Mass Tort Litigation Blog

Hearing Addresses WTC Health Problems

Article in today's Washington Post -- Hearing Addresses WTC Health Problems, by Devlin Barrett of the Associated Press:

    The father of a police detective who died after breathing in dust from ground zero
    wreckage told lawmakers Friday that the government has spent too much time studying
    the health problems that killed his son.

    "We must make the first priority the treatment of the heroes to improve their heath and
    save their lives. The studies should be secondary," Joseph Zadroga, father of New York Police    
    Department Detective James Zadroga, told a House subcommittee hearing near the World
    Trade Center.

Memos: NYC told Ground Zero air was unsafe

Article on cnn.com -- Memos: NYC told Ground Zero air was unsafe:

    The city allowed people to return to Manhattan after the collapse of the World
    Trade Center towers even though officials were told the air was not yet safe,
    according to an internal memo from a New York City Health Department official.

    The October 6, 2001, memo states that the city Office of Emergency Management
    -- called OEM -- and the Department of Environmental Protection -- referred to as
    DEP -- disagreed over the air quality following the September 11, 2001 terror attacks.
    But it suggests commercial interests trumped safety concerns.

    Kelly McKinney, associate commissioner of the health department, wrote that the
    mayor's office was under pressure from building owners and business owners to open
    more of the "red zone."

Merck Report Absolves Managers on Vioxx

Article in today's Chicago Tribune -- Merck Report Absolves Managers on Vioxx, by Theresa Agovino:

    Merck & Co.'s board of directors said Wednesday that a 20-month investigation
    funded by the pharmaceutical company found that senior management acted
    responsibly in its development and marketing of its now withdrawn pain reliever Vioxx.

    The 1,700-page report, which cost $21 million, contained some minor criticisms of
    employee actions but concluded that "management acted with integrity and had
    legitimate reasons for making the decisions that it made, in light of the knowledge
    available at the time."

    Merck pulled Vioxx off the market two years ago after a study found it doubled patients'
    risk of heart attacks and strokes. The company now faces more than 14,200 lawsuits
    which allege Merck knew Vioxx's risk.

Torts Rationales, Pluralism, and Isaiah Berlin

Professor Christopher Robinette of Widener University School of Law recently posted on SSRN an interesting article, Torts Rationales, Pluralism, and Isaiah Berlin, arguing for a pluralist approach to tort law rationales and emphasizing the importance of context and compensation. Here is the abstract:

    Most modern torts scholars adopt a monistic view of torts, arguing that
    the tort system can be justified or explained by reference to a single
    rationale. In contrast, few torts pluralists, scholars believing the tort
    system is based on multiple rationales, have put forward a general theory
    or framework for tort law.

    A pluralistic view of the tort system poses significant questions about
    the relationship among the rationales. Do the rationales work together
    as a seamless whole? Do the rationales conflict? If they conflict, how
    does one choose among them? Does the entire system devolve into
    adjudicative relativism, whereby a judge has no rational basis for
    choosing among the rationales in the case of a conflict?

    In this Article, I argue that the value pluralism of Sir Isaiah Berlin, the
    late English philosopher, provides the framework in which the torts
    rationales interact. A Berlinian understanding of tort law consists of
    four propositions. First, the torts rationales are truly distinct; each of
    them conveys a different idea about the purpose of tort law. Second,
    these rationales are objective. Each torts rationale exemplifies a
    legitimate purpose for human beings to pursue. Third, the torts rationales
    have the potential to be incompatible. Indeed, the theories often entail
    opposing conclusions. Finally, the torts rationales are incommensurable -            
    incapable of being ordered in a timeless hierarchy.

    This leaves torts judges, in any given case, in the position of having
    to select among rationales, which cannot be arranged in a consistent
    hierarchy and may be incompatible. Berlin has little advice about the
    issue of choosing among options as a general matter. However, his
    comments on choice indicate that context is by far the most significant
    factor in making the decisions. If the torts rationales are “unrankable in
    the abstract,” context allows judges to rationally choose among them.
    Thus, the lesson for scholars is to focus on the contexts of torts. Although   
    this contradicts the current monistic trend in torts scholarship, with its                                     
    concomitant de-emphasization of the particular, the emphasis on context
    is completely consistent with the common law itself.

Too Hard To Take: A Strict New Acne Drug Program May Prevent Birth Defects. But Many Complain It Also Drives People Away From a Potentially Life-Transforming Treatment

Article in today's Washington Post -- Too Hard To Take: A Strict New Acne Drug Program May Prevent Birth Defects. But Many Complain It Also Drives People Away From a Potentially Life-Transforming Treatment, by Sandra G. Boodman:

    Virtually no one opposes the goal of the mandatory new federal program governing the
    use of Accutane: to prevent pregnant women from taking the potent acne drug, approved
    in 1982, because it causes serious birth defects.

    That is where the consensus about the unusually restrictive six-month-old program known
    as iPledge ends. The program requires registration of all parties: wholesalers who sell it,    
    pharmacists who dispense it, doctors who prescribe it and, above all, patients who take
    the drug.

