17 May 2013 04:58:06 -0600

(Image courtesy of OHSU).

It's been done - researchers from Oregon have cloned human, embryonic stem cells. Scientific American and many others are carrying the story.

There are limits to the accomplishment - the clones are not perfect and seem unwilling to grow in utero. Nonetheless, it's quite a step. Now we wait to see how it all unfolds at the intersections between science, law, ethics and other views.

Ponzi Scheme Lawyers Losing Privilege ?

Kirk Hartley — Wed, 15 May 2013 04:05:39 -0600

How far does privilege go when lawyers apparently have knowledge of a Ponzi scheme? Perhaps not far enough to block a duty to speak, according to an appellate court in Canada, and a McCarthy Tretualt article.

The fact pattern is unusual because the suit at issue is against a law firm that represented both the Ponzi scheme defendants and an investor in a company that was part of a scheme. The investor client sought securities advice related to the businesses in the alleged Ponzi scheme. On review of a pretrial motion to strike, the appellate court held that the case should go forward to trial. According to the appellate court, the facts revealed at trial might result in striking the privilege and holding the lawyers to a duty to speak about what they knew about the Ponzi scheme.

The case truly does involve an unusual fact pattern. On the other hand, that fact pattern is not terribly far removed from a fact pattern in which a law firm provides a generic opinion letter to a client that is part of a Ponzi-scheme. It's more than foreseeable that investors will be offered the opinion letter, and may allege reliance on the opinion letter even though the letter presumably disclaims any intent to allow reliance by third-parties.

"Chasseurs d'ambulances" - Class Actions in Europe

Kirk Hartley — Tue, 14 May 2013 05:55:12 -0600

Despite its tongue-in-cheek headline, this Economist article provides a useful update on class actions in France in particular, and Europe in general. The article confirms the logical is happening - as US courts push back and resist becoming the world's courts, other nations are stepping in and facilitating class actions. And, as it also mentions, other countries are more pragmatic and facilitate litigation funding, which is both needed and logical despite the protests of the US Chamber of Commerce and its various arms and advocates.

A Duty to Mine Big Data

Kirk Hartley — Mon, 13 May 2013 05:45:08 -0600

Tort claims and defenses involve foreseeability. Data and information can drive foreseeability.

With data and foreseeability in mind, consider a recent, great post by David Oliver on "the duty to mine big data." The post is a look by David at a pharma case involving Fosamax. In essence, the argument was that seller was negligent for failing to use standard pharma industry software tools to look at FDA data for signs of Fosamax causing "oversuppression of bone turnover." According to an expert, the warning signs were sitting in the FDA data and would have been seen if the manufacturer had looked, using industry accepted software. David's ultimate conclusion about the opinion:

"The court thereby implicitly held, I think, that the defendant had a duty to mine the FDA's data as early as 2001-2002. In other words, the existence of powerful data mining tools capable of uncovering an early signal of a possible harm associated with defendant's product created a duty to use such a tool. Ultimately, that's a duty to discover any statistical association between your product and some harm in the FDA's (admittedly accessible) that might be causal and to thereafter warn about it; and it's a duty to mine not only your data but any data that might shed light on your product."

Assume David is right on the holding. Now go outside pharma. Consider the implications of mining the world's knowledge when applied against current miners, users and sellers of asbestos fibers. Consider the implications for a chemical manufacturer or distributor. Also consider the vast power of today's supercomputers (such as Blue Waters at the University of Illinois at Urbana-Champaign), and tomorrow's quantum computers, as foreseen by Nobel Prize committees. And think about the fact that Gordon Moore gave Caltech $ 600 million to increase the pace of scientific research, and he and his wife Betty operate a foundation that endows other smart researchers.

Stunning changes are ahead, and some are arriving today.

Canadian Province Tobacco Trial Marches Forward - The Defense Loses Most Every Motion

Kirk Hartley — Fri, 10 May 2013 09:23:50 -0600

A new post on Eye on the Trials provides a concise summary of the tobacco companies losing a series of defense motions launched at the conclusion of the plaintiff's case, including a motion to dismiss for lack of evidence. One hopes big tobacco continues to lose on all issues. It's well past time to end the massive economic and human harms caused by smoking.

