Mass Tort Litigation Blog

Bloomberg Law Video on When Litigation Finance Met Mass Torts

Bloomberg Law has created a video, Billion-Dollar Lawsuits: When Litigation Finance Met Mass Torts.  Professor Linda Mullenix (U. Texas Law) is among the commentators.

 

The Short Guide To Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

Over at our sister blog, Business Law Prof Blog, Professor Ben Edwards has been making his way through my recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.  He does an excellent job of both summarizing and commentating on each chapter. So, if you just don't have the time to do a deep dive into a new book right now but want the quick and dirty takeaway alongside thoughtful, insightful commentary, here are the links to his posts so far:

Chapter 1 - Mass Tort Deal Making - on the nuts and bolts of class actions vs. multidistrict proceedings

Chapter 2 - Mass Tort Deals - on whether quid-pro-quo arrangements exist between lead plaintiffs' attorneys & defense lawyers 

Chapter 3 - Mass Tort Deals - on repeat player dynamics in aggregate litigation (leadership appointments, etc.)

Chapter 4 - Mass Tort Deals - on judges coercing facilitating mass tort settlements 

Chapter 5 - Mass Tort Deals - on the likeness between MDL deals and arbitration

Chapter 6, on reform proposals, will be coming next week.

If you're interested in all of the data and documents in the book, they are all available for free online. That site also has some data visuals that aren't in the book, like this one (clicking the image will bring up an interactive version):

 

Litigation Reform's Legislative Prospects

Bruce Kaufman, the senior legal editor at Bloomberg BNA, has written a very informative series of articles examining the prospects that the House, Senate, and President will enact wide-ranging tort and civil justice "reform" legislation.  This legislation includes:

• HR 985, the "Fairness in Class Action Litigation Act"
• HR 725, the "Innocent Party Protection Act"
• HR 469, the "Sunshine for Regulatory Decrees and Settlements Act"
• HR 720, the "Stop Settlement Slush Funds Act" or "Lawsuit Abuse Reduction Act"
• and HR 906, the "Furthering Asbestos Claims Transparency Act"

All three articles are worth a careful read.  Links and downloads included below, courtesy of Bruce and Bloomberg BNA.

• Part 1: Trump to Weigh Litigation Changes,  Download BNA - Trump to Weigh Litigation Changes Long Coveted by Business
• Part 2: Push to Enact Civil Justice Bills Follows Industry Playbook,  Download BNA - Push to Enact Civil Justice Bills Follows Industry Playbook
• Part 3: Trump Seen as Supportive of Business-Backed Litigation Bills,  Download BNA - Trump Seen as Supportive of Business-Backed Litigation Bills

For those of you who missed the academic roundup on HR 985, you can find it here.

Floor debate on at least four of the bills (including the now merged HR 985 and HR 906, class actions and asbestos) is scheduled to begin as soon as the week of March 6.  A seventh bill on medical malpractice reform, HR 1215, may be voted on the week after March 6.

Ongoing Asbestos Cleanup in Libby, Montana

The Wall Street Journal has an article on the ongoing asbestos cleanup by W.R. Grace in Libby, Montana:  In Montana Town, a Shut Mine Leaves an Open Wound, by Dionne Searcey.  The Journali also has a related slideshow.  The cost of the cleanup has so far been approximately $400 million.

BGS  

In Memorium: Ronald L. Mottley (1944-2013)

Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."

HME

Update: here's a link to the New York Times article. 

ECB

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

BGS

7th Annual ABA Chemical Products and Toxic Torts Regional Seminar

The seminar will take place in downtown New York at St. John's University School of Risk Management, on October 29, 2012.  Here's the brochure.

BGS

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?

BGS

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.

The Market Watch press release is here and AboutLawsuits.Com also has coverage available here.

ECB

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.  

BGS

$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.

ECB

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.

BGS 

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).

BGS

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.

BGS

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.

WBR

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.

HME

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:

In asbestos, Lanier's firm handles only mesothelioma cases, which he said have not slowed even though it's been decades since asbestos has been widely used. We asked whether the complaints by tort reformers that Delaware has become a haven for asbestos litigation were true, and, somewhat to our surprise, Lanier said that indeed, Delaware had become a frequent forum. But not, he hastened to add, because it's particularly friendly to plaintiffs. "It's not a home run forum for us," Lanier said. "It's a one-stop shop. You have jurisdiction over most defendants there."

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.

BGS

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:

It is going on four years since a Texas judge blew the whistle on widespread silicosis fraud, exposing a ring of doctors and lawyers who ginned up phony litigation to reap jackpot payouts. So where's the enforcement follow-up?

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.

BGS

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.

BGS

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.

BGS