March 20, 2013
Widener Law Symposium: Perspectives on Mass Tort Litigation
Widener University School of Law and the Widener Law Journal are presenting a day-long symposium, Perspectives on Mass Tort Litigation, on Tuesday, April 16, 2013 in Harrisburg, Pennsylvania. The Honorable Eduardo Robreno of the Eastern District of Pennsylvania will present a luncheon address, Federal Asbestos Litigation: Black Hole or New Paradigm? Other participants include Hon. Thurbert Baker (McKenna Long); Mark Behrens (Shook Hardy); John Beisner (Skadden); S. Todd Brown (SUNY Buffalo); Scott Cooper (Schmidt Kramer); Amaris Elliot-Engel (Legal Intelligencer); Michael Green (Wake Forest); Deborah Hensler (Stanford); Mary Kate Kearney (Widener); Randy Lee (Widener); Bruce Mattock (Goldberg Persky); Tobias Millrood (Pogust Braslow); Linda Mullenix (Texas); Christopher Robinette (Widener); Susan Raeker-Jordan (Widener); Sheila Scheuerman (Charleston); Victor Schwartz (Shook Hardy); William Shelley (Gordon & Rees); Aaron Twerski (Brooklyn); Nicholas Vari (K&L Gates); and Nancy Winkler (Eisenberg Rothweiler). I will also participate via Skype videoconference. Here's the brochure: Download Widener 2013 MTL Symposiu Brochure
October 10, 2012
7th Annual ABA Chemical Products and Toxic Torts Regional Seminar
January 15, 2012
California Supreme Court Limits Certain Manufacturers' Asbestos Liability in O'Neil, Describes Navy's Conduct Leading to Asbestos Injury for Service Members
In O'Neil v. Crane Co., the California Supreme Court this past week rejected asbestos liability for manufacturers whose products are added by third parties to other products that contain asbestos. No. S177401, slip op. (Cal. Jan. 12, 2012) Download O'Neil v. Crane Co_Cal Supreme Court_2012. The plaintiffs had argued that the defendants should be held liable because of the foreseeability that their products would be combined with other asbestos-containing products to which plaintiff was exposed, but in its opinion the Court highlighted that the defendant's product did not require asbestos-containing products and in fact could have been with used in combination with non-asbestos-containing products. Id. at 1, 12.
In its analysis, the opinion quotes Professor Alan Calnan's and my introductory asbestos article for the 2008 asbestos symposium at Southwestern Law School that Professor Calnan and I co-chaired, and at which co-blog editor Howard Erichson also spoke. Id. at 17 n. 19 (noting that "[s]ome commentators have observed that, due to the bankruptcies of...major suppliers of asbestos-containing products, asbestos personal injury litigants have shifted their focus in the past decade to 'ever-more peripheral defendants'"); Download Calnan & Stier_Perspectives on Asbestos Litigation_Overview and Preview_2008.
The facts in O'Neil underscore the federal government's role in asbestos injury to those in military service. From 1965 to 1967, plaintiff O'Neil served in the boiler room on the USS Oriskany, a Navy aircraft carrier authorized in 1942 and launched in 1945. Id. at 5. The Court notes that "[a]s early as 1922, the Navy was aware that airborne asbestos could potentially cause lung diseases," and "[i]ts industrial hygienists conducted studies on the health effects of asbestos exposure from the prewar period until well into the 1960s." Id. Nevertheless, the "Navy preferred asbestos over other types of insulating materials because it was lightweight, strong, and effective"; "Navy specifications required the use of asbestos-containing insulation"; and the Navy even ordered the conservation of asbestos in 1942 for the war effort. Id. at 2-3. Even if asbestos was beneficial militarily, the Navy might still have taken safety precautions to protect seamen. But as the Court notes, "the Navy did not warn seamen about the hazards of working with asbestos-containing materials and did not advise them to wear respirators or take other precautions during dusty work." Id. at 5-6.