In my view, virtually all employers (including my law firm) subsidize big tobacco in several ways. For example, employers pay health insurance premiums and worker's compensation payments that are increased because of illness and disease in persons whose immune systems are compromised by their employees who smoke (or did smoke). We likewise collectively eat part of the cost (through income taxes) for free or subsidized low cost medical care provided to smokers via Medicare, Medicaid and charity care payments. Certainly asbestos defendants are providing major subsidies to tobacco companies as they pay for cancers and non-malignant diseases mainly or exclusively caused by smoking.

Australia - Quinn Emanuel's Latest Move into More Product Liability and Insurance Work

Kirk Hartley — Fri, 10 May 2013 07:08:15 -0600

Yesterday's news was litigation powerhouse Quinn Emanuel taking almost 20 product liability and insurance lawyers from Skadden Arps and Weil Gotshal. Today's news is the Quinn firm opening an office in Australia. And one of the new lawyers is a long-time Australian lawyer who focuses on insurance and product liability issues.

Interesting times are ahead as companies and law firms gear up for coming waves of toxic tort litigation. One suspects that Quinn Emanuel and some of its clients are noting that cancer rates are soaring around the world, not to mention internet advertising and late night tv ads seeking claimants. As to cancer, global cancer rates are expected to double by 2020 and triple by 2030. It's also clear that some cancer (and other diseases) arise from multi-generational risks and harms created by external sources and passed down from parent to child or even grand-child - DES daughters and grand-daughters are prime examples.

Meanwhile, molecular biology is moving forward at a stunning pace. New scientific findings and tools emerge almost daily, in many instances powered by vast computing power, which continues to increase. Researchers therefore are starting to develop some level of "fingerprints" for diseases, mutations, epigenetic changes, and ultimately causation. Consider this example of tracking molecular changes caused by smoking.

We lawyers have much work to do to start catching up to science, and thinking seriously about stunning changes in what's possible and knowable. SCOTUS already is wrestling with some issues regarding DNA and where that technology will be in a few years.

Products Liability Practices - Of Growing Interest as Mass Tort Claiming Continues to Grow

Kirk Hartley — Thu, 09 May 2013 09:34:53 -0600

Once upon a time, many law firms disdained product liability litigation. Today, not so much - more top tier firms are aggressively seeking out products liability practices. The latest example arises from Quinn Emmanuel taking on 15 products lawyers from Skadden Arps. In other instance, some big firms like to combine products liability and insurance recovery practices.

The Quinn acquisition appears in part client-driven. According to a LAW360 article:

Law360, New York (May 08, 2013, 4:35 PM ET) -- More than 15 Skadden Arps Slate Meagher & Flom LLP product liability attorneys are following colleagues Sheila Birnbaum and Mark Cheffo to Quinn Emanuel Urquhart & Sullivan LLP, according to the two new leaders of the firm's products practice.

Former Weil Gotshal & Manges LLP product liability attorneys Michael Lyle and Eric Lyttle also recently joined Quinn Emanuel as partners. There were fewer than 20 attorneys listed on Quinn Emanuel's website as partners in the products group before the recent spate of hirings.

"There's been a palpable commitment from the highest levels of the firm ... not only to embracing us, but embracing us with an eye toward growth in the future," Cheffo told Law360.

Birnbaum and Cheffo will continue their work with Pfizer Inc., State Farm Mutual Automobile Insurance Co. and Occidental Chemical at their new firm, they said. Quinn Emanuel will represent Pfizer in multidistrict litigation over injuries allegedly caused by the antidepressant Zoloft and anti-seizure drug Neurontin, as well as lawsuits over the antidepressant Effexor.

Quinn Emanuel already represented Pfizer in cases over the heartburn drug Reglan and in a bellwether Neurontin trial. The firm has served as national product liability counsel forColgate-Palmolive Co., national coordinating counsel for The Scotts Co. in thousands of asbestos cases and as lead counsel for Chartis in litigation over allegedly defective Chinese drywall.

