Mass Tort Litigation Blog

Symposium on New Frontiers in Torts: The Challenges of Science, Technology & Innovation at Southwestern Law School in Los Angeles

The Southwestern Law Review Symposium, New Frontiers in Torts: The Challenges of Science, Technology, and Innovation, will take place on Friday, February 7, 2020 at Southwestern Law School in Los Angeles.  The Symposium is the inaugural event of Southwestern Law School’s Panish Civil Justice Program, which was endowed by one of the country’s leading trial lawyers, Southwestern Law School alumnus Brian Panish.  The Symposium's first panel will focus on tort practice, addressing an eclectic mix of subjects ranging from predictive analytics and e-discovery to scientific evidence and the cognitive science of jury persuasion.  Next, panel two will examine recent trends in financing lawsuits and proposals for changing non-lawyer relationships with law firms.  In panel three, the discussion turns to new forms of tort litigation, including recent developments in multidistrict, complex, class, and toxic tort actions such as the opioid mass litigation, among others.  The fourth panel will examine tort theory, analyzing both how traditional theories can deal with new tort problems and how new theories may help place old quandaries in sharper focus.  The Symposium will also include a luncheon keynote discussion on the past, present, and future of torts.  Registration for the symposium is available now.

Speakers and moderators at the symposium will include the following:

• Ronald Aronovsky, Professor of Law, Southwestern Law School;
• Mark Behrens, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• John Beisner, Partner and Leader, Mass Torts, Insurance and Consumer Litigation Group, Skadden Arps Slate Meagher & Flom LLP;
• Alan Calnan, Professor of Law, Southwestern Law School;
• Fiona Chaney, Investment Manager and Legal Counsel, Bentham IMF;
• James Fischer, Professor of Law, Southwestern Law School;
• Manuel Gomez, Associate Dean of International and Graduate Studies and Professor of Law, Florida International University College of Law;
• Michael Green, Bess and Walter Williams Professor of Law, Wake Forest University School of Law;
• Gregory Keating, Maurice Jones, Jr. – Class of 1925 Professor of Law and Philosophy, University of Southern California Gould School of Law;
• Richard Marcus, Coil Chair in Litigation and Distinguished Professor of Law, UC Hastings College of Law;
• Francis McGovern, Professor of Law, Duke Law School;
• Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas at Austin School of Law;
• Brian Panish, Founding Partner, Panish, Shea & Boyle;
• R. Rex Parris, Founding Partner, Parris Law Firm;
• Christopher Robinette, Professor of Law and Director, Advocacy Certificate Program, Widener University Commonwealth Law School;
• Michael Sander, Managing Director and Founder, Docket Alarm, and Director, Fastcase Analytics;
• Victor Schwartz, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
• Catherine Sharkey, Crystal Eastman Professor of Law, New York University School of Law;
• Kenneth Simons, Chancellor’s Professor of Law, UC Irvine School of Law;
• Byron Stier, Associate Dean for Strategic Initiatives and Professor of Law, Southwestern Law School;
• Dov Waisman, Vice Dean and Professor of Law, Southwestern Law School; and
• Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Marymount University Law School Los Angeles.

NFL and Big Tobacco?

The New York Times has an article today on the link between NFL and Tobacco called NFL's Concussion Research Deeply Flawed. 

What does this mean for the NFL settlement?  Should the issue be approached in the mode advocated long ago by Francis McGovern - that is, by allowing the mass tort to mature through multiple trials before a settlement is reached?  

This article also raises the question of how the law promotes and creates disincentives for entities to conduct reliable scientific studies.  For interesting takes on that question, compare Wendy Wagner, Choosing Ignorance in the Manufacture of Toxic Products with Wendy Wagner, When All Else Fails: Regulating Risky Products Through Tort Litigation.  

 

Federal Government to Require Pharmaceutical Company Reporting of Payments to Doctors

The New York Times reports that under new regulations to be announced by the Obama administration, pharmaceutical companies will have to report payments to non-employee doctors for "research, consulting, speaking, travel and entertainment."  The reporting requirements are to cover any company that has a product covered by Medicare or Medicaid, and the reporting information is to be subsequently posted by the government on a publicly accessible website.

BGS 

Size of BP Leak Larger Than BP Earlier Estimated

BP had been saying 5,000 barrels a day had been leaking into the Gulf, but the clean-up siphon is itself now pulling up 5,000 barrels a day and the siphon is only reaching a portion of the escaping oil.  For more, see the CNN story, BP: Oil gusher bigger than we estimated.

And here's some recently released video of the BP rig on fire after the initial explosion.

BGS

Klein on "Science Causation and Toxic Torts"

A provocative post from Andrew Klein as part of Torts Prof Blog's ongoing Monday guest blogger series. Check it out here.

ADL

Reynolds' Move Into Smokeless Products

Thorough article in the Wall Street Journal -- Smokeless Products Are Tough Test for Reynolds, by David Kesmodel.

BGS

Albany Law Journal Symposium Issue on Off-Label Drug Prescription

The Albany Law Journal of Science & Technology has published a symposium issue on Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label.  My article, Promotion of Off-Label Drug Use: In Favor of a Regulatory Retreat, 19 Alb. L.J. Sci & Tec. 609 (2009), is included.