The Navy is immune from suit because of the discretionary function exception to waivers of sovereign immunity. Id. at 6 (citing Collins v. Plant Insulation Co., 110 Cal. Rptr. 3d 241 (Cal. Ct. App. 2010), and Sea-Land Service, Inc. v. United States, 919 F.2d 888, 892-93 (3d Cir. 1990)). But through the Department of Veterans Affairs, the federal government does provide healthcare benefits, disability compensation, and dependency and indemnity compensation for veterans whose death stems from a service-related injury or disease, and has information specifically tailored to servicemen exposed to asbestos. See Dep't of Veterans Affairs, Occupational and Environmental Exposures: Asbestos. Removing such claims from litigation may be well-advised for the Navy, but one wonders if the apparently small and rigidly determined amounts of compensation by the VA offered are consistent with a government that also fully funds the 9/11 Victims Compensation Fund and demands a $20 billion Gulf Coast Claims Claims Facility from BP. To what degree has the low compensation offered by the federal government for its asbestos-related wrongs led to questionable claims against manufacturers, and the flooding of the courts with lawsuits?
September 22, 2011
Asbestos Victim Receives $20 Million Jury Verdict
A Miami (Broward County) jury awarded some $20 million to Charles Garrison and his wife in an asbestos case against Union Carbide, Corp. Garrision was diagnosed with mesothelioma in 2008 and explained that he never saw any warning labels on Georgia Pacific's joint compound about its asbestos-laden contents.
August 25, 2011
RAND Reports on Asbestos Bankruptcy Trusts and Tort Compensation
RAND's Institute for Civil Justice last week released its report, Asbestos Bankruptcy Trusts and Tort Compensation, by Lloyd Dixon and Geoffrey McGovern. Here's the summary:
Payments by asbestos bankruptcy trusts have played an increasingly important role in compensating asbestos injuries and have become a matter of contention between plaintiff and defense attorneys. At issue is how tort cases take into consideration compensation paid by trusts and the evidence submitted in trust claim forms. This monograph examines how such evidence and compensation are addressed by state laws and considered during court proceedings. It also examines how the establishment of the trusts potentially affects plaintiff compensation from trusts and the tort system combined, payments by defendants that remain solvent, and the compensation available to future, as compared to current, plaintiffs. The authors find that the potential effects of trusts' replacement of once-solvent defendants are very different in states with joint-and-several liability than in states with several liability. In states with joint-and-several liability, total plaintiff compensation should not change. In several-liability states, the replacement of once-solvent defendants by trusts can cause total plaintiff compensation to increase, decrease, or remain unchanged. The findings underscore the importance of information on plaintiff exposure to the products and practices of the bankrupt firms in determining the trusts' effects on plaintiff compensation and on payments by defendants that remain solvent.
RAND also published the shorter Research Brief, Bankruptcy Trusts, Asbestos Compensation, and the Courts, by the same authors.
May 08, 2011
$322 Million Asbestos Verdict
Last Thursday, a jury in Smith County Mississippi awarded the largest asbestos verdict in United States history against Chevron Phillips Chemical and Union Carbide Corporation. The award compensated Thomas "Tony" Brown, Jr. for future medical expenses, pain and suffering, and punitive damages. Here's a link to the story from Laurel Leader-Call and the WSJ Law Blog story by Ashby Jones.
January 12, 2011
U.S. Supreme Court Grants Cert. in Halliburton Securities Class Action Case Involving Statements on Asbestos Liabilities
More on the case from the Reuters article, Supreme Court to Hear Halliburton Securities Case, by James Vicini, as well as from SCOTUSblog. Yes, it's a securities case and so not our usual focus in mass torts, but it will be interesting to see if the Court comments on class actions or asbestos-related litigation generally.
April 01, 2010
Mass Torts & Bankruptcy Teleconference
HB Litigation Conferences will be hosting a teleconference on Mass Torts & Bankruptcy on Wednesday, April 7, from 2:00 p.m. to 3:40 p.m. EST. I'll be speaking along with Steven C. Bennett (Jones Day), Sander Esserman (Stutzman Bromberg), and Mark Plevin (Crowell & Moring).