Underinsured and Risky - The Texas Fertilizer Plant Explosion

Kirk Hartley — Mon, 06 May 2013 05:57:26 -0600

The West Fertilizer plant explosion in Texas killed 15, injured many more and destroyed or damaged dozens of adjoining buildings. Now, word is out through the LA Times that the plant operated with only $1million of liability insurance. One might conclude the owners at Adair Grain are irresponsible and/or were badly advised. One also could conclude there is a Texas-sized hole in Texas regulatory law. One suspects the same flaw exists for other large industrial plants in other states. It's amazing that we see picayune state regulation in some areas, but also see holes this size with respect to an obvious risk. It will be interesting to see how the story unfolds, including what the insurance broker's file show and what the D & O coverage looks like.

The Toyota - Lexus Settlement Scam for the Electronic Throttle Control Systems

Kirk Hartley — Mon, 06 May 2013 05:41:06 -0600

A few words on a class action settlement scam. In this instance, the settlement relates to the much talked about "sticking" of accelerators (electronic throttle controsl) on cars produced by Toyota. The defect was real - I experienced it in my car, several times.

The point here is the scam nature of the settlement. I was sent a postcard which required me to go to this web site to "claim" the right to a corrective process to fix the problem. Once there, all I had to do was enter 2 numbers listed on the post card. So, instead of awarding a fix to everyone, the settlement scam seeks to discourage claims by inserting a useless step into the process. No doubt that step results in many people failing to act, and therefore receiving the corrective fix.

This kind of scam should not be approved by judges, especially when it involves cars and safety. We need many more judges who will ask questions of the sort asked by Judge Rakoff when he declined to be a rubber stamp for the SEC settlement with Citigroup.

Actos Bladder Cancer Verdict is Set Aside by The Trial Judge

Kirk Hartley — Fri, 03 May 2013 07:47:44 -0600

The previously noted Actos bladder cancer verdict has now been set aside, as described in a new blog post from the Drug & Device blog. The ruling is based on barring some of the plaintiff's expert testimony as not backed by enough science. So, the litigation dance will continue. It's always interesting to watch the ebb and flow of trial outcomes as new litigation claims emerge. Back in the day, the verdict outcomes went back and forth in the first few asbestos-in-buildings trials.

At the same time, one also can watch the ebb and flow of claims about which types of litigation will be big and will not be big. Back in the day, some said that asbestos-in-buildings litigation would dwarf the personal injury litigation. That prediction was almost as bad as the prediction that not more than 100,000 total claims that would be submitted to the Manville Trust. Manville currently has received over 900,000 claims.

New Science Tools - Working Prototype for an "Instant" On-site Asbestos Monitor

Kirk Hartley — Fri, 03 May 2013 05:06:45 -0600

(A prototype asbestos detector unit with the lid removed. Credit: Paul Kaye, University of Hertfordshire, UK.)

New scientific tools keep arriving. Now, one of them is a working prototype for quick "on-site" testing for asbestos fibers. The device provides relatively instant feedback, which of course is desirable to avoid the expenses and delays inherent in taking traditional air samples and sending them out for analysis. The research work was funded by an EU grant, which makes great sense since Europe is still seeing growing waves of mesotheliomas. The device is said to be 18 months away from production, with the sale price said to perhaps end up at seven or eight hundred dollars per machine. The Optics Express article indicates the machine does its best work with amphibole fibers.

The full article is online and free in Optics Express: The International Online Journal of Optics. A trade journal summary of the article also is online. Thanks to Bob Wassman of Rosetta Genomics for seeing this story and passing it along. Set out below is the "how it works" portion of the trade press article:

"The Hertfordshire team’s new detection method, developed under the European Commission FP7 project ‘ALERT’ (FP7-SME-2008-2), works by first shining a laser beam at a stream of airborne particles. When light bounces off the particles, it scatters to form unique, complex patterns. The pattern “is a bit like a thumbprint for the particle,” says Kaye, sometimes making it possible to identify a particle’s shape, size, structure, and orientation by looking at the scattered light.

“We can use this technique of light scattering to detect single airborne fibers that are far too small to be seen with the naked eye,” he says. After identifying the fibers, the detector carries them in an airflow through a magnetic field, and uses light scattering again on the other side to tell if the fibers have aligned with the field. “If they have, they are highly likely to be asbestos,” Kaye says."

The team has tested their detector in the lab and has worked with colleagues in the U.K. and Spain to develop prototypes that are now undergoing field trials at various locations where asbestos removal operations are underway.