BGS

Walter Olson Attempts to Defuse the Toyota Panic

His article, Exorcising Toyota’s Demons, was published today in the National Review online.

BGS

Increase in Black Lung Disease

Today's Wall Street Journal has an article on increases in Black Lung Disease, Black Lung on Rise in Mines, Reversing Trend, by Kris Maher.  Black Lung claims are covered by a federal Black Lung program, which provides an administrative mechanism for compensation, funded by a tax on coal.  What's interesting is that the rise in claims occurs despite improving technology, which would be expected to decrease health problems.  Thus, the article explores possible causes, such as longer workshifts or more productive machinery that might produce more dust.  If machinery is the culprit, it's possible that individual mining companies might have had an incentive to prioritize powerful machinery over safe machinery, if the costs of worker illness are spread throughout the entire industry via a coal tax.  (Remedy: return to a system of individual tort claims against mining companies, or at least some administrative/tax penalty for companies with higher Black Lung claims.) 

But one other possibility for the rise in Black Lung needs to at least be considered and explored: fraud. Recent events with silicosis are similar: historically falling disease rates in tandem with improving technology, followed by an odd spike in supposed disease incidence.  In a now-storied Daubert inquiry, Judge Janis Jack, who herself had a background in nursing, inquired into the basis of expert testimony and diagnosis and uncovered biased and unreliable procedures that may amount to fraud; her discoveries effectively ended what appeared to be a new mass tort.  See NPR, Silicosis Ruling Could Revamp Legal Landscape.  Concerns of fraud and abuse should be even greater in the context of an administrative program that lacks the adversarial scrutiny of formal litigation.  And the Black Lung program has historically been plagued by such problems.  A 1989 article in the West Virginia Law Review, authored by a former Department of Labor counsel and a private practitioner, concluded,

[T]he program has been plagued by fraud and abuse. There have been investigations, and indictments, and convictions of agency personnel, claimant's representatives, and medical care providers.  The program has been infected by an undercurrent of “petty corruption.”  If anything, the program is the most often cited example of why Congress should leave occupational disease compensation to the individual states.

Allen R. Prunty & Mark E. Solomons, The Federal Black Lung Program: Its Evolution and Current Issues, 91 W. Va. L. Rev. 665, 734 (1989). 

BGS

WLF Web Seminar on Off-Label Communication

On October 14, 2009, the Washington Legal Foundation hosted a web seminar, Communicating on Off-Label Treatments: Navigating the Treacherous Path Paved by Civil and Criminal Law Enforcement, with speakers Robert Salerno and Adam Hoffinger of Morrison & Foerster.  Streaming video of the event is available online.

BGS

Pro-Defense Daubert Ruling in Bausch & Lomb MoistureLoc MDL

Pertaining to the more speculative cases alleging non-fusarium infections.  Drug & Device Law analyzes the opinion.

BGS 

Viagra MDL Judge Rejects Plaintiff Expert Testimony Under Daubert

A detailed analysis (with rejoicing) from Drug and Device Law.  The opinion details deficiencies in the plaintiff expert's previously peer-reviewed and published study.  

For a past article of mine that set forth problems in the main study underlying the opinions of plaintiffs' experts in the phenylpropanolamine (PPA) litigation, see here. 

BGS

Climate Change Litigation and Legislation

Sean Wajert (Dechert) from Mass Tort Defense offers an update.

BGS

Plaintiffs' Expert Testimony on General Causation Excluded in Non-Fusarium Eye-Infection Contact-Lens Case Against Bausch & Lomb

Article in AmLaw Litigation Daily -- Shook Hardy Wins Junk Science Dismissal for Bausch & Lomb, by Ben Hallman.  Here's an excerpt:

In 2006 Bausch & Lomb yanked its ReNu Moisture Lock contact lens solution from store shelves following a Centers for Disease Control study that showed an association between the product and eye infections. The problem related to a specific kind of fungus called fusarium. Left untreated, a fusarium infection causes all sorts of nasty eye problems, including cornea scarring, which requires surgery. Over the last few years, Bausch & Lomb has settled about 400 fusarium claims. The company also faced claims from contact wearers who have gotten non-fusarium infections. On Wednesday, New York state court judge Shirely Kornreich threw out the case, ruling that plaintiffs had failed to present any compelling evidence that linked eye infections of other varieties to the Bausch & Lomb product.

And here's a link to the opinion by Justice Kornreich of the New York Supreme Court, New York County.

BGS

U.S. Homeowner Health Problems from Chinese Drywall

Article in the Wall Street Journal -- Homeowner Problems With Chinese-Made Drywall Spread, by Michael Corkery.  Here's an excerpt:

Complaints about foul-smelling Chinese-made drywall that first emerged in a few dozen homes in Florida in January have spread to hundreds of homes in several states, fueling controversy over the Chinese import.

Fearing that the construction material is making them sick, homeowners are moving out of their houses, filing lawsuits and demanding help from lawmakers. Two U.S. senators have proposed a temporary ban on certain Chinese drywall imports. A Chinese government agency is also investigating, according to a Chinese news report.

The actual health effects of the drywall, which is commonly used to construct interior walls, are still unknown. While homeowners attribute bloody noses, sinus problems and headaches to the drywall, the Florida health department said there is no evidence that gases being emitted from the construction material pose a serious health risk.

BGS