August 20, 2009
Anita Bernstein on Asbestos Achievements
Anita Bernstein (Brooklyn) has posted to SSRN her article, Asbestos Achievements. Here's the abstract:
This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs’ bar call these advocates greedy, unethical, and over-enriched. Regardless of the merits of the accusations, any judgment of these lawyers must also recognize what they achieved. American legal doctrines, both substantive and procedural, had stood in the way of asbestos plaintiffs’ claims. The vigorous advocacy and creative challenges that overcame these barriers should inspire all lawyers who seek to perform effectively in behalf of clients.
June 29, 2009
Supreme Court Reaffirms Availability of Damages for Fear of Future Illness in Asbestos Cases
In CSX Transportation, Inc. v. Thurston Hensley, the Supreme Court addressed the question of whether a former railroad worker who contracted astestosis after long-term exposure to asbestos on the job could recover damages for pain and suffering under the Federal Employers' Liability Act (FELA) based on his fear of developing lung cancer in the future. In its June 1 decision, the Court, per curiam, reaffirmed a prior requirement that such damages are available but are limited to plaintiffs who can prove that their fear of cancer is both genuine and serious; the Court thus found that the lower court erred by not utilizing a jury instruction embodying this standard. The full text of the opinion can be found here.
May 01, 2009
Justice Souter Retiring
Justice David Souter plans to retire from the Supreme Court when the term ends in June, according to new accounts. In the field of mass torts, Justice Souter authored the majority opinion in Ortiz v. Fibreboard Corp., the 1999 decision rejecting a Rule 23(b)(1)(B) limited fund settlement class action in asbestos litigation. After Ortiz, non-opt-out settlement class actions -- which in the 1990s had some appeal as a potential mechanism for resolving future claims in high liability mass torts -- are both difficult and unappealing to use as a mass tort settlement mechanism. For the tenth anniversary of Ortiz, the University of Kansas is planning a symposium in October, organized by mass torts prof Laura Hines.
April 07, 2009
Mark Lanier Expanding Plaintiffs' Tort Law Firm
Article by Alison Frankel in AmLaw Litigation Daily -- Texas Torts Firm Says Business Is Booming, Expands Houston Office. The article has some interesting quotes from Mark Lanier about asbestos litigation. Here's an excerpt from the article:
We couldn't let that comment pass without asking what were still home run jurisdictions for asbestos claimants. There aren't a lot, Lanier said: Baltimore; New York; some parts of California, though that's beginning to change; and West Virginia, if you can get jurisdiction there. Lanier told us he's hoping to revive Texas asbestos litigation and is making a new push to file cases in Boston.
Wall Street Journal Editorial on Silicosis Fraud Follow-Up
Here's an excerpt from the Journal's editorial, The Silicosis Abdication: A scam that deserves as much scrutiny as Lerach and Scruggs:
That's an especially apt question given news that New York's State Board for Professional Medical Conduct has finally revoked the license of Dr. Ray Harron. He was among the doctors who Texas Judge Janis Graham Jack showed had fraudulently diagnosed thousands of plaintiffs with silicosis, a rare lung disease. These doctors were later called to testify in Congress, where many, including Dr. Harron, took the Fifth Amendment.
Dr. Harron has since lost his medical licenses in California, New Mexico, Texas, Florida, North Carolina and Mississippi. This is progress, though hardly sufficient. Among the questions Congress asked state departments of health during the silicosis hearings were why those bodies hadn't moved to shut down these doctors and their mobile X-ray vans at the time they were committing medical malpractice.
March 11, 2009
Panel on New Book, Regulation by Litigation, by Andrew Moriss, Bruce Yandle, and Andrew Dorchak
The Federalist Society is hosting a panel on the new book, Regulation by Litigation (Yale Univ. Press 2008), co-authored by Professor Andrew Morriss (Illinois), Professor Bruce Yandle (Clemson, Economics Dep't), and Andrew Dorchak (Case Western, Law Library). The event will be held on Tuesday, March 17, 2009 at the Mayflower Hotel in Washington, D.C. Panel members will include the book's authors, as well as Professor David Vladeck (Georgetown) and Roger Martella (Sidley Austin), and the moderator will be Jonathan Adler (Case Western). Here's the description of the book:
Federal and state regulatory agencies are increasingly making use of litigation as a means of regulation. In this book, three experts in regulatory law and theory offer a systematic analysis of the use of litigation to impose substantive regulatory measures, including a public choice-based analysis of why agencies choose to litigate in some circumstances.