Set out below is the conclusion section of the full Optics Express article:

5. Conclusion and discussion

We have demonstrated that the presence of airborne asbestos fibers can be rapidly detected

through an analysis of the spatial light scattering patterns from individual particles carried in a

sample airflow through a magnetic field. The analysis serves both to discriminate fiber

particles from all other particle types and to subsequently discriminate asbestos from nonasbestos fibers by determining the extent to which the angle of alignment of the fiber is

changed under the influence of the magnetic field. Preliminary field testing of portable

prototype Dual-beam systems, as described in section 4, has been carried out at various UK

locations where asbestos clearance or renovation work was taking place. In each case, the

presence or absence of asbestos in the building fabric was known in advance by virtue of

earlier statutory asbestos surveys. In each case, the prototype detector systems correctly

produced a positive or null response during the clearance or renovation work. Field testing

and optimization of the technique is continuing and the authors believe further improvements

in asbestos detection sensitivity and particle analysis rate (currently up to 600 particles/s) are

achievable.

Acknowledgment

We gratefully acknowledge the support of European Union ‘Research for SMEs’ grant FP7-

SME-2008-2 in conducting the above research.

_____________________________________________________________________________________

If the device ends up on the market and is effective, imagine the implications for keeping people healthy, and for litigation.

Oklahoma Passes Legislation Aimed at Creating Intersections Between the Tort System and the Bankruptcy Claiming System

Kirk Hartley — Wed, 01 May 2013 06:44:13 -0600

Asbestos defendants continue to convince state legislatures to create some long overdue intersections between personal in jury claims in te the tort system and in the bankruptcy trust claiming system. The most recent outcome is in Oklahoma, where legislators approved this new statute. The governor is expected to sign the bill.

The new statute is fairly broad. It applies to all types of personal injury trust funds created from a lawsuit - not just asbestos trust funds. The statute in essence forces plaintiff's to process and disclose claims against trust funds at least 180 days before a trial date. The statute also mandates presumptive admissibility of the documents submitted by plaintiff to the trust fund, as well as the governing documents for the trust. The statute gives defendants that go to verdict a right to offset a payment by the trust against damages awarded in court. The statute also creates a rebuttable presumption that the trust will make a payment for the "liquidated value" set out in the trust fund documents.

Bio-Engineered Organs: Regenerative Medicine is Starting to Happen

Kirk Hartley — Tue, 30 Apr 2013 06:51:56 -0600

This morning brings a feel good story that coincides with impressive new science - bio-engineered organs. In this instance, a little girl of 21/2 is now living with a bio-engineered windpipe. In essence, doctors built a scaffold to outline the windpipe and stem cells then recruited other cells to fill in around the scaffold. The technique also is being applied to others organs. The story is here - from the NYT. Set out below are key paragraphs on the science:

_____________________________________________________________________________________

"The goal of regenerative medicine, or tissue engineering, is to create or regrow tissues and organs to ease transplant shortages or treat conditions that do not have an effective cure. After years of scant progress, tissue engineers have begun to make advances as they have gained a better understanding of the role that stem cells — basic cells that can become tissue-specific ones — play in signaling the body to grow and repair itself.

Still, only a few relatively simple organs have been made and implanted, and the science-fiction-inspired goal of ready-made hearts or other complex organs remains far off. Until now, the youngest recipient of a tissue-engineered organ was a 4-year-old spina bifida patient who received a bladder.

Dr. Macchiarini has performed the five other windpipe implants similar to Hannah’s. One patient, an American man who was operated on in Stockholm, has died. An Eritrean man has lived the longest so far, surviving for about 2 ½ years since the surgery.

To make Hannah’s windpipe, Dr. Macchiarini’s team made a half-inch diameter tube out of plastic fibers, bathed it in a solution containing stem cells taken from the child’s bone marrow and incubated it in a shoebox-size device called a bioreactor.

Doctors are not sure exactly what happens after implantation, but think that the stem cells signal the body to send other cells to the windpipe, which then sort out so the appropriate tissues grow on the inside and outside of the tube. Because the windpipe uses only the child’s own cells, there is no need for drugs to suppress the patient’s immune system to avoid rejection of the implant."