    Public health officials say such strict regulation is necessary because years of progressively
    stronger voluntary programs failed to prevent pregnancy in users of the medicine, a
    treatment of last resort for severe scarring acne. Most of the estimated 200,000 Americans
    who take the drug generically known as isotretinoin each year are under 30; half are female.

9/11 Toxic Legacy

9-11 Toxic Legacy, a documentary produced by Susan Teskey of the Canadian Broadcasting Corporation, is airing on the DiscoveryTimes channel on September 5 at 8 p.m., September 9 at 5 p.m., and  September 12 at 10 p.m.  All times appear to be EST; check your local listing.

Officials Slow to Hear Claims of 9/11 Illnesses

Article in today's New York Times -- Officials Slow to Hear Claims of 9/11 Illnesses, by Anthony DePalma:

    Five years after the World Trade Center towers collapsed in a vortex of dust and ash,
    government officials have only recently begun to take a role in the care of many of
    the 40,000 responders and recovery workers who were made sick by toxic materials
    at ground zero.

    But for many of the ill and those worried about becoming sick, government actions —
    coming from officials whom they see as more concerned about the politics of the moment
    than the health of those who responded to the emergency — are too limited and too late.

    The delay in assistance along with a lack of rigorous inquiry into the magnitude of the      
    environmental disaster unleashed that day is all the more disturbing, they say, as the
    country faces a future in which such disasters could happen again.

Lung Problems Rife Among WTC Responders

Article in the Los Angeles Times -- Lung Problems Rife Among WTC Responders, by Amy Westfeldt of the Associated Press:

    Nearly 70 percent of the rescue and cleanup workers who toiled in the dust and fumes
    at ground zero have had trouble breathing, and many will probably be sick for the rest
    of their lives, doctors said Tuesday in releasing results of the biggest Sept. 11 health study
    yet.

    The Mount Sinai Medical Center study is conclusive proof of a link between recovery work
    at the World Trade Center ruins and long-term respiratory problems, doctors said.

Electronic Discovery: Managing the Unmanageable;

Article in Computerworld -- Electronic Discovery: Managing the Unmanageable; Concrete and common-sense steps that you and your IT team can take to effectively manage the size and cost of e-discovery, by Benjamin R. Barnett of Dechert:

    The e-mail or voice-mail message has a familiar and ominous tone: "This is
    (insert name of in-house counsel here) from the law department. It looks like
    there may be some litigation involving (insert product name). We don't have a
    copy of the complaint (or subpoena) yet, but we know we are going to have a
    pretty tight deadline for responding, and we will need to coordinate with your
    IT department. You may receive a call from (insert name of law firm you have
    never heard of before) in the next couple of days to discuss what we need to do
    in terms of data preservation and our response. If you have any questions, please
    call or shoot me an e-mail. Thanks very much and have a good day."

    And so it begins.  It will not be a good day. This message may be the call to arms
    in an electronic discovery battle that may materially affect your IT plans, projects,
    personnel and budget. 

    The critical qualifier is "may." The legal press is chock-full of articles, written by
    lawyers for lawyers, about how to manage e-discovery. Missing has been straightforward
    guidance for CIOs about their e-discovery management role. I hope to fill this gap by
    providing concrete and common-sense steps that you and your IT team can take to
    ffectively manage the size and cost of e-discovery. The first step in this process is
    to understand some of the e-discovery rules of engagement.

Experts Excluded In Asbestos Case, After Defendants DaimlerChrysler And Volkswagen Win Bid For Frye Hearing

Article from Mealey's Publications -- Experts Excluded In Asbestos Case, After Defendants DaimlerChrysler And Volkswagen Win Bid For Frye Hearing:

    Two plaintiffs’ experts in asbestos friction products litigation did not rely on
    generally accepted methods in concluding that every exposure to asbestos products
    is a proximate cause of asbestos-related disease, a judge said Aug. 17 in excluding
    the testimony (Re: Toxic Substances Cases>AD 03-319, Pa. Comm. Pls., Allegheny Co.).

    Defendants DaimlerChrysler Corp. and Volkswagen of America filed a motion for a
    Frye hearing. Allegheny County Common Pleas Judge Robert J. Colville ordered a
    handful of representative cases to be selected for purposes of the hearing. Drs. David
    Laman and John Maddox submitted non-case-specific expert reports.

Doubt Raised on Drug-Coated Heart Stents

Article in the Washington Post -- Doubt Raised on Drug-Coated Heart Stents, by Maria Cheng:

    Experts expressed concerns Sunday that drug-coated heart stents -- metal-mesh
    tubes used to prop open coronary arteries --may in rare instances lead to potentially
    fatal blood clots.

    Studies released Sunday at the World Cardiology Congress in Barcelona raised new
    concerns about the risks that may accompany the drug-coated stents, which were
    introduced in 2000 as an improvement on bare-metal stents.

    Nearly 6 million people worldwide now have the drug-lined versions. The devices
    are intended to keep arteries open after having been cleared of fatty deposits and are
    often credited with saving patients from future heart attacks or bypass surgery.