The book examines three major cases in which litigation was used to achieve regulatory ends: the EPA’s suit against heavy duty diesel engine manufacturers; asbestos and silica dust litigation by private attorneys; and private and state lawsuits against cigarette manufacturers. The authors argue that litigation is an inappropriate means for establishing substantive regulatory provisions, and they conclude by suggesting a variety of reforms to help curb today’s growing reliance on such practice.
March 02, 2009
Libby, Montana Asbestos Criminal Trial Begins
Article on cnn.com -- Decades later, asbestos-ravaged town has its day in court, by Josh Levs. Here's an excerpt:
For much of the last century, people in the small town of Libby, Montana, were surrounded by toxic asbestos. It covered patches of grass, dusted the tops of cars and drifted through the air in a hazy smoke that became a part of their daily lives.
Now, after decades of suffering and watching loved ones die, area residents are getting their day in court.
Federal prosecutors have begun a trial of the mining company they blame for the pollution, which doctors say left more than 1,000 people ill and more than 200 dead.
February 05, 2009
Southwestern University Law Review Asbestos Symposium Issue
The Southwestern University Law Review has published its issue in connection with the symposium, Perspectives on Asbestos Litigation, which Professor Alan Calnan and I co-chaired here at Southwestern Law School on Friday, January 18, 2008. Here are the articles contained in the issue:
Alan Calnan & Byron Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459 (2008). Download calnan_stier_introduction_final_pdf.pdf
Mark A. Behrens & William L. Anderson, The "Any Exposure" Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 Sw. U. L. Rev. 479 (2008). Download behrens_anderson_article_final_pdf_121808.pdf
Helen E. Freedman, Selected Issues in Asbestos Litigation, 37 Sw. U. L. Rev. 511 (2008). Download freedman_article_final_pdf_121808.pdf
Michael D. Green, Second Thoughts About Apportionment in Asbestos Litigation, 37 Sw. U. L. Rev. 531 (2008). Download green_article_final_pdf_121808.pdf
Phil Harley, Judicial and Practical Perspectives: Transcript of Phil Harley, 37 Sw. U. L. Rev. 533 (2008). Download harley_transcript_final_pdf_121808.pdf
David G. Owen, Against Priority, 37 Sw. U. L. Rev. 557 (2008). Download owen_article_final_pdf_121808.pdf
Keith N. Hylton, Asbestos and Mass Torts with Fraudulent Victims, 37 Sw. U. L. Rev. 575 (2008). Download hylton_article_final_pdf_121808.pdf
James A. Henderson, Sellers of Safe Products Should Not Be Required to Rescue Users From Risks Presented by Other, More Dangerous Products, 37 Sw. U. L. Rev. 595 (2008). Download henderson_article_final_pdf_121808.pdf
Gregory C. Keating, The Heroic Enterprise of the Asbestos Cases, 37 Sw. U. L. Rev. 623 (2008). Download keating_article_final_pdf_121808.pdf
Richard Nagareda, Public and Private Law Perspectives: Transcript of Professor Richard Nagareda, 37 Sw. U. L. Rev. 659 (2008). Download nagareda_transcript_final_pdf_121808.pdf
Howard Erichson, Public and Private Law Perspectives: Transcript of Professor Howard Erichson, 37 Sw. U. L. Rev. 665 (2008). Download erichson_transcript_final_pdf_121808.pdf
Jospeh Sanders, Medical Criteria Acts: State Statutory Attempts to Control the Asbestos Litigation, 37 Sw. U. L. Rev. (2008). Download sanders_article_final_pdf_121808.pdf
Anita Bernstein, Asbestos Achievements, 37 Sw. U. L. Rev. 691 (2008). Download bernstein_article_final_pdf_121808.pdf
Neil Vidmar, Social and Cultural Perspectives: Transcript of Professor Neil Vidmar, 37 Sw. U. L. Rev. 717 (2008). Download vidmar_transcript_final_pdf_121808.pdf
Judy Sloan, Perspectives on Asbestos Litigation: Introduction to the Keynote Address, 37 Sw. U. L. Rev. 731 (2008). Download sloan_transcript_final_pdf_121808.pdf
Barbara Rothstein, Perspectives on Asbestos Litigation: Keynote Address, 37 Sw. U. L. Rev. 733 (2008). Download rothstein_transcript_final_pdf_121808.pdf
My many thanks again to all those who worked on the symposium and the issue, and of course to all of the speakers (including co-blogger Howard Erichson) who made for a fascinating day.