Cancer Litigation Continues to Increase - Actos Bladder Cancer Verdict for Plaintiff

Kirk Hartley — Mon, 29 Apr 2013 07:48:11 -0600

Cancer litigation continues to increase. It's fertile ground - each year, 1.6 million Americans are diagnosed with cancer. Now, the first Actos bladder cancer trial produced a verdict for plaintiff. So far the post-verdict story appears mainly in plaintiff friendly versions - e.g. here. Some prior stories by Bloomberg are here, here and here. Plaintiff was represented by Michael J. Miller, Jeffrey A. Travers, Timothy Litzenburg and Nancy Guy Miller of The Miller Firm LLC. Takeda was represented by Sara J. Gourley and Catherine Valerio Barrad of Sidley Austin LLP, and Bruce R. Parker of Venable LLP.

The Actos verdict follows on Eli Lilly in January paying to settle claims that its DES caused breast cancer in four "DES daughters," meaning women who are daughters of mother's who were prescribed DES. Verdicts also have been entered and affirmed in cases alleging that benzene caused forms of cancer, such as the Shelby verdict in California.

One take away point, among others. To date, asbestos litigation has produced much of the cancer litigation law (although DES "market share" cases created a subpart of the law). As more verdicts are entered and appealed in other types of cancer litigation, asbestos litigants may well exert less influence on the development of the law.

Compilation of Pro-Defense State Law Rulings in Federal MDLS Summary Judgment

Kirk Hartley — Thu, 25 Apr 2013 08:02:48 -0600

The Drug and Device blog has a valuable new post for those on the defense side in drug and device litigation. They compiled and linked to pro-defense MDL summary judgment rulings arising in MDLs for drug and device issues based on state law. Set out below is exactly what they did - go to their blog for the results:

____________________________________________________________________________

"What follows will be incredibly boring to many of you, but we hope equally useful. We’ve collect individual summary judgment decisions (unless we specify a different procedural posture) in various MDLs – no matter what jurisdiction they were in. We’ve organized them by state, omitting decisions made by MDL courts applying their own forum’s law, since those cases would be found by searching “the usual suspects.” That means, if you’re researching Mississippi law, just look under “Mississippi law cases” in the list below, and there are the cases, no matter what MDL court decided them.

Caveat #1: As we’ve said many times, we don’t do the other side’s research for them. These lists include only cases where the defendant won everything (or almost everything) under a particular state’s law. As far as adverse MDL precedent is concerned, we make no representations whatsoever. Yeah, we saw some bad cases while doing this research. We’ve intentionally omitted them.

Caveat #2. We expect this list is underinclusive. Why? To keep the searches manageable, we reviewed only cases where “product liability” appeared in the name of the case (the usual way that MDLs are named), and “[insert state name] law” appeared somewhere in the body of the opinion. That means we searched “Alabama law,” not just “Alabama.” Otherwise, we’d have gotten hits for every MDL case where one of the (often scores) of attorneys was from Alabama. Still, we think our results are a lot better than nothing. We’re not aware of this kind of list having been compiled anywhere – at least anywhere that’s public.

Caveat #3. We’ve only included issues that we could see possibly arising in drug and device product liability litigation. If an MDL decision was favorable to the defendant only on, say, asbestos exposure product identification (the most common example by far), we have not included it.

Caveat #4. We have not included decisions that were driven by federal issues, such as Daubert or preemption. Federal issues involve different research considerations, so that decisions from MDLs in different circuits are less useful.

So here goes. For the first time anywhere, pro-defense product liability MDL decisions organized by the jurisdiction of the law being applied."

Examples of Endlessly Evolving Litigation - The Never Ending Arguments About Asbestos Use

Kirk Hartley — Tue, 23 Apr 2013 06:49:36 -0600

Continually evolving "facts" are one of the unique parts of some mass tort litigation. Thus, plane crashes, boat wrecks, and sky bridge collapses typically happen only once. For drug cases, there are times a drug is pulled is off the market. In contrast, there also are times when the facts evolve. For example, a drug is beings sold even while plaintiffs are suing and claiming it's defective. The same evolving fact pattern often exists for litigation over industrial products, such as natural mineral and man made fibers. When minerals are commercially marketable products, most producing countries enjoy the economic fruits of production and sales. Therefore, the ceaseless arguments about asbestos mining and sales will go on again this summer at Rotterdam, as highlighted at a new post on survivingmesothelioma.com. The meetings also will be used to produce papers and positions later cited in medico-legal papers and/or testimony. And the "asbestos media" covers it all these days.

Next Generation Sequencing Yields a Big Find for Epilepsy Researchers

Kirk Hartley — Thu, 18 Apr 2013 07:55:40 -0600

New tools make for new findings, and sometimes they are profound. An example of a new tool is NGS. Next generation sequencing is one of the factors driving molecular biology forward at an incredible pace. NGS, as it's called, comes in different flavors. The common link is that most flavors of NGS are incredibly fast and more accurate when compared to the "old" version. The new methods therefore can provide a faster, deeper and more accurate look into more parts of the genome than did the "old fashioned" sequencing that accomplished the Human Genome Project. (The old version is known as Sanger sequencing and debuted around 1977. The Sanger technique involved running DNA through gels at relatively glacial paces - my sister used to do do some of this work way back in the 1980s).

A new example of a profound outcome is the use of NGS to figure out that a form of epilepsy arrives from a mutation of a specific gene that regulates the brain's use of potassium. Specifically, ScienceDaily brings word that the problem lies with a gene called CNTN2. The source flaw was found by comparing genomes of "a particular Egyptian family, in which five sick children were born from the marriage of one healthy cousin to another healthy cousin." The five children suffered from a specific epilepsy syndrome, in which different types of epileptic attacks occur. All five of the genomes were compared and a common flaw was found.

A point for lawyers? Note the sudden new knowledge. Imagine the consequences if molecular biology shows that your client's product or process is part of a process that mutates the CNTN2 gene. That's probably not going to happen here because the mutation was on both sides of the family. But, these days, new findings can emerge that fast - no need to wait for epidemiology.

Set out below are further specifics from the article:

"20,000 to 25,000 genes, including all the "protein coding" ones, were sequenced for this. When this was done a mutation was found in the CNTN2 gene. CNTN2 undertakes an important function in the anchoring of potassium channels to the synapses. The mutation makes it no longer possible to generate this protein and, as a consequence, the potassium channels no longer remain affixed to the synapses. The researchers suspect that the epilepsy in this family is triggered by the altered function of the potassium channels.

This discovery, which has now been published in the top journal Brain, is providing the stimulus for further research to investigate this particular gene in other epilepsy patients as well. Approximately one percent of the population suffers from active epilepsy in which regular epileptic fits occur. The danger of suffering from an epileptic fit once in your life lies at approximately four to five percent. Genetic factors play a major part in the occurrence of epilepsies."

SCOTUS Says "No" to Most Alien Tort Statute Claims

Kirk Hartley — Thu, 18 Apr 2013 06:37:26 -0600

It appears we have another decision that falls under the heading of "be careful what you wish for." SCOTUS this week declined to allow most "alien" tort suits in the US. in Kiobel v Royal Dutch Petroleum. That is Royal Dutch Shell, whom the court ultimately found for in a strong 9-0 decision (while split on the reasoning). outcome was widely expected, and reduces risks for multinationals. Oil companies in particular faced claims of being involved in working with governments to control local populations.

The outcome is covered in many places, such as Alison Frankel's useful comments, and the view from the Financial Times. A "pharma" perspective is at the always stimulating Drug & Device Law Blog, although some might say a case like the one described there might fall into the opening left at the end of Justice Robert's opinion, depending on where corporate plans were made, or not made. The most substantive overall comments may be at OpinioJuris, which is putting on an instant symposium. Also notable is that the UKSC blog includes a guest post on the outcome, and its ties to an amicus brief filed by the UK government. The guest post is by Lyle Denniston of the SCOTUS blog.

Various business groups are rightly happy with the outcome, for the short term. The decision will block some suits presently on file in the US, and will block some future suits that might have been filed in the US. In the long-term, however, the outcome will add fuel to the increasing globalization of tort claiming. Plaintiff's bars will continue to grow and expand in other nations. The next generation of lawyers and business persons will experience a different world of litigation, with more lawyers available more persons, and more claiming. But at least for some time, the values for damages will be lower than in the US, and so it's an economic win for this generation of defendants.