February 5, 2009 in Aggregate Litigation Procedures, Asbestos, Class Actions, Conferences, Ethics, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (1) | TrackBack
February 03, 2009
Bruce Mandel and James Kline on Ohio Supreme Court's Greater Deference to Legislative Tort Reform
Bruce Mandel and James Kline (both of Ulmer & Berne) list the areas of greater deference in their Washington Legal Foundation paper, Recent Ohio High Court Rulings Reflect Respect for Legislature's Role in Making Tort Law.
February 01, 2009
Upcoming American Association of Justice Meeting
January 26, 2009
The Causation Problem in Chemical Exposure Cases
Whereas some toxic substances have signature diseases (asbestos and tobacco come to mind) in other cases causation is difficult for impossible to prove, creating serious legal problems for workers and others exposed to the substances seeking compensation through the tort system. A New York Times article by Felicity Barringer ("Exposed to Solvent, Worker Faces Hurdles") from this past Saturday (January 24, 2009) details the story of a worker trying to obtain compensation for workplace exposure that he believes caused his Parkinsons. While a 2008 study showed increased risk of disease from exposure to the chemical at issue, that does not necessary translate into legal causation for purposes of worker's compensation and/or tort suits.
The article demonstrates how difficult it is to bring tort claims arising out of exposure to various toxic chemicals. As one lawyer stated:
“Most workers who have an occupational disease don’t think they have an occupational disease,” Mr. Metzger said, adding that “the few who might think it are mostly not successful” in getting compensation “because there isn’t a robust body of literature to support the claim.”
This problem demonstrates the interrelationship between our tort system, worker's compensation system, environmental, insurance and healthcare systems. Because we have a weak insurance and healthcare regime and weak regulations, many turn to the tort and worker's compensation systems to support workers who are harmed. But these systems are not well structured or suited to address the problems they are being asked to solve. The currect state of causation doctrine is one reason why.
December 23, 2008
Court Exposes Questionable Asbestos Expert Diagnoses
Echoing the shot heard round the world -- Judge Jack's opinion exposing systemic misdiagnoses by plaintiffs' experts in the silica litigation -- a Michigan state judge has now found a similar pattern of plaintiff-expert misdiagnoses in the asbestos litigation. From an editorial in today's Wall Street Journal:
Good legal news for a change: The courts keep making progress against phony asbestos lawsuits, this time in Michigan, where Wayne County Circuit Court Judge Robert Colombo, Jr., has risen to the challenge of a case we wrote about in November.
Judge Colombo has been overseeing asbestos cases in which defendants were trying to disqualify Michael Kelly, a physician who had diagnosed thousands of people with asbestos-related disease on dubious grounds. The judge made clear in court that he didn't appreciate the national attention of our editorial, to put it mildly. But in the end he did the right thing by granting a hearing into Dr. Kelly's diagnoses. Tellingly, the plaintiff attorneys immediately withdrew all but one of their suits.
The judge plowed ahead anyway, helping to expose another asbestos scam. Defendants presented evidence that Dr. Kelly was neither a radiologist nor a pulmonologist and had failed the test that certifies doctors to read X-rays for lung disease. They also showed that the overwhelming majority of hospital radiologists who had reviewed Dr. Kelly's patients found no evidence of disease. An outside panel of radiologists who looked at Dr. Kelly's work found abnormalities in only 6 of 68 patients; Dr. Kelly had found abnormalities in 60 of those